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 The recommendation properly sets the scope of the regulation to include both published and unpublished works, alike, and does not make separate distinctions based on the age of the work.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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Remember the "Hollings bill" back from 2002? It was a bill that would essentially put a copyright cop in your consumer electronics and PCs--to ensure you didn't do anything with content that wasn't authorized by the content industry. The bill put copyright owners in control of innovation.

Here's the US Senate Draft of the "Digital Content Protection Act of 2006." Look familiar? It may go about it differently--but the DCPA is essentially the Hollings bill, only in pieces-parts. Instead of saying "one mandate to rule them all," the controls split into different proceedings at the FCC:

  • One that requires the FCC to adopt the broadcast flag, and amend it in anyway it sees fit (including total reconsideration and rewrite of the rules!!!)

  • Another that requires the FCC to adopt a radio flag for both over the air and satellite digital radio transmissions..."to prevent the indiscriminate unauthorized copying of copyrighted digital audio content transmitted by its licensees and the redistribution of such copyrighted content over digital networks."

We all understand the implications of the regular digital TV broadcast flag, but what about this version of a radio flag? At first glimpse, it may seem like there are aspects to like about it:

(d) to the extent that such regulations cover devices, cover only devices that are capable, without any hardware alterations or additions, of receiving digital audio signals when such devices are sold by a manufacturer.


(b) [Regulations shall] permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law;

And, thankfully, "public interest organizations" are permitted to submit proposals.

But, reading those parts alone does not give you the full picture. There's a little slight-of-hand going on here.

First, the bill says that the FCC regulations are only to cover devices that are capable of receiving digital audio signals. But if that's the case, why does the FCC need to develop "Secure Moving Technology"? Read here:

(B) objective criteria for approval by the Commission of methods of recording and Secure Moving Technology for material covered by the Broadcast Flag;

and here in the definitions section:

b) "Secure Moving Technology" is a technology that permits content covered by the Broadcast Flag to be transferred from a broadcast receiver to another device for rendering in accordance with customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks.

So which is it? Is the FCC only permitted to regulate digital radio receiving devices, or do they get to regulate every device that touches a digital radio receiving device? Why does it matter? Well, it's the difference between the regulations only changing the design over digital radios, versus regulating iPods, PSPs, computers, cell phones. Am I missing something, or does this regulation gives FCC control over anything "that permits be another device"? My reading of that might even include the crude recording method of putting a microphone up to speakers (note the "Secure Moving Technology" doesn't include the word "digital").

Second, the bill says that the FCC's regulation had to "permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law;". But isn't that given--it's that pretty much one of the FCC's roles in protecting the public airwaves? When PK's and numerous public comments asked the FCC to protect our fair use rights, the FCC declined to design the broadcast flag to respect copyright law. Unfortunately, there's little in this bill to ensure that our fair use rights aren't cast aside.

What's not in this bill compared to Hollings '02? Closing the analog hole. Well, don't worry, that's already been introduced over in the House.

The fact remains that the main issue here is not about piracy, it's about control. The content industry needs a congressional mandate to control the functionality of consumer electronics and PCs, and in turn, what consumers can do with the devices and content they legally obtain.

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Google’s comments on “Broadband Extortion”

January 19, 2006

In case you haven't been reading the Breaking News clips, let alone this blog, you may have missed stories about broadband providers wanting to charge companies like Yahoo and Google for using the broadband bits.

Essentially, folks like SBC, Bell South, and Verizon have said that they want to put a toll on those who transmit data over their pipes.

If comments like that don't tell you why principles of net neutrality must be codified, then I don't know what will. Thankfully, the other side of the argument is starting to speak up.

Google finally spoke up against what some are callling "Cyberextortion." You can read more about what Google had to say here. The essential quote, which was specifically in response to Verizon's comments made at CES 2006 (thanks to Om Malik for getting that straight), is this:

We believe consumers are already paying to support broadband access to the Internet through subscription fees and, as a result, consumers should have the freedom to use this connection without limitations.

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The DL on DTV

January 17, 2006

Engadget has a great rundown of all the DTV technical jargon. It's a good read and really helps you understand all the technical lingo. It's just "Part 1," so make sure to check back soon.

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