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Mind the Gap

May 9, 2006 Blog Posts, Network Neutrality, Policy Blog

The advertisement on the wall in the subway station was hard to believe -- a broadband service with 24 meg download for about $45 per month. That was the good news. Unfortunately, the service isn't available in the U.S. The ad was on the wall of tube stop in London and the company, Be, http://www.bethere.co.uk is British. Just to rub it in a little, it gets better. There is also a cheaper option, about $25 per month, which still gets you the 24 mbps download, but with a slower upload speed. This in a city in which a bottle of water will set you back about $2.25.

Now, let's contrast that combination of price and service with an ad in today's Washington Post, in which Verizon will sell you the blinding speed of 768 kbps for $17.99 per month with a yearly contract.

And for one more bit of shopping -- Verizon's FIOS service, their fiber optic super-speedy, up to 30 mbps version. What will that cost you? According to the Verizon web site, up to 30 mbps can be had for between $180 per month and $200 per month.

Be isn't unique in competing in the U.K. broadband market. According to a blurb in the May 4 edition of The Independent, a British newspaper, the broadband market is very crowded. How crowded is it, Ed McMahon asks? It's so crowded that, according to the paper, seemingly everyman and his dog [are] seeking to 'unbundle' BT (British Telecom) exchanges. There's not enough space for all of them -- quite literally as it happens, since many of the BT exchanges are not big enough to accommodate all the equipment that would-be competitors are looking to put into them."

By what magic has such a vibrant and competitive market been achieved, when we here in the U.S. are condemned to a broadband duopoly? Again, from the Independent: "Local loop unbundling has given new entrants such as Sky the ability significantly to undercut the incumbents in the broadband market -- British Telecom and NTL Virgin."

Aside from the remarkable ability of the British to keep their infinitives from splitting, note that it's the very philosophy which we here disdained, local loop unbundling, which has made for a national broadband market which, to the best I can tell from some information at the web site of Ofcom, the British telecoms regulator, has at the moment about 16 competitors. Some offer service to equal BeThere's, some don't. But that's the market for you.

It's the kind of market in which telecom providers can't take advantage of consumers. Unlike here, in which it was reported by Reuters that "Verizon Communications warned the financial services industry (it) may not get the secure networks it needs if Congress adopts laws governing high-speed Internet broadband networks, according to a company memo obtained by Reuters on Monday."

Or a market in which a top Verizon official again warned that Net Neutrality laws could prevent his company from offering private network health care services over the Internet.

Or a market in which a so-called "conservative" coalition campaigns against Net Neutrality by arguing that allowing network providers to discriminate among content providers could cause telephone and cable companies to raise rates.

The vibrant, competitive market in the U.K. is an example to which U.S. policymakers should aspire. But they don't. The result could well be the broadband gap between the U.S. and the rest of the world will keep getting larger.

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A new video on the issue of [net neutrality](https://www.publicknowledge.org/issues/network-neutrality) has appeared on the 'net and we've linked to it via [VideoBomb](http://videobomb.com/posts/show/2368):

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The WIPO Broadcasters Treaty is being debated this week, as the Standing Committee on Copyright and Related Rights meets in Geneva. Among other things, this treaty would give broadcasters and possibly webcasters a 50 year right in their transmissions, a right that would be on top of a copyright holders rights. Of course, there are also provisions that would require tech mandates like the broadcast flag. Here are a full list of our concerns. What troubles us most is that this debate is taking place under cover of night - without coverage by the press, or awareness by the public and key US policymakers.

Here is a report from Jamie Love of CPTech about what has been going on in Geneva. Clearly, the debate has been fierce, with the US delegation once again trying to make new laws overseas that do not exist here:

WIPO discussions on xCasting Treaty By James Love Created 05/05/2006 - 3:17am

Geneva, May 3, 2006

Today is the fourth day of a 5-day negotiations on a new treaty for broadcasting and webcasting organizations. I posted a long discussion [1] about it today in the Huffington Post. Most US citizens are unfamiliar with the notion of a "broadcaster right" because unlike 83 other countries, the United States never signed the 45-year old Rome Convention (on the protection Rome Convention on the protection of performers, producers of phonograms and broadcasting organizations.). We have a copyright law, but that's it. In Europe and many other countries, they give broadcasters a property right in information they transmit. They call it a "related" or "neighboring" right to copyright. Europe also has something like this for uncopyrighted elements of databases.

The European broadcasters and databases owners rights are not part of US legal traditions, but here in Geneva, today, the US government is not only advocating a new broadcasters right treaty, but also wants to expand this right to the Internet --- to areas where even Europe has not ventured, let alone the US.

Think about this. The US government sends negotiators to Geneva, to cook up a new treaty, that would create legal protections that the Congress has never accepted, considered, or even discussed.

There is no way Yahoo (the main proponent of the webcasting treaty provisions) would ever get something like webcasting through the US Congress. How can we let a handful of WIPO negotiators create this new IP right in a major international treaty? At least in 1996, the US government held real consultations, and provide a number of papers to justify its actions pushing for the WCT and WPPT. This administration has done exactlyy the opposite. They won't have public meetings. They don't have a single public document explaining what they are doing, or why, or how it would change US law. USTR is far far more transparent...... It is a measure of how screwed up US politics are that stuff like this happens routinely, and no one in the White House, the Congress, or the news media is that interested.

All week long the US government, together with the European Commission and some other countries, has opposed efforts by developing countries to exclude webcasting, or to include in the treaty language that would ensure that countries could control anticompetitive practices, protect access to knowledge, and provide greater lee-way in terms of excerptions for libraries, education, access for disabled persons, and other public interests.

The EU is right now unloading on Chile's proposal to have language similar to TRIPS Article 40 concerning the control of anticompetitive practices, which is pretty surprising given the fact that the EC's copyright chief Tilman Lueder formerly worked for the competition authority. The EC complained that it might be used for compulsory licenses, which the EC was opposed to. The US also is opposing this proposal, even though strong language on this topic is already part of the WTO TRIPS agreement, and part of the US/Chile FTA accord.

The US and the EC both wanted only a single "three step test" provision covering the possibility of exceptions to rights, which they believe will be more restrictive than the proposals by several Latin American countries that the the treaty provide certain named exceptions, with a three step test for additional exceptions countries may want to consider later. There are also debates over whether or not the "casting" exceptions can go beyond those used in domestic copyright laws, or even if the exceptions can be limited to those used in copyright on the day the treaty is accepted by a member.

At one point the EU however offered as an alternative an "exhaustive" list of exceptions that are found in the EU copyright directive. This has not gone over well with NGOs because it does not permit any future flexibilities in exceptions, which may be particularly necessary as technologies and business models changes. Of course, the EU copyright directive can be changed much easier than is the case for a treaty.

Chile is responding by noting the treaty is TRIPS plus (involves protections not mandated by the WTO TRIPS Agreement), and drew attention to provisions in the Rome Convention and the Berne which provide more certainty regarding the availability of some limitations and exceptions.

This is pretty depressing regarding the values of some of these negotiators, because they want a treaty that is more dangerous, as it would be more difficult to address unintended or unwanted consequences or problems.

The anti-consumer positions of the EU and US negotiators are often backed up by delegations such as New Zealand, and rarely rebutted by any OECD country. One would hope we could get more out of the Canadian delegation on these topics.

Now we are starting discussions on technical protection measures.

Basically, the hardliners are the same people, lead by the US and the EU, with considerble pushes from the very non-neutral chair, Jukka Liedes from Finland. The EU delegation gives almost no hint of the considerable backlash against DRM/TPMs in Europe, and neither does the US. Canada, Chile, Peru, Brazil and some other delegations make a number of comments about the mis-use of DRM/TPMs in connection with public domain materials, or make it impossible to use legitimate exceptions to rights. The linkages between L&Es and DRM/TPMs are quite important, but not addressed very deeply.

EU copyright chief Tilman Lueder claims that since the protection is to only the signal and not to the content, it can never exceed the 50 year term. At which point Brazil asks what many are thinking, why does a signal need a protection term of 50 years? This is a an issue that has been raised on and off for a couple years (including an excellent presentation by India earlier in this meeting) but it is becoming more obvious to delegates that there should be no term at all in the treaty, if it is only about protecting broadcasters from signal theft, and not a IP right in the content.

Many other issues are then discussed. When they return to the webcasting issue, it appears as though the EU thinks it can get the US to accept an approach that would provide a back-door webcasting right in as retransmissions over computer networks. We will explore this Friday morning.

......... On Thursday, a group of 8 right-holder groups, including the IFPI (the major trade group for publishers of recorded music), EUROCOPYA, FIAD, FIAPF, GIART, ICMP/CIEM, IFPI, IFTA, IMPALA issued a joint statement on the negotiations, which among other things, called for removing webcasting from the scope of this treaty, and also that any future work on webasting should not start with the an assumption that webcasters would get the same rights that broadcaster have. Also, USTelecom issued an excellent statement, which among other things, said the broadcaster rights should be limited to signal theft, and that webcasting should be deleted from the treaty.

There is a lot of uncertainly and drama here now. It seems as if the US, EU and most developing countries would like to find a way to kill the treaty, as long as they can blame it on someone else. But that may not be enough, given the way this institution is so committed to enacting new treaties, as its primary mission, and main measure of achievement.

There has to be a better and more realistic mission for WIPO than dreaming up higher and higher IP standards.

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Blog

Gigi Accepts EFF Pioneer Award

May 4, 2006 Blog Posts, Policy Blog

For those of you not in the know, Gigi is a recipient of one of this year's EFF Pioneer Awards. The award ceremony took place last night at the International Spy Museum here in DC (what an awesome venue for an awesome award!)

I've posted a transcript of Gigi's remarks upon her acceptance of the award here.

Update: Alex has posted a video of Gigi's remarks. You can watch, and Video Bomb, it here.

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Blog

May Madness

May 2, 2006 Blog Posts, Network Neutrality, Policy Blog

With the days quickly ticking off the legislative clock, bills are being introduced left and right on matters PK cares about the most. Yesterday, Senator Ted Stevens, with reluctant co-sponsorship from this Commerce Committee Co-Chair Daniel Inouye, introduced comprehensive telecommunications reform. Alex has already discussed it in detail. I will say no more other than it needs a lot of work.

Today, Rep. Ed Markey introduced the "Network Neutrality Act of 2006," which is essentially the text of the amendment he and 3 other Democrats unsuccessfully introduced during the subcommittee and full committee mark-ups of the House telecom reform bill. As you can see by our statement, this amendment is exactly what is needed to preserve an open Internet -- prohibitions against discrimination by a network provider, allowances for legitimate network management, and a complaint process that ensures compliance. We expect Senators Snowe and Dorgan to introduce a companion bill tomorrow in the Senate. I blogged about that bill, which was a draft at the time. As soon as the final bill becomes available, we will post it.

A lot of folks have been asking me why Mr. Markey would reintroduce a bill that has already been rejected twice. The main reason, I think, is to rally the pro-NN troops in anticipation for the floor debate on the House bill -- we got slaughtered in subcommittee, but came back nicely in full committee, narrowing the gap considerably. So it is important to continue building the momentum so that this bill will be considered and passed as an amendment to the larger bill.

Stay tuned also to the House Judiciary Committee, which wants a piece of telecom reform as well. The larger House bill was supposed to go to the floor this Thursday for a vote, but Judiciary is asking the House leadership for a "referral," which means they would like to provide their own input. This will do nothing if not slow down the process considerably.

As if this were not enough, today Sen. John Cornyn (R-TX) introduced a terrific bill called the Federal Research Public Access Act of 2006.. This bill is what open access publishing advocates like PK's own Peter Suber have been working on for years. The bill would require the largest research grant making agencies to condition their research grants on the free, online availability of the results of that research no less than 6 months after publication. This would finally give taxpayers a return on the research funded by their dollars. Here is our statement.

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Blog

Senate Draft Telecom Bill

May 1, 2006 Blog Posts, Policy Blog

Here's the Senate Telecom Bill that was previously discussed in the last two policy blog posts.

The bill reads much more like an appropriations bill than a traditional telecom bill, with pet-project type bills gathered from each member of the Commerce Committee. Think of it as the family Christmas tree, adorned with numerous "pet-legislation bulbs." The aim of the bill as a whole is unclear, as some of its parts are at odds with each other: promoting open competition in some areas (like wireless spectrum) while either not regulating monopolies (net neutrality) or over regulating local government (muni-telecom) in others.

The PDF can be found here http://static.publicknowledge.org/pdf/stevens-cccbda-draft-20060501.pdf

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Also in the Senate Telecom Draft Bill (link coming soon!) is language on net neutrality. The bill calls for the FCC to conduct a study on the issue. That’s pretty much it.

Here’s the language:

SEC. 901. NETWORK NEUTRALITY.

(a) INGENERAL.—Beginning 1 year after the date of enactment of this Act, the Federal Communications Commission shall report annually to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce for 5 years regarding—

(1) the developments in Internet traffic processing, routing, peering, transport, and interconnection;

(2) how such developments impact the free flow of information over the public Internet and the consumer experience using the public Internet

(3) business relationships between broadband service providers and applications and online user services; and

(4) the development of and services available over public and private Internet offerings.

(b) DETERMINATIONS AND RECOMMENDATIONS.—If the Commission determines that there are significant problems with any of the matters described in subsection (a) the Commission shall make such recommendations in its next annual report under subsection (a) as it deems necessary and appropriate to ensure that consumers can access lawful content and run Internet applications and services over the public Internet subject to the bandwidth purchased and the needs of law enforcement agencies. The Commission shall include recommendations for appropriate enforcement mechanisms but may not recommend additional rulemaking authority for the Commission.

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The Chairman of the Senate Commerce Committee, Senator Ted Stevens, has released a draft of this Telecom bill (link to bill coming soon!). Weighing in at 135 pages, I guess we could say it's a "hulk" of a bill.

Unfortunately, part of the bill includes language to authorize the FCC to instate the broadcast flag, but with some interesting exceptions that Public Knowledge has said, at a minimum, would have to be part of such a tech mandate. They include:

  • the transmission of short excerpts of broadcast digital television over the Internet;

  • the transmission to a limited number of devices over a home or otherwise localized network

  • over the Internet for distance learning purposes

  • redistributing news and public affairs (except for sports)

This proposition is a step forward from previous attempts, in that it actually contemplates limitations on flag technology. However, PK still thinks these kinds of tech mandates are anti-competitive and harm consumers and innovators.

At first glance, one problem that comes up immediately is that under the redistributing news and public affairs provision, it's for programming "in which the primary commercial value depends on timeliness as determined by the broadcaster or broadcasting network." If the broadcaster is given the gatekeeper decision of what's "timeliness," does anyone think they're going to say the news is timely? For reasons of news and commentary under copyright law, no authorization from the copyright owner is necessary. This isn't copyright law, but that's why we asked for the exception. Even though the bill gives broadcasters a complaint process at the FCC on abuse of this kind of use of their timely news, there's a concern that fair use protections might not be extended as the FCC is not equiped to make that kind of determination.

Of course, all of this might be irrelevant because the content industry has said numerous times that they would accept no broadcast flag carve-outs. So, if they don't like it, this part of the bill won't see the light of day--or at least the exceptions won't.

Here's the full text of that section of the bill, take a look for yourself:

Subtitle C-Video and Audio Flag

SEC. 451. SHORT TITLE.

This subtitle may be cited as the "Digital Content Protection Act of 2006".

SEC. 452. DIGITAL VIDEO BROADCASTING.

Part I of title III (47 U.S.C. 301 et seq.) is amended by adding at the end the following:

"SEC. 342. PROTECTION OF DIGITAL VIDEO BROADCASTING CONTENT.

"(a) IN GENERAL.--Within 30 days after the date of enactment of the Digital Content Protection Act of 2006, the Commission shall initiate, and within 6 months after that date conclude, a proceeding--

"(1) to implement its Report and Order in the matter of Digital Broadcast Content Protection, FCC 03-273 and its Report and Order in the matter of Digital Output Protection Technology and Recording Method Certifications, FCC 04-193; and

"(2) to modify, if necessary, such Reports and Orders to meet the requirements of subsection (b) of this section.

"(b) REQUIREMENTS.--In the regulations promulgated under this section, the Commission shall permit transmission of --

"(1) short excerpts of broadcast digital television content over the Internet; and

"(2) broadcast digital television content over a home network or other localized network accessible to a limited number of devices connected to such network; or

"(C) broadcast digital television content over the Internet for distance learning purposes;

"(2) permit government bodies or accredited nonprofit educational institutions to use copyrighted work in distance education courses pursuant to the Technology, Education, and Copyright Harmonization Act of 2002 and the amendments made by that Act;

"(3) permit the redistribution of news and public affairs programming (not including sports) in which the primary commercial value depends on timeliness as determined by the broadcaster or broadcasting network; and

"(4) require that any authorized redistribution control technology and any authorized recording method technology approved by the Commission under this Section that is publicly offered to licensees, be licensed on reasonable and nondiscriminatory terms and conditions.

"(c) REVIEW OF DETERMINATIONS.--The Commission may review any such determination described in subsection (b)(3) by a broadcaster or broadcasting network if the Commission receives a bona fide complaint alleging, or otherwise has reason to believe, that the determination is inconsistent with the requirements of that subsection or the regulations promulgated thereunder.

"(d) EFFECTIVE DATE OF REGULATIONS.--Regulations promulgated under this section shall take effect months after the date on which the Commission issues a final rule under this section.''.

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The word on the Hill is that Reps. Howard Berman and Darryl Issa will soon drop a companion bill to the PERFORM Act in the House sometime in the next week or so. This is the bill, that among other things, would require "radio flag" technology that would limit consumers' legal right to record songs off the radio. That Mr. Berman is a co-sponsor should come as no surprise - the member from Hollywood is the content industry's best friend. Mr. Issa is another story, however. He made his fortune in the consumer electronics business - car alarms, to be precise, and is a former Chair of the Consumer Electronics Association. It is no exaggeration to say that no industry has helped Mr. Issa achieve his current status than CE. Yet CEA is the biggest industry opponent of PERFORM. What gives? You may recall that Mr. Issa was the driving force behind the successful recall of California Governor Gray Davis, and that Issa himself was a candidate to replace him. This may be a gift to the content industry in order to secure support for his future statewide ambitions. In any event, please contact your Senator and ask them to oppose the PERFORM Act, and while you are at it, tell Reps. Berman and Issa not to introduce this ill-advised legislation in the House.

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The word on the Hill is that Reps. Howard Berman and Darryl Issa will soon drop a companion bill to the PERFORM Act in the House sometime in the next week or so. This is the bill, that among other things, would require "radio flag" technology that would limit consumers' legal right to record songs off the radio. That Mr. Berman is a co-sponsor should come as no surprise - the member from Hollywood is the content industry's best friend. Mr. Issa is another story, however. He made his fortune in the consumer electronics business - car alarms, to be precise, and is a former Chair of the Consumer Electronics Association. It is no exaggeration to say that no industry has helped Mr. Issa achieve his current status than CE. Yet CEA is the biggest industry opponent of PERFORM. What gives? You may recall that Mr. Issa was the driving force behind the successful recall of California Governor Gray Davis, and that Issa himself was a candidate to replace him. This may be a gift to the content industry in order to secure support for his future statewide ambitions. In any event, please contact your Senator and ask them to oppose the PERFORM Act, and while you are at it, tell Reps. Berman and Issa not to introduce this ill-advised legislation in the House.

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