Posts by Gigi Sohn
If Monday's net neutrality oral argument in the DC Circuit foreshadowed the court's decision, opponents and supporters of the FCC's rules will each have something to cheer and something to fear.
While some have portrayed the likely outcome of Monday’s DC
Circuit oral argument on Verizon’s challenge to the Federal Communications Comission’s Open Internet order
as a victory for anti-net neutrality forces and a loss for its supporters, the
reality is much more complicated. With
the caveat that one can never rarely predict the ultimate outcome of a case –
particularly one as difficult and multi-layered as this one – based solely on
the oral argument, there are some pretty clear takeaways, some good, some bad
and some just plain ugly. For a
comprehensive report on what happened in the courtroom, read Harold’s excellent
ISPs should put the
cork back in their champagne bottles. Public Knowledge still
thinks Title II is the best way to reinstate the FCC’s authority over broadband
Internet access, though other means of providing that authority would be acceptable
This past Tuesday I appeared on a Free State Foundation
panel entitled “If I were the FCC Chairman….” For 2 hours representatives from Verizon, Time
Warner Cable and I had the opportunity to “live the dream,” and set out what we
would do if we commanded that big office on the 8th floor for the
next several years.
It is certainly hard for a
reporter to condense 2 hours of non-stop opinionating and prognosticating into
400 words; sometimes nuances get lost. Such was the case with a Communications Daily story on
the panel, which screamed “FCC
Will Lose Open Internet Case, Should Not Go Back to Title II, Say TWC, Public
Knowledge Officials.” Champagne
bottles could be heard popping in big ISP’s offices all over Washington,
Earlier this week, Public Knowledge announced that we have
hired Charles Duan to head up our new Patent Reform Project. Charles is a computer scientist and former patent litigator who is
currently working with my colleagues at the University of Colorado Law School analyzing next-generation Internet technologies and their impact on privacy, intellectual property and communications law. He’ll be starting full time this summer and
we’re excited to get started.
Even though current FCC Chair Julius Genachowski has not
announced that he is leaving, there is still much talk about who is being
considered to be his successor. In its
never-ending fascination with the horse race of politics, the trade press has
been throwing out names of the supposed frontrunners every few weeks or
But this focus on names is premature. Before we talk about who will be the next FCC
Chair, there needs to be a conversation on the qualities the ideal candidate
should possess. Because the issues and
controversies that will come before the Commission over the next four years
will be no less contentious than in the previous four.
the International Telecommunications Union (ITU) World Conference on
International Telecommunications (WCIT) over the last 36 hours knows this has
become a moment of high drama around the International Telecommunications
regulations (ITRs) and the role of the ITU for internet-related issues.
Unfortunately, that is probably the only thing anyone can
say for certain. Even the member states on the ground have expressed confusion
on critical matters, such as whether the widely reported “vote” on a resolution
that included express language relating to the internet was really a vote or
This past Friday, the House Republican
Study Committee released a policy brief entitled Three Myths About Copyright
Law and Where to Start to Fix it. The
brief, examines three common content
industry assertions about the benefits of copyright, and concludes that rather
than promoting productivity and innovation, current copyright law inhibits
them. The brief then makes a number of suggestions
to reform the system, including reducing statutory damages, expanding fair use,
punishing copyright abuse and shortening copyright terms significantly.
After nearly two years of debates, never-ending commercials,
donation solicitations and ever-present polling, Election Day is over and the results are in. As many had predicted, the
balance of government has not changed significantly. Democrats will retain the Presidency and
control of the Senate, and Republicans will continue to control the House,
albeit by a slightly smaller margin than before.
Last week I had the privilege of travelling to Hood River
Oregon to speak at the Oregon Connections Telecommunications Conference. Here
are my prepared remarks, which focused on policy issues affecting cloud
One of the things that has drawn Public Knowledge to be an
active participant in the effort to ensure that the United Nations doesn’t
become an Internet regulatory or governance body is the fact that nearly every
civil society group, policymaker and industry representative is on the same
As I have said previously, it is one of those very rare
“kumbaya” moments in communications policy debates where there is consensus -
when the International Telecommunications Union (ITU) meets at the World
Conference on International Telecommunications (WCIT) in Dubai this December,
its jurisdiction should not expand to encompass Internet policymaking.
As I wrote in April, I joined the Advisory Board of the
Center for Copyright Information to serve as consumers’ eyes and ears as an
agreement between the major Internet service providers and copyright holders is
implemented. The agreement requires
ISPs to send up to six “alerts” to alleged peer-to-peer infringers, with the
last two alerts resulting in so-called “mitigation measures” and an opportunity
for the user to appeal.
The recently maligned IP Attaché Act is just one in a long
line of IP bills that include seemingly innocuous provisions that could later
prove to be harmful to innovation and the free flow of information. In February I gave a talk at the University
of Colorado that showed how over a decade, supporters of increasing copyright
protection dropped little-known and little-understood language in IP bills that
eventually became the basis for SOPA and PIPA, as well as the Department of Homeland
Security’s program for seizing domain names.
According to a former US Patent and Trademark Office (USPTO) official I
spoke with, the content industries and their friends have been pushing
the changes this bill would make for years. That alone tells you something.
Tomorrow I’ll be testifying against the merger of Universal
Music Group (UMG) and EMI Music. A merger
between the 1st and 4th largest record companies, in our
opinion, would result in a “super-major” label with a 41% market share that
would be able to dictate the future of new digital music services. The combined entity could deny licenses
to new services, charge them enormous licensing rates, or even take an equity stake in the
Civil society will be the critical player in a policy debate
that has dominated recent tech news - whether the International
Telecommunication Union (ITU) will be given the power by its Member States to
regulate internet access and the internet itself. Despite the fact that the US Government and
US industry have vocally opposed this outcome, it is US civil society that has
the biggest role to play to ensure that the Internet continues to be open and
The ITU is a United Nations agency focused on setting
international standards related to information and communications technologies
– and whose stated mission is to connect all the world’s people “wherever they
live and whatever their means.” Among
other things, the ITU allocates global radio spectrum, and coordinates the
assignment of satellite orbits.
The United States needs someone in government whose sole job
is to propose policies that advance the freedom to create and innovate,
including freedom from draconian intermediary liability and poor quality
This need became crystal clear last week, when I went to my third or fourth Obama Administration gathering to celebrate the
importance of strong intellectual property protection to the United States.
After a great deal of consideration and consultation with my
colleagues inside and outside of Public Knowledge, I have decided to accept a
position on the advisory board of the Center for Copyright Information (CCI),
which will oversee a “copyright alert” system to be rolled out later this year.
This copyright alert system, a voluntary agreement between
the largest ISPs and content companies, will send notices to alleged infringers
using peer-to-peer networks in order to educate them about copyright and legal
alternatives. The system also provides
for a process by which consumers can fight these allegations.
Last Wednesday, the Justice Department planted a very large nail in the coffin of the AT&T takeover of T-Mobile when it filed a lawsuit in the District Court for the District of Columbia Circuit to block the merger. Deputy Attorney General James M. Cole couldn’t have been more unequivocal about how the Department views the proposed merger:
One of the recurring myths perpetrated by the supporters of the AT&T-T-Mobile merger is that AT&T is the only viable, economically able purchaser of T-Mobile, whose parent company Deutsche Telekom (DT) has announced its intention to pull out of the US market. Witness an email blast by the Communications Workers of America, which despite the reality that this merger will cost thousands of jobs, supports it:
Public Knowledge unequivocally opposes the proposed merger of AT&T, the 2nd largest national wireless carrier, with T-Mobile, the fourth (out of four) largest national wireless carrier. If the $39 billion merger is approved, the combined entity would serve anywhere between 42-44% of all wireless subscribers, and together, AT&T&T and Verizon would control nearly 80% of all subscribers, with a weakened Sprint far behind. So much for the wonderfully competitive wireless market that is the mantra of every debate on network neutrality and broadband deployment!
Last night I stayed up late, working on a grad school recommendation for one of my PK colleagues. As usual, I had my Twitter feed open, and right around midnight, I heard an unusual amount of chirping for that hour. Why? Tech reporters were writing that the FCC had just announced that its December 21st meeting agenda would propose rules for an open Internet, or network neutrality. The Chairman would circulate draft rules and an accompanying explanation, or order, to his colleagues, which would then be voted on in the December meeting.
Whatever the final results of this election night, nothing will be more shocking or sad for Public Knowledge and me personally then the defeat of Rep. Rick Boucher (D-Va), the current Chair of the House Subcommittee on Communications, Technology & the Internet. Rep. Boucher, widely recognized as one of the most tech-savvy and intelligent members of Congress, has long been an advocate for consumers on a wide variety of communications and intellectual property issues.
Public Knowledge and others have today noted that this is the first anniversary of FCC Chairman Genachowski's landmark speech on Internet Freedom. In the intervening year, we've had a net neutrality rulemaking, the Comcast decision largely removing the FCC's authority to enact net neutrality rules (among other things), another rulemaking on the Chairman's proposal to restore that authority by reversing the agency's 2005 decision to deregulate the Internet access service, and a public notice seeking comments on several specific aspects of net neutrality. But as everyone knows, we still don't have rules of the road to protect consumers and ensure universally affordable broadband Internet access.
Our hearts are heavy today, having learned of the passing yesterday morning of our beloved colleague, Public Knowledge Staff Attorney Adam Thomas. Adam was a rare individual in this town - willing to take on any task no matter how small, always upbeat, eager for feedback be it positive or negative. But what really set Adam apart was his courage. Just 30 years old and thrice afflicted with Medulloblastoma - a rare and highly malignant form of brain cancer - he fought and beat it each time, until it returned a fourth time just a few weeks ago with a force too strong to overcome.
This summer has been one of the most exhausting in recent memory. First, there has been a constant barrage of record heat and humidity. Second, there is the continuing battle over whether and how to preserve the FCC's authority to protect broadband consumers and ensure universal broadband access. While the former is somewhat predictable for Washington, the latter has been like a soap opera, with lots of plot twists, make-ups and break-ups and nearly a few tears (of utter frustration).
For the past several days, we here at Public Knowledge have been sitting back being mildly amused by the dust-up over an ASCAP fundraising letter that sought to demonize Public Knowledge, Creative Commons and EFF as "Copyleft" organizations that want to undermine their "Copyright," and want "music to be free." Now the President of the National Music Publishers Association is getting into the fray, giving a speech about 10 reasons why "enemies" like PK have a "extremist, radical anti-copyright agenda." How very subtle.
The New York Times ran an op-ed today by 5 academics urging the FCC to adopt European Union (EU)-style transparency regulation rather than so-called “heavy-handed” net neutrality regulation that would ensure that US telephone and cable companies providing Internet access don’t pick winners and losers. In an argument we hear often from those companies, the academics suggest that so long as a consumer knows what its Internet access provider is doing, the customer can simply change providers if he or she doesn’t like it.
After two years of pressuring the US and foreign governments for transparency, a consolidated text of ACTA was released this morning. We will have more analysis later today. Stay tuned.
If you are interested in learning more about the debate over the FCC's authority to protect broadband Internet users, you might want to check out this Federalist Society debate from March 3 featuring me and the very talented Helgi Walker, who argued the Comcast case. You will hear some of the myths I discussed in my previous post.
It's amazing how many people seem shocked that I would participate in a Federalist Society event not once, but twice over the past 5 months. But I would do it again and again. The intellectual debates are honest and substantive, not personal, and more than one Fed-Soc member has come up to me after speaking to say that I made them rethink their assumptions.
The Communications bar was buzzing today because the FCC released the Executive Summary of its National Broadband Plan. Tomorrow at its monthly meeting, the agency will release the entire plan, all 360 pages of it.
But along with the Commissioners, staff and scores of onlookers, there will be an elephant in the meeting room that will not get nearly as much attention – that is, whether the FCC actually has the power under the Communications Act to enact major parts of the plan. Without a “cop on the beat,” the fate of broadband consumer protection regulations such as privacy, transparency and emergency communications will be at risk, as will other initiatives to ensure great access to broadband and greater adoption of broadband by the disadvantaged.
Yesterday's CNET report that Verizon had secretly adopted a "three strikes" policy towards alleged copyright infringers had our office all atwitter last night - how could a charter member of our ad hoc copyright reform coalition be engaging in such radical activity? Well, it turns out they weren't.
As their misquoted spokesperson explains here, what Verizon employs is a process for passing on warning notices to alleged infringers, but that process does not include automatic termination. My guess is that to the extent that she was talking about infringers having their internet access terminated, she was referring to people who had been adjudicated by a court to be infringing, and as such, they would be violating Verizon's terms of service.
By many accounts, World's Fair Use Day was a great success. We had a capacity crowd, with hundreds more joining in on the webcast. Members of the audience included staff from the White House, the State Department, the US Copyright Office and Congress. Since one of the main missions of the event was to demonstrate to policymakers the importance of fair use to our culture, our discourse and our economy, having a strong turnout from government is key.
I've now had a few days to reflect on the day's events.
U2 frontman and humanitarian Bono had a page-long op-ed in this past Sunday's New York Times, where he describes what he calls "10 ideas that might make the next 10 years more interesting, healthy or civil. Some are trivial, some fundamental. They have little in common with one another except that I am seized by each, and moved by its potential to change our world." So let's look at some issues that made the list.... a twist on cap and trade, fighting the rotavirus, new cancer research, the rise of Africa and... limiting the scourge of file sharing.
Yes, that's right, file sharing, clearly one from the "trivial" category. Bono blames Internet Service Providers for "this reverse Robin Hooding" which he says hurts "the young, fledgling songwriters who can't live off ticket and T-shirt sales...." His "big" idea for stopping the scourge?
For the past four years, I have been the unofficial president of the pro-net neutrality debate club. During that time, I've probably participated in a dozen one-on-one net neutrality debates, and probably two dozen (or more) panel debates. I've lost count.
The debates had really gotten a bit stale until late October, when the FCC published its proposed rules to ensure an open Internet. So a new round of debates has already kicked off. Last Thursday, at the Practicing Law Institute's 27th Annual Telecommunications Policy & Regulation Institute, I debated (for at least the 6th time), the president of the anti-net neutrality debate club, Precursor LLC President Scott Cleland.
It's been nearly a year since Public Knowledge and the Silicon Flatirons
Center held its FCC Reform conference, and the FCC has moved slowly but
steadily towards addressing many of the concerns
raised at the conference and the paper submitted beforehand.
The latest MPAA diatribe about Selectable Output Control is notable for two reasons. First, it utterly fails to demonstrate that anybody steals content through the analog hole or that giving the MPAA the ability to shut off both analog and protected digital outputs would have any impact at all on piracy. Second, by attacking Public Knowledge and specifically Harold's integrity, it is a not-so-subtle effort to spin the debate over this waiver as "copyleft" Public Knowledge versus "reasonable" Hollywood, which only wants this itsy bitsy waiver so that it can provide the "pro-consumer" benefit of making movies available on video on demand a few weeks earlier than they are now.
We'll address the first point when we file a response in the next week or so. I want to address the second.
Public Knowledge recently celebrated its 8th birthday of defending citizens' rights in the digital culture. Unlike any other public interest group in Washington or elsewhere, we are dedicated to ensuring openness at every layer of our communication system, and that includes the content layer. That's why our work to ensure balanced copyright is so important - we cannot have an open Internet if large corporate copyright holders can exploit overly burdensome copyright laws to sacrifice legitimate speech at the altar of trying to stop piracy.
I discussed the clash of copyright and an open Internet at a talk that I gave to the Yale Law School Information and Society Project last week. Some in Hollywood, like Disney, were in favor of net neutrality in the late 90's because they knew well the powers that the network owner has.
We just got word that the Supreme Court has declined to review the Cablevision remote DVR case. This is the case where Hollywood and some cable networks sued Cablevision for providing a TiVo-like service where the copy of the recorded program resides on the cable operator's servers rather than on a hard drive in the home. The studios claimed that both the buffer copies and the copies residing on Cablevision's servers were a violation of its right to reproduce the program, and that the recordings sent to the customer were a violation of its public performance right. A lower court in New York City sided with Hollywood, but the 2nd Circuit Court of Appeals reversed that decision, ruling that the remote DVR service did not violate Hollywood's copyrights.
The Court's decision not to take the case is a huge victory for consumers and all video service providers, not just cable.
After months of waiting, the Senate confirmed two key members of the Obama communications and technology team: new FCC Chairman Julius Genachowski and National Telecommunications and Information Administration (NTIA) director Larry Strickling (his official title is Assistant Secretary of Commerce for Communications and Information). And not a moment too soon.
Here is what is facing the new leaders right now: NTIA (along with the Rural Utilities Service) is expected to issue its "Notice of Funds Availability" imminently for the $7.2 billion in broadband stimulus money, and that "NOFA" will include the rules for applying for the grants, as well as the conditions (like non-discrimination) with which a grantee much comply.
There is a lot of talk and concern these days in the halls of Congress and at both the FCC and the FTC about how to promote greater broadband and wireless phone competition.
As confirmation hearings go, today's hearing on the nomination of Julius Genachowski to be the new Chair of the FCC and current Commissioner Robert McDowell to be renominated for a second term could only be called a lovefest. And why not? Both are among the most qualified individuals ever to have been nominated to serve the agency. Perhaps the most controversial exchange was the debate over how to pronounce the Chairman-to-be's last name (for the record, it's pronounced Gen-a-kow-ski, not chow-ski).
Genachowski sounded all the right notes - telling the story of how his father, an engineer, showed him his plans for turning text into signals so to help blind people to "read" words on paper.
Either Jenner and Block lawyers are looking for something to do in this economic downturn, or the RIAA has a direct pipeline to the Justice Department. Because the Legal Times blog is reporting that a
third fourth Jenner partner (and fifth Jenner lawyer) who has represented the recording industry, Ian Gershengorn, is going to the Justice Department to be Deputy Assistant Attorney General in the Civil Division with oversight of the Federal Programs Branch. I do take some small comfort from the fact that that the Civil Division has no authority to work on intellectual property matters (although if you recall, it almost got that authority last Congress when the Pro-IP Act was passed).
Like any for-profit industry, Hollywood usually trumpets its financial successes to impress policymakers, investors, Wall Street and the general public. And this is the time of year that they usually do so, before ShoWest, the annual convention of movie theater owners. But not this year, reports Variety.
According to the trade magazine, despite a record breaking year at both the domestic and International the box office in 2008, MPAA President Dan Glickman has decided not to tout his members' success. But why wouldn't Hollywood want to show their importance to the economy, particularly in light of the country's financial hard times? Variety reports that the studios have been quiet because they unsuccessfully tried to belly up to the stimulus trough - to the tune of $246 million dollars in tax credits, and want to try again to get those credits this Congress.
Kudos to PK Board member Hal Abelson, who persuaded MIT's faculty to make all of their scholarly papers available for free on the web. According to Wired, this is the "first university-wide policy" of its kind.
This decision is particularly timely, given the attacks on open access publishing by commercial publishers and their friends in Congress. In fact, the MIT decision goes beyond most other open access policies. The open access policy at the National Institutes of Health, for example, requires submission of NIH-funded research 12 months after that research is public.
There weren't any great surprises at today's National Telecommunications and Information Administration roundtable discussion of the non-discrimination and interconnection requirements of the American Recovery and Reinvestment Act (better known as the stimulus bill). The roundtable was one in a series that is designed to provide recommendations to the NTIA and the Rural Utilities Service of the Department of Agriculture about how they should spend the collective $7.2 billion dollars for broadband deployment and other related programs they have been given under the stimulus bill.
Ben Scott of Free Press and I called for NTIA to adopt requirements that go beyond the FCC's four broadband principles and prohibit a grant recipient from degrading, prioritizing or discriminating against any lawful content, application or service over the recipients' Internet access service, subject to a rule of reasonable network management.
Although the public has known for nearly two months that former FCC staffer and Interactive Corp General Counsel Julius Genachowski would be the nominee for FCC Chairman, the President made it official yesterday. If you listen to NPR or read the tech press, you'll know that I've made no secret of our delight with the pick.
As Alex discussed yesterday, the battle over a Hollywood-backed amendment to the stimulus bill that would allow Internet Service Providers to filter their networks for copyright violations is not yet over. The conference committee for the bill is meeting as I write this, and for that reason, we have launched a new action alert to ensure that the House and Senate conferees understand why this amendment is bad as both a substantive and a procedural matter, and should not be included in the final stimulus package.
Again, the conference is happening now and is expected to conclude by day's end. So please, act NOW. We'll keep you updated. And thank you!
While there is lots of legislation that Public Knowledge disagrees with, we can often see the rationale for it. Not so with H.R. 801, the Fair Copyright in Research Works Act, now introduced for the second Congress in a row by House Judiciary Chairman John Conyers (D-MI), and co-sponsored by Reps. Steve Cohen (D-TN), Trent Franks (R-AZ), Darryl Issa (R-CA) and Robert Wexler (D-FL). This bill would have the effect of overturning the "open access" to research policy of the National Institutes of Health, which requires that research funded by the agency to be made available for free in an online archive within 12 months of publication. The rationale for this policy is simple - if taxpayers are going to pay for research, taxpayers should get a return on their investment by getting free online access to that research.
More than a few bloggers and others are expressing concern and disappointment over a number of recent high-level appointments to the Justice Department's civil division; namely, Jenner and Block partners Tom Perrelli and Don Verrilli, and former Business Software Alliance General Counsel Neil MacBride. Perrelli and Verrilli represented the recording industry while at Jenner, the latter most famously in the MGM v. Grokster litigation.
Yesterday's historic inauguration was as expected - millions of people in the subways, streets and on the national mall in Washington, freezing cold temperatures and a great deal of joy and hope.
Ask anyone who dared to venture to the protected zone downtown yesterday and you will get wildly varying stories from each. Some waltzed through security checkpoints while others waited for hours. Some froze in the 30 degree temperatures, while others stayed warm in office buildings, bars and restaurants.
My (and my family's) story, perhaps not surprisingly, was aided by technology. Our plan was simple - my partner and daughter and I would take the Metro to the 7th and D Street, NW security checkpoint to go to the Consumer Electronics Association party just one block away. There we'd have an indoor HD jumbotron with free food and drink to boot.
But it wasn't to be.
After an 18 hour sojourn to get to Las Vegas yesterday (thank you, US Airways), I settled down this morning to hear Consumer Electronics Association President Gary Shapiro's "State of the Industry" address as well as Sony Chairman and CEO Sir Howard Stringer's Keynote. Gary's address was particularly notable for its video opening, which included Gary embedded in a series of old movies - as Groucho Marx in "Duck Soup", as Dr. Frankenstein, as George Bailey in "It's a Wonderful Life," among others, thanks to a technology called Yoostar., which allows people to play characters in their favorite movies. Watch the video here.
Yesterday's Public Knowledge - Silicon Flatirons conference entitled "Reforming the Federal Communications Commission" brought together former Chairmen, Commissioners and staff members of the agency, along with other experts. They provided perspectives on the agency and how it has operated in the past, how it operates currently, and how it might operate in the future. The consensus was clear – the FCC has serious procedural, organizational and cultural problems and is long overdue for an overhaul.
A lot of great ideas for reform came out of the conference, and they revolved around a number of themes. It is hard to fit them into clear categories, so I will simply lay them out.
Last Friday, Public Knowledge wrapped up a busy week of Presidential transition team meetings. First, as part of the Open Internet Coalition, PK and a number of its industry and public interest allies met with FCC Agency Review team co-chairs Susan Crawford and Kevin Werbach to discuss the Coalition's priorities and how we would like to see them implemented.
Today PK, along with the Center for Democracy and Technology, Knowledge Ecology International, the Public Patent Foundation and representatives of the library community met with some of the members of transition team for the US Patent and Trademark Office. PK Advisory Board member and Duke University Professor Arti Rai, International Federation of the Phonographic Industry (IFPI) Executive Vice President for Global Legal Policy Shira Perlmutter and National Inventors Hall of Fame IP Counsel Joyce Ward were the team members who met with us.
Most of the discussion focused on the USPTO's role in International Copyright policymaking.
All one needs to do is go to the Presidential Transition website, Change.gov, to see how busy the various agency review teams and policy working groups have been getting the new administration ready to take over the reins of government on January 20. The agency review teams are busy talking to the current occupants of agencies like the Federal Communications Commission to determine what their current agendas are and how things can be improved in the future. The policy working are thinking only of the future and how to implement policies going forward in areas like the economy, health care and national security. And both types of teams are meeting with stakeholders to get their ideas on how the Administration should proceed.
Today, PK was a participant in two meetings organized by the Media and Democracy Coalition. Nearly 40 individuals representing two dozen public interest organizations and foundations attended.
The 10th anniversary of the DMCA is not the only infamous 10th anniversary that Public Knowledge gets to “celebrate” this week. Yesterday was the 10th anniversary of the enactment of the Sonny Bono Copyright Term Extension Act of 1998. That law extended copyright terms from 50 years after the life of an author and 70 years in the case of corporations, to 70 years beyond the life of an author and 95 years in the case of corporations. Named after Sonny Bono, the late Congressman best known for his musical and personal partnership with the performer Cher, the law has taken countless works out of the public domain, greatly weakening the wellspring of creativity and knowledge from which new creativity emerges.
Ever since its inception, Public Knowledge has placed a premium on interaction with real artists of every stripe, including filmmakers, dancers, performance artists, photographers and musicians. For the past two years, Public Knowledge, supported by grants from the New York State Music Fund, has worked to educate musicians, and especially those from New York State, with workshops and an online tutorial that explains the basics of copyright law.
Today, I am proud to announce the launch of a comprehensive website that focuses specifically on musicians and what they need to know about copyright and technology law and policy. Topics include not only the basics of copyright law, but also issues of particular interest to musicians, including licensing, sampling and of course, net neutrality.
I'm delighted to announce that filmmaker Jesse Dylan has joined PK's Board of Directors. Jesse is perhaps best known for his groundbreaking and Emmy award winning Yes We Can video/song/speech for Presidential Candidate Barack Obama, done in collaboration with will.i.am of the Black Eyed Peas. He has also directed feature films such as How High, American Wedding and Kicking & Screaming.
Most of the time, Jesse runs FORM, a commercial production company that does branding work for companies like Nike, Toyota, American Express and the National Football League.
Jesse has long been interested in the issues on which PK works, including net neutrality and bringing balance to copyright.
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.
Late yesterday, the Department of Justice and the Department of Commerce sent a letter to Senators Leahy and Specter opposing S. 3325, the Enforcement of Intellectual Property Rights Act of 2008. Specifically, the letter says that the agencies are "deeply concerned" that
the proposed legislation will undermine existing intellectual property enforcement efforts by diminishing the effective use of limited criminal enforcement resources and creating unnecessary bureaucracy. It will also improperly micro-manage the internal organization of the Executive Branch.
The letter targets Titles I and IV of the bill as most offensive. Title I, as we have written about numerous times, would give the Justice Department authority to pursue civil lawsuits. Plain and simple, the Justice Department does not want to sped its valuable resources (or your tax dollars) to bring such suits.
For the second straight year, I addressed the EDUCAUSE/Cornell Institute for Computer Policy and Law, held at Cornell’s beautiful campus. The Institute gathers 50+ higher education information technology (IT) professionals – usually campus CTOs, librarians and legal counsels, and teaches them the substantive particulars of IT policy issues and advises them how to be strong advocates.
Later this month I will celebrate 20 years as a public interest communications lawyer. After two unhappy years in a private law firm, I walked into the small and cluttered offices of Media Access Project in August 1988 and never looked back. We spent most of our time in those early days trying to get broadcasters and cable operators to live up to their public responsibilities – impossible work in the laissez-faire Reagan-Bush I years. It was all mass media reform then. There was no technology policy, and the Internet was the stuff of geeks and academics, but the goals we had then were the same as they are today – to ensure a communications system that promotes creativity, civic discourse and democratic self-governance.
As Art discussed yesterday, the expected FCC decision on the Free Press/Public Knowledge complaint against Comcast for throttling Bit Torrent will be groundbreaking precedent. This is because among other things, a Bush Administration FCC will find that the agency has the authority under the Communications Act to protect Internet users from discriminatory network management practices like those used by Comcast.
But nobody should confuse “groundbreaking precedent” with an adequate solution to the problem of broadband service providers using their bottleneck powers to pick winners and losers on the Internet. Yes, the Comcast decision will be powerful and significant. But it will not be enough to check the telco-cable duopoly.
Here is why the Comcast decision has its limits: First, the decision will apply only to Comcast.
After 18 months of waiting and speculation, the FCC late Friday evening approved the merger of XM Satellite Radio and Sirius Satellite Radio. While we still don’t have all the exact details (the Commission released only a detailed press release on Monday), it appears that all of Public Knowledge’s conditions were adopted in whole or in part. To review, those conditions were:
• a la carte or tiered pricing choices;
• a three year price freeze for its combined programming package;
• a 5% set-aside of capacity for non-commercial educational
and informational programming;
• a requirement that the new company make the technical specifications of its devices and network open and available to allow device manufacturers to develop, and consumers to use, any device they choose without interference.
Late yesterday afternoon, Sirius and XM filed a letter with the FCC that lays out the "voluntary commitments" the companies will abide by in exchange for the FCC approving their merger. As I predicted yesterday, the commitment to provide 4% of channel capacity set-aside for noncommercial, educational and informational programming falls a good bit short of what PK and others have asked for. While we're disinclined to fight over 1% of capacity (PK is asking for a 5% set-aside), there are other parts of this and other "commitments" that need change and clarification:
1. Channel capacity, not live, "full-time" channels, should be the metric for the non-commercial set-aside.
The Washington Post is reporting that FCC Chairman Kevin Martin is circulating a draft order that would permit the merger of XM and Sirius Satellite radio subject to six conditions. Under these conditions, the merged entity would
place a price cap on programming (the AP is reporting that these would be three-year caps);
offer a la carte programming choices;
open the standards for satellite radio receivers so that any device manufacturer can make satellite radios;
set aside 4% of their spectrum capacity (what now amounts to 12 channels) for non-commercial educational programming;
lease another 4% to groups like minorities and women who are underrepresented in broadcasting; and
Ever since my policy blog and Huffington Post responses to Larry Lessig's New York Times op-ed on orphan works last week, I have received a large number of fairly unfriendly comments and emails. I won't quote them here for fear of being sued for copyright infringement (I wish I was kidding). Rather than respond to each one individually, I address the vast majority of the arguments raised in this speech, which I will be giving today at a conference at the University of Maryland University College. I look forward to a new barrage of comments.
I never like to disagree with my friends in public; particularly friends like Larry Lessig, who I greatly admire and who, through his 24-7 work as the first populist copyright reformer, made the existence of organizations like Public Knowledge possible.
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.
This Monday, April 14, is the deadline for submitting reply comments to the FCC on the issue of whether wireless phone companies should be able to block text messages based on their source or content. Several months ago, Public Knowledge, Free Press and a number of other organizations filed a petition asking the FCC to declare such practices to be illegal. The petition arose out of two incidents involving wireless companies: 1) Verizon refused to give a "short code" to the National Abortion Rights Action League to disseminate an action alert text message its members asked to receive, but which Verizon determined to be too controversial; and 2) Verizon, T-Mobile and Alltell refused to carry the text messages of competitive Voice over Internet Protocol (VoIP) providers.
Today, FCC Chairman Kevin Martin announced at the Cellular Telecommunications Industry Association (CTIA) conference that he is circulating an order at the FCC that would dismiss the petition (pdf) filed by Skype that sought an FCC ruling requiring a wireless network provider to allow the use of any non-harmful device and application on its network.
The rationale behind this decision is one we have heard many times over the past few months: Verizon announced that they are going to be open to third party devices and applications; the FCC already has required the C block of the 700 MHz spectrum recently auctioned to be open (again, controlled by Verizon); the wireless industry is headed in the direction of openness, etc. It's done, so why do we need a ruling?
As has been well documented, Public Knowledge did not take a position on the merits of the antitrust law issues arising out of the XM-Sirius merger. But one need not be an antitrust expert to be a bit shocked at last week's perfunctory three-page decision by the Department of Justice approving the merger. After over a year of deliberation, the Department concluded that the merger would not lessen competition and that the parties could not profitably increase prices because 1) the parties did not compete with each other in important market segments; 2) there are alternative services available to consumers and technological change is expected to make those alternatives increasingly attractive; and 3) efficiencies are likely to flow from the merger that could benefit consumers.
Sam Gustin of Portfolio.com reports that Warner Music group has given recording industry veteran (and friend of PK) Jim Griffin a three-year contract to develop a plan that would allow consumers to have access to all the online music they want for a monthly fee that would be bundled into their internet service bill.
Griffin has been urging the industry for years to move in this direction, arguing that suing customers and attacking technological innovation were dead ends that would not lead to any additional sales or fans. Why not try a fee of this type and get something for music shared online, as opposed to the nothing that they receive now? Griffin was right then, and he is right now. But the industry, faced with precipitously dropping CD sales and download sales that while robust, will never make up the difference, is finally listening.
Next up in our campaign for open phones and an open Internet is the Public Knowledge-Free Press petition that seeks to ensure that wireless phone companies do not block your text messages. Here are the facts: Verizon wireless blocked its customers from receiving NARAL Pro-Choice America action alert text messages – messages that Verizon customers had asked to receive - because it deemed those messages to be too controversial. While Verizon reversed its decision in the NARAL case, the company still maintains that it can decide who their customers can communicate with. And although Verizon promised Congress that it would develop a new text message policy some five months ago, we have yet to see it.
Over the past several years, motion picture studio lobbyists have been assuring policymakers, investors and the public that they will not make the same mistake that record companies did when the latter waited for years to make music legally available over the Internet. As a result, fans seeking music online had little alternative than to use free music services, many of which were not legal. And while online services like iTunes and Rhapsody finally did create a legal market for music, it was too late for the recording industry to put the free music genie back in the bottle.
After weeks of speculation, PK Advisory Board member Larry Lessig announced today that he is considering running for the Congressional seat of the late Rep. Tom Lantos, who represented California's 12th District. Over the past few weeks, a Draft Lessig Change Congress website and a Facebook group along the same lines have sprouted up.
Congress came back to town this week from its winter holiday break, and even though the economy, the war, the environment and the election will take center stage over the next year, Public Knowledge will have its hands full with a variety of technology, communications, copyright and patent matters. Here is a rundown of the specific issues that are likely to be addressed in 2008, in Congress and at the agencies with which PK works:
Over the past two years, we haven't had a lot of praise for Verizon, mostly because we have been at odds over issues like net neutrality and opening up wireless networks to all devices and applications. But despite this very heated battle over the future of the broadband Internet, Verizon has remained a valuable ally for PK and copyright reformers on both domestic and international copyright issues.
As Sherwin wrote about last month, most of the attention at the December 13 hearing on H.R. 4279, the so-called "PRO-IP Act of 2007" was focused on one small provision, Section 104, which would have the effect of allowing a court to multiply “statutory” copyright damages for infringing a compilation by the number of individual works in the compilation. For example, if I infringed a Rolling Stones’ CD, I could be liable for damages of up to $150,000 times the number of tracks on the CD. Right now, under Section 504(c)(1) of the Copyright Act, such an infringement would only be entitled to one damage award.
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.
A full 10 days later, and I still haven’t fully recovered from the 2008 CES. While I agree with folks like David Pogue that there weren’t many brand new innovations that would knock your socks off, there were a lot of improvements on old ones. TVs and computers got thinner, storage capacity got bigger and the telephone became just one application in multi-use devices that play music, broadcast over-the-air TV, provide GPS services and more. Equally as important, CES is a time to have fun and get to know better the government, industry, artists and public interest folks with which PK works. Here are some snapshots from the show:
This was my “best in show.” This Sony 11 inch O.L.E.D. High Definition TV set completely changed my expectations for Digital TV. For the past 10 years I’ve been saying that a viewer cannot tell the difference between HD and Standard Definition TV on anything less than a 36 inch screen. I was wrong. The ultra thin 27 inch prototype (below, after the jump), was also amazing.
For the past two years, we have been telling broadband Internet service providers that rather than kicking off heavy bandwidth users from their networks without notice or interfering with bandwidth-intensive traffic a la the Bit Torrent-Comcast controversy, they should instead charge consumers a flat fee for a certain amount of bandwidth, and then charge a per-bit metered rate for usage that goes beyond the limit. This would be similar to the cellphone model to which Americans have become accustomed – you pay a flat fee for a certain amount of minutes, and then a per-minute charge for every minute thereafter.
This model makes sense for several reasons. First, it provides both transparency and certainty – the customer knows what their limits are. Second, it makes unnecessary controversial “network management” decisions like Comcast’s decision to throttle Bit Torrent.
Does the RIAA believe that ripping a CD to your computer is illegal? That was the claim made by Washington Post writer Marc Fisher in a New Year’s eve article in that paper. Reporting on the Phoenix lawsuit Atlantic v. Howell, Mr. Fisher claimed that the recording industry in that case “maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.”
It’s been a busy two days here in Las Vegas. Between keynote speeches, panel discussions, walking the floor and social events, there is little time to blog or sleep. I’ll write separately about some of the cool technologies I’ve seen here, and the pictures will have to wait for me to return to DC (I forgot the cable which connects my camera to my computer). In this post I want to focus on three announcements that relate to PK’s work:
Alex, Sherwin and I will spending most of this week at the International Consumer Electronics Show, otherwise known as CES. We’ll be trying to see what are the cool new technologies and trends and to consider their policy implications. The show is massive, the biggest trade show in the world, with nearly three thousand exhibits and 150,000+ attendees taking up the entire Las Vegas Convention Center and Sands Expo and Convention Center, as well as parts of the Hilton, Renaissance, and Venetian hotels.
On Tuesday and with little fanfare, identical bipartisan bills were introduced both in the Senate and the House that would require terrestrial radio stations to pay the same performance royalties to record labels and artists as satellite and Internet radio services. In the House, the lead sponsor of the bill was Rep. Howard Berman (D-CA), who was joined by Darryl Issa (R-CA), John Conyers (D-MI), John Shadegg (R-AZ), Jane Harman (D-CA) and Marsha Blackburn (R-TN). In the Senate, lead sponsor Senator Patrick Leahy (D-VT) was joined by Senators Orrin Hatch (R-UT), and Dianne Feinstein (D-CA).
In my public talks on net neutrality, I often raise the irony of telco opponents of non-discrimination in Internet access being more than happy to advocate for non-discrimination, or “program access” when it comes to cable operators giving them video programming for their nascent subscription video services (like FiOS and U-verse). Art has blogged about it here. The cable companies are equally guilty of such doublespeak when they seek non-discriminatory interconnection rights for their Internet voice services on teleco-controlled broadband networks.
This past summer, colleges and universities had quite a scare when Senate Majority Leader Harry Reid proposed an amendment to a huge higher education bill that would have conditioned financial aid on higher educational institutions employing filtering technology and would have required the Secretary of Education to devise a “bad actors” list of the 25 schools with the highest levels of illegal P2P file sharing based on content industry numbers. After a fierce call to action, the higher ed community and their friends were able to beat back the amendment and get it replaced with another that required only that higher ed institutions advise their students in writing of the legal consequences of file sharing.
Business Week reported yesterday that AT&T has invested in and is considering using a network filtering technology called Vobile. While at first AT&T would use the technology to filter out content like child pornography, its ultimate goal is to use it to filter videos and other content that allegedly infringe on major copyright holders’ copyrights. If you recall, AT&T announced in June that it would work with the content industry to develop a copyright filter. Public Knowledge roundly criticized that announcement, and we have generally been critical of calls for ISPs to filter their networks.
Just a few moments ago, YouTube introduced the beta version of its "video identification" system, the purpose of which is to control the amount of infringing material that appears on the site. Under enormous pressure from movie studios and record labels and their friends on Capitol Hill to filter out copyrighted material, and with the Viacom lawsuit looming, You Tube's parent Google has developed a tool that will likely restrict the flow of legal content over the Internet, and absolutely raises the bar for each and every entity that serves as a conduit for copyrighted works.
Here is how the system works: A copyright holder uploads its works into a reference database, which then generates identification files by which uploaded videos are matched. When a user uploads a video onto YouTube, that video is matched with the identification file. If there is a "match" (more on that later), then the video is subject to whatever action the rights holder has decided to apply to it; for example, it could be blocked, "tracked" or "monetized." If the video is blocked, the user will be notified, and can immediately contest the claim by clicking onto a link. Once YouTube receives the user contest, it will put the video back on the site. At that point, notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) would kick in. If the copyright holder continues to want the video removed, it would have to send a takedown notice required by the DMCA. The user can send a counter-notice, whereupon the video would be reinstated, etc.
This past spring and summer was all about broadband policy for Public Knowledge - we were consumed with the 700 MHz spectrum auction, Federal Trade Commission and Federal Communications Commission proceedings regarding net neutrality, and Congressional efforts to change the way the government defines broadband and gathers data about broadband deployment and adoption.
This fall promises to be much different.
It wasn't all tears for PK on Friday. That same day, the House of Representatives passed H.R. 1908, the Patent Reform Act of 2007. This is a bill that PK has supported because it addresses a number of the major problems with our current patent system, including the poor quality of many patents; the lack of opportunity for third parties to submit evidence that proposed patents lack originality; and damage awards that are way out of proportion to value of the infringed patent. At the end of August, we sent a letter on behalf of ourselves, Consumers Union, Consumer Federation of America, EFF, Knowledge Ecology International and U.S. PIRG supporting the bill.
Ann Oliverio is a name that only the closest friends of PK know well. She doesn't write blog posts, or sign comments at the FCC or make visits to the Hill. She isn't registered as a lobbyist and she isn't a panelist at the Future of Music Policy Conference in two weeks. No, Ann only has one big job at PK, and that is to make the organization function day in and day out. Which she has done with incredible skill, organization and class since April 2003, with a brief 6 month hiatus to serve our country in Iraq in 2004. Here is just a sampling of what Ann does for us: she plans and organizes the IP3 awards, maintains our files, assists me with grant reports and other fundraising, works with our insurers, bookkeepers, accountants and other contractors, plans PK Board meetings, prepares Board meeting materials, makes our travel plans and updates our massive databases.
As we expected, the FCC voted today to require just two of the four "open access" conditions for one third of the 700 MHz spectrum that will be auctioned early next year. The conditions the Commission adopted require the spectrum licensee for the 22 MHz "C" block to permit the use of any device and any application on the network (although only if the C block fetches $4.6 billion; if it does not, the spectrum gets auctioned again without the requirements). These are pro-consumer conditions for sure, but do not accomplish the one goal both the FCC and Congress set for the auction - creation of a third broadband service provider that can compete with cable and telephone companies which control 96% of residential broadband lines in the U.S.
This past Friday I had the honor of speaking to the EDUCAUSE/Cornell Institute for Computer Policy and Law at Cornell University in Ithaca, NY. The attendees were largely college and university chief technologists, with a smattering of university legal counsels. The name of my presentation (pdf) was "IT Perspectives Inside the Beltway," but clearly there was only one Beltway issue foremost on the minds of the participants - an amendment to a higher education bill proposed by House Majority Leader Harry Reid. As Sherwin discusses here, that amendment conditioned federal funding on colleges and universities filtering their networks for infringing materials and compiling reports on those measures for the Secretary of Education.
Congress Daily (subscription required) is reporting that FCC Chairman Martin will issue a draft of the 700 MHz rules this week. As can be expected from such a high profile matter, rumors are flying about what will and will not be in this "Chairman's Draft." One of my colleagues describes the release of the draft like being in the 7th inning of a 9-inning baseball game - if you are winning in the 7th inning, you feel pretty good about your chances. If you are not...then you know you have to pull out all the stops to be victorious. This might include bringing pressure to bear from members of Congress, calling on the netroots and blogosphere to weigh in, and ramping up pressure on the mainstream media to cover the issue.
I have written previously about the FCC's upcoming 700 MHz spectrum auction and how it could provide the best chance to create broadband competition for the foreseeable future. Towards that goal, Public Knowledge and its Public Interest Spectrum Coalition colleagues are asking the Commission to adopt a number of rules that will determine who can bid and under what conditions, as well as rules that will govern the operations of whatever entities win those licenses.
Perhaps the most important and most intriguing of the rules we are seeking would require that winners for half of the spectrum being auctioned be required to make access to the spectrum available to non-affiliated wireless service providers at wholesale prices. The prices would have to be reasonably non-discriminatory and made public. This "open access" model harkens back to the days when 6,000 Internet Service Providers competed for customers -- they were able to do so only because the law required telephone companies to open their wireline networks for use by competitors. But thanks to years of Bell company litigation and FCC deregulation, open access applies only very narrowly to incumbent telephone companies' copper wires in the United States, which means that it has virtually no impact on broadband competition (Earthlink is one of the few exceptions to that rule -- it provides service by accessing telcos' DSL networks).
The recording industry was kind enough to invite me to join a conference call announcing a new coalition called musicFIRST, whose members include the RIAA, Soundexchange, the music industry unions and over 80 artists. The coalition's sole goal is to eliminate the exemption that over-the-air broadcasters have from paying the same performance royalties that satellite radio and webcasters pay to the record labels and performers. Representatives from RIAA and Soundexchange were on the call, as was Martha Reeves from the Motown group Martha Reeves and the Vandellas (who is now a member of the Detroit City Council) and Rob Garza from the band Thievery Corporation. The coalition's clear message is that as a matter of fairness to artists, the exemption should be repealed.
The Los Angeles Times reports today (registration required) that the RIAA and a number of artists groups are getting ready to advocate for the repeal of a law that exempts over-the-air radio broadcasters from paying the same performance royalties to record companies and artists that webcasters and satellite radio does. Broadcasters are exempt from those royalties both for their analog and new digital "HD" radio services. We have said that treating different radio services differently in this context is unfair. To the extent that this exemption might have been justified at one time because of the promotional value of broadcast radio airplay, today that value is no different if the radio service is delivered via satellite or the Internet.
This week begins what is called in the TV business as the "upfront" season - TV networks show off their new prime time programming in an effort to get advertisers to spend billions of dollars on commercial time before the fall season begins. But with the growing popularity of TiVo and other Digital Video Recorders (DVRs) that allow viewers to time shift programming easily and fast-forward through advertisements, convincing advertisers that broadcasting remains the best place to spend those dollars is becoming increasingly challenging.
Folks outside the Beltway may not be aware that since the beginning of the year, House Telecommunications and Internet Subcommittee Chair Ed Markey has been holding a series of "big picture" hearings on the "Digital Future of the United States," featuring some of the world's leading thinkers. For example, his first hearing had one witness - World Wide Web creator Sir Tim Berners-Lee talking about how the web came to be what it is today. Other hearings focused on among other things, spectrum and wireless issues, the future of radio, and International broadband deployment. The core idea behind these hearings is to educate members of the Subcommittee about the state of technology and broadband deployment, and not get too mired in the narrow day-to-day policy debates that groups like PK care so much about. A wise strategy for a new Congress, if you ask me.
The members of the Public Interest Spectrum Coalition, which includes PK, held our collective breath for almost 12 hours today before finding out that the FCC will indeed seek comment on all of the issues we raised in our filings urging specific auction and service rules for the 700 MHz spectrum auction. To recap generally, we are seeking rules that would promote the creation of a competitor to the cable-telco broadband duopoly. For details on what we've proposed, check out our posts here and here. But today's concern was largely procedural - we knew that the Commission was not going to be making a lot of firm decisions, and just wanted to ensure that our issues remained on the table for the public to comment upon.