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"Series of Tubes" Makes the Big Times(s) and gets Posted
Follow @artbrodskyOne hates not to dwell only on the negative, so let's start with the good news from the weekend. The Los Angeles Times on Saturday ran a [short story](http://www.latimes.com/business/la-fi-tubes15jul15,1,3473350.story) on the spread of the Ted Stevens "series of tubes" quote through the Net. The New York Times ran a [short story](http://www.nytimes.com/2006/07/17/business/media/17stevens.html?_r=1&oref=slogin) as well this morning. (You may need to register for both sites to read the stories). That's the good news. On the other hand, we note for the record with some chagrin that neither paper reported it was Public Knowledge that originally posted the audio clip to the Net. We didn't do it to embarrass Sen. Stevens, but to give the public an inside view of what can go on at a markup. Just so you know. Also, Al Kamen in the July 14 Washington Post [quoted](http://www.washingtonpost.com/wp-dyn/content/article/2006/07/13/AR2006071301505_2.html) Stevens, and provided a link to our site. That sort-of counts. Frank Ahrens in the Washington Post on Sunday had a [column](http://www.washingtonpost.com/wp-dyn/content/article/2006/07/15/AR2006071500093.html) on the MySpace.com situation with Andrew Raff's song about Ted Stevens. (I expect to take delivery in a couple of days for a flight suit so that I may ride in the right seat in a black helicopter.)
So what happenend at the FCC?
Follow @haroldfeldI have a much more complete write up on the resolution of the Adelphia transaction and what it may mean in the long run on my regular blog here. To condense that to points relevant here and comparing to my post last Wednesday: 1) The FCC failed to adopt a network neutrality condition. Commissioner Copps dissented in full from grant of the merger, while Commissioner Adelstien dissented from the failure to adopt a network neutrality condition but otherwise concurred in the order. In addition, Copps called for the FCC to add a "fifth principle" to the four broadband principles adopted last year. This fifth principle would prohibit tiering or other discrimination based on source or content, while permitting approriate network management. Adelstien, in his dissenting section, also endorsed this proposed principle. The FCC's failure to adopt a network neutrality principle does not augur well for adoption of such a principle in the AT&T/BellSouth merger. Chariman Martin's position, spelled out in his separate statement, acknowledges that there is a great deal of controversy about NN, but that he feels they have the power to enforce the existing principles if the FCC finds evidence of real harms. 2) Appropos of this, however, it is worth noting that FCC enforcement staff came in for quite the tongue lashing for their failue to enforce existing law against cable operators using their market power in violation of the 1992 Cable Act. How on Earth can people trust that the FCC staff will enforce the broadband "four principles" when it can't even manage to enforce laws passed by Congress? 3) The Commission did express a lot of interest in "leased access," a provision of the Cable Act (codified in Section 612 of the Communications Act, as amended) that requires cable operators to lease channels to independent programmers. This may provide a new venue for programmers to get around the cable bottleneck and promote more diverse viewpoints in video programming. We will need to see how this plays out in the comming months. 4) The FCC withdrew the digital audio broadcast (digital radio) item from the agenda. It is not clear why. It may be that the last minute negotiations over Adelphia prevented the Commissioners from reaching final agreement on the DAB item. In that case, the Commission may release it "on circulation" after the Commissioners vote on it (The FCC does not have to wait for an open meeting to vote on an item). Otherwise, Martin can put it back on the agenda for the August meeting and force a vote.
Responding to Felten (& Co.), squared
My response to Ed Felten's policy recommendations (Felten suggests we wait and see before imposing network neutrality mandates), has garnered its own response. Tim Lee of TechLiberation has posted two responses (first) (second), the first of which becomes part of Felten's sensible follow-up, and the second of which references this thoughtful post by EFF Chairman Brad Templeton.
The very short summary of the dispute goes like this: We network neutrality supporters are so scared of the perils of broadband discrimination that we are willing to accept the perils of imperfect regulation. Opponents are so scared of the perils of regulation that they are willing to accept the perils of discrimination, at least for now.
The other three guys are very intelligent people, one of whom has been dragged into this (reluctantly, I'm sure), and all of whom have thought long and hard about this. As in any decent debate, both sides have some merit.
First, consider the large degree to which we agree:
The Merits of Metadata
The [Stock Artists Alliance](http://www.stockartistsalliance.org/info/news/news.htm#manifesto) has just released a ["Metadata Manifesto"](http://www.stockartistsalliance.org/info/news/news.htm#), which calls for a standards in image file [metadata](http://en.wikipedia.org/wiki/Metadata). The group explains why the issue is so important: > Without effective systems in place for identifying and managing digital assets, everyone working with digital images is adversely affected. Resources are wasted, opportunities are lost, liability increases and intellectual property rights are eroded. We've previously argued the merits of establishing a [visual registry](http://www.publicknowledge.org/node/473) as a way to prevent work from becoming orphaned in the future. But creating standards in metadata is an even easier way for artists to protect their work sooner rather than later. > "This is SAA's wake-up call to the photo industry," says David Riecks, Chair of SAA's Imaging Technology Standards committee. "Photographers need to add metadata to their digital images now, or risk losing future income. Without metadata, they may as well be putting their images in a black hole." The groups that have been most opposed to [Orphan Works legislation](http://www.publicknowledge.org/pdf/ow-act-2006.pdf) have been those whose information is most easily separated from their work. Solutions like visual registries and mandatory metadata can prevent this problem and help photographers, illustrators and everyone in the digital world help themselves to maintain control of their work.
Broadcast Flag Smackdown: Video v. Audio
Follow @gigibsohnOne of the memes repeated over and over again at the [House Energy and Commerce broadcast flag hearing two weeks ago](http://energycommerce.house.gov/108/Hearings/06272006hearing1960/hearing.htm) was that the audio broadcast flag is much different (read: worse) than the video version. This argument is made largely to explain why the consumer electronics, software and broadcast industries are neutral or support the video flag, while they vehemently oppose the audio flag. Yes, there are some superficial distinctions between the two, but they are distinctions without a difference. Here are the justfications most often given for distinguishing the two flags: * *The video flag was developed by "consensus."* This one either makes me laugh out loud or furious. [First, there was significant disagreement on a number of issues surrounding the flag when it was proposed to the Copy Protection Technical Working Group, including whether it would be effective, whether it would have adverse consequences for consumers, and how specifically to enforce the "compliance and robustness" rules.]( http://www.cptwg.org/html/Bpdg_home_page.htm) Second, CE, software and other companies heartily opposed the flag scheme at the FCC, as, did, by the way, every consumer group working on this issue (we don't usually count when determining whether there is a consensus, it seems). In fact, [PK's filings in the broadcast flag court case](http://www.publicknowledge.org/issues/bfcase) were largely cribbed from Philips Electronics' FCC filings. But Hollywood's relentless pressure has paid off, and those companies who opposed the flag are either grudgingly supporting it, or neutral. * *The audio flag scheme would prohibit personal copying, while the video flag scheme only prohibits "mass, indiscriminate redistribution" over the Internet.* It is true that if you have the right equipment you should still be able to make personal copies with the video flag. (Remember, some old devices may not work with flag-compliant devices, and once you buy one brand of flag-compliant device, you must buy the same brand for all downstream devices). However, regardless of what the FCC claims that the broadcast flag scheme prohibits, all but one of the broadcast flag technologies approved by the FCC prohibit *all* Internet redistribution, not just "mass, indiscriminate" redistribution. So if I want to email a copy of my appearance on the local news to my mother, the flag prohibits me from doing so. Essentially, the video flag permits me to retain my fair use rights circa 1992. Not a significant improvement over the audio flag, if you ask me. * *The video flag scheme has been vetted and debated, the audio flag scheme has not.* It is true, and not insignificant, that unlike the video flag technology, no audio flag technology exists, although that certainly does not make the video flag scheme better policy. But it would be hard to argue that the concept of copy protection for digital and satellite radio has not been publicly debated. The FCC put the issue of broadcast radio content protection out for public comment, and Congress has had at least three hearings on various radio content protection proposals in this Congress. So the merits of radio content protection, whatever it might look like, has been and still is, being vigorously debated. Regardless of these distinctions, what the flag schemes have in common should alarm anyone wants to promote innovation and competition. Both flag schemes would put the Federal Communications Commission in the position of technology gatekeeper - determining what devices can and cannot come to market. This determination of course, would be made under great pressure from the powerful and persistent content industry to limit approvals to only those technologies with which they approve. This alone, should be enough reason for technology companies to oppose both flag schemes. So why are broadcasters, CE companies and software companies either supporting or neutral about the video flag yet opposed to the audio flag? It all comes down to politics, of course. Local broadcasters are not affected by the flag one way or another, but their Disney, Fox, Viacom & Universal-NBC brethren have put the thumbscrews to the National Association of Broadcasters (NAB) to support it. Some of the Hollywood studios, which also own broadcast stations, have quit the NAB before over media ownership battles, and one can only guess that their continued membership is contingent on NAB support of the video flag. Several CE companies, including the aforementioned Philips have decided it is better to join 'em than beat 'em. Having bet wrongly that we would lose our court case, Philips and some others have started to manufacture flag compliant devices, and don't want competition from more consumer-friendly non-compliant devices. And the support of companies like Philips hamstrings trade groups like the Consumer Electronics Association from taking a position. Tactically, I think it is a grave mistake to try and distinguish the two, since they are, at their core, exactly the same - ways for the content industry to have veto power over new devices. Even if the video flag somehow makes it into law without the audio flag ([unlikely given Senator Frist's desire to help his former chief of staff, RIAA CEO Mitch Bainwol](http://www.rollcall.com/issues/52_2/news/14165-1.html)), cries of "regulatory parity" will be heard from the RIAA's corner. And that is an argument that is likely to carry a great deal of weight at the FCC and elsewhere.
Ted Stevens Parody Song Pulled From Fox-Owned Web Site
Follow @artbrodskyUpdate: 5:47 p.m. It's back. After our story and your queries, MySpace.com has put back the Stevens song. This after saying that deleted accounts "cannot be reinstated." The song is [here](http://www.myspace.com/tedstevensfanclub). ******* The mystery of what happened to the "Ted Stevens Internet Fan Club" song that had been posted to MySpace.com, but disappeared after three days, has been solved. The song's author, Andrew Raff, [wrote](http://www.iptablog.org/2006/07/13/a_series_of_tubes_the_song_the_story.html ) that the song had been pulled down after a complaint had been filed against it on the Murdoch-owned site. Stevens' comments at the June 28 markup have [spread](http://www.publicknowledge.org/node/521) throughout the Internet -- and beyond. Last night's Daily Show got into the act with a piece about Stevens and the Internet, as I mentioned in the previous post. Stevens has been a show favorite, with host Jon Stewart occasionally showing scenes of Stevens on the Senate floor during some of his more rambunctious moments. Raff said he posted his song Saturday, July 8, after hearing Stevens' comments about the Internet. He sent a note about it to the popular site BoingBoing, and eventually 2,500 people heard the song, which Raff described as "marginally funny" and not sounding all that great. Our intern Tim Schneider liked it, though, calling it a ["haunting melody."](http://www.publicknowledge.org/node/521) Then it was gone. On his [site](http://www.iptablog.org), Raff said he got a message on Tuesday, July 11, from MySpace.com: >"MySpace has deleted your profile because we received a credible complaint of your violation of the MySpace Terms of Services." Prohibited activity includes, but is not limited to: >-Any automated use of the system, such as using scripts and/or bots to add friends, send messages, etc. >-For band and filmmaker profiles, MySpace prohibits sexually suggestive imagery or any other unfair, misleading or deceptive content intended to draw traffic to the profile. >-MySpace also investigates credible complaints of copyright/trademark infringement and will delete any materials that infringe upon the intellectual property rights of third parties. >For a more thorough list of prohibited content/activity, please refer to the MySpace Terms of Service located at the bottom of MySpace.com. If we delete your account, it cannot be reinstated." The MySpace [terms of service](http://collect.myspace.com/misc/terms.html?z=1) are quite lengthy. There are 27 separate items on their terms of service, and those constitute only a "partial list" of what can't be done. Frankly, we don't see how a little song about Ted Stevens fits into any of them, but in that case, there's always the catchall: >"MySpace.com reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the MySpace Services at any time, for any or no reason, with or without prior notice, and without liability." But Raff's situation is different, in no small part because MySpace.com is now part of the Murdoch empire, and because this is a particularly sensitive time for both MySpace and for Murdoch. The Web site is the target of a bill, HR 5319, the "Deleting Online Predators Act of 2006," that would cut off E-rate funds to schools and libraries that allow access to social networking Web sites. The House Telecom Subcommittee just held a [hearing](http://energycommerce.house.gov/108/Hearings/07112006hearing1974/hearing.htm) on the bill, with law enforcement authorities testifying in favor. The bill came about, in part, because of all of the bad publicity about MySpace.com as a possible haven for child pornographers and predators. In addition, there is the matter of the telecommunications legislation that Stevens' committee approved. There's a lot in the bill that NewsCorp wants. Fox has been the chief proponent of the broadcast flag, which is included. DirecTV would benefit from provisions allowing satellite carriers to file complaints with the Federal Communications Commission (FCC) in order to get access to regional sports programming now carried by cable. We don't know who filed the complaint, and we don't have any official explanation from MySpace.com on why Raff's account was cancelled. It could have been a low-level employee making a spuir-of-the-moment judgment. Frankly, though, it boggles the mind to think that of all the material posted on MySpace, one complaint against one semi-obscure song, is enough to get tossed off the site. It had to be more than a simple complaint filed by the complaint form on the site, because MySpace "will not honor delete requests" sent with the form. This is a very crucial time for the fate of the Senate telecom legislation. The Stevens staff is putting pressure on those who have items in the bill they want to work to make sure that Stevens can get the 60 votes needed to proceed on the Senate floor and to overcome a filibuster. Telephone companies large and small (particularly the politically potent rural companies), movie studios, record companies, municipal wi-fi providers and groups representing municipalities all have something in the bill. That's a formidable group. At the same time, Stevens has said he might try to pass a slimmed-down bill, so the heat is on those with items in the current, big bill, to make sure that they keep their gains for fear that some of the measures could be dropped are theirs. Raff's song apparently hit the wrong notes with someone.
preservesthe openness of the Internet and the public's access to knowledge, promotes creativity through balanced copyright, and upholds and protects the rights of consumers to use innovative technology lawfully.
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