April 2007

The public policy world lost one of its most colorful personalities yesterday with the death of super-lobbyist Jack Valenti. For 38 years, Valenti was the motion picture industry’s man in Washington, bridging the yawning gap between the worlds of Capitol Hill and the Hollywood hills. He was perhaps the most recognized lobbyist in the country – in no small part due to his long-running annual appearances at the Academy Awards.

His Washington credentials were extensive, having served as a staffer for Presidents Kennedy and Johnson. Photo Sharing and Video Hosting at PhotobucketBut Valenti was no typical blue-suited, Code of Federal Regulations-quoting D.C. rep. Like a seasoned actor playing a role, he brought Hollywood-like style and drama to Washington in a way that few others could ever match.

With a voice like that of a Roman senator, the silver-haired Valenti – dressed nattily, often with a trademark red handkerchief in his pocket – could make even the most mundane debate sound like a Shakespearean drama. Among his more quotable and provocative lines, from the 1980s copyright battle over the video cassette recorder: “I say to you that the VCR is to the American film producer and the American public as the Boston stranger is to the woman home alone.” There’s a reason he is the only D.C. lobbyist with a star on the Hollywood Boulevard Walk of Fame.

Valenti was by no means always right on the issues. The VCR, for instance, wasn’t much of a Boston strangler. He wasn’t consistently pro-free market, nor consistently anti-free market. But then again, that wasn’t his job. His job was to represent the interests of the motion picture industry, as the industry understood them. And that he did exceptionally well. Both Washington and Hollywood will miss him.

Throw ‘em in Prison

by on April 27, 2007 · 2 comments

One advantage the patent system clearly does have over the regulatory state is that you generally can’t go to jail for patent infringement, as you can for selling lobster tails that are the wrong size and packaged in the wrong kind of containers. Over at Ars Technica, I’ve got a story about legislation in Europe that could have taken the first step toward changing that. Fortunately, the good guys scored a partial victory by getting patents removed from the scope of the second Intellectual Property Rights Enforcement Directive.

However, there’s still some scary stuff in there. “Inciting” copyright infringement can still be a criminal offense, opening the door to jailing the creator of the next YouTube or MP3 player. Moreover, it’s a criminal offense to infringe other “intellectual property rights” on a “commercial scale.” These include “geographical indication” rights, meaning that a winemaker from outside the Champagne region of France could not only be sued but thrown in jail for selling his sparkling wine as “champagne.”

What’s not clear is why any of this is necessary. Piracy isn’t an especially serious problem in Europe, and the authorities already have plenty of weapons in their arsenal. Politicians have gotten in the worrisome habit of throwing people in jail just to prove that they’re serious about whatever the problem-of-the-week happens to be.

174,000 Commandments

by on April 27, 2007

One of my favorite Cato publications back when I was on staff there was Wayne Crews’ Ten Thousand Commandments. Published every year, the report documented the mountains of burdensome regulations that businesses had to comply with that year. He has since moved to the Competitive Enterprise Institute, where he has continued to produce the report. Here is the 2006 version:

The 2005 Federal Register, the daily depository of all proposed and final federal rules and regulations, contained 73,870 pages. This is a 2.4 percent decrease from 2004’s 75,675 pages, which had been an all-time record. In 2005, 3,943 final rules were issued by agencies. This is a 3.8 percent decline from 2004’s 4,101 rules. Whereas regulatory agencies issued 3,943 fi nal rules, Congress passed and the President signed into law a comparatively low 161 bills in 2005. In the 2005 Unifi ed Agenda of Federal Regulatory and Deregulatory Actions, which details rules recently completed as well as those anticipated within the upcoming 12 months, agencies reported on 4,062 regulations that were at various stages of implementation throughout the 50-plus federal departments, agencies, and commissions.

Crews is doing an important service by highlighting the severe burdens the regulatory state places on private industry. It occurs to me that a similar analysis would be illuminating for the patent system.

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Oh MY, the title of this post is meta.

I found a rare opportunity to lightly critique Bruce Schneier’s thinking and put it on Cato@Liberty. These opportunities don’t come around often . . .

The past couple years have seen a whole new focus by policymakers on violence in media, from the recent refocusing of the FCC on violent video to the violent video game ban in California.

All this implicates what is and ought to be bedrock free speech law. Setting aside the narrow, carefully drawn exceptions for soliciting and inciting crime–which require fairly direct involvement

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By all means, let’s consider doing something about television violence. But why don’t we start with the obvious?

Digital set-top boxes will allow parents to buy specialty tiers of programming as well as make use of more powerful parental control technologies. Trouble is, not enough families have them. The Federal Communications Commission emphasized this fact yesterday when it issued a report concerning television violence. The report noted that a significant problem with parental controls is “it does not appear that cable operator-provided advanced parental controls are available on a sufficient number of cable-connected television sets to be considered an effective solution at this time.”

There’s a shortage of parental controls mainly because consumer electronics manufacturers have been concentrating their efforts on high-end devices that incorporate high-definition and recording features, forsaking the low-cost, limited capability devices that generate less profit. Congress unintentionally created this market failure when it ordered the FCC to eliminate proprietary or “integrated” set-top boxes provided by the cable companies to their customers via Section 629 of the Telecommunications Act of 1996, enacted to give a boost to consumer electronics manufacturers who wanted to produce cable set-top boxes and market them directly to consumers.

But wait.

Comcast, the nation’s largest cable operator, recently asked the Federal Communications Commission for a waiver of the ban so it can distribute low-cost, limited capability set-top boxes to subscribers who don’t want higher-end devices costing several hundred dollars (see this and
this
.

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The FCC has just issued its long-awaited report on Violent Television Programming and Its Impact on Children. Unsurprisingly, it recommends that the government should assume a great role in regulating the video content that comes into our homes. The agency concludes that: “We believe that further action to enable viewer-initiated blocking of violent television content would serve the government’s interests in protecting the well-being of children and facilitating parental supervision and would be reasonably likely to be upheld as constitutional.” (p. 15)

Ambiguity Defined
Ironically, however, the FCC’s report goes on to undercut its own argument for regulation again and again because of the stunning level of ambiguity surrounding everything they propose. For example, in the second paragraph of the report, the FCC notes that “A broad range of television programming aired today contains [violent] content, including, for example, cartoons, dramatic series, professional sports such as boxing, news coverage, and nature programs.” Is the agency saying such things could be regulated? They never tell us.

Or consider the endless number of questions raised by this paragraph on pages 20-21:

We believe that developing an appropriate definition of excessively violent programming would be possible, but such language needs to be narrowly tailored and in conformance with judicial precedent. Any definition would need to be clear enough to provide fair warning of the conduct required. A definition sufficient to give notice of upcoming violent programming content to parents and potential viewers could make use of, or be a refinement of, existing voluntary rating system definitions or could make use of definitions used in the research community when studying the consequences of violent programming. For more restrictive time channeling rules, a definition based on the scientific literature discussed above, which recognizes the factors most important to determining the likely impact of violence on the child audience, could be developed. For example, such a definition might cover depictions of physical force against an animate being that, in context, are patently offensive. In determining whether such depictions are patently offensive, the Government could consider among other factors the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic. (p. 20-21)

Let’s try to unpack some of this because defining “excessive violence” is really the core of this debate.

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On Monday, the WashingtonWatch.com wiki went “live” – with a lot of promo efforts dedicated to getting it in front of an ever-broader audience. Along with a release out on PR Newswire, it got a friendly write-up on TechCrunch, where Mike Arrington is rubbing his hands together in anticipation of the fun.

I’m pleased to see that several people and groups have begun editing bills of interest to them. It looks like the National Association of Realtors has a say about the Community Choice in Real Estate Act, though they don’t seem to be winning the day with site visitors, judging by the votes.

The Center for Science in the Public Interest is making the case against cutting the beer tax. Love the comment on that page. A couple of different editors have added information to S. 9, The Comprehensive Immigration Reform Act of 2007. It’s one of the consistently popular bills on the site.

Of interest to folks here on TLF might be the write-up of S. 744, The SAVE LIVES Act. That’s Senator McCain’s public safety spectrum bill. I’m not equipped to determine whether the editor of that bill makes any sense. Luckily, anyone with an Internet connection can, and they can improve it too, if they want. It’s a wiki.

You know what this country needs more of? Patent trolls! This time the target is Microsoft, over its .net software. Jeremy Reimer at Ars is on the story:

The patent itself, like many software patents, uses vague language to describe “a system and method for generating computer applications in an arbitrary object framework.” The patent involves creating “objects” in a web-based application. These objects are managed throughout their life cycle in an object library and put together to create complex, interactive web applications. The whole mechanism separates design, function, and content so that each can be developed separately.

To anyone who has some knowledge of web-based software development, it sounds a lot like what Sun’s Java or Apple’s WebObjects were doing before .NET was even released. In fact, the patent even admits as such: “Prior art solutions have succeeded in partially separating some of these functions. Notably, content management databases and digital repositories provide a means of separating content from form and function.” It then defends the need for this separate patent with the incredibly vague assertion that “content management tools typically fail to address form/function issues.”

I’ve used a few content management tools in my time, and none of them have failed to separate content from function—that’s basically the entire point of content management systems. The patent goes on to claim that “changes in design or content do not require the intervention of a programmer.” Again, it’s difficult to see how this is different from any other existing solutions, many of which predate Vertical Computing’s efforts.

Over at Ars, I’ve got an analysis of the patents in the Vonage case:

The “invention” disclosed by the patent is the concept of applying these “advanced” routing concepts to DNS servers. One of the additional services envisioned by the patent is the ability to translate among domain names, telephone numbers, and IP addresses—clearly essential in any VoIP system that interfaces with the traditional phone system. The server described by the patent would also be able to “condition name-to-address processing on certain parameters relating to a request for translation, such as the time of the request, the party or terminal making the request, the status of one or more potential destination terminals, etc.”

What follows is a detailed description of the functionality provided by this DNS server, listing a variety of situations and how it would behave in each. But hardly any of the details would be interesting from a programmer’s perspective. No algorithms or data structures are described in any detail.

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