Government Mandates

NOTE: My original blog post on this topic stated that the Tennessee state legislature was on the verge of passing SB 3974, a copyright industry-supported higher ed filtering bill. As discussed below, SB 3974 has been replaced with a different (and weaker) version. I regret the error.

I couldn’t say for certain, but I’d be willing to take a good guess that there are cordless phones somewhere in the homes of FCC Chairman Kevin Martin and Commissioners Robert McDowell and Deborah Tate.

The next time one of the commissioners picks up that phone, he or she should give some thought to how it came to be there. Chances are someone in the family bought that phone in a big-box electronics store, picking it out from shelf after shelf of phones. Or they could have ordered it online from dozens of more choices.

Cordless phones have gone through a significant metamorphosis in recent years. They started out at 900 MHz, went to 2.4 GHz, to 5.8 GHz. They went from having a big antenna to no visible antenna. Consumers once bought one phone. Now they can buy a set of three phones – a base and two others. The speakerphone, long a staple of the business desktop telephone, is now part of the cordless revolution.

OK. Hopefully you all realized that S. 4108, the APRIL Act of 2008, was a joke. After all, there were a few excesses in there that would indicate how ludicrous the bill is.

On March 19, I was invited to a symposium at Penn Law entitled “Copyright and the Internet: Solutions for a Digital World.” The panel before mine was dedicated to reconciling copyright and the first amendment in the areas of filtering, takedown notices, and fair use.

The panel discussion was fascinating, and covered more ground than I can do justice to here. What I want to focus on was a particular point addressed by Jannifer Pariser, Senior Vice President of Sony BMG’s Litigation and Anti-Piracy department.

Hollywood for years has had a fascination with spies. Some are action spies, like the various incarnations of Bond, James Bond, or cerebral spies like Alec Guinness’ masterfully subtle George Smiley. All sorts of people have played TV spies, from Robert Culp and Bill Cosby to Patrick McGoohan, Robert Goulet and the fabulous Lady Diana Rigg and Patrick Macnee.

There have been spies who watch and listen to us without our knowledge. Gene Hackman had a creepy turn as the telephone eavesdropper (technically not a spy, although he spied) in “The Conversation” in 1974. Ten years ago Will Smith’s “Enemy of the State” played off of the then-paranoid “fantasy”, now a reality, of the all-hearing National Security Agency (NSA). The current crop of Bourne films shows a Central Intelligence Agency (CIA) with the technical capability to listen and see anything and anyone at any time.

Last month, Public Knowledge submitted comments to the European Commission in response to this communication on online creative content. The Commission was asking for input about a variety of topics, including making DRM interoperable, creating licenses that would work across national boundaries within the EU, and how to deal with online piracy.

PK’s comments focused on just two of the 11 separate questions put for the by the Commission, about potential enforcement mechanisms against online infringement. Those questions were:

10) Do you consider the Memorandum of Understanding, recently adopted in France, as an example to followed?

11) Do you consider that applying filtering measures would be an effective way to prevent online copyright infringements?

This post wends its way to you from Geneva, where I’m attending the 16th session of WIPO’s Standing Committee on Copyright and Related Rights. On the agenda for this session are the broadcast treaty, as well as a discussion on limitations and exceptions. This latter topic would be a welcome addition to WIPO’s agenda, since all too often the focus of the Committee, and the organization at large, has been on extending the rights and control of copyright holders, without a balancing consideration of how users will continue to access, enjoy, speak with, and remix copyrighted works.

“Share your music—lose your identity.” It could be the rallying cry of a hipper-than-thou music fan who only likes bands “before they were cool.” But no, it’s the title of an op-ed by Representative Howard Coble (R-NC), Ranking Member of the House IP Subcommittee. In it, he links copyright infringement with the risk of identity theft.

Specifically, he cites the example of Gregory Kopiloff, who pled guilty to committing identity theft with personal information he scrounged off of the computers of LimeWire users.

Coble then proceeds with his commentary, implicitly equating this security risk with both copyright infringement and p2p software generally. This is a real mistake, and a real cause for concern if that’s the attitude policymakers take when approaching online copyright enforcement.

Yesterday, the Motion Picture Association of America admitted something that many of us had suspected all along – an MPAA-funded study showing that 44% of the industry’s losses came from illegal downloading of movies by college students using campus networks was overstated by a factor of 3. The MPAA now says that only 15% of its losses come from campus activity. Hollywood has been using that larger number to push for legislation, now pending in the House of Representatives, which would require colleges and universities to filter their networks for copyright infringement.

If something is against the law, but nothing happens if you do it, is it really illegal? This is the question that Representative George Miller (D-CA) would have you contemplate today. Of course, the real question is this: would Congress really waste its time demanding that citizens do something, just to assure them that nothing will happen if they don’t?

These brain teasers come courtesy of the College Opportunity and Affordability Act of 2008. The Act is 747 pages of educational legislation, most of which has nothing to do with technology issues. However, there is a small section that has been making some big waves.