Tag: Policy Blog

I, and many others like me, have been searching for a rationale behind the WIPO Broadcasters Treaty. While its original purpose was purportedly to protect against signal theft, the treaty instead would give broadcasters, and possibly webcasters, a 50 year copyright-like right in the signals they transmit. These would be rights layered on top of the real copyright holders rights, which would cause a huge array of problems. Naturally, there are also some mandatory technological protection measure provisions as well. A full list of our concerns is here.

Thanks to Ben Ivins, the National Association of Broadcasters lobbyist who is the driving force behind the broadcasters treaty, we now have a rationale for why it is necessary. According to Congress Daily, Ivins says that the treaty is needed to protect sports programming, particularly international soccer matches that can be picked up via satellite and rebroadcast in foreign countries. Wait a minute, that sounds like a…signal theft problem.

But I am glad to know now that WIPO is about to make policy that will result in chaos for consumers, consumer electronics companies, telecom and tech companies for the all important goal (no pun intended) of protecting televised soccer matches.

Late yesterday afternoon, Lamar Smith (R-TX), Chair of the House Subcommittee on Court, Internet and Intellectual Property introduced HR 5439, the Orphan Works Act of 2006. The bill, which seeks to limit liability for artists, educators and others who make a “reasonably diligent search” to find a copyright holder but cannot, is a significant improvement over the draft bill proposed by the Copyright Office in February. Here are some of the changes we like:

• It prohibits injunctions when the user of an orphan work “recasts, transforms, adapts or integrates the [orphan] work with the [user’s] original expression in a new work of authorship….” This ensures that the publication of transformative works that may include the entirety of an orphan work will not be able to be stopped by a court.

• It requires the Copyright Office to make available information that will help users understand what might constitute a reasonably diligent search.

• The bill makes clear that in determining the “reasonable compensation” an orphan works user must pay should the orphan works owner reappear, the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to.

• The bill eliminates a provision that would have required the rules to sunset after 5 years.

While we would have preferred a cap on damages as opposed to “reasonable compensation,” it has been clear from the very beginning that such a change was a political non-starter. However, we would like a little more certainty that “reasonable compensation” will not lead to a great financial liability for the user. We’ll be asking for some report language that makes it clearer that the monetary value of an orphan work, particularly one that has been out of circulation for a long time, is low, if not zero.

We also would have liked the “safe harbor,” which prohibits any payment if a user immediately ceases using the orphan work when an owner reappears, to apply both to commercial and non-commercial uses. The concern here is that small artists who sell their works should be entitled to the same safe harbor as large museums and libraries. We understand that Congress members do not want to give this advantage to large users like Hollywood studios. We’ll be working on language that seeks to protect small artists.

This bill is on a fast track - it will be marked up by the Subcommittee this Wednesday. Stay tuned.

I've mixed another little video from yesterday's press conference on net neutrality. Take a look...

Recently, a podcaster asked us to create some public service announcement (PSA) that podcasters could easily drop into their podcast, to let folks know about net neutrality debate.

I've provided this video under a creative commons license, so if you'd like to drop it into your video podcast, or extract the audio and drop the PSA into your audio only podcast, please do. If it's an enhanced podcast, please create a link to SaveTheInternet.com.

I hope to provide more PSA materials in our Our Media account soon. Look for "PSA" in the title.

If I hear that net neutrality is about “regulation of the Internet” one more time, I think I am going to scream. Yesterday, National Cable and Telecommunications Association head Kyle McSlarrow testified in front of the Senate Commerce Committee that net neutrality is “a fundamentally stark choice of some regulation of the Internet or no regulation of the Internet.” No Kyle - net neutrality is not about regulating the Internet. The networks, applications and services that make up the Internet are unregulated, which is as it should be. Net neutrality is about regulating the on-ramps to the Internet, and, up until about a year ago, the government regulated the on-ramps to our communications system for about 100 years.

Thanks to our terrific colleague John Windhausen of Telepoly Consulting for this analysis of the Sensenbrener-Conyers net neutrality bill (H.R. 5417) that was introduced today:

• It is a violation of the Clayton antitrust Act for broadband providers to:

a. fail to provide access to its broadband network on reasonable and nondiscriminatory terms and conditions to anyone to offer content, applications or services at least equal to the broadband provider’s own services (or its affiliate’s services); b. refuse to interconnect with other broadband providers; c. to block impair, discriminate or interfere with anyone’s services or applications or content; d. to prohibit attachment of equipment that does not harm the network; e. to fail to disclose information about the broadband service.

• If a broadband provider prioritizes traffic of a particular type, it must prioritize all traffic of that same type, with no additional fee.

• Nothing prevents broadband providers from nondiscriminatorily:

a. managing the network to promote security; b. give priority to emergency communications; c. prevent a violation of law or comply with a court order.

“Affiliate” is defined to include anyone the broadband owner owns, controls or has a contract with.

“Broadband Provider” is anyone “engaged in commerce” who offers a broadband service to the public, with or without a fee.

“Broadband Service” is defined as any 2-way service and connects to the Internet at at least 200 kbps.

Today a Press event was held in support of Net Neutrality. The music artist Moby and Rep. Ed Markey were on hand. Below are some photos...

Siva Vaidhyanathan was on On the Media to talk about net neutrality.

You can read a transcript of the interview or listen to the audio.

Found from Boing Boing.

We are learning more about what is really behind the lawsuit brought by the major labels against XM radio. Here are a few clarifications to what I wrote about last night.

1. First, contrary to what I stated last night, you can’t technically “program” the receiver to record the songs you want. You can only program blocks of recording time on channels you like, and then “disaggregate” them. This disaggregation is what the labels don’t want.

2. According to several sources close to this matter, this case isn’t just about a licensing fee dispute over performance fees for the record companies. Instead, they want a new licensing agreement based on a distribution right even though no one would be able to tell what is being recorded much less what should be licensed. As for the Audio Home Recording Act, which they supported (and which gives consumers the right to record off the radio for personal use), the labels no longer think it suits their purposes - meaning they don’t make enough money from it.

3. According to those same sources, XM offered the record companies money just like Sirius. Actually more. But the record companies decided they didn’t want the precedent of accepting a one time per device fee. It is too much like a levy, which they don’t like. They justify the difference because Sirius capped the number of devices they would sell in that early model to 150,000 units. The record companies were afraid that the XM deal would establish rules going forward. So they changed their mind. What they are really after is control of the device. Sound familiar? Indeed, that is exactly what they are seeking in the PERFORM Act.

Stay tuned for more about this case. In the meantime, if you want a terrific analysis of the legal complaint against XM, Fred Von Lohmann of EFF has one here.

Alex Lindsey (from Pixel Corps, TWiT and Mac Break) and the rest of the This Week in Media gang spent the first bit of their show talking about neutrality. It’s a good discussion from both sides of the arguments.

• You can check out the audio from the TWiT website here.

• You can also subscribe to the enhanced version of the podcast in iTunes here.

We just learned that the major record labels have sued XM radio because its receivers permit consumers to program them to record the songs they want. The labels are claiming that XM is guilty of “massive infringement,” and is seeking $150,000 for every song XM plays - which is about 160,000 each month. The labels claim these recordings are downloads just like iTunes, while XM says that these recordings are permitted under the Audio Home Recording Act, which explicitly gives consumers the right to record off the radio.

Let’s be clear - this lawsuit is intended to get XM to increase the licensing fees that it pays to the record companies. Sirius already pays an extra licensing fee for the “right” to sell its similar receiver, and the labels want XM to do the same. The labels also think that satellite companies got a sweet deal with regards to the public performance fees they pay. Who gets caught in the middle of this dispute? Consumers like you and me, who pay for our satellite service and our music.

I just don’t buy the download argument. It’s not like you can export the music onto your computer or iPod. If you want more songs, you have to erase the old ones. To me, the XM receiver is no different than a TiVo. I could keep 20 of my favorite shows on my TiVo forever if I want - but I don’t because I want to TiVo new shows. One person told me that listening to music is different - people listen over and over to songs for a short period, then lose interest (and the urge to purchase). Again, my own experience is different. While I do tend to listen to the new music I buy most often, there are few greater pleasures in life than listening to an old song or CD that brings back a fond memory.

What I find particularly troubling is the fact that the damages for infringement provided in the Copyright Act are so high that should XM lose this case, it will likely be put out of business. And that isn’t good for anybody, even the record labels.

Here is our press statement on the lawsuit:

For immediate release May 16, 2006 Public Knowledge Statement on Record Labels Suit Against XM

Background: We have seen news reports that XM Satellite Radio has been sued by major record labels on the grounds that XM’s subscription music service is “massive infringement.” The following is the statement of Gigi B. Sohn, president and co-founder of Public Knowledge:

“Consumers for years have had the legal right to record music for their own use. This lawsuit threatens that right on the grounds that consumers now have advanced technology at their disposal in recording songs. The shame of the legal action, however, is that this is really a dispute between XM and the recording industry over licensing fees. The companies should be left to figure out a solution without interference from the courts or from Congress.”