Net Neutrality Day II

February 7, 2006

Lots of net Net Neutrality going on today, as well. Perhaps it will end up being Net Neutrality week?!

  • The Senate Commerce Committee held a hearing on the topic. Google's Vint Cerf and Prof. Larry Lessig did a great job standing up for the internet principles. Additionally, Gary Bachula of Internet2 gave us a view of what the internet could be if telco's kept it simple: side stepped the discrimination and just pumped bandwidth. Take a look at the webcast, make sure not to skip the second panel witnesses.

  • Daniel Berninger had a great op-ed on Om Malik's blog regarding net neutrality and why the internet won't be the internet without it.

  • There have been a bunch of articles on this in the past 24 hours on net neutrality, and we try to update you on them all. Check out Art's Breaking News for the latest headlines, or you could even subscribe to the Breaking News RSS feed.

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Net Neutrality Day

February 6, 2006

There's a lot going on today with regard to Net Neutrality and PK.

Elsewhere on the web, others are talking about net neutrality as well. One of my favorite v-logs, MobuzzTV had a great rant on it--check it out.

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They said wha?

February 2, 2006

Words I thought I'd never hear:

"One of the most effective weapons for defeating online piracy is providing legal, easy-to-use alternatives,"

from a studio exec about using P2P technology. In this case, it's reportedly Kevin Tsujihara, president of Warner Bros. Home Entertainment Group who said this to Reuters, when announcing their intent to use P2P technology for the legal distribution of their video content.

Right now, WB plans to use the technology to move around language-dubbed US content in Germany, but there are hopes of expansion to other markets.

The service will be called In2Movies (not sure if this site is the actual thing or a squatter).

Ah, times are a-changin'!

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PK in the Know Podcast #10

February 2, 2006

Our PKintheKnow podcast #10 was just posted to

Since our last post, we've started an enhanced podcast that allows for pictures and links embedded into the audio.

  • You can find the regular MP3 formatted podcast here.

  • You can find the new enhanced podcast here.

  • PK's page can be found here; it links to all of our podcasts.

  • And you can find our RSS podcast feed here, though is having some technical difficulties with the feed at the moment.

What?! You didn't know PK had a podcast? It's generally an audio version of our In The Know bi-monthly Newsletter, and tends to run about 10-12 minutes.

Not receiving our newsletter? If you'd like to be "in the know," you can quickly become a member by emailing here.

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The Copyright Office’s way to Solve Orphan Works

February 1, 2006

PK released a press release on the orphan works issue this afternoon.

The office set out to accomplish four goals: 1. to encourage owners to make themselves known and users to make all reasonable efforts to find owners of works they want to use; 2. when owners are unlocatable, users should be permitted to use the work, with limited remedies for the owner if he surfaces after the use commences; 3. legal provisions should work independently of the rest of copyright law, maintaining existing exemptions and limitations; and 4. a solution must be least burdensome to copyright owners, users, and the federal government.

PK believes that the Copyright Office's recommendation properly requires of a user of an orphan work a good-faith and reasonably diligent search. The guidelines for this reasonable search are balanced and attentive to the concerns raised by a number of the groups during last year's discussions. The recommendation properly sets the scope of the regulation to include both published and unpublished works, alike, and does not make separate distinctions based on the age of the work. We agree that orphan works users should also be required to provide up-to-date attribution information about work's owner and author. The proposal correctly dismisses the use of rainy-day escrow accounts and an orphan work-specific arbitration system, in the unlikely case that an orphan owner resurfaces.

With regard to the Copyright Office's recommendation, the problem at the core of the orphan works issue still remains: if the owner of a work can legitimately not be found, how do you properly reward/incentivize a user of the work for reviving and disseminating it?

Put another way, what is the appropriate legal protection for a user of a work who has diligently, and in good faith, searched for the owner of the work? Is protection against statutory damages enough?

The concern with the Copyright Office's recommendation is that "reasonable compensation" based on what a willing buyer and reasonable willing seller would have agreed to at the time of use, "based predominantly by reference to evidence of comparable marketplace transactions," does not adequately address the issue of orphan works. The whole problem is that there is no "comparable marketplace transaction" for an orphan works situation because there was no reasonable willing seller in the first place. To allow a court to decide what would have been reasonable retroactively, we think, creates too high of a hurdle for potential users of an orphan work, and will ensure that the orphans stay locked away in the orphanage.

That's why we proposed a cap [PDF] on the amount that a user of an orphaned work would have to pay to the owner. This gives the user of the work a tangible amount of certainty of what he or she would have to pay if the owner surfaced. Without this kind of cap, we don't believe any one would use an orphan work--it's just too risky.

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UPDATE: Orphan Works: The Copyright Office Report

February 1, 2006

Today, after long and thoughtful deliberation, the Copyright Office finally released its report on orphan works.

Watch this space for a statement from PK soon.

Update: Here is a direct link to the Copyright Offices recommended legislative language.

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PK Testifying on Telecom Reform

January 30, 2006

PK President Gigi B. Sohn will be testifying at tomorrow's U.S. Senate Commerce Committee hearing on "Video Franchising" tomorrow @ 10AM. You should be able to view the webcast here.

Gigi's testimony will ask the members of the committee to promote policies that encourage broadband / video deployment while at a minimum requiring net neutrality, per our previous and upcoming broadband policy papers.

Stay tuned to find out what others on the panel will ask Congress to do as "fair trade" for lowering the bar for barriers to entry for broadband video providers.

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Thank you Senator Sununu

January 27, 2006

PK just posted an Action Alert to allow citizens to thank U.S. Senator Sununu from New Hampshire for his statements at the recent broadcast flag hearing.

You can see Senator Sununu in action from the hearing webcast here. Skip ahead to time mark 1:07:34 to hear the Senator's comments--they're right on point!

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Broadcast Flags Hearing Recap

January 24, 2006

As a result of today's hearing in the U.S. Senate Commerce Committee, here's the score on the Senators that had something to say about the "video" broadcast flag at the hearing:

Senators Who Want the Flag:

  • Chairman Ted Stevens: Started the hearing off by recounting his understanding of the history of the broadcast flag: a number of years ago, 11 Senators sent a letter to the FCC asking it to conduct the broadcast flag proceeding, the FCC did, and the FCC rule was struck down by the federal court which said that Congress didn't give the FCC permission. The Chairman seemed dismayed that the intent of his letter was ignored by the federal court, and would like to reinstate the FCC's rule. However, being from the remote state of Alaska, he seemed concerned about the broadcast flag's ability to hamper distance learning, like that contemplated under the TEACH Act, although Andy Setos' assurances that the broadcast flag wouldn't interfere seem to put the Chairman's mind at ease.

  • Co-Chairman Daniel Inouye: Made a brief opening statement in support of the broadcast flag, and only asked Andy Setos' (one of the co-inventors of the broadcast flag) a few slow-ball questions to allow Setos to explain that the mandate necessary to protect digital broadcast content.

  • Senator Gordon Smith: Floated the draft bill that was the topic of most of the discussion. He said he was committed to passing this legislation and willing to work a "balanced compromise."

Senators Who Asked Good Questions:

  • Senator Conrad Burns: The Senator seemed also concerned about educational institutions and consumers ability to use television media. Representing Montana, he too was concerned about distance learning and people's ability to excerpt portions of television shows under the broadcast flag.

  • Senator Ben Nelson: Thoughtfully asked Leslie Harris of CDT to clarify how she thought the FCC's mandate should be changed be Congress--how the process could be changed to allow for fair uses and not hamper innovation. He seemed to agree with her that these changes had to be expressly written out in any legislation, not just delegated to the non-expert agency--the FCC--which he fondly called "one of those alphabet agencies."

Senator Who Was an Innovation and Consumer Champion:

  • Senator John Sununu: Finally, a Senator who essentially asked the question, "Do we really need a government mandate here?" He walked through a quick history of innovation (radio, TV, VHS, TiVo) and how the lack of government legislation allowed those technologies to flourish. He said clearly that that every time Congress introduces a mandate, its only assured outcome is to stifle innovation. Not a single person in the hearing room could dispute this claim. He criticized both witnesses and Senators for jumping the gun by talking not only about draft legislation, but about hypothetical exceptions to the legislation. He dared to rhetorically ask the group why legislation was needed at all and why market solutions couldn't fill the gap?

It was thoroughly refreshing to have at least one Senator thinking out-of-the-box (is it sad that calling into question whether any legislation is needed is dubbed out-of-the-box?!) and standing up for the market for innovation and consumers.

Thank you Senator John Sununu!

Keep checking this space for an easy way you can thank the Senator and encourage your own Senator to likewise think "out-of-the-box"

As for the "audio" broadcast flag, everyone was a skeptic. Chairman Stevens asked Mitch Bainwol why it was a problem for him to essentially "TiVo" satellite or HD radio, and was unsatisfied with Bainwol's response that someone should have to pay extra for that.

Senator Smith revealed his cards on the audio broadcast flag portion of his draft legislation by suggesting that it could be used as exaction by the RIAA to bring the NAB and national satellite radio providers to the copyright licensing table.

Again, Senator Sununu broke it down for everyone to understand: the issue surrounding audio broadcast flag has more to do with performance licensing than it does with content protection. Touching on his conservative/libertarian themes of less government intrusion, he suggested that the problem was actually a deficiency of government intrusion into copyright licensing, not one of copy-controls.

All-in-all, today's hearing was a good first step in vetting the issues surrounding broadcast flag. Kudos to Leslie Harris of CDT for representing well the consumer interest.

In case you missed them, here are more quick links:

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Second Opinion on Broadcast Flag Draft

January 23, 2006

After Friday's blog post on the draft broadcast flag bill, it's been floating around quite a bit.

Lastly, there's a hearing on the broadcast and analog hole this Tuesday, Jan. 24. There's going to be a webcast, so make sure you tune in--especially since no consumer advocates involved with the broadcast flag proceedings in court are testifying.

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