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Feed the Animals: the FCC Holds Court in Pittsburgh

July 23, 2008

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.

That’s My DJ
Glad that contemporary artists like Girl Talk are finally getting their due on the Hill? Thank Representative Mike Doyle (D-PA). Doyle, who represents the 14th District of Pennsylvania and is the vice chairman of the Energy and Commerce Telecommunications and Internet Subcommittee, seems to have taken a liking to Gillis, who just so happens to be a 14th District constituent. At a House hearing on the topic of Deep Packet Inspection (DPI), Doyle pointed to Feed the Animals as an example of fair use–even though it remains unclear whether or not Gillis’ transformative use of copyrighted works really is protected under the doctrine of fair use. Congressman Doyle even went so far as to ask the Center for Democracy and Technology’s chief computer scientist Alissa Cooper if she had downloaded the most recent Girl Talk album (she had).

Girl Talk came up again this past Monday, at an FCC En Banc hearing in his hometown of Pittsburgh. The hearing, on the topic of Broadband and the Digital Future (PDF link), was hosted by Carnegie Mellon University and organized by Doyle, who was also the first to deliver opening comments. While Doyle spoke to a number of topics during his comments–Net Neutrality and “Universal Service Fund 2.0,” among them–he couldn’t resist touching on fair use yet again. Doyle referred to fair use as “a well-established carve-out in the law” and hoped that Gillis and other legitimate artists wouldn’t become “fair use dolphins caught in the tuna net of copyright filtering“.

Casting a Wide Net
As is typical of hearings with such a broad focus, the comments that followed were all over the map. FCC Chairman Kevin Martin seemed most concerned about broadband deployment and reforming the Universal Service fund; Commissioners Copps and Adelstein agreed, with the latter calling broadband deployment “the major infrastructure challenge of our time”; Commissioner Tate was more concerned with stemming the illegal distribution of copyrighted materials on the Web; and Commissioner McDowell felt that “engineers should solve engineering problems–not politicians and policy makers”.

Unsurprisingly, the panelists’ comments were even more scattered. A few highlights included HDnet founder Mark Cuban asserting that “3-D will become a mainstay in the future of digital media,” Mark Cavicchia of WhereverTV lashing out at bandwidth caps (“We’re all being blamed and we’re all paying the consequences for the bad few”), Jeff Lawrence of Intel calling for a standard IP connector on the back of every set-top-box and Carnegie Mellon Professor of computer science and public policy David Farber calling the use of Deep Packet Inspection for the purposes of behavioral advertising “completely obscene.”

“You own the channel, now let me compete!”
While the hearing may have lacked a singular point of focus, there were a few themes that seemed to surface repeatedly over the course of the four and a half hours. One of the most compelling was the idea that innovation on the Web must be fostered and that policy decisions have the ability to either cultivate or discourage creative uses of existing technologies.

Of the panelists present on Monday, no one made this point more evident than Nathan Martin, CEO and President of Pittsburgh-based startup Deep Local. A punk rocker, digital guerilla artist and entrepreneur, Martin himself seems to embody the very spirit of innovation. So does Deep Local, a mobile applications design, development and strategy firm with close ties to Carnegie Mellon. Initially, Martin provided his mobile services to users using a hacked-together SMS gateway, which consisted of a cell phone with an unlimited text-messaging plan attached to a computer. As Deep Local developed into a viable business, Martin decided to look into legitimately registering an SMS short code. You’d think this would be easier to do than building a DIY SMS gateway but you’d be wrong: As Martin soon found out, registering a short code in the US requires months of waiting, tens of thousands of dollars in fees and approval from every carrier for every application. Due to this web of “confusing and arbitrary policies” employed by the carriers, Martin ultimately decided that a custom short code was simply out of reach for his company and partnered with an existing gateway provider that allowed use of its “grandfathered” short code for a per message fee. “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 on Monday. “You own the channel, now let me compete!”

Why are the rules governing short codes in the US so restrictive? Quite simply, it’s because the incumbent carriers were able to write the rules without any involvement or oversight by outside parties. And what better way to discourage competition–not to mention innovation–than by crafting a labyrinthine system that discourages all but the most determined and affluent developers from crafting applications that run on your network? As we’ve argued in our FCC petition on the topic of text messaging, text messaging services should be subject to non-discrimination rules and carriers should not be allowed to pick and choose who is allowed to send messages via short codes and who isn’t. If the FCC chose to apply non-discrimination rules to text messaging, we could have real competition among SMS services–not to mention a messaging service that respects the right to free speech.

Ultimately, whether we’re talking about the sound collages of Girl Talk or the location-based services of Deep Local, the question at hand can be boiled down to whether or not we want an Internet that fosters creativity and innovation. If we decide that these are values worth preserving, we’ll need to ensure that we make the right policy choices, both now and in the future. Clearly, the Internet as we know it wouldn’t exist if it weren’t for the myriad disruptive ideas, technologies and voices that have pushed it to this point and it would be a shame to see the creativity of the many hampered in the interest of the few. As we look toward the digital future, we must note that the Web feeds on innovation. Let’s make sure that it doesn’t starve.

Note: If you’re in the New York City area and would like to attend an FCC hearing, note that the FCC will be holding two public En Banc hearings in the city next week. On Tuesday, July 29, the Commission will hold a hearing on the topic of “Overcoming Barriers to Communications Financing” at Barnard College in Manhattan (PDF link). The following day, the Commission will hold a hearing on “Public Safety Interoperable Communications and the 700 MHz D Block Proceeding” In Brooklyn (PDF link).