Mostly Pleasant Surprises and One Expected Unpleasantness at “Future of Video” Hearing

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.

When we saw the witnesses for today's hearing, entitled the "Future of Video," PK and its allies both on copyright and broadband issues were concerned that rather than focus on the future of broadband and the need for an open Internet, that the hearing would devolve into a copyright battle. What else would you expect when you bring together You Tube Co-founder Chad Hurley and HD Net CEO Mark Cuban, add a Disney Executive and the Creator and Executive Producer of "Everybody Loves Raymond." and top it off with Sling Media CEO Blake Krikorian and TiVo CEO Tom Rogers?

Turns out that our fears were largely unfounded (with one exception discussed below), and that instead, there were several pleasant surprises on both the copyright and broadband side. The first pleasant surprise was that Mark Cuban (wearing a suit, yet another surprise) did not trash net neutrality, or spend much of his time beating up on You Tube. His focus was largely on the need for greater broadband capacity, saying that "the reality is that the consumer internet,...has matured, and its future, unless there is significant investment will constrain economic development in this country." His only reference to net neutrality was to say that it "is the perfect example of how constrained bandwidth creates conflicts between the interest of consumers and broadband providers....The issue goes away completely if bandwidth constraints go away." He also refused to say, after prodding, that regulation was bad for getting to that bandwidth goal. What Mark didn't say that I wished he had, was that the best way to get to big broadband is through competition between broadband access providers (700 MHz spectrum Auction anyone?).

Another pleasant surprise was that Disney spent little, if any time talking about copyright. Echoing the terrific Consumer Electronics Show presentation of Disney Chief Robert Iger, Disney and ESPN Networks Affiliate Sales and Marketing President Benjamin Pyne laid low, saying that "[w]hile there is no one answer to the challenge of piracy, we believe the best place to start is to bring content to market on a well-timed and well priced basis."

Similarly, "Raymond" Creator and Executive Producer Phil Rosenthal did no more than obliquely refer to copyright, focusing instead on how writers and producers are forced to include more and more product placements in their programming (he showed a wonderful clip of how Oreos were placed in programming, to ridiculous results), and bemoaning the lack of access to TV by truly independent producers (as opposed to those who are pretty much owned by the broadcast networks).

The one expected unpleasant moment came when Congressman Mike Ferguson of New Jersey took the microphone for his 5 minutes of questioning. He focused largely on Chad Hurley, asking him why, if YouTube takes down indecent and obscene material at its users' request, it did not do the same for copyrighted material. Mr. Hurley, who acquitted himself very well for a 30 year old who had never faced a Congressional panel, answered that it was not possible for users to tell whether a particular posting of copyrighted material was authorized or not, and told the story of how YouTube got a request from the lawyers of one content company to take down the video that had been posted by the marketing arm of the same company! But Ferguson persisted, asking why YouTube shouldn't just take down "obviously" copyrighted material. Note to Mr. Ferguson - the relevant question is not whether works posted on YouTube are "copyrighted," but whether they are "authorized" to be posted. And neither Joe Blow nor YouTube can tell that unless the copyright holder tells them that the posting is unauthorized. And under the Digital Millennium Copyright Act, when the copyright holder tells YouTube to take the unauthorized posting down, they must and do, do so.

Not to be dissuaded, Mr. Ferguson then induced (pun intended) Mark to get involved, asking him for his opinion on whether YouTube should be able to rely on the DMCA. Although Mark admitted he is not a lawyer, he gave his legal opinion regardless, that it did not. My colleagues and I continue to be vexed why this Republican Congressman from Central New Jersey cares so much about doing the content industry's bidding. Not sure what the constituency connection is there.

But despite this one detour, the hearing was a good ride (kudos are also due both to Blake and Tom Rogers for reminding the panel over and over again how disruptive technologies like theirs benefit creators, broadcasters and advertisers). And lest I forget, Chairman Markey posted his opening statement on YouTube, and it was available even before the hearing was halfway over! You can find it here. If you want to see the hearing and read the written testimony, it is here.

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