Items tagged "Blog Posts"


Cable Ties Itself Up in Net Neutrality Knots

October 4, 2006 Blog Posts , Network Neutrality

Cable has now joined the telephone industry in hanging itself up on Net Neutrality issues. Back in March, it was Verizon which got its fiber in a twist when it filed a complaint under program-access rules with the Federal Communications Commission (FCC) that Cablevision wasn't allowing Verizon access to content for its fiber network.

Now, five leading cable companies and their trade association have got their coax in a knot over the issue of their Internet telephony services being at a disadvantage when AT&T combined with BellSouth.

What's as outrageous as the cable complaints, filed with the FCC in the AT&T/BellSouth merger, is the attempt by National Cable & Telecommunications Association (NCTA) President Kyle McSlarrow to draw a distinction between what his industry wants out of the deal and the overall idea of Net Neutrality. It's a distinction without a difference.

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Attention K-Mart Shoppers: Avoid the Net Neutrality Aisle

September 25, 2006 Blog Posts , Network Neutrality

The Federal Trade Commission (FTC) has authority over deceptive trade practices. Perhaps some lessons from its jurisdiction could be applied to what appears to be a bait-and-switch operation from the Federal Communications Commission (FCC).

Amy Schatz at the Wall Street Journal had the story on Friday that FCC Chairman Kevin Martin wants to approve the AT&T merger with BellSouth without any conditions. And, by the way, the Commission wants to open a Notice of Inquiry (NoI) on Net Neutrality. There is a link between these two, and it's not pretty. In fact, depending on how it's gamed out, it could be fairly deceptive and destructive.

The argument is that the FCC doesn't need to put any conditions on the merger because of the pending NoI on Net Neutrality. We've never been big fans of the Net Neutrality "conditions" put on any of the other mergers. They basically require the merging companies to abide by the insufficient and unenforceable policy principles the FCC issued as part of the decision a year ago taking broadband out from under common carrier regulation. At a minimum, those conditions on the merger kept the issue alive during the merger discussions and serve the minimal purpose of keeping the issue alive going forward to remind the telephone companies the issue hasn't gone away and won't go away. It would be nice if there were some real Net Neutrality conditions attached to one of the mergers. Under this FCC, the chances of that happening are slim.

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Pro-Net Neutrality Nuggets Are Buried in Verizon’s Poll

September 21, 2006 Blog Posts , Network Neutrality

On behalf of the Net Neutrality community, I'd like to thank Public Opinion Strategies and the Glover Park Group for their recent survey on Net Neutrality. And a fine piece of work it is. On one hand, some of the poll was so over-the-top that it's easy to discredit. On the other hand, if you look a little deeper, it appears that the Verizon-sponsored work not only bolstered our case, but provided the seeds to start a wider discussion of a new broadband policy for the country.

It isn't every day that an interest group has one of its paid-for polls released under the authority of a Senate committee. Yet, it was under an official Senate Commerce Committee press release that the Bell companies and their friends were able to make public their poll showing how "the majority of Americans favor video choice over onerous net neutrality regulations." At the bottom of the page is a link to the survey report.

There has been a good bit of comment on the poll. Cynthia Brumfield at IP Democracy said it "reeks of desperation.". Kevin Werbach was less kind.

The money question in the poll that has garnered so much attention was this one:

"Which of the following two items do you think is the most important to you:
Delivering the benefits of new TV and video choice so consumers will see increased competition and lower prices for cable TV
OR Enhancing Internet neutrality by barring high speed internet providers from offering specialized services like faster speed and increased security for a fee"

It's difficult to comprehend how so much can go wrong in one simple question, even realizing that it's a stacked poll.

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Intellectual Property Responsibility #2 — Don’t Use Your Copyrights and Trademarks to Try to Stifle

August 25, 2006 Blog Posts , Trademark

Here's my second suggestion for an Intellectual Property Responsibility: IP owners shouldn't try to use their copyright and trademark rights to stifle criticism of their product. A good example is the unfolding saga of Barney the Dinosaur.

Barney, as you probably know, is that tubby, purple PBS dinosaur who loves everybody. Some kids find him charming; most adults find him annoying. Some adults go somewhat further in their dislike. One is Stuart Frankel, who maintains a website arguing that Barney is the source of all evil. Here's a sample of Mr. Frankel's work:


All in good fun. But not apparently to Lyons Partners, a firm which owns the IP rights in the Barney character. Lawyers acting for Lyons Partners fired off a bunch of cease and desist letters to web sites critical of Barney, including Mr. Frankel's. "It is unlawful…to use this property without the permission of Lyons Partnership," the lawyers wrote. "These materials must be immediately removed."

That ain't right. The fair use doctrine gives wide latitude toward parodic uses of copyrighted works, and Frankel's use is certainly parodic. As for trademark law, there is no likelihood that Frankel's parodic use of the Barney character would cause consumers to mistakenly believe that the "real" Barney character was involved. And in any event, it turns out that Barney has priors. In 1999, the Fifth Circuit threw out trademark claims made against The Famous Chicken, a sports mascot who had taken to beating up a Barney-like character at baseball games. The opinion deserves to be read in full, but here's an excerpt (internal citations removed):

This case involves a dispute over the use of the likeness of "Barney," a children's character who appears in a number of products marketed to children. Barney, a six-foot tall purple "tyrannosaurus rex," entertains and educates young children. His awkward and lovable behavior, good-natured disposition, and renditions of songs like "I love you, you love me," have warmed the hearts and captured the imaginations of children across the United States. According to Lyons, the owner of the intellectual property rights for Barney and the plaintiff in the suit below, the defendants–Giannoulas d/b/a The Famous Chicken and TFC, Inc. ("TFC"), the owner of the intellectual property rights to the Chicken–sought to manipulate Barney's wholesome image to accomplish their own nefarious ends.
The Chicken, a sports mascot conceived of and played by Giannoulas, targets a more grown-up audience. While the Chicken does sell marketing merchandise, it is always sold either by direct order or in conjunction with one of the Chicken's appearances. Thus, the Chicken's principal means of income could, perhaps loosely, be referred to as "performance art." Catering to the tastes of adults attending sporting events, most notably baseball games, the Chicken is renowned for his hard hitting satire. Fictional characters, celebrities, ball players, and, yes, even umpires, are all targets for the Chicken's levity. Hardly anything is sacred.
And so, perhaps inevitably, the Chicken's beady glare came to rest on that lovable and carefree icon of childhood, Barney. Lyons argues that the Chicken's motivation was purely mercenary. Seeing the opportunity to hitch his wagon to a star, the Chicken incorporated a Barney look-alike into his acts. The character, a person dressed in a costume (sold with the title "Duffy the Dragon") that had a remarkable likeness to Barney's appearance, would appear next to the Chicken in an extended performance during which the Chicken would flip, slap, tackle, trample, and generally assault the Barney look-alike.
The results, according to Lyons, were profound. Lyons regales us with tales of children observing the performance who honestly believed that the real Barney was being assaulted. In one poignant account related by Lyons, a parent describes how the spectacle brought his two-year-old child to tears. In fact, we are told, only after several days of solace was the child able to relate the horror of what she had observed in her own words–"Chicken step on Barney"–without crying. After receiving such complaints from irate parents who attended the Chicken's performances with their children, Lyons sought to defend this assault on their bastion of child-like goodness and naiveté.
Giannoulas offers a slightly different perspective on what happened. True, he argues, Barney, depicted with his large, rounded body, never changing grin, giddy chuckles, and exclamations like "Super-dee-Dooper!," may represent a simplistic ideal of goodness. Giannoulas, however, also considers Barney to be a symbol of what is wrong with our society–an homage, if you will, to all the inane, banal platitudes that we readily accept and thrust unthinkingly upon our children. Apparently, he is not alone in criticizing society's acceptance of a children's icon with such insipid and corny qualities. Quoting from an article in The New Yorker , he argues that at least some perceive Barney as a "pot-bellied," "sloppily fat" dinosaur who "giggle[s] compulsively in a tone of unequaled feeblemindedness" and "jiggles his lumpish body like an overripe eggplant." [. . .]
Perhaps the most insightful criticism regarding Barney is that his shows do not assist children in learning to deal with negative feelings and emotions. As one commentator puts it, the real danger from Barney is "denial: the refusal to recognize the existence of unpleasant realities. For along with his steady diet of giggles and unconditional love, Barney offers our children a one-dimensional world where everyone must be happy and everything must be resolved right away."
Giannoulas claims that, through careful use of parody, he sought to highlight the differences between Barney and the Chicken. Giannoulas was not merely profiting from the spectacle of a Barney look-alike making an appearance in his show. Instead, he was engaged in a sophisticated critique of society's acceptance of this ubiquitous and insipid creature. Furthermore, Giannoulas argues that he performed the sketch only at evening sporting events.
The sketch would begin with the Chicken disco dancing. The Barney character would join the Chicken on the field and dance too, but in an ungainly manner that mimicked the real Barney's dance. The Chicken would then indicate that Barney should try to follow the Chicken's dance steps (albeit, by slapping the bewildered dinosaur across the face). At this point, Barney would break character and out-dance the Chicken, to the crowd's surprise. The Chicken would then resort to violence, tackling Barney and generally assaulting Barney. Barney would ultimately submit to the Chicken and they would walk off the field apparently friends, only for the Chicken to play one last gag on the back-in-character naive and trusting Barney. The Chicken would flip Barney over a nearby obstacle, such as a railing.

Sounds fun! In any event, Lyons' lawsuit got nowhere, but that didn't stop them from sending out nasty letters ordering Frankel and other parodists to cease and desist. But now they may be hoisted on their own chutzpah (does that make sense?). The Electronic Frontier Foundation and the very able Akin, Gump IP lawyer Elizabeth Rader (my former colleague at Stanford Law School's Center for Internet and Society) have filed a complaint against Lyons in federal court in New York. The complaint asks the court to declare that Lyon's IP claims are groundless.

That's a good first step. But here's another. How about we establish as Intellectual Property Responsibility #2 that IP owners refrain from sending meritless cease and desist letters in a bid to squelch criticism of their product — here, the Barney character. We live in an open society with a First Amendment, and IP law shouldn't interfere with our ability to make social criticisms.

So how about it? Can we agree just to let people talk about Barney? It's not as if any of these parodists are competing with Barney. If they succeed in turning people off the character, it's because they will convince people that he's loathsome. That's fair, right?

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The RIAA vs. Weird Al Yankovic

August 23, 2006 Blog Posts , Piracy

So yesterday the RIAA released a "scared-straight" film aimed at illegal filing sharing by college students. Download that O.A.R. tune, the RIAA says, and we'll throw you in jail, have you drummed out of school, and generally ruin your life. I swear that I'm reporting this straight; it's hard to convey the sense in which the RIAA's film manages to both patronize and fear-monger, often in the same sentence. The Electronic Frontier Foundation's Jason Schultz manfully gives it a try.

In a coincidence of cosmic proportions, yesterday Weird Al Yankovic resurfaced with what to me may be his magnum opus, "Don't Download This Song". My favorite line: Cause you start out stealing songs/then you're robbing liquor stores/and selling crack/and running over schoolkids with your car.

Downloading as a gateway drug. Hysterical (in both senses of the word).

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Bob Dylan on music piracy — he’s for it

August 22, 2006 Blog Posts , Piracy

Bob Dylan is a provocateur, a habitual obfuscator, and a bit of a crank. That said, he's also that rare and precious thing, a genuine artistic giant. His music will endure. And that makes his comments on illegal downloading, reported just now, particularly noteworthy. Asked whether he approved of illegal downloading, Dylan cut to the chase: "Well, why not? It ain't worth nothing anyway."

The article I've linked is a selective reporting of Dylan's comments — I would love to see a transcript. But judging from the statements reported, Dylan isn't making some dumb old man argument about the quality of today's music. Rather, he's complaining about the quality of today's recordings — that is, the sound quality, the audio fidelity, of the music laid down on CDs and downloads.

To which all I can reply is thank you thank you thank you thank you thank you for noticing what should be obvious. CDs are an ancient (approx. 25 yrs.) digital technology, and recordings reduced to the CD standard, devised at a time when processing power was expensive, often sound dead, airless, flat. Dylan notes this in his comments, stating that the songs on his latest album "probably sounded ten times better in the studio when we recorded 'em. CDs are small. There's no stature to it."

Well, so much for CDs. So along come downloads and what happens? Sound quality goes down! The bitrate at which most downloads are encoded provides near-CD-quality sound, which is a bit like eating "near-canned-quality peas".

Why does this matter? Because it points to one of the ways in which the music industry is partially responsible for its own piracy problem. I'm sure there is demand out there for higher quality audio. Does the industry scramble to provide it? No. The industry didn't exactly rush to support the DVD-audio and SACD standards by releasing recordings in those higher-fidelity formats, and perhaps that's understandable given the rate at which consumers are moving away from physical media in favor of downloads. But why doesn't the industry get behind higher-quality downloads? In a competitive market, record labels should be competing on both price and product quality — a dimension that includes audio fidelity.

Oh, wait a minute . . .

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The Net Neutrality Ironies Facing the FTC

August 22, 2006 Blog Posts , Network Neutrality

On the same day (August 21) that Federal Trade Commission Chairman Deborah Platt Majoras said there is no evidence to show the broadband market is failing, Verizon and BellSouth each announced they were going to add surcharges to the bills of subscribers of their broadband service. Coincidence? Cosmic irony? The mind boggles at the disconnect between economic theory and the reality.

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Video Franchising – A La Carte Blanche

August 10, 2006 Blog Posts , Network Neutrality

The new version of the Senate telecom bill is 287 pages, although to be sure the first 68 are the text of the House bill all crossed out, to be replaced by Senate text. No question, there's still a lot left. The chief sponsor, Senate Commerce Committee Chairman Ted Stevens (R-Alaska), has talked of two separate strategies to get something passed in what's left of this legislative year.

Plan A is to find 60 votes to bring the massive bill to the Senate floor. With 60 votes, he puts off the possibility of a filibuster on the question whether the bill should even be brought up for debate. However, even if the bill is debated, there are many other legislative hurdles, including the possibilities of long debates over Net Neutrality and other issues.

Plan B is to substitute the massive bill with a slimmed-down version concentrating on a couple of issues such as universal service and the streamlined video franchising. Universal service is dear to Stevens' heart because it supports telephone companies with high costs, like those in Alaska. The telephone companies want the expedited video franchising to save them millions in regulatory fees.

There is a lot to be slimmed down in this bill. It's got a four-page table of contents, covering 14 major sections (titles), and dozens of smaller pieces, subtitles, etc. The topics range from allowing for cheaper phone calls for armed forces personnel abroad to establishing an Office of Indian Affairs in the Federal Communications Commission (FCC). There are at least three studies on broadband progress, with one unhelpfully keeping the data confidential.

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Net Neutrality, Before the Net

August 8, 2006 Blog Posts , Network Neutrality

Thanks to Gigi Sohn and Scott Burns at PK for asking me to blog for a couple of weeks. I'm proud to be affiliated with this organization and the important work that it does.

The issues that are PK's raison d'etre were part of my beat for many years when I was a technology columnist and analyst for various and sundry publications (most recently, for the New York Times). I was writing about privacy, fair use, free speech and the like before most people even had computers.

I've been a little nervous about doing this gig — I consciously walked away from technology policy issues in deep and abiding frustration when I started my little boutique research institute, The Hybrid Vigor Institute, in 2000 — but after sniffing around a little bit at the present state of affairs, I had to chuckle (albeit ruefully) at how very, very little changes, seemingly ever.

To wit: here's a slightly shortened version of the May 19, 1991, "Inside Technology" column I wrote for San Francisco Examiner — yes, that's 15 YEARS ago. I like to think of it as the proto-Net Neutrality problem statement:

May 19, 1991


Next week, Conrad Burns , the Republican senator from Montana, will introduce a bill with incentives a-go-go to get a national fiber-optic phone network up and running by the year 2015. At least two other bills on the subject are already pending. …
Fiber is the highway system for broadband digital services like video teleconferencing, interactive TV, multimedia libraries and other such new information-age media. …
Burns' proposed [bill] — dubbed "Destination 2015'' … wants to give phone companies incentive to install what's known as "fiber in the loop'' (fiber into the home) by allowing them to get into the lucrative and verboten information services (also known as "content'') business.
Since the Modified Final Judgment (MFJ) broke up the Bell system in 1982, Judge Harold Greene has held fast that phone companies can't sell information (such as TV transmission or videotex, depending on the phone company) because it would be too easy for them to monopolize the network.
So regional Bell operating companies (RBOCs), which can install fiber into the home today, are widely believed to be holding back on doing so because they're still hanging a lip about the MFJ restrictions …

… Nicholas Johnson, a commissioner of the Federal Communications Commission from 1966 to 1973, believes the phone companies' drive to sell information services is "the No. 1 public policy issue confronting our nation.''
Allowing the phone companies to provide both the conduit and the content is bad both for consumers and business. "It isn't in their shareholders' interest to do this,'' said Johnson. As a public utility, he says, they should only provide the "channels of communication for a democratic society.'' It's hard to sue for libel the companies that make blank videotapes or rolls of newsprint, for example. …

"They already suck money out of both ends of the straw,'' he said. ""They charge us for getting information out of the system and they charge the supplier for putting it in. They can get rich beyond their wildest dreams of avarice by concentrating on what it is they do best [i.e., renting the conduit] — the mere fact that doing so also happens to serve the public interest should not deter them.''

So despite the good intentions and safeguards of the Burns bill, the end result is that if passed, it may wrongly drive the first of many wedges into the MFJ, reopening the door for the kind of behavior it was supposed to squelch.
Brice Dustman of Sen. Burns' office said, "Once you've given them the power, you can always take it away.'' But as we've all seen so many times before with technology, it's hard to jam the lid back down on that Pandora's box.
We need a national fiber-optic network. … But Destination 2015 makes me question whether the end justifies the means.

Well, with the poor beleaguered Modified Final Judgment long since gone the way of all flesh — pecked to death by policy ducks at the behest of the network providers — and from the vantage point of hindsight, I also question whether those of us who care about these issues are using the right means to make the Net Neutrality case.

I mean, it's 15 years later. No matter how we get our broadband, whether we ever got around to interactive TV or think of YouTube as the same thing, the question of who controls the network has more serious consequences and higher stakes today than ever — for free speech, for consumers, for information providers who aren't fortunate enough to own their own. And yet, and yet …

So: how can we kick this debate out of Wonkville and into the Zeitgeist?

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Video Mash-Ups — Acceptable Behavior? We Are Shocked!

August 2, 2006 Blog Posts , Fair Use

For those of you not in D.C., I wanted to make sure you saw this story from the Wed., Aug. 2 Washington Post.

It seems as if what just a couple of years ago would have set off all sorts of alarms, lawsuits and threats of lawsuits with content companies — creating video mashups — has now been not only accepted but encouraged by some of the more enlightened content companies.

The recording industry, alas, is still fighting a rear-guard action. The one non-encouraging word in the story is from a record company, which did its legal thing on a little web site that made a mash-up of he TV show, Lost. ABC didn't complain, but Nickleback's record company did.

And, of course, Ted Stevens is given a couple of good mentions.

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