January 2009

This ongoing series has focused on the growing substitutability of Internet-delivered video for traditional video distribution channels like cable and satellite.  YouTube has recently begun exploring adding traditional television programming to its staggering catalogue of mostly amateur-generated content.  

But now YouTube is going one step farther by exploring  the possibility of signing Hollywood professionals to produce “straight-to-YouTube” content:

The deal would underscore the ways that distribution models are evolving on the Internet. Already, some actors and other celebrities are creating their own content for the Web, bypassing the often arduous process of developing a program for a television network. The YouTube deal would give William Morris clients an ownership stake in the videos they create for the Web site.

This kind of deal would make Internet video even more of a substitute for traditional subscription channels—thus further eroding the existing rationale for regulating those channels.  

But what’s even most interesting about this development is that YouTube’s interest seems to be driven primarily by the possibility of reaping greater advertising revenues on such professional content than on its currently reaps from its vast, but relatively unprofitable, catalogue of user-generated content:  

YouTube’s audience is enormous; the measurement firm comScore reported that 100 million viewers in the United States visited the site in October. But, in part because of copyright concerns, the site does not place ads on or next to user-uploaded videos. As a result, it makes money from only a fraction of the videos on the site — the ones that are posted by its partners, including media companies like CBS and Universal Music.

The company has shown interest in becoming a home for premium video in recent months by upgrading its video player and adding full-length episodes of television shows. But some major television networks and other media companies are still hesitant about showing their content on the site. The Warner Music Group’s videos were removed from the site last month in a dispute over pay for its content.

Netscape Logo

Never forget.

Is it any wonder that Vista took 8 years–and that there’s no firm market date for incremental update Windows 7–when even minor changes require updating thousands of pages of technical documentation for a team of state antitrust regulators?

For the depressing details, read today’s “Joint Status Report” filed by 17 states, the District of Columbia, the DOJ, and Microsoft.

The government’s continued meddling with Windows, some 9 years after it was branded an “abusive monopoly” and following the Vista’s fizzling, boggles the mind. In a way, the company’s efforts to sic the antitrust attack dogs on rival Google really are a desparate attempt to level the playing field.

S. 328, the DTV Delay Act, did not receive the 2/3 majority needed to pass in the House under the procedure known as “Suspension of the Rules.” Here’s the roll call vote – 258 for passage, 168 against. It was introduced and passed in the Senate Monday.

It would pass a straight up-or-down vote, but House leadership evidently miscalculated the level of support the measure enjoys.

Scott Cleland is nothing if not interesting. And I was interested by a post he has up this morning: The Growing Privacy-Publicacy Fault-line – The Tension Underneath World Data Privacy Day.

Today is World Data Privacy Day. You can tell by the demonstrations and fireworks displays in capitals around the world. (ahem)

I’ll be speaking at a Dialogue on Diversity Internet privacy briefing on Capitol Hill this afternoon, in case you’re interested and have time.

But Scott’s point – privacy is in tension with the “publicacy” ethos of the Web 2.0 world – I think it’s a very interesting point.

My differences with him are two.

The first is semantic: I think the word he should use is “publicity.” It has the benefit of already being a word – and it’s capable of being pronounced as well!

The second, and more important, is where the ethos comes from: It’s a demand of people – not the Web 2.0 set, but all people.

Privacy and publicity are two sides of the same personal-information coin. People want some information to be kept private – we know that. But they have at least equal or greater demands to make information public – to give it publicity. This is why restaurants and bars are open, curtainless rooms. It’s why email, blogs, Flickr, Facebook and other social networking sites are popular.

The reason why privacy is sought-after and its twin “publicity” is ignored, is because publicity is the default. The laws of physics mean that information about you is automatically displayed when you walk on the street. Photons of light bounce off your body and convey personal information to the photo-receptors (or “eyes”) of people around you.

The ‘physical’ laws of the Internet are similar. You have to ‘publicize’ your IP address to have any contact with another on the Internet. You have to publicize lots of identity, biographical, and other personal information to have any meaningful contact with others on the Internet.

But imagine a world where privacy was the default and information did not naturally travel to others. People would demand publicity. Poeple would demand to be seen and remembered, to have details about their lives recounted by others.

Publicity is not an incursion on social norms being perpetrated by Google and other Web 2.0 types. Web 2.0ish things are a response to the broad implicit demand for publicity. Oh, it’s implicit to the point of contradictory: People say they want privacy even as their actions betray their longing for publicity.

The trick is for people to figure out how to give themselves publicity in the things they want known, and to maintain privacy in the things they don’t. That’s a problem that will most likely be solved by the passage of a few generations, when the technologies that are new today are familiar, and when people have reset their personal information practices and their expectations.

One of the most fundamental disagreements in the debate over software patents concerns the Supreme Court. Some software patent supporters like to cite the case of Diamond v. Diehr as the decision that legalized software patents. Many others argue that the Supreme Court’s classic trilogy of software patent decisions from the 1970s and early 1980s just weren’t clear enough to be of much use in the modern world.

In a new article for Ars Technica, I take a close look at these claims and talk to a couple of prominent patent scholars who make them. I find that like most Supreme Court decisions, the Benson, Flook, and Diehr decisions are hardly models of clarity. It’s possible to find passages in those decisions that could be cited in support of either side of the software patent debate.

However, I think that it’s hard to escape the conclusion that, at a minimum, the Supreme Court intended software patents to be far more limited than they are today. For the last decade, the Federal Circuit has been allowing so-called Beauregard claims, which claim software printed on a machine-readable media such as a CD. As I explain in the article, it’s hard to see a plausible interpretation of the Supreme Court’s precedents that would include these kinds of “pure” software patents. And it seems to me that the most reasonable interpretation of the high court’s decisions is the one Ben Klemens has articulated: that software by itself cannot be patented, and that “insignificant post-solution activity” (to quote the Diehr majority) such as displaying the results of a calculation on a computer screen, cannot transform an unpatentable algorithm into patentable machine.

There’s a lot more detail in my article, so I hope you’ll check it out.

Transparency at the FCC

by on January 27, 2009 · 9 comments

Speaking of transparency…  My colleague Barbara Esbin has a great piece on the PFF blog about changes being implemented by Acting Chairman Copps to make the agency less dysfunctional and more open to the public:

the new Acting Chairman has confirmed what FCC insiders, outside practitioners, and the House staff investigating former Chairman Kevin Martin’s management practices have long known: Commission staffers were not permitted to freely communicate either with one another, or with the other Commissioners. The liberation of the staff, together with changes concerning how the Bureaus and Offices work with each other and how the Commission communications with the public, certainly falls under the category of “change we can believe in…”

Acting Chairman Copps has outlined other important changes in how the FCC does business, including establishing a calendar for regular open meetings in advance, and updating the FCC’s website to be more user-friendly, particularly its Digital TV Transition pages. These and other changes and commitments together constitute an extremely promising start for Acting Chairman Copps, and his commitment to transparency and order bode very well for the FCC, its staff, the companies the agency regulates, and the American public.

Great news.  Let’s hope the FCC also gets to work soon on updating its painfully antique website, with its proliferation of databases.

Just wanted draw everyone’s attention to a couple of great podcasts about online safety issues that include comments from members of the Internet Safety Technical Task Force (ISTTF). As I mentioned a few weeks ago, the ISTTF project and final report represent a major milestone in the discussion about online safety in America, and I was honored to serve as a member of this task force.

This in-depth “Radio Berkman” podcast featuring ISTTF director John Palfrey and co-director Dena Sacco is a really excellent (but lengthy!) overview of the ISTTF’s word. Here’s a shorter podcast that Prof. Palfrey did with Larry Magid of CNet. And I also recommend this excellent NPR “On the Media” podcast featuring my friend Stephen Balkam of the Family Online Safety Institute (FOSI).

For those interested, down below you will find a running list I have been keeping of coverage of the ISTTF. (I will try to keep updating this list here).

Continue reading →

I’m delighted to welcome to the TLF my colleague Adam Marcus, Research Fellow & Senior Technologist at The Progress & Freedom Foundation.  Adam’s already written a few posts here on the TLF about edge caching and cloud computing—cross-posted over the last few months by Adam Thierer and me.  He also appeared on TechPolicy Weekly 38 to discuss  “The Google Kerfuffle — Edge Caching & Net Neutrality.”

Adam (a/k/a “Marcus”) brings an exceptional technological sophistication to bear on policy issues.  He’s already been a real asset to our work at PFF as a sort of “technical ombudsman,” helping us delve into the nitty-gritty details behind the debates.  I hope he’ll play somewhat the same role here on the TLF:  keeping us honest and checking our facts.  

But he’s not just another geek:  With a J.D. from Santa Clara University and an MA in Communications, Culture & Technology from Georgetown University, Adam has lots to say about the legal and policy issues covered by the TLF.

I hope you all enjoy getting to know him—whether through the blog or in person at our semi-regular Alcohol Liberation Fronts—as much as I have.

Sid Rosenzweig, who recently joined PFF to study patent issues, has a very thoughtful piece about Apple’s new patent on the multi-touch interface on the iPhone, which ends as follows:

It is striking how protection for user interfaces has changed over the years.  It is not clear that patent protection for user interfaces is a step in the right direction, even for iconic breakthroughs in interfaces such as for the iPhone and iPod Touch.  The 300 diagrams in this Apple patent call to mind the 189 graphical user-interface elements of the Apple v. Microsoft copyright infringement case from the early 1990s.  The Apple v. Microsoft case prevented Apple from obtaining the protection on the overall look-and-feel of its software, and instead treated as discrete each element of the user interface.  This patent, and others like it, purport to cover the combination of several elements — here the web scrolling with the photo-album browsing — and not the discrete elements themselves.  With the Apple v. Microsoft case largely having thrown copyright out the window, and with trade dress protection excluding functional elements, patents are really the only option for companies like Apple, until and unless another solution is found.

On this week’s show, we discuss government transparency—a topic a number of us here at the TLF have written about lately.  Among other things, we discuss:

  • Why transparency is important

  • What data the government should provide and how
  • Good and bad examples of transparency
  • President Obama’s promise to have the most accountable administration in history
  • Obama’s plans to appoint a Chief Technology Officer

My guests for this show are:

You can subscribe to our podcast here or through iTunes here.  Or, you can play or download this podcast using the online player below.