Policy Blog

Back in July, I briefly mentioned Nathan Martin, the CEO and Co-Founder of an innovative mobile startup called deepLocal. Martin and his colleagues develop location-based services that deliver content to users via SMS messages--a method that allows owners of all sorts of mobile devices, not just smartphones, to use deepLocal's services. At an FCC En Banc hearing in Pittsburgh, Martin railed against the carriers for maintaining high barriers to entry for companies hoping to develop SMS-based applications. "Why was I able to do for free in a matter of days three years ago what today will take me half a year of approvals and cost me tens of thousands of dollars a month?" Martin asked, referring to the fact that he had once delivered messages using a homemade SMS gateway before deciding to go legit. "You own the channel, now let me compete!" Martin's story is a compelling one and you would think that the wireless carriers would heed his call, thereby encouraging developers to create innovative services that would, in turn, encourage SMS use. Instead, at least one major carrier, Verizon Wireless, has decided to make life even more difficult for SMS service providers like deepLocal, further discouraging innovation in the SMS services market in the process.

In the ongoing battle over intellectual property rights enforcement, facts and figures often serve as the ammunition of choice for both sides. As Wired's Threat Level blog points out, the U.S. Chamber of Commerce has been brandishing a familiar number lately, in an attempt to pressure the Commander in Chief to sign the recently-passed PRO-IP bill: 750,000 American jobs lost to intellectual property theft. That's a devastating number--representing some eight percent of all Americans who are currently out of work--and is made all the more resonant by our country's deepening economic crisis. It's a shame then, for the proponents of PRO-IP, that this 750k figure is about as real as the emperor's new clothes.

The Chamber of Commerce tomorrow (Oct. 8) will throw its fifth annual pep rally for control over information. Officially, it’s the “Fifth Annual Intellectual Property Summit.” But given that the speakers all come from the same point of view, the agenda looks to be more of solidifying than educating.

If there are any doubts about how this group views complex issues, here’s their description of the panel, “Frontiers of Innovation: Protecting IP in the Digital World”:

“The digital world is emerging as the cornerstone for innovation, with new products, applications, and platforms being launched daily. This new frontier allows the business community endless opportunities to get consumers what they want, how they want it, almost instantaneously. At the same time, the Internet provides seemingly endless opportunities for bad actors to steal intellectual property and deceive, and sometimes harm, consumers.

A lot of the questions about ACTA are raised by reading between the lines of what little is known about the proposed agreement. Is the term “border measures” a reference to searching individual consumers’ devices at airports? Is a reference to “safeguards” for ISPs to “encourage ISPs to cooperate with right holders” an attempt to shift the balance of rights and responsibilities under DMCA safe harbors?

These are some of the most pressing questions that are raised when it comes to ACTA, but they’re certainly not the only ones. While in a situation as opaque as this one, it’s critical to seek out what may be intentionally hidden in the unstated implications of the language, as well as the unintended consequences of broad language.

But that doesn’t mean that the face value of the language that’s there should be ignored, either.

Large content owners have constantly sought to control every use of their content. In pursuit of this control, they have often sued the creators of technologies that have offered consumers new ways of enjoying content. Those sued have included the makers of the digital audiotape, the Betamax videotape recorder, and the Pioneer Inno used with XM’s satellite radio service. The latest lawsuit in this saga has been filed by a group of Hollywood studios against RealNetworks. The object of their ire this time is RealDVD, software that allows consumers to make copies of their DVDs.

Here’s how RealDVD works: It allows a consumer to make a complete bit-for-bit copy of a DVD, including the included CSS encryption, onto his computer or an external hard drive.

If you are a New York Mets fan like me, you’d know what it was like to be a supporter of orphan works legislation. For the past month, every time you thought the Mets would completely crumble and drop out of the baseball pennant race, they would come back. But then, on the very last day of the season, they lost and went home for the year. It was much the same with orphan works. We at PK had given up the orphan works bill for dead in early September when the Senate tried to push the bill through to no avail. Nothing was happening on the House side either. Then, thanks to the stick-to-it-tiveness of Senator Patrick Leahy’s staff, the Senate orphan works bill passed the Senate on Friday September 26.

That was the day Congress was to have adjourned for the year, and had that been the case, that would have been the end of the orphan works story.

Last Friday, Gigi delivered a speech to a conference examining the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, or Gore Commission, ten years after its report. Ten years ago, the Commission was organized to examine public interest obligations that broadcasters might have in the digital age. Listening to the speakers, it was clear that a number of things have changed since 1998. While all of them supported the ideals of public interest obligations for broadcasters, none of them felt that the current system was advancing those ideals.

Gigi’s speech was the most provocative. She called on regulators to move out of a mindset that was born in the 1920s and 30s and to start looking at spectrum through the lens of modern technology.

Sometime next year, the new Administration will start to figure out a plan for collecting information about where broadband is, and how to increase deployment. The delay will be necessary because while Congress passed the bill to improve broadband data collection, S. 1492, there isn’t any money actually set aside to pay for the program. Until appropriations bills are passed for the next fiscal year, FY 2010, which starts Oct. 1, 2009, there won’t be any money. As a result, it could be calendar year 2010 before any program gets going.

The bill is a worthwhile first step, because it puts Congress on record as wanting more information about broadband.

Professors Tom Hazlett and Vernon Smith have an op ed piece in the Oct. 3rd edition of the Wall Street Journal entitled “Don’t Let Google Freeze the Airwaves.” Apparently advocacy by Google, Microsoft, the New America Foundation and others in favor of unlicensed access to unused broadcast television channels freezes out even better reallocation of spectrum that could eventually be auctioned off for highly efficient private use.

Professors Hazlett and Smith appear to think private, unlicensed use could not possibly be as efficient as the command and control provided by a single owner keen on recouping its investments. Using the Professors’ rationale, would unlicensed Wi-Fi home network operators be better off if a single venture secured the 2.4 GHz band and packaged innovative home networking “solutions”? Not for me.

Remember how we filed a petition to the Federal Communications Commission (FCC) asking them to make sure that carriers are nondiscriminatory when it comes to text messages? While we haven’t posted about it much lately, work on the issue has been chugging quietly along behind the scenes. Today, all of the parties of the original petition filed a follow-up letter at the Commission dealing with some of the arguments which have been raised, primarily by Verizon Wireless and CTIA (the industry group for wireless carriers). The short version is that carriers claim they won’t be able to stop spam if they can’t also pick and choose who is allowed to text with you. Needless to say, we disagree.