In the Know - September 30, 2005

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a bimonthly Public Knowledge update

Contents:

Broadcast Flag Plot Thickens

When we last left the Recording Industry Association of America
(RIAA), the group was circulating on Capitol Hill a resolution from
a batch of music-industry groups asking Congress to give the FCC
authority to impose content controls on digital radio.

Since then, the plot has thickened, and RIAA is now taking some
proposed legislative language around the Capitol. It would give the
FCC authority to adopt such rules that “are appropriate to control
the unauthorized copying and redistribution” of digital radio
content.

The rule would apply to any “digital reception devices, related
equipment, and digital networks.” That about covers the landscape.
The RIAA is shopping its proposal in tandem with MPAA, which is
trying to find sponsors for its proposal, which would give the FCC
the authority to implement its broadcast flag regime that was
overturned by the courts in the case brought by PK and friends.

As of today, it appears as if the content industry’s first option,
to have the broadcast flag included in a spending bill, was
unsuccessful. Now it appears as if a second option, to have the
broadcast flag included in the giant budget bill that will deal in
part with the transition to Digital TV, also is losing ground.
Senate Commerce Committee Chairman Ted Stevens (R-Alaska) has said
he wants two separate DTV bills. One would deal strictly with
spectrum and budget issues, and the other would cover any other
DTV-related issues, including whatever requirements there would be
to require carriage of digital stations on cable, satellite or
telephone company broadband systems and, potentially, the broadcast
flag.

We have heard that the RIAA won’t support any broadcast flag
language unless theirs is also included. It’s not at all certain
that legislators will be willing to take away the right to record
off the radio that consumers have had for years.

In a letter to key legislators sent September. 19th by PK, Consumers
Union and the Consumer Federation of America, we said that: “We are
concerned that Congress may choose to rush into law an authorization
for the broadcast-flag scheme without fully considering both the
consumer impact of the scheme and the fact that the scheme will
require giving the federal government an unprecedented degree of
control over digital economy.” The letter was sent to the leadership
of both chambers, as well as to members of both Appropriations,
Budget and Commerce committees. Other groups, including the Center
for Democracy and Technology and a number of library associations,
have also sent their concerns to Congress. Stay tuned.

You can read the MPAA and RIAA language proposals here:

http://www.publicknowledge.org/issues/mpaa-riaa-floating-bflag-language

The news release on our letter, including the text, is here:

http://www.publicknowledge.org/pressroom/releases/pressrelease.2005-09-19.0953609319

Draft Telecommunications Bill
Released

The House Commerce Committee put its first bid in the telecom
legislation, releasing a 77-page staff draft of a bill on Sept. 15.
The legislation coins the term, BITS, for “Broadband Internet
Transmission Service.”

There are a couple of sections of the draft that reflect some of the
PK principles for an open broadband future. In particular, there are
decent sections on net neutrality, (what we call “bit
discrimination”), and municipal broadband that have a lot of
potential. The bill also could speed up competition in video
services by allowing telephone companies to start their video
businesses more quickly than cable did — by creating a national
franchise mechanism, rather than have the telephone companies go to
each individual licensing authority such as a county or city.

As always with legislation, draft or otherwise, that is this complex
and comprehensive, there are hundreds of details to be worked out.
For example, in the net neutrality section (Sec. 104), there are
provisions that some argue could turn out to be large loopholes that
could negate the positive effects of the section. Other critics note
that the definitions of what constitutes a broadband video service
could favor one telephone company over another.

The House staff, to its credit, has scheduled a series of meetings
with interested parties, including PK and other consumer groups, to
talk about the bill. The staff has also met with officials from
local governments, who are not pleased that their franchising power
would be taken away.

Here’s our reaction to the draft:

http://www.publicknowledge.org/pressroom/releases/pressrelease.2005-09-15.1817210311

Here’s the text of the draft:

http://www.publicknowledge.org/pdf/20050915-telecom-bill-house-discussion-draft.pdf

FCC Releases Order Deregulating DSL

The staff on Capitol Hill wasn’t the only group putting out a large
amount of paper recently. The Federal Communications Commission did
its bit by releasing their order deregulating telephone company
broadband service, Digital Subscriber Line (DSL).

The Commission lifted most of the existing regulatory restraints on
DSL. The Commission said repeatedly they expected, but wouldn’t
require, telephone companies to sell access to competing Internet
Service Providers, because there’s a good business case to be made
by doing so. They also didn’t buy the argument that there are many
places where there is no competition, saying they expected
competition to develop soon enough.

While the FCC’s order was 133 pages, it also issued a three-page
“policy statement” to which it relegated issues, such as “net
neutrality,” also known as “bit discrimination,” to make sure
consumers have access to any lawful content they want without
interference, and that consumers are entitled to competition among
network providers, service providers and content providers. While
setting out those lofty goals, they are goals only and not
enforceable.

The Commission’s order is here:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-150A1.doc

The policy statement is here:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.doc

PK Gives IP3 Awards, Special
Recognition to CEA’s Shapiro

Consumer Electronics Association President Gary Shapiro was the
winner of the previously unannounced, first Public Knowledge
President’s Award, given by PK President Gigi B. Sohn at the Sept.
29 IP3 awards dinner in Washington.

The IP3 awards honor contributions to intellectual property,
information policy and internet protocol. This year’s winners were
Dr. David P. Reed for his seminal work on Internet architecture; Dr.
Victoria Hale, for founding the Institute for One World Health which
uses donated intellectual property to create medicines for the Third
World; and Gregory Maguire, for his transformative use of public
domain material in creating new works of art, such as his novel,
“Wicked,” based on the “Wizard of Oz.”

Accepting his award, Dr. Reed spoke about the need for changes to
spectrum policy and its connection to intellectual property. Reed
said there is currently an “egregious policy structure” built around
technological assumptions that radio exists today as it did when the
technology was first being used. He said there is no need for radios
today to be built as they have been for years in their restricted
use of spectrum, but the regulatory system has been captured by
those who want to preserve the existing technology.

Reed added he objected to “intellectual property imperialism” that
many developed countries are trying to impose on lesser-developed
countries, and said he disagreed with the ideas that the word
“property” should be applied to knowledge.

Substituting for Dr. Hale, who was ill, Dr. John Kilama, president
of the Global Bioscience Development Institute (GBDI), also spoke on
the imposition of the foreign concept of intellectual property
rights on developing countries by the World Intellectual Property
Organization (WIPO). Dr. Kilama noted that intellectual property
rights are “very different” in many cultures and they are in the
U.S. For many countries, access to scientific and other information
is the key to survival: “I say to those who oppose intellectual
property reductions that you need to think twice about having that
position because it is the method by which societies can improve the
quality of their lives and be able to sustain their lives and
resolve problems in their society.”

Dr. Kilama described how Dr. Hale and her Institute are transforming
compounds developed by pharmaceutical companies but not put into
commercial use because there is little profit motive in doing so
into medicines that will be used to combat disease throughout the
Third World. Millions of lives could be saved from Black Fever and
malaria through the work of the Institute through the sharing of
intellectual property, Dr. Kilama said.

Maguire is on a book tour for his latest novel, a sequel to Wicked
called “Son of a Witch,” and wasn’t able to attend, although he will
be in the Washington area shortly. In a message he sent to PK,
Maguire said, “My work is partly based on common cultural material
for several reasons. I know that, in this day, people read fiction
only occasionally, and often reluctantly. A writer has to rely on
any hook at hand to ensnare the potential reader. When a work
derives some of its allure from cultural referents commonly held in
the public domain, a writer can be assured that his work will seem,
at least initially, comfortably familiar. The work then can (and I
hope my work does) proceed to use classic tropes to consider
contemporary issues.”

Maguire added that he was once considered as “intellectual property”
when he tried to change teaching jobs. The college president at an
institution at which he was working told the president of another
institution which wanted to employ Maguire that because Maguire’s
expertise in children’s literature had been amplified while working
at the first college, “it was tantamount to ‘theft of intellectual
property’ for the second college to hire me away. I was flattered at
being called ‘intellectual’ and less eager to bow to the notion of
being ‘property,’ my understanding being that the 13th
amendment to the Constitution had more or less outlawed such a
concept.” Maguire said.

In accepting his award, Shapiro said the PK award was the first he
had received for his work in intellectual property issues. “We’re in
a David versus Goliath situation [versus the content companies], and
the reason we’re winning as David is because we’re right and we’re
passionate and we care and we know that the world will be a better
place when people have access to information, education and
entertainment rather than shutting down their world.”

And now a word from our sponsors: The work PK is doing to protect
the free flow of information and sharing of knowledge is vital to
a vibrant democracy. You can help us continue to do so in two
ways. First, consider becoming a member of PK. Check out our
membership page (with the cool premiums for joining) at https://members.publicknowledge.org/pk_membership.
Or, you can donate to PK, at http://www.publicknowledge.org/donate.
Both are quick and easy. We thank you for your support.

Briefly:

The Senate Judiciary Committee held a two-hour hearing Sept. 27
about the post-Grokster world. PK didn’t testify, but we were
pleased to see that at the end of the day, Chairman Arlen Specter
(R-Pa.), said he didn’t think there was any need to legislate on
copyright liability issues — for now, at least. We agree. There was
some excellent testimony from Gary Shapiro, president of the
Consumer Electronics Association and law professor Mark Lemley about
the need to protect innovation and the need to find balance in a
copyright regime that now leans quite heavily in favor of the
content providers and away from tech companies and consumers.

American University’s Washington College of Law is having its first
Distinguished Lecture on Intellectual Property on Nov. 3. Fittingly,
the first Distinguished Lecturer will be Professor Pam Samuelson,
who will talk about “Copyright and Consumer Protection” You can get
more details by writing to iplecture@wcl.american.edu

Our own Peter Suber had a nice letter in the Washington Times
defending the National Institutes of Health plan for open access to
government-sponsored research. You can find the letter by going to
the Washington Times op-ed page and searching for Suber, or look at
the text on Peter’s blog here:
https://mx2.arl.org/Lists/SPARC-OAForum/Message/2357.html

And speaking of blogs, don’t forget to check out our newest one, the
PK policy blog:
http://www.publicknowledge.org/blogs/policy

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For the best in blogging: www.Godwinslaw.org, by Mike Godwin.
From ruminations on Tarzan, to plots against America, to experiments
with BitTorrent, it’s all here.