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Fashion Copyright Police Part 2

March 30, 2006

The New York Times reports today that a bill may be introduced in Congress as soon as today giving copyright protection to fashion design. Rep. Bob Goodlatte (R-VA) is said to be the principal sponsor - I'm not sure what fashion industry resides in rural Virginia. Designers like Diane Von Furstenberg and Zac Posen have been to Washington to push for this bill.

The fashion designers seeking copyright protection are modeling their legislation after legislation passed in 1998 to protect boat hulls. I know nothing about the boat hull industry, but I do know that the fashion design industry has thrived under a system where rich people continue to pay top dollar for original designs, and the rest of us can only afford the knockoffs. If anything, the knockoffs tend to make the originals more valuable, not less. Indeed, no one seems to be claiming that they are losing revenue or sales from the lack of copyright protection - even if there were no knockoffs, I would never buy a $2000 pocketbook or a $1000 dress, and those who can afford to pay those prices would never buy the H&M version, which will undoubtedly be of far lesser quality. So what is the harm that needs to be addressed? And isn't there a bit of classism going on here? Only those who can afford style can obtain it, while the rest of us have to wait 3 years?

A great article on the history of attempts to give fashion design copyright protection, by Kal Raustiala and Chris Sprigman, can be found here. The conclusion? That despite fashion design copy protection in the EU, almost nobody registers. It is trademark protection that fashion designers seem to really care about, and they already have that here in the US.

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The ‘Net 6 Complain about Net Neutrality

March 28, 2006

The 'Net 6 (Amazon.com, eBay, Google, IAC/Interactive Corp., Microsoft, Yahoo!) alone, have today sent a letter to the Energy and Commerce Commerce Committee in response to the recent draft telecom bill. Here is the text of the letter:

March 29, 2006

The Honorable Joe Barton
Chairman
Committee on Energy & Commerce
2123 Rayburn House Office Building Washington, D.C. 20510

Hon Fred Upton
Chairman
Subcommittee on Telecommunications
and the Internet
2123 Rayburn House Office Building Washington, D.C. 20510

Dear Chairmen Barton and Upton:

We are extremely concerned that legislation before your Committee would fail to protect the Internet from discrimination and would deny consumers unfettered access to the tremendous scope of content, applications and services that are available today on the Internet and will be developed in the future. This bill would allow for such a fundamental change in the paradigm of the Internet that it would frustrate the reasonable expectations of the tens of millions of Americans who go online. The "network neutrality" provisions in H.R. __, "The Communications Opportunity, Promotion, and Enhancement Act of 2006," fall well short of what is needed to ensure that consumers and content providers can rely on the Internet as an engine of growth and innovation.

The Internet has driven the American economy and productivity for the past ten years because it enables innovation without permission. A good idea, technology savvy, and an eye for what consumers want has allowed entrepreneurial innovators to reach a global market on the Internet. Consumers embraced the Internet because innovation was rapid and anyone could provide lawful content without interference or permission from those companies that control the networks. This policy has been a hallmark feature of the Internet and is a principal reason why our companies and the U.S. Internet industry are global leaders today.

That policy is at risk, and that is why we have urged Congress to adopt network neutrality requirements that are meaningful and enforceable. The provisions in the Committee bill achieve neither goal.

We affirm our commitment to working with you and your colleagues to craft legislation that preserves the Internet for the tens of millions of Americans that rely on it as a vibrant source of content and services that they use every single day.

Sincerely,

Amazon.com
eBay
Google
IAC/InterActive Corp.
Microsoft
Yahoo!

cc: Rep. John D. Dingell
Rep. Edward J. Markey
Members of the Committee on Energy & Commerce

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Fair Use and DRM Hearings

March 28, 2006

Although they haven't been posted on the House Energy and Commerce Commitee's website, there will be two hearings on fair use and DRM this week.

Entitled "Digital Content and Enabling Technology: Satisfying the 21st Century Consumer," The first one is tomorrow, Wed. March 29 @ 1PM, and will focus on video. Those testifying are:

Friday's hearing will focus on audio--more details as they come.

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The Barton Draft

March 28, 2006

If there is anything good to be said about the newest staff draft of the House's version of telecom legislation, it is that at least there is a draft which will be the vehicle when the Telecom Subcommittee get together next week for the markup.

Until now, we and the other groups and companies working to preserve an open Internet could talk only in general terms about the issue known as Net Neutrality. Now, we have a specific provision to look at. (Note: like others, I don't like the term "net neutrality," but will use it until something better comes along. Any ideas?)

The draft, posted below in the blog, gives the FCC power to do something it could already do if it chose to. Back in September, in a "compromise," the FCC issues four principles which gave consumers certain expectations for use of the Internet at a time when there would be, at best, two competitors in the market. The Commission chose not to enforce them, so as nice as saying that consumers are entitled to access the lawful content of their choice might be, or that consumers are entitled to competition might be, in reality those are simply sentiments and nothing more.

The Commission said nothing in its principles, weak as they are, about the service provider side of the equation, which is where the more subtle harms will be played out.

So for legislation to allow the FCC to enforce weak guidelines the Commission chose already not to enforce, let's just say it's not the major step forward we would have liked.

The other details in the bill similarly aren't helpful to maintaining an open Internet. A complaint process that could drag out forever, a ban on rulemaking (even if the FCC wanted one) and a one-shot study don't further the cause.

What you have is a deal brokered for the telephone companies and cable companies. The telephone companies get into the cable business (providing video programming) quickly through a national franchise with no requirements to serve any part of a community. Cable gets the same expedited treatment as its local franchises expire.

We didn't oppose the national video franchising for the Bells, on the theory that they would provide at least some video competition for cable. On the other hand, having the two industries set up with a semi-permanent duopoly with no guarantees of non-discrimination is not acceptable, either. There are no rules for the broadband era, as there were guarantees when the Internet started in the dial-up copper-wire days. The FCC, with an assist from the U.S. Supreme Court, saw to that last year.

No one is asking for full-scale regulation to be put back on the Bells, or even the cable industry. What we want is for some non-discrimination rules to be put in place to curb abuses. The draft bill doesn't do that, and as a result, the open Internet we know now is in danger of being changed drastically as we move more and more into broadband and the service providers fill the regulatory vacuum in ways they could not before.

It's not obvious that the people on Capitol Hill are listening to us. Maybe they will listen to you.

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House Bill Won’t Stop Internet Degrading

March 27, 2006

We just put out a Press Release on the House Telecom Draft.

Here's Gigi's quote:

"We are pleased that the Committee draft included language recognizing the importance of keeping the Internet open to all consumers. However, we do not believe that the draft bill go far enough. The provisions will not stop the cable and telephone companies from degrading Internet traffic and they do not contain strong enough penalties to discourage misbehavior. Without stronger legislation, the cable and telephone companies will have the power to change the fundamental nature of the Internet. This bill needs significant improvement before it will preserve the open Internet that consumers and service providers expect and deserve."

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House Telecom Bill Draft Drops

March 27, 2006

You can find it here [PDF].

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Telco: Govt Regs Okay–But Just For Us

March 21, 2006

Verizon has filed a complaint with the Federal Communications Commission to gain access to programming provided by Cablevision and its Rainbow Media Holdings subsidiary.

From its press release:

"We are troubled by Cablevision/Rainbow's anti-competitive behavior and refusal to negotiate carriage agreements for their sports programming," said Terry Denson, Verizon vice president - FiOS TV content strategy & acquisition.

The FCC has this governmental complaint process to specifically address the questions of anti-competitive behavior, and Verizon is using the process to address a problem that they are having under program access.

Sure it's regulation--but it's regulation to maintain an open and competitive market, and for Verizon, in that context, it's all fine and good.

But when businesses and consumers ask the government to address their concerns about likely anti-competitive behavior in the broadband market and about net neutrality, Verizon is against it.

I think Gigi said it best:

Verizon's complaint demonstrates that a properly tailored government rule (whether program access or net neutrality) can promote competition and restrain the abuse of market power.

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A Welcome Voice on the Right

March 21, 2006

Kudos to the Cato Institute for releasing Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act by Timothy B. Lee. Tim is a policy analyst at the Show-Me Institute in St. Louis, the science and technology editor of the online magazine Brainwash and a contributor to the Technology Liberation Front website. You may have seen his recent New York Times op-ed on the upside of "piggybacking" on open WiFi networks.

This engaging paper discusses what many of us on the frontlines of copyright reform advocacy have been saying since the DMCA was passed in 1998: the law limits fair use and competition, and while it does not stop real copyright thieves, it does inconvenience legitimate users. Prior to the passage of the DMCA, Lee writes, the courts were developing a body of law that balanced the rights of the public, innovators and copyright holders. But the DMCA has thrown that balance out of whack, permitting copyright holders to control the design of digital devices and what Lee calls the "media viewing experience." Lee also discusses the unintended consequences of the DMCA, like suits against printer cartridge and garage door opener manufactures and actions against legitimate researchers like Ed Felten, who dared publish his research on DRM.

What is perhaps the most significant about Mr. Lee's piece is that it is the first time that a right of center think tank has published a paper criticizing the DMCA. I have been repeatedly frustrated by so-called free market think tanks' unwillingness to be critical of government technology mandates like the broadcast flag and its progeny. How can any organization that professes to be for limited government remain silent when government interferes with a thriving marketplace? Tim Lee and the Cato Institute are a breath of fresh air.

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Why Disney Drank the KoolAid Against Net Neutrality

March 20, 2006

Anyone who provides content over the Internet (without owning the pipes) should care about net neutrality. Regardless of whether you're Big Content or a podcaster, you need to have open pipes so that consumers can get to your content, and you can promote to your customers.

During a discussion panel[MP3 from CEA's podcast of the event] at last week's Entertainment and Technology Policy Conference, Preston Padden, Executive Vice President Government Relations, The Walt Disney Company, said that Disney was not for net neutrality.

What gives? Well, from this Broadcast and Cable article, it appears that Disney is negotiating with one of the Internet gatekeepers--Comcast--on a number of licensing issues.

One can understand, politically, why Disney would want to be neutral on the open Internet issue, but when new business models like online delivery of popular shows like Lost, Desperate Housewives, and ESPN content is booming, why be against what allows you that method of distribution?

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Video: Orphan Works Presentation

March 19, 2006

For those of you who are keeping up with the debate on orphan works, I dubbed the short presentation I gave as a panelist at the "Orphan Works: New Prospects for a Solution" put on by the Intellectual Property Clinic at the Washington College of Law at American University, here in DC.

I've posted it to VideoBomb (go now and 'bomb it!) and our OurMedia account, so if you're subscribed to our podcasts, you should receive it automatically.

Incidentally, you can subscribe to our video posts in Democracy or your favorite video podcasting client with this RSS feed.

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