Public Knowledge Statement on FCC Restarting AT&T/T-Mobile Shot Clock
Today, the Federal Communications Commission (FCC) announced that it has re-started the internal 180 day "shot clock" governing the agency's review of AT&T's proposed $39 billion acquisition of T-Mobile USA. The following quote can be attributed to Public Knowledge President and Co-Founder Gigi B. Sohn:
"We are glad the Commission has decided that AT&T has had more than enough chances to make its case, and is restarting the clock on the merits. Now that AT&T has conceded that it has played its last card, it is time for the FCC and the DoJ to bring this proceeding to a close by rejecting the merger."
Activist, legal scholar and author Tim Wu stopped by PKHQ this afternoon to sign copies of his new book, The Master Switch: The Rise and Fall of Information Empires. Want to find out how you can snag a signed copy of Tim's book (or a limited-edition PK t-shirt)? Visit our year-end giving page to find out more!
It's that time of year once again when geeks, music industry insiders and filmmakers of all stripes resort to shameless self-promotion in an attempt to be chosen to present at the annual South by Southwest (SXSW) conference in Austin, Texas. We here at Public Knowledge are no exception and we ask that you take a minute out of your day to vote for our two panels (using the stupidly large buttons embedded below), so that we can educate music bloggers about their rights and share ideas about new business models and revenue streams with professional musicians:
Background: Today, Verizon and Google announced that they have reached a private agreement on a legislative proposal for Net Neutrality.
The following is attributed to Sherwin Siy, Deputy Legal Director of Public Knowledge:
“We have already expressed our alarm at the extraordinary loopholes present in Verizon and Google’s proposal. However, the proposal also damages open Internet efforts through commission as well as omission. The section on “case-by-case enforcement” directs the FCC to defer to rules set by industry-led advisory groups. Combined with the proposal’s recommendation that the FCC have no rulemaking authority with respect to consumer protection and nondiscrimination, the agreement outsources the FCC’s powers and authorities to the very industries these rules are supposed to oversee.”
Background: Today, Verizon and Google announced that they have reached a private agreement on a legislative proposal for Net Neutrality.
The following is attributed to Gigi B. Sohn, president and co-founder of Public Knowledge:
“The agreement between Verizon and Google about how to manage Internet traffic is nothing more than a private agreement between two corporate behemoths, and should not be a template or basis for either Congressional or FCC action. It is unenforceable, and does almost nothing to preserve an open Internet.
Today, the FCC announced that Bruce Gottleib, Chief of Staff and Senior Legal Advisor to Chairman Genachowski, will leave the FCC at the end of July. He will be replaced by Rick Kaplan, the Chief of Staff for Commissioner Clyburn. A copy of the FCC's statement is available here.
The following statement may be attributed to Harold Feld, Legal Director, Public Knowledge:
“We at Public Knowledge are tremendously sorry to see the announcement of Bruce Gottleib’s departure. Throughout his tenure at the FCC, Bruce has worked tirelessly to see the public interest reflected in the FCC’s decision making process. His expertise in wireless issues will be particularly missed as the FCC moves ahead with implementation of the National Broadband Plan."
Background: Senate Communications Subcommittee Chairman John Kerry (D-MA), and senators Maria Cantwell (D-WA), Ron Wyden (D-OR) and Tom Udall (D-NM) asked Appropriations Chairman Daniel Inouye (D-HI) and ranking member Thad Cochran (R-MS) not to allow the appropriations process to be used to short-circuit the FCC's Open Internet proceeding.
Ever since the D.C. Circuit Court of Appeals ruled in favor of Comcast in the Comcast/BitTorrent case this morning, the tech policy blogosphere has been scrambling to unpack the court's decision and figure out what it means for the Federal Communications Commission (FCC), ISPs, public interest groups and various other stakeholders.
But what about the rest of us?
Who will protect the Internet user whose connection is blocked, filtered or throttled? Who will stop ISPs from blocking services that compete with their own offerings (VoIP or Internet video services, for example) or from instituting separate pricing tiers for those who wish to use their connection for gaming or video streaming? Who will ensure that tomorrow's innovative web service can reach users without being blocked or degraded? The answer to these questions might surprise you: no one.
The D.C. Circuit Court of Appeals' decision in the Comcast/BitTorrent case was just released and is available here.
Pardon the many changes to this post, PK staff are all still reading and analyzing the decision but here are some of our initial thoughts — check back in a bit for our full analysis and response:
The Court has called into question the FCC's authority to regulate broadband Internet access without advancing a new complex theory of ancillary authority for anything it wants to do regarding broadband. Most importantly, it threw out the FCC's ancillary authority arguments in this case and made it clear that the Commission can never assert general authority over broadband Internet access, as long as it remains under Title I.
As PK legal eagle John Bergmayer noted in his blog post on attempts to "harmonize" copyright across national boundaries, the European Parliament decidedly rebuked the Anti Counterfeiting Trade Agreement (ACTA)in a decisive 663 to 13 vote yesterday. The approved joint resolution calls for the immediate release of ACTA texts and public access to the negotiations and prohibits the EU from continuing to engage in secret talks with the other ACTA parties. Moreover, the resolution forbids EU member states from implementing so-called "three strikes" regimes, which some have reported or interpreted ACTA as prescribing. Finally, the resolution, "stresses that, unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives." Needless to say, this resolution holds the potential to deal a massive blow to the secretive ACTA treaty and to finally shine a light on a purposefully opaque process. Unfortunately, here in the United States, policymakers are singing a very different tune.
On Tuesday, the Federal Communications Commission (FCC) will unveil its National Broadband Plan, which the agency describes as "a roadmap to connect all Americans to affordable, high-speed internet". Public Knowledge and other stakeholders will have plenty of questions and recommendations for the FCC once the Plan is unveiled and the agency will be tasked with accommodating these comments. Additionally, the FCC is seeking input from the general public via their Broadband.gov portal. As part of this ongoing public outreach initiative, FCC Chairman Julius Genachowski will participate in a YouTube interview on Tuesday, where he will be asked questions submitted by members of the general public about broadband and the National Broadband Plan. Head over to CitizenTube to submit your questions (text or video) and vote on the submissions made by others.
Watch PK President and Co-Founder Gigi Sohn's Keynote at the Free Culture X conference using the streaming player below (HTML 5 browser required):
The event is now over. We'll post video footage of Gigi's keynote once it's available.
If you attended our World's Fair Use Day "Movie Night" on Monday, you got a sneak peek at Copyright Criminals, Kembrew McLeod's excellent documentary on the legal ramifications of sampling in hip-hop, which features interviews with members of Public Enemy, De La Soul, George Clinton, author Jeff Chang and famed funk drummer Clyde Stubblefield. For those interested in watching the film in its entirety, it will be airing on PBS this coming Tuesday, January 19th (check your local listings for times). Afterward, it will also be available through cable On Demand services, as well as at PBS.org. Meanwhile, Brett Gaylor's RIP: A Remix Manifesto, which documents remix culture through interviews with Girl Talk, Lawrence Lessig and Cory Doctorow, can be viewed free of charge at Hulu. Many thanks to all who came to and participated in World's Fair Use Day--we hope to see you all again next year!
Can't make it in person to World's Fair Use Day? Fear not: we've got a live webstream of the event embedded below for your viewing pleasure. The event kicks off at 9am and runs until 4pm EST on Tuesday, January 12th. For the full schedule of events and speaker bios, visit wfud.info.
We at Public Knowledge are thrilled to announce the first annual World's Fair Use Day (WFUD), a day-long celebration of creativity, innovation and remix culture to be held at the Newseum in Washington, D.C. on January 12th, 2010. Fair use is the legal right that allows creators to make limited uses of copyrighted materials for purposes like comment, criticism and education. At World's Fair Use Day, we'll demonstrate how fair uses of existing works, ranging from recontextualized audio mashups to documentary films, enrich our culture and contribute to the ongoing dialog on copyright. Speakers at the event will include Ben Huh (CEO of the Cheezburger Network, the publishing company behind ICanHasCheezburger and FailBlog), Dan Walsh (creator of the web comic "Garfield Minus Garfield"), Pennsylvania Congressman and mashup fan Mike Doyle, TechDirt founder Mike Masnick, mashup artist DJ Earworm and many more. The night before the main event, we'll kick things off with a "Movie Night," hosted by Mark Hosler of the pioneering audio collage band Negativland and featuring Brett Gaylor, director of RIP: A Remix Manifesto and Kembrew McLeod, director of Copyright Criminals. To view the full list of speakers and schedule and to RSVP, visit wfud.info.
If you've been following the net neutrality news lately, you likely know that tomorrow will mark a historic turning point in the ongoing debate: for the first time, the FCC will convene a rulemaking to specifically address the issue of net neutrality. Of course, the opponents of net neutrality aren't going down without a fight. They've been pulling out all the stops lately: lobbying members of Congress, spreading Fear, Uncertainty and Doubt and even pressuring employees and their families to go on the anti-net neutrality offensive. In so doing, the big telcos had hoped to suppress the debate surrounding the FCC's proposed rules before those rules were even announced. Instead, their "shock and awe" campaign backfired, triggering an incredible response from civil rights groups, corporate CEOs, venture capital firms, the public interest community and just about anyone else you can think of who has a stake in the Internet remaining free and open. The last few days have brought an avalanche of letters asking Congress and the Commission to protect the most valuable platform that we have for innovation, civic discourse and education. We've collected links to some of these letters after the break and will continue to update this list as more letters are published:
Last Thursday, PK President Gigi Sohn delivered a statement at an FCC broadband workshop titled "The Role of Content in the Broadband Ecosystem". If you find yourself questioning what relevance a discussion of content protection has in the context of the National Broadband Plan, you're not alone. In her statement (oral | written), Gigi questioned the FCC's jurisdiction over copyright issues and asserted that the Commission certainly does not have the authority to combat online copyright infringement by using the sort of blunt instrument--solutions like copyright filtering and three strikes--that the industry is calling for. So, why even convene a workshop on content protection as part of the National Broadband Plan? The point of the workshop, it seems, was to appease the big entertainment companies that are clamoring for the Federal government to take a more active role in protecting the intellectual property of private companies. This fact could not have been made more clear by the FCC, given the manner in which the workshop was conducted.
Embedded above, you'll find a video of Frederick D. Huntsberry's presentation from the workshop. While the time limit for oral statements was supposedly five minutes, Huntsberry, the COO of Paramount Pictures, was inexplicably allowed to give a 10 minute presentation. In a move reminiscent of the MPAA's how-to-camcord video, Huntsberry demonstrated how to unlawfully download and/or distribute a film online (using a torrent tracker, Drop.io and a streaming site), spoke at length about camcording and insinuated that a number of legitimate companies--including Google, eBay, Apple, Twitter, Facebook and Boxee--are enabling the unlawful trade of copyrighted content online.
During the first phase of the FCC's National Broadband Plan (NBP) proceeding, we provided the agency with a list of suggestions (PDF link) as to how it might achieve Congress' vision for universal broadband access. In those initial comments, we urged the Federal government to become "an evangelist for broadband" by "embracing new media technologies at all levels of government" and by using those tools to "provide citizens with information, increase transparency and encourage engagement and participation in government processes."
A few months later, it's encouraging to see the FCC putting some of those ideas into practice as part of the NBP. Alongside its shiny new Broadband.gov website, the FCC has now launched its first-ever blog--the NBP-centric, appropriately titled "Blogband"--as well as a Twitter account. In his introductory blog post, FCC Chairman Julius Genachowski states that the goal of Blogband is to "foster public dialogue about the National Broadband Plan" and he urges readers to get involved. Given that the previous FCC was often criticized for its attitude toward public outreach, it's great to see that the new Commission is not afraid to leverage new media technologies in order to solicit comments from everyone with a stake in our national broadband infrastructure. Here's hoping that the Commission continues to harness the wisdom of the online collective in its effort to lead us toward a brighter broadband future.
Earlier this week, Art called attention to the Internet Freedom Preservation Act of 2009, a bill introduced in Congress by Representatives Ed Markey and Anna Eshoo. The bill, which you can read here (PDF link), marks the latest front in the Net Neutrality battle--the ongoing fight to ensure that the Internet remains an open, nondiscriminatory platform. Seeing how this bill is likely to rekindle the Net Neutrality debate once Congress returns in September, we thought that a quick rundown of the text of the bill was in order.
Yesterday, as part of our reply comments in the FCC's National Broadband Plan proceeding, we released our latest whitepaper, "Forcing the Net Through a Sieve: Why Copyright Filtering is not a Viable Solution for U.S. ISPs" (PDF link). Recently, the content industry has been ramping up its efforts to promote ISP-level copyright filtering as a practical solution to the problem of unlawful online filesharing. Given the imperfect, controversial nature of filtering technology, we thought it was time to take a close look at copyright filtering and the effects that it might have on the Internet ecosystem. What did we discover? As our report states, not only will copyright filtering be ineffective--it will cause a great deal of harm to users, creators, innovators, businesses and the economy and will undermine the goals of the National Broadband Plan.
I had been looking forward to reviewing Depart From Me, the new album by Definitive Jux rapper Cage, since I discovered 2005's damn-near brilliant Hell's Winter. When the package arrived one month in advance of the street date, I set aside everything I was doing and with trembling fingers popped the promo CD of Depart From Me into the computer. And after listening to the first minute and a half of every track, I tossed the CD in the trash. Why? Because Definitive Jux, in order to keep me from leaking the album, made the review copy nearly unlistenable by inserting promo drops--breaks in the music during which a voice says, "This is a promotional copy"--on every single track.
Today, I'm happy to announce that we're launching a new video series here at Public Knowledge: "5 Minutes With Harold Feld". As you may recall, Harold joined our staff back in March and has since taken the helm as our Legal Director. Harold brings with him years of experience in the media reform space, not to mention a wealth of knowledge about the inner workings of Congress, the FCC and the courts. In this series, he'll be explaining complicated topics concisely, in layperson's terms.
In our first episode, Harold tackles the National Broadband Plan. As part of the Stimulus Act, Congress authorized the FCC to develop a plan for bringing fast, affordable broadband Internet access to all Americans. Harold explains the significance of the plan and details Public Knowledge's suggestions to the FCC regarding the National Broadband Plan (a full-text PDF of our comments, as filed with the FCC, can be found here). Take it away, Harold:
If you were following the DMCA Section 1201 anticircumvention rulemaking proceedings last week, you likely saw Tim Vollmer's video of the MPAA's demonstration on how to create a film clip by pointing a camcorder at a TV set (embedded above). This demonstration was the MPAA's response to an exemption request filed by educators, who are seeking to exercise their fair use rights by breaking the CSS encryption on DVDs in order to make short clips for classroom use.
As you'll recall, a group of media studies professors led by Peter DeCherney successfully filed for just such an exemption in 2006 (for more on that, see our video interview with DeCherney, embedded after the break). Three years later, the educators have returned, in an attempt to renew the exemption and to expand it to include students in media studies classes as well as educators outside of the media studies field. Despite having three years to regroup, the studios returned with the same tired, apocryphal argument: despite the fact that DVD-ripping is already widespread, if educators are allowed to legally rip, demand for DVDs will plummet and the industry will collapse. As an alternative, they suggest camcording, a cumbersome process that produces low-quality clips while requiring a significant investment in video recording equipment. Practical matters aside, the MPAA's argument for camcording also happens to contradict a number of the organization's other arguments against fair use--a fact that was not lost on many of the witnesses at last Wednesday's hearing.
Earlier today, the New York Times' Bits Blog reported that starting next month, New York-based cable provider Cablevision will offer 101Mbps (downstream) service to the 5 million people in its service area at a cost of $99.99 per month. While $100 per month for Internet service is not quite what most of us would consider a deal, Cablevision's latest service offering--which will be the fastest Internet service available to consumers in the United States--looks a lot more affordable when juxtaposed with comparable services. Both Verizon and Comcast currently charge $140/month for 50Mbps downstream service (Verizon charges less in a few highly competitive markets), which means that with Cablevision, you're getting more than double the downstream bandwidth for around 70% of the price. Sure, a cost to speed ratio of $0.99 per megabit might not seem like a great value when compared to speeds and prices overseas but for the U.S., Cablevision's announcement represents a big step forward for the affordability of high-speed broadband. How can Cablevision afford to offer such fast service at such a relatively low price?
Hot on the heels of my previous post, it looks like Time Warner has decided to back off of its metered billing initiative nationwide, at least for the time being. From the press release:
Time Warner Cable Chief Executive Officer Glenn Britt said, “It is clear from the public response over the last two weeks that there is a great deal of misunderstanding about our plans to roll out additional tests on consumption based billing. As a result, we will not proceed with implementation of additional tests until further consultation with our customers and other interested parties, ensuring that community needs are being met. While we continue to believe that consumption based billing may be the best pricing plan for consumers, we want to do everything we can to inform our customers of our plans and have the benefit of their views as part of our testing process.”
This past Monday, California Congressman Howard Berman convened a field hearing in Van Nuys, California to address the topic of digital piracy. Rep. Berman represents California's 28th district, which includes Northern Hollywood, so it should come as no surprise that he rarely misses an opportunity to give voice to his constituents' concerns regarding piracy--and this hearing was no exception. As Ars Technica notes, the hearing found Berman trotting out a number of apocryphal figures regarding the damage done by Internet piracy, many of which are easily debunked using little more than simple logic. Not wanting to be outdone, however, director and Director's Guild of America vice president Steven Soderbergh made a vaguely-worded overture to France's proposed "three strikes" law. "Litigation is slow and the Internet is fast, so it doesn't make sense to ask the government to be our police," Soderbergh said. "What we would like is to be deputized to solve our own problems, to be granted the kind of pull-down and inspection abilities being proposed in France so we can act swiftly and fairly on our own behalf." What exactly is Soderbergh advocating? Even he doesn't seem to know. When asked for clarification by New York Times reporter Michael Cieply, "Mr. Soderbergh stumbled a bit and said he was not quite sure how it might work".
Love him or hate him, you've got to admit that Nine Inch Nails (NIN) frontman Trent Reznor is not only one of the most innovative musicians around when it comes to alternative distribution models--he's also one of the most successful. With his most recent albums, Ghosts I–IV and The Slip, Reznor has managed to pull off what many thought impossible: he released both albums under Creative Commons licenses, made them freely available for download on the Internet and still sold a boatload of records. In the above interview with Digg founder Kevin Rose, Reznor talks about his successes and failures in trying to navigate the post-record label landscape and shares his thoughts on the future of the music industry. For the full interview (wherein he gives advice to musicians hoping to distribute their work over the web and talks about his favorite fan remixes of NIN songs), click here.
This morning, the FCC announced plans to develop a national broadband strategy (PDF link), with the end goal of ensuring that every American has access to a broadband Internet connection. The development of this strategy--one of the requirements that was written into the American Recovery and Reinvestment Act of 2009, more commonly known as the "stimulus package"--is both welcome and long overdue. As many proponents of increased broadband deployment have noted, a number of countries around the world have developed and implemented national broadband strategies with impressive results, so it's high time that the U.S. follow suit. But what, exactly, should our national broadband strategy look like? In a document filed with both the FCC and the NTIA yesterday, the Public Interest Spectrum Coalition*, of which Public Knowledge is a part, made a set of recommendations regarding the implementation of the broadband provisions in the stimulus package.
As is the case with Americans, many South Koreans enjoy a good game of baseball. But that's not to say that they'll tolerate a baseball metaphor in their public policy--especially when the metaphor in question is being used to describe the now infamous "three strikes and you're out" Internet disconnection regime. Earlier this month, the South Korean National Assembly’s Committee on Culture, Sports, Tourism, Broadcasting & Communications (CCSTB&C) passed a bill that would revise South Korean copyright law to include three strikes provisions, which, judging by recent events, appear to be suddenly en vogue. According to South Korean pundits, the amended version of the copyright bill is largely expected to sail through the South Korean legislature in April. I, however, disagree: I don't think that three strikes stands a chance in South Korea.
If you happened to page through this week's Sunday edition of The New York Times, you might have noticed something unusual about the front page of the business section. Instead of leading with a story about AIG's transgressions or the latest eco-tech startup, this week's Sunday business section gave top billing to the brewing conflict between YouTube users and aggressive rights holders, most notably the "big four" record labels. While the placement of the article may have struck some as odd, the editors at the Times were right to file the story under "business". In a web-driven economy, there are fewer commodities more valuable than user-generated content. And as the article ably demonstrates, unlike with most valuable commodities, there's a cadre of deeply entrenched, extremely powerful companies who possess the ability to disrupt the flow of user-generated content at will. Trivial though it may seem, the outcome of this debate could come to define the very nature of the web that our children inherit--and the long-term viability of the Internet economy may lie in the balance.
While reading Boing Boing this morning, I learned that Uncensored Interview, a site that records and posts video interviews with independent musicians, has made over 1000 of their videos available under the extremely permissive CC-BY Creative Commons license. This means that anyone is free to repost, reuse or remix these videos, just so long as they attribute Uncensored Interview as the original creator. Needless to say, this archive will prove invaluable to anyone working on a video project documenting just about any aspect of independent music. To give you a taste of what's available, I've posted a video above of mash-up artist and fair use poster boy Girl Talk talking about--what else?--fair use. And after the break, you'll find a video of Brooklyn dance-punk duo Matt & Kim discussing how the Internet has allowed them to bypass traditional distribution and promotion channels.
Back in January, I briefly mentionedHerdict, a web-based tool built by the Harvard Berkman Center for Internet and Society that aims to collect and aggregate data on web blocking and filtering. Using the magic of crowdsourcing, Herdict displays information in real time about where in the world various websites are inaccessible and why. To celebrate the launch of the site, the Herdict team has produced the video below, which explains how the site works using sheep puppets and a comical voiceover from Herdict creator Jonathan Zittrain:
This morning, Boxee users woke up to some very bad news. As was revealed on Boxee's blog yesterday, as of tomorrow, the "social media center" software will no longer be able to stream shows from Hulu. Don't blame Hulu, however: as is explained on the Hulu blog, this is being done at the behest of unnamed copyright holders--ostensibly FOX and NBC, Hulu's owners and largest content providers--and the folks at Hulu don't sound too happy about it. "The maddening part of writing this blog entry is that we realize that there is no immediate win here for users," Hulu CEO Jason Kilar writes. "Please know that we take very seriously our role of representing users such that we are able to provide more and more content in more and more ways over time." When studios pull user-uploaded content from sites like YouTube--content for which they do not receive advertising revenue--it's quite clear what their motives are. But when content on Hulu--content that's uploaded by the studios themselves and which contains embedded advertising--is blocked from reaching users, the studio's intentions become more difficult to discern. Let's dig a bit deeper.
Like Harold, I spent my Wednesday at the Future of Music Coalition's D.C. Policy Day. As usual, our friends at the FMC put on a fine event, bringing together music industry insiders, legislators, innovators, students, working musicians and policy wonks for a day of panel discussions on the future of music creation, marketing and commerce. During the opening panel, Randy Hawke, operations manager for Madison, WI-based company Mid-West family broadcasting, defended the practices of small, independent broadcasters. During the second panel, Free Press' Ben Scott and the New America Foundation's Sascha Meinrath outlined the importance of Net Neutrality for musicians and fans alike. The day's keynote found acting FCC Chairman Michael Copps pledging to lead an overhaul of the FCC's internal processes ("We are a consumer protection agency and it’s time to start acting like one"), echoing many of the suggestions made at our recent conference on FCC reform. And the third panel found our own Gigi Sohn debating representatives from the RIAA and the Songwriters Guild of America, as YouTube general counsel Zahavah Levine outlined her company's plan to pursue site-wide music licenses in order to protect fair users.
While all of the day's events were quite interesting, I found the final panel, "Fair Trade Music: Toward a Legitimate Digital Music Marketplace," to be the most enlightening. Bringing together various parties with stakes in the digital music marketplace, the panel was easily the day's most uniformly forward thinking.
In the wake of Comcast's Bit Torrent debacle, ISPs and copyright holders alike have been clamoring to find the next network management magic bullet, which will single-handedly curb piracy, solve the problem of network congestion and breathe new life into flagging physical sales of entertainment products. Unfortunately, it seems that there's a buzz building around a technique that the ISPs and studios are euphemistically referring to as "graduated response"--but which we've been calling "three strikes". As I've previously mentioned, using three strikes to combat piracy seems a bit like using a sledgehammer to kill an ant. Worse yet, a three strikes system would create an extralegal regime whereby users could be kicked off of the Internet without a court order--a fact that raises a number of legal red flags. Regardless, ISPs and governments around the world are increasingly looking to three strikes as a viable option for combating music and film piracy. Here's a brief look at this week's biggest three strikes stories:
While conducting research for Monday's blog post on the topic of video film critic Kevin B. Lee's recent struggle with YouTube, I discovered that there's some confusion in the blogosphere with regard to why, exactly, Lee's videos were removed from the web. The notices that YouTube reacted to were, in fact, notices that alleged that the videos in question violated copyrights. They were not, as some blogs seem to be reporting, notices that suggested that the videos in question were illegal on the grounds that they were produced by ripping copy-protected DVDs. This confusion is wholly understandable, however: both the notice and takedown regime (DMCA section 512) and the anticircumvention provisions that make DVD-ripping illegal (DMCA section 1201) are part of the same law--the DMCA--though these two sections represent discrete components of the complex law. On Monday, we discussed section 512 in depth, so today, let's take a close look at how section 1201 applies to innovators like Lee, as well as current attempts to reform the law.
As I noted in yesterday's post, web filtering is increasingly being looked to by governments worldwide as a viable solution for dealing with unlawful and/or unwanted content on the web. In a number of countries including Saudi Arabia, Australia and China, various types of web filtering techniques are being either used or trialed, in order to prohibit access to specific websites and domains. For those of us who oppose such filtering on the grounds that it limits both free speech and open access to information, this is a deeply troubling trend. Even more troubling, however, is the fact that it's not always clear where in the world web filtering is taking place. Some governments have tested or even implemented such systems without informing the public, forcing many of us to resort to guesswork when trying to determine where and how the web is being filtered.
Following the Australian government's recent foray into web filtering, last week, Slashdot reported that Germany's Minister for Families, Ursula von der Leyen, has announced an initiative to force German ISPs to enforce a government-mandated "block list". The list, which would be created and maintained by the BKA (the German equivalent of the FBI), would catalog websites that German ISPs are not allowed to serve to users. According to an article on Spiegel Online (crudely translated into English here), the government has already made "binding agreements" with all of the major German ISPs, though it remains unclear what, exactly, this means in legal terms.
Today, at the annual MacWorld conference in San Francisco, Apple Inc. senior vice president of worldwide product marketing, Phil Shiller, announced that by the end of this quarter, the iTunes Store's entire catalog of digital music will be sold without Digital Rights Management (DRM). As of today, 8 million of the 10 million songs sold by the iTunes Store are available sans DRM, with the remaining 2 million to follow suit during the coming months. This announcement has been a long time coming from Apple; the company's CEO, Steve Jobs, penned an open letter to the music industry in February of 2007, calling for an end to DRM mandates for online music retailers, though only one of the "Big Four" record labels, EMI, answered his call in the weeks that followed. This time around, it seems that Apple was forced to make a concession in order to cast off the record industry's DRM requirements. As followers of Apple's negotiations with the recording industry will note, variable pricing for songs--an item that has long topped record executive's wish lists--was also announced today at MacWorld and will be implemented in April. Though it remains to be seen whether labels will seek to fully exploit this new variable pricing model, Apple's DRM announcement marks a turning point in the battle against DRM. But the war is far from over.
Today, at the National Press Club in Washington, D.C., we're co-hosting a conference, on the topic of Reforming the FCC, along with the Silicon Flatirons Center at the University of Colorado. Today's speakers will include former FCC Chairmen Reed Hundt and William Kennard. Former Commissioner Nicholas Johnson, who wrote the classic book, How to Talk Back to Your Television Set, and former Commissioner Kathleen Abernathy will also take part. For those of you who can't make it to the conference in person, I'll be liveblogging it here from start to finish. Click here for more information on the conference and be sure to read the liveblog after the break.
Well, it seems that, at long last, the RIAA has realized that not only is it losing the war on piracy, it's also alienating its potential customers in the process. Today, the Wall Street Journal revealed that the RIAA is largely abandoning lawsuits against individual users as a means to fight piracy. Though the association reserves the right to pursue large file sharers through litigation, it will no longer file suits against users who casually trade music online. To those of us who have spent the last few years criticizing the RIAA's overzealous legal campaign, this comes as welcome news. However, the association's new strategy for fighting piracy--partnering with ISPs to kick alleged file sharers off of the Internet--is quite possibly even more troubling than a barrage of lawsuits.
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If you happen to have missed our 10 Years of the DMCA video interview series, which ran from October 27th to November 7th, be sure to check out the four-and-a-half minute long trailer above. It should give you a pretty good idea of what you'll find in the full, eight-part series, which is being hosted in its entirety on our site. Thanks to everyone who tuned in and thanks, especially, to all of our interviewees, for their cooperation and insightful comments.
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For the eighth and final installment of our 10 Years of the DMCA video interview series, I sat down with Electronic Frontier Foundation Senior Staff Attorney and recent IP3 award winner (for his work in the area of intellectual property) Fred von Lohmann. As you may already know, Fred has been involved in numerous cases relating to the DMCA and has also worked to help various parties apply for exemptions to the law.
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In part seven of our interview series, PK staff attorney Rashmi Ragnath sits down with Jonathan Band, a D.C.-based attorney and Adjunct Professor of Law at the Georgetown University Law Center. At the time of the DMCA's crafting, Jonathan represented a group of software developers who were concerned that the DMCA would circumscribe their ability to write interoperable software. In the years since, he has also represented libraries, who are affected by both the DMCA's anti-circumvention provisions and its ISP safe harbor provisions. In this interview, Jonathan explains why interoperability and reverse engineering are important for software developers and how legislators "screwed" the libraries.
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Part six of our ongoing 10 Years of the DMCA video interview series features Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at the Washington College of Law at American University. At the time of the DMCA's drafting, Professor Jaszi was involved with a group called the Digital Future Coalition, which made recommendations to the policymakers who were responsible for crafting the DMCA. In this interview with PK staff attorney Rashmi Ragnath, Professor Jaszi delves into the history of the DMCA, the motivations behind the Act and its impact on users during the last decade.
Part five of our 10 Years of the DMCA interview series features Jennifer Urban, Clinical Associate Professor of Law and Director of the Intellectual Property and Technology Law Clinic at the USC Gould School of Law. Professor Urban has researched takedown notices issued under section 512 of the DMCA and has discovered that more than 30% of such notices are of questionable integrity (PDF link). Professor Urban has also been involved in court cases relating to the DMCA's anti-circumvention provisions (section 1201). In the interview, she explains sections 512 and 1201 of the DMCA and discusses her work in both areas.
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Special thanks to Maria Iacobo at USC for conducting and filming the interview.
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Among those interested in copyright reform, there's a commonly-held misconception that the DMCA is a uniformly negative, draconian law. It's no wonder: as we've seen in the first three parts of this series, numerous innovators, academics and citizens have been stifled by the DMCA's anti-circumvention provisions, all in the name of protecting copyrighted works. While it's hard to argue that these anti-circumvention provisions have benefited users in any way, there is a section of the DMCA that has been of enormous benefit to the public: the ISP "safe harbor" provisions provided by section 512 of the law.
Part three of our ongoing 10 Years of the DMCA series features Peter Decherney, Assistant Professor of Cinema Studies and English at the University of Pennsylvania. In 2006, Professor Decherney, along with Professors Michael Delli Carpini and Katherine Sender, filed for an exemption to the DMCA's anti-circumvention provisions that would allow educators to circumvent the DRM used on DVDs and other video formats, in order to create short clips for teaching purposes. As Decherney argues in the video, Hollywood is increasingly releasing films and other content in high-resolution, digital formats. Why should educators be forced to use analog outputs for creating clips when high-quality digital clips can be made just as easily?
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In part two of our ongoing 10 Years of the DMCA interview series, we sit down with Mark Richert, Director of Public Policy for the American Foundation for the Blind. In both 2003 and 2006, the AFB successfully filed for exemptions to the DMCA's anti-circumvention provisions, so that blind and visually impaired users could use accessibility hardware and software with DRM-protected eBooks. As Mark explains in the interview, a significant percentage of eBooks are incompatible with such accessibility tools unless their DRM is circumvented. Before the AFB's DMCA exemption was granted, however, circumventing the DRM on an eBook--even for the purpose of attaching a braille reader--was a crime punishable under Federal law.
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As Rashmi mentioned, we're going to be taking a look back at 10 years of the Digital Millennium Copyright Act this week, in a series of video interviews with innovators, academics, policy advocates and industry representatives. Here's the first part in that series, an interview with Vijay Raghavan, who serves as a Director at Qorvis Communications and who co-founded the now extinct video-to-iPod service, Load N' Go Video:
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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.
Over the course of the last year, we've seen an intense, international lobbying effort on the part of the entertainment industry to craft policies that would boot alleged filesharers off of the Internet. The folks over at TechDirt have been keeping a close watch on this front and point to legislation and negotiations in the UK, France, Australia and Canada that would institute a "three strikes" rule. As proposed, this three strikes policy would require ISPs to filter their networks for copyrighted content and send out notices of infringement to users suspected of engaging in filesharing--effectively turning ISPs into "copyright cops". As implied by the three strikes moniker, users would receive two written warnings before having their contract with the ISP terminated outright, upon receipt of the third.
Luckily, the EU Parliament saw fit to put an end to this nonsense last week, passing an amendment that prohibits member states from instituting three strikes policies, or "…measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access," as the EU Parliament calls them. Thanks to this amendment, the threat of a three strikes policy in Europe seems to have passed. But here in the U.S. of A, three strikes isn't just alive and well--it's already being implemented, despite the notable absence of a policy mandate.
Feeling a little confused by the ongoing white spaces debate? That's understandable--after all, wireless spectrum issues tend to be pretty technologically complex. Luckily, the folks over at the People's Production House have put together a short video that explains the concept of white spaces in simple, easy-to-understand terms.
Public Knowledge President and Co-Founder Gigi Sohn testified in front of the Senate Committee on Commerce, Science and Transportation this morning, at a hearing entitled "Broadband Providers and Consumer Privacy". Alongside Gigi, the hearing also featured testimony from representatives for AT&T, Time Warner Cable and Verizon. Gigi spent the majority of her time focusing on Deep Packet Inspection (DPI), a technology that--as you may know--is receiving a great deal of Congressional scrutiny as of late.
Last week, Wired's Threat Level blog ran a great feature, which takes a close look at the RIAA's ongoing legal campaign against filesharers on the fifth anniversary of the first RIAA suits. Since then, the RIAA's campaign has expanded to include a whopping 30,000 lawsuits, nearly all of which have been or will be settled out of court. While the Copyright Act allows for statutory damages of up to $150,000 per infringement (i.e. per song), the RIAA has been generous enough to settle most cases out of court for a few thousand dollars--thereby ensuring that most defendants choose a quick cash settlement over costly legal fees and months of litigation, regardless of guilt. Obviously, the RIAA has managed to raise quite a bit of money for its own pursuits through this legal campaign (not a single cent of which has gone to the artists the RIAA claims that it's working to protect, mind you). But what else has the music industry lobbying group accomplished during the last five years?
This past Tuesday, I rushed home from work to download, install and test Google's new web browser Chrome, like the dutiful geek that I am. The next morning, Chrome was the talk of the town, with tech blogs far and wide falling over themselves to praise the latest open-source browser. It's fast! It has a built-in task manager! It sandboxes individual tabs and processes! Yes, yes, these things are all true and are all very exciting. However, just a scant few hours after Chrome's release and the fanfare that followed it, the honeymoon was all but over. Thanks to a carelessly crafted End User License Agreement (EULA), Google managed to turn a PR dream into a PR nightmare--and in record time to boot. It was an impressive demonstration of the speed with which a backlash can brew, even by Internet standards.
A few days ago, I read an article on Ars Technica that described a new search site designed to help save the environment. Forestle, as it's called, is essentially a Google partner page that sticks a pretty green and white front-end on the same old Google search that you know and love. So, how exactly does it save the environment? According to the Germany-based non-profit organization that runs Forestle, all of the site's advertising income minus administrative costs is donated to The Nature Conservancy's adopt an acre program, which helps protect at-risk rainforests. Forestle's founder Christian Kroll told Ars that "0.1 square yards of rainforest are 'saved' with every single web search," and that within the site's testing phase, "more than 15,000 square yards of rainforest" had been saved.
Being the sort of person who performs a lot of web searches on the average day, I figured that there was no reason for me to not use Forestle in lieu of Google. After all, I would get the same search results and would be able to play an infinitesimally small part in saving the rainforests in the process. Keeping this in mind, I went ahead and installed Forestle's Firefox search bar plug-in, performed a few searches and then patted myself on the back for a deed well done. Little did I know, however, that Forestle wouldn't last long.
While there are a seemingly infinite number of ways to share and discover new music, few are as mythologized as the mixtape. From Nick Hornby's romanticizing of the format in High Fidelity to Library of America editor-in-chief Geoffrey O'Brien's assertion that the mixtape is "the most widely practiced American art form," no other amateur medium commands the same level of respect from fans and critics alike. While the general principles of mixtape making continue to live on in even the post-iPod era, with the exception of a few purist holdouts, most mixtape curators stopped using magnetic audiotapes long ago, in favor of the more convenient CD-R. Recently, however, even more advanced tools have emerged on the web, allowing would-be mixtape traders to widely disseminate their tastes while easily tapping into those of their friends.
One such site, Muxtape, allows users to upload, sequence and stream 12 MP3s in order to create virtual mixtapes. Web radio services like Pandora, meanwhile, allow users to discover new music--as mixtapes once did--based on their existing tastes. And social music sites like Last.fm allow users to broadcast their tastes automatically, by generating radio stations based on the user's listening habits. All of these technologies provide fans with new ways to interact with and discover music and have the potential to generate quite a bit of excitement for both independent and major label artists. That last fact seems to be lost on the recording industry, however, which, as usual, is too busy trying to stuff the genie back into the bottle to know a good opportunity when it sees one.
It's no secret that Comcast is a company with a bit of an image problem. If you're a regular reader of this blog, chances are that you already know this, given the frequency with which Comcast is discussed around these parts. And even if you're not a policy geek, chances are fairly high that you see America's largest cable company in a less than favorable light. As the most recent American Customer Satisfaction Index survey reveals, Comcast is one of the least trusted cable providers out there. So you can't blame the company for attempting to rehabilitate its image in the eye of the consumer…or can you? Today, Comcast found itself in hot water with consumer advocates yet again, over a controversial response to online complaints. For once, however, I'm siding with Comcast.
Girl Talk a.k.a. Pittsburgh-based mashup artist Greg Gillis, has been making waves in both the electronic/dance and indie rock communities for a few years now. Specializing in sample-based DJ mixes, Gillis creates music that is dense, tirelessly referential and thoroughly postmodern. His breakthrough album, 2006's Night Ripper, proved that a well-executed mashup can have a life beyond the Internet and his latest release, the pay-what-you-want, Creative Commons licensed Feed the Animals, seems poised to push even further into the mainstream. Gillis has become quite the hot topic as of late and his name often pops up in the virtual pages of publications like Pitchfork and Stereogum, as DJs in clubs around the country shamelessly try to imitate his style. One place where you might not expect to hear Gillis mentioned, however, is in the corridors of power on Capitol Hill. Despite this fact, not only did Gillis' name pop up twice this week during Congressional and FCC hearings but on both occasions he was held up as exemplifying a new breed of creative professional. Welcome to yet another week in the increasingly scattershot world of D.C. tech policy.
I've been a Comcast cable television and Internet customer for almost two years now. And to be quite honest, during those two years, I've had relatively few complaints. Sure, I'm not crazy about my upstream BitTorrent traffic getting throttled. But that aside, I feel as if I've always enjoyed a fairly high level of service. I'm more or less pleased with the speeds that I get with my Internet connection, the picture and sound quality of my cable television service is high enough to pass muster and I can't remember ever experiencing any downtime (which initially came as a shock, after having been a DSL customer for a number of years). And all those horror stories about Comcast technicians? Mine arrived right on time for my installation appointment and was both courteous and helpful--even if he did try to sell me a cable descrambler box. In fact, during the last few years, I've only had one complaint regarding Comcast's Internet service: the price tag that comes attached to it has always seemed a bit high. As of yesterday, however, that's no longer an issue for me.
After graduating from college in 2005, I spent a year living in a small fishing village in Aomori Prefecture, on the northern tip of Japan’s main island, Honshu. Aomori is one of Japan’s poorest and most rural prefectures and its defining characteristics are cold weather, mountains and a lot of snow (I often jokingly refer to it as the “Wyoming of Japan”). My apartment in Aomori was lacking a number of amenities that we Americans take for granted—air conditioning, central heating and insulation being the most notable among them. One thing that I did have, however, was a 100 Mbps fiber-optic Internet connection, for which I paid the equivalent of around $30 USD per month. Fast forward to today. Verizon, the first major U.S. carrier to roll out fiber-to-the-home, has started selling its FiOS Internet service in a handful of U.S. markets. Unfortunately, you can’t yet get FiOS in places like Wyoming—so far, deployments have been mostly limited to urban areas like New York City and the suburbs of Washington D.C. You also can’t get 100 Mbps service—FiOS currently tops off at 50 Mbps. And how much, you ask, does that 50 Mbps service cost? $144.95 per month.
I’ve been plying my trade as a blogger for quite a while—okay, well, “quite a while” in blog years, anyway. During that time, I’ve learned that the old guard print journalists and their scrappy web counterparts don’t always see eye-to-eye on matters of citation and attribution. On the web, the mantra has always been “share and share alike”: most bloggers generally quote and cite each other freely, returning the favor in the form of a link. This works because the Internet economy runs on page views, which are equally coveted by advertisers, writers and business folks alike. Unfortunately, some content producers with roots in the print world, most notably the large wire services, have failed to understand this unspoken code of conduct. I know that I’m not the only one who has worked for a web publication that received a stern letter from the likes of Reuters or Bloomberg, which essentially said “don’t cite, quote or link to our content”. Sure, this proved to be an inconvenience at times—sometimes the major wire services had exclusive stories that no one else had—but to avoid a legal squabble, the easiest thing to do was to simply stop linking to and quoting from the offended party. After all, if these services want to shoot themselves in the foot, why not simply let them? Here’s why: because rights holders, including the major wire services, do not get to decide what is and isn’t fair use under the law.
Last Friday, Public Knowledge president and co-founder Gigi Sohn spoke on a panel entitled "Net Neutrality: It’s Back Again!" at the 2008 Broadband Policy Summit here in Washington. I managed to shoot some video footage of the panel and I've included some of the highlights below, though you'll have to accept my apologies for the poor video quality (the light and mirror-filled room offered a sobering lesson in the limitations of the Flip Video Ultra). At any rate, the audio is quite clear, so be sure to check out these clips if you weren't at last week's summit. Part I: What is reasonable network management?
In the world of U.S. tech policy, few regulatory bodies are as closely watched as the Federal Communications Commission. While there's no shortage of tech journalists who follow the Commission's every move, relatively little is written about the personal viewpoints of the FCC's five Commissioners and how these appointed officials work together to determine FCC policy. In an interview with Ars Technica last week, two-term Commissioner Jonathan Adelstein offered a rare glimpse at the inner workings of the FCC and also spoke openly about the need for more transparency at the agency, his hopes for the next administration and how the FCC can better serve the public interest. His most insightful comments, however, were on the topic of Net Neutrality and how the battle for neutral networks is linked to the American tradition of decentralized media.
When discussing Net Neutrality, a phrase that often gets bandied about is "reasonable network management". Just what, exactly, constitutes "reasonable" network management? While ISPs like Comcast and AT&T would have you believe that packet-spoofing and content filtering are reasonable practices, we here at Public Knowledge disagree. In accordance with the core principles of Net Neutrality, we believe that a reasonable network management technology is one that does not privilege, degrade or prioritize traffic based on the content, applications or services that it is associated with. But what would such a technology look like?
Turtle-catching, Indiana Jones and gummy bears. These are the sorts of topics that are being discussed on my Twitter home page right now; proof-positive that I'm not the only one who thinks that the service's 140 character communiqués serve as the perfect method of delivery for the most trivial thoughts. Unfortunately, not everyone uses Twitter for such lighthearted means--and no, I'm not talking about folks who live-twit Senate hearings. This past week, Twitter found itself having to answer some tough questions about the policing of social media networks and the resulting conversation has implications for anyone who uses such web-based services.
Following Alex's lead, I've decided that perhaps I too owe the readers of the PK blog an introduction. My name is Mehan Jayasuriya and I recently joined Public Knowledge full-time as a policy analyst, though I've been working as a contributing blogger for PK for a few months now. Like Alex, I originally hail from the Midwest, specifically, southeastern Wisconsin. After graduating from the University of Chicago and living in Japan for a year, I landed in the world of Washington D.C. tech journalism, which eventually brought me to Public Knowledge. With regard to policy issues, my primary areas of interest are network neutrality, open wireless networks and devices and copyright reform. If you've got any questions or comments for me, feel free to let me know in the comments.
It seems that Charter, an Internet service provider (ISP) based in St. Louis, Missouri, is having a bit of trouble keeping its customers happy. Last year, Charter came in dead last in PC World’s rankings of "The Best and Worst ISPs," which was based on a survey of over 6,400 readers. Meanwhile, BroadbandReports currently rates Charter as 22nd out of 25 listed cable Internet providers, in accordance with user reviews submitted to the site. Based on these two facts alone, we can safely conclude that there are a lot of unsatisfied Charter customers out there. So, what is the company doing to remedy this situation? They’ve decided to offer their users "enhanced" service, free of charge.
This morning, as I walked from the front door of my apartment to the elevator, I couldn't help but notice two men wheeling large spools of cable down the hallway. As nerdy as it sounds, I have to admit, the sight of this cable had me pretty excited. Why? Because it was fiber-optic cable being laid by Verizon, in order to bring the company's FiOS fiber-to-the-premises (FTTP) service to our building. Now, as any good geek can tell you, there are plenty of reasons to be excited about FiOS; the first FTTP offering from a major ISP, FiOS will boast much faster upload and download speeds than competing broadband services, speeds similar to those seen in countries like Japan. Well, as it turns out, there might be yet another reason to get excited about FiOS: Verizon could be the only major ISP that's committed to maintaining a neutral network.
When we talk about issues pertaining to copyright and orphan works here at the Public Knowledge blog, we often rely on hypothetical examples to illustrate the need for reform. For example, in his appeal for a searchable image copyright database yesterday, Alex referenced that familiar image of an artist happening upon a box of old photographs at a yard sale, with no copyright holder in sight. As compelling of a scenario as this is, you've might have found yourself wondering at some point if independent artists are the only ones who run into these sorts of issues. Do more established artists and even corporations sometimes fall victim to the pitfalls of the U.S. copyright system too?
Here at the Public Knowledge blog, it is often our duty to act as the bearer of bad news. When big content, the telecom industry and government agencies overlook the needs of consumers, technology users and content creators, it’s our job to sound the alarm. Today, however, we’ve got a refreshing breath of fresh air for you: a real-life story of a few Davids going up against a Silicon Valley Goliath and walking away victorious.
Just two weeks ago, Adobe launched its long-awaited Photoshop Express service: a web-based application that allows users to access some of the most popular features in the company’s Adobe Photoshop software for free. Many in the blogosphere applauded this move, as it allows a wide-range of users to perform simple image-editing tasks without having to shell out $800 or more for a hard copy of Adobe Photoshop. As a few eagle-eyed blog commenters would discover, however, a free lunch is still worthy of scrutiny, even in the post-Google era.