August 2013

Sherwin Siy, Vice President of Legal Affairs at Public Knowledge, discusses emerging issues in digital copyright policy. He addresses the Department of Commerce’s recent green paper on digital copyright, including the need to reform copyright laws in light of new technologies. This podcast also covers the DMCA, online streaming, piracy, cell phone unlocking, fair use recognition, digital ownership, and what we’ve learned about copyright policy from the SOPA debate.


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over-the-topCBS and Time Warner Cable have been embroiled in a heated contractual battle over the past week that has resulted in viewers in some major markets losing access to CBS programming. When disputes like these go nuclear and signal blackouts occur, it is inevitable that some folks will call for policy interventions since nobody likes it when the content they love goes dark.

While some policy responses are warranted in this matter, policymakers should proceed with caution. Heated contractual negotiations are a normal part of any capitalist marketplace. We shouldn’t expect lawmakers to intervene to speed up negotiations or set content prices because that would disrupt the normal allocation of programming by placing a regulatory thumb too heavily on one side of the scale. This is why I am somewhat sympathetic to CBS in this fight. In an age when content creators struggle to protect their copyrighted content and get compensation for it, the last thing we need is government intervention that undermines the few distribution schemes that actually work well.

On the other hand, Time Warner Cable deserves sympathy here, too, since CBS currently enjoys some preexisting regulatory benefits. As I noted in this 2012 Forbes oped, “Toward a True Free Market in Television Programming,” many layers of red tape still encumber America’s video marketplace and prevent a truly free market in video programming from developing. The battle here revolves around the “retransmission consent” rules that were put in place as part of the Cable Act of 1992 and govern how video distributors carry signals from TV broadcasters, which includes CBS.

But those “retrans” rules are not the only part of the regulatory mess here. Continue reading →

Answer: To check health information. Seniors who can investigate a symptom online will save a trip to the hospital. Not knowing whether a symptom is serious and not having the ability to investigate the condition online, many seniors without internet access go to emergency room to answer their health related questions.

This is the fourth post in a series about broadband. It investigates criticisms about America’s broadband market by Susan Crawford. Other posts are available here and here.

Crawford notes on a recent blog post, “One recent 2012 study showed that even after going through digital literacy training, 22% of participants still did not have a connection.”  The part that Crawford doesn’t mention is that 78% of the 33,000 people who participated in the digital literacy program (30 hours of classroom instruction on the basics of the computers and internet) went on to become sustainable broadband adopters (SBAs), meaning they secured their own broadband connection at home. Continue reading →

In my latest essay for the IAPP “Privacy Perspectives” blog , I ponder the question: Why is it that better methods of digital contracting and data ownership have not yet developed to help us protect our privacy online?  I note that the idea has long been floating around out there, but never gone anywhere. I offer a couple of explanations for why that has likely been the case. But I also note that there may still be some reasons to believe that private data contracting has a future.

Read the whole thing.

(Note: I discuss these issues in greater detail in my forthcoming George Mason Law Review article, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” It will be out before the end of the month and I will post it here once it is live.)

This is the third of a series of three blog posts about broadband in America in response to Susan Crawford’s book Captive Audience and her recent blog post responding to positive assessments of America’s broadband marketplace in the New York Times. Read the first and second blog.

If Crawford’s mind, this is a battle between the oppressor and the oppressed:  Big cable and big mobile vs. consumers. Consumers can’t switch from cable because there are no adequate substitutes. Worst of all, she claims, the poor are hardest hit because they have “only” the choice of mobile.

Before we go deeper into these arguments, we should take a look back.  It was not long ago that we didn’t have broadband or mobile phones.  In less than two decades, our society and economy have been transformed by the internet, and we have evolved so quickly that we can now discuss which kind of network we should have, how fast it is, which kind of device to use, and even how the traffic should be managed on that network. The fact that we have this discussion shows the enormous progress we’ve made in a short time. Plus we can discuss it on a blogging platform, yet another innovation enabled the internet. Continue reading →

do not panicIn a recent essay here “On the Line between Technology Ethics vs. Technology Policy,” I made the argument that “We cannot possibly plan for all the ‘bad butterfly-effects’ that might occur, and attempts to do so will result in significant sacrifices in terms of social and economic liberty.” It was a response to a problem I see at work in many tech policy debates today: With increasing regularity, scholars, activists, and policymakers are conjuring up a seemingly endless parade of horribles that will befall humanity unless “steps are taken” to preemptive head-off all the hypothetical harms they can imagine. (This week’s latest examples involve the two hottest technopanic topics du jour: the Internet of Things and commercial delivery drones. Fear and loathing, and plenty of “threat inflation,” are on vivid display.)

I’ve written about this phenomenon at even greater length in my recent law review article, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” as well as in two lengthy blog posts asking the questions, “Who Really Believes in ‘Permissionless Innovation’?” and “What Does It Mean to ‘Have a Conversation’ about a New Technology?” The key point I try to get across in those essays is that letting such “precautionary principle” thinking guide policy poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity. If public policy is guided at every turn by the precautionary mindset then innovation becomes impossible because of fear of the unknown; hypothetical worst-case scenarios trump all other considerations. Social learning and economic opportunities become far less likely under such a regime. In practical terms, it means fewer services, lower quality goods, higher prices, diminished economic growth, and a decline in the overall standard of living.

Indeed, if we live in constant fear of the future and become paralyzed by every boogeyman scenario that our creative little heads can conjure up, then we’re bound to end up looking as silly as this classic 2005 parody from The Onion,Everything That Can Go Wrong Listed.” Continue reading →

This is the second of a series of three blog posts about broadband in America in response to Susan Crawford’s book Captive Audience and her recent blog post responding to positive assessments of America’s broadband marketplace in the New York Times. Read the first post here. This post addresses Crawford’s claim that every American needs fiber, regardless of the cost and that government should manage the rollout.

It is important to point out that fiber is extant in almost all broadband technologies and has been for years.  Not only are backbones built with fiber, but there is fiber to the mobile base station and fiber in cable and DSL networks.  In fact American carriers are already some of world’s biggest buyers of fiber.  They made the largest heretofore purchase in 2011, some 18 million miles of fiber optic cable.  In the last few years American firms bought more fiber optic cable than all of Europe combined.[1]

The debate is about a broadband technology called fiber to the home (FTTH).  The question is whether and how to pay for fiber from the existing infrastructure—from  the curb into the house itself as it were.  Typically the it’s the last part of the journey that can be expensive given the need to secure rights of way, eminent domain, labor cost, trenching, indoor wiring and repair costs.  Subscribers should have a say in whether the cost and disruption are warranted by the price and performance.  There is also a question of whether the technology is so essential and proven that the government should pay for it outright, or mandate that carriers provide it.

Fiber in the corporate setting is a different discussion. Many companies use private, fiber networks.  The fact of that a company or large office building offers a concentration of many subscribers paying higher fees has helped fiber grow in as the enterprise broadband choice for many companies.  Households don’t have the same economics.

There is no doubt that FTTH is a cool technology, but the love of a particular technology should not blind one to look at the economics.  After some brief background, this blog post will investigate fiber from three perspectives (1) the bandwidth requirements of web applications (2) cost of deployment and (3) substitutes and alternatives. Finally it discusses the notion of fiber as future proof.

Broadband Subscriptions in the OCED

By way of background, the OECD Broadband Portal[2] report from December 2012 notes that the US has 90 million fixed  (wired) connections, more than a quarter of the total (327 million) for 34 nations in the study.  On the mobile side, Americans have three times as many mobile broadband subscriptions as fixed.  The 280 million mobile broadband subscriptions held by Americans account for 35% of the total 780 million mobile subscriptions in the OECD. These are smartphones and devices which Americans use to the connect to the internet.

Continue reading →

I am American earning an industrial PhD in internet economics in Denmark, one of the countries that law professor Susan Crawford praises in her book Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age. The crise du jour in America today is broadband, and Susan Crawford is echoed by journalists David Carr, John Judis and Eduardo Porter and publications such as the New York Times, New Republic, Wired, Bloomberg News, and Huffington Post. One can also read David Cay Johnston’s The Fine Print:  How Big Companies Use ‘Plain English’ to Rob You Blind.

It has become fashionable to write that American broadband internet is slow and expensive and that cable and telecom companies are holding back the future—even though the data shows otherwise.  We can count on the ”America is falling behind” genre of business literature to keep us in a state of alert while it ensures a steady stream of book sales and traffic to news websites.

After six months of pro-Crawford coverage, the New York Times finally published two op-eds[1] which offered a counter view to the “America is falling behind in broadband” mantra. Crawford complained about this in and posted a 23 page blog on the Roosevelt Institute website to present “the facts”, but she didn’t mention that the New York Times printed two of her op-eds and featured her in two interviews for promotion of her book.   I read Crawford’s book closely as well as her long blog post, including the the references she provides.  I address Crawford’s charges as questions in four blogs.

  1. Do Europeans and East Asians have better and cheaper broadband than Americans?
  2. Is fiber to the home the network of the future (FTTH), or are there competing technologies?
  3. Is there really a cable/mobile duopoly in broadband?
  4.  What is the #1 reason why older Americans use the internet?

For additional critique of the America is falling behind broadband myth, see my 10 Myths and Realities of Broadband.   See also the response of one of the op-ed authors whom Crawford criticizes.


How the broadband myth got started

Crawford’s book quotes a statistic from Akamai in 2009. That year was the nadir of the average measured connection speed for the US, placing it at #22 and falling. Certainly presenting the number at its worse point strengthens Crawford’s case for slow speeds. However, Akamai’s State of the Internet Report is released quarterly, so there should have been no problem for Crawford to include a more recent figure in time for her book’s publication in December 2012. Presently the US ranks #9 for the same measure. Clearly the US is not falling behind if its ranking on average measured speed steadily increased from 22nd to 9th.

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roslyn-layton-247x300This week it is our pleasure to welcome Roslyn Layton to the TLF, who will be doing some guest blogging on broadband policy issues. Roslyn Layton is a PhD Fellow who studies internet economics at the Center for Communication, Media, and Information Technologies at Aalborg University in Copenhagen, Denmark.  Her program is a partnership between the Danish Department of Research & Innovation; Aalborg University, and Strand Consult, a Danish company.  Prior to her current academic position, Roslyn worked in the IT industry in the U.S., India, and Europe. Her personal page is:

She’ll be rolling out three essays over the course of the week based on her extensive research research in this field, including her recent series on “10 Myths and Realities of Broadband Internet in the USA.”

10 commandmentsWhat works well as an ethical directive might not work equally well as a policy prescription. Stated differently, what one ought to do it certain situations should not always be synonymous with what they must do by force of law.

I’m going to relate this lesson to tech policy debates in a moment, but let’s first think of an example of how this lesson applies more generally. Consider the Ten Commandments. Some of them make excellent ethical guidelines (especially the stuff about not coveting neighbor’s house, wife, or possessions). But most of us would agree that, in a free and tolerant society, only two of the Ten Commandments make good law: Thou shalt not kill and Thou shalt not steal.

In other words, not every sin should be a crime. Perhaps some should be; but most should not. Taking this out of the realm of religion and into the world of moral philosophy, we can apply the lesson more generally as: Not every wise ethical principle makes for wise public policy. Continue reading →