In the Know -- March 19, 2007

A Public Knowledge Update.

PK Gets Sirius About Satellite Radio

PK President Gigi Sohn testified once and will testify a second time on the proposed merger of the two satellite radio companies, XM and Sirius. The first time was Feb. 28 before the Antitrust Task Force of the House Judiciary Committee. The second time will be March 20 before the Antitrust Subcommittee of the Senate Judiciary Committee.

In her testimony, Gigi said that PK takes no position on the detailed antitrust analysis that has to be made in such a merger. There are issues involved such as defining whether the market to be analyzed is limited to the two companies in satellite radio, or whether the market covers the whole landscape of radio, or even could be expanded to listening to recorded music.

If the deal did pass such scrutiny, Gigi said, then the merger should be approved only if it is subject three conditions:

The new company makes available pricing choices such as a la carte or tiered programming.
The new company makes 5% of its capacity available to non-commercial educational and informational programming over which it has no editorial control.
The new company agrees not to raise prices for three years after the merger is approved.

In addition, Gigi said that the rights of consumers to record and store music from the satellite services should be protected. Public Knowledge would oppose “any merger condition involving any limitations on the ability of consumers to record these satellite radio services. Such a condition would be tantamount to repealing the Audio Home Recording Act, which specifically protects a consumer’s ability to record digital music,” Gigi said in her written testimony.

Gigi was also critical of the broadcasting industry for opposing the merger. She said it was hypocritical of the broadcasters to object at a time when that industry is seeking permission to consolidate even further.

Gigi and Sherwin have some good posts on the issue:
http://www.publicknowledge.org/node/850
http://www.publicknowledge.org/node/851

Gigi’s House testimony is here:
http://www.publicknowledge.org/node/845

Maryland Broadband Legislation Killed

Maryland Del. Herman Taylor (D) had a good idea about advancing broadband policy in Maryland when he introduced legislation calling for all high-speed Internet providers to report their deployments to the Public Service Commission (PSC).

As part of his legislation (HB 1069), Taylor also suggested, but did not require, that the Net Neutrality policies embodied in the AT&T takeover of BellSouth be applied in Maryland. But good ideas frequently wilt in the face of sustained lobbying, particularly when the opposition lobbying succeeds in mischaracterizing the bill.

Despite a strong grassroots campaign, Taylor pulled the bill from consideration rather than see it defeated in the House Economic Matters Committee. Those of us favoring the bill, including PK, Free Press, EDUCAUSE and consumer groups, testified at a committee hearing on Feb. 27. We set out the case for the bill as an economic development issue so that everyone could see which parts of the state had the benefits of broadband and which didn’t.

With the help of Moveon.org, we also managed to generate quite a few emails and telephone calls to legislators in support of the bill.

Unfortunately, the result didn’t turn out as we had hoped. Even before the bill’s hearing, rumors were flying around Annapolis that the bill wouldn’t make it out of committee. The rumors were right. Lobbyists from Verizon and Comcast descended immediately, aided by their acolytes in business and labor groups. As with most state capitals, the industry lobbyists are familiar faces to legislators, while we weren’t. They succeeded in confusing the issue beyond belief.

The most frustrating part of the experience was that the opposition willfully misinterpreted the bill and proceeded to scare off anyone who might have wanted to support it. They said that the bill would “regulate the Internet,” and cause conflicts with the Federal government. One lobbyist went so far as to claim the bill would force little coffee shops to raise their prices to comply with the bill’s requirements. Even with two letters from the Attorney General disputing that, the distortions continued.

Taylor decided not to let the bill go to a vote this year, but is leaving the door open for another attempt next year.

Some of Art’s posts on the subject are here:
http://www.publicknowledge.org/node/859

and here:
http://www.publicknowledge.org/node/853

Google Sued By Viacom

Viacom sued Google and YouTube for alleged copyright infringement, asking damages of $1 billion. In its complaint, Viacom tried to create a case that the video service purposefully violated copyrights.

It looks like another of those “old media” versus “new media” fights. Our view:

Without commenting on the specific allegations involved, we note that simply because material is “unauthorized” does not make its use illegal. There are limitations to copyright law, known as fair use, that do not require the copyright owner’s permission before use of a work. Many of the users of YouTube who have posted short clips of main-stream media’s works have done so using their fair use rights, for reasons of criticism, comment, education, and news reporting.

We are confident YouTube and Google will continue to take appropriate actions in accordance with the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA). By a previous request of Viacom, YouTube has already removed some 100,000 clips.

Beyond the legalities of the issue, this is just another slap in the face by a big media company to its fans. While we’re not in favor of posting whole shows on YouTube, posting individual sketches can have a nice symbiotic effect. And while we definitely think that Viacom should be able to monetize its content, this kind of lawsuit isn’t the way to go.

Ironically, just a couple of days after Viacom filed its suit, Viacom former unit CBS announced a deal with YouTube to offer a “channel” that will have clips from NCAA basketball games.

Gigi is quoted on the lawsuit in the Financial Times here:
http://www.ft.com/cms/s/9412da98-d1d2-11db-b921-000b5df10621.html

She’s on Marketplace here:
http://marketplace.publicradio.org/shows/2007/03/13/PM200703132.html

PK Board member Larry Lessig writes about the copyright implications of the Viacom suit:
http://www.nytimes.com/2007/03/18/opinion/18lessig.html?_r=1&oref=slogin

Alex’s take is here:
http://www.publicknowledge.org/node/861

while Media Access Project’s Harold Feld provides his legal analysis here:
http://www.publicknowledge.org/node/862

Its 2007, a time to look ahead. PK will have lots to do this year. We will have to fight hard to make certain that the Internet stays free and open, as the telephone companies try yet gain to gain control over it. We will have to continue to defend our victory in the broadcast flag case as the content industry will resume its campaign for control over digital media, whether in the broadcast flag or in other legislation that would institute technological mandates. We are geared up to take the offensive this year in Net Neutrality, in copyright and in patent reform. So, let’s renew our request to you: Please support PK. Battling the well-funded telephone and cable companies isn’t easy. Neither is going up against the full force of the movie, TV and recording industries. But we are dedicated to doing it, to preserve the openness and innovation we all treasure. Please help. There are many ways you can support PK here:

http://www.publicknowledge.org/support

We thank you for your support!

Briefly:

Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA) introduced their legislation (HR 1201) to bring a measure of fair-use sanity to the Digital Millennium Copyright Act (DMCA). Alex’s analysis is here:
http://www.publicknowledge.org/node/857

Sherwin is back from a meeting of the Transatlantic Consumer Dialogue group to talk about Digital Rights Management. He explains what it is and why it’s important here:
http://www.publicknowledge.org/node/864

The World Intellectual Property Organization continues to trudge along on a treaty to protect broadcasters. Sherwin notes that some influential senators want to make sure our delegation goes in the right direction:
http://www.publicknowledge.org/node/852

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