April 2007

One of the most convincing critiques of Steve Jobs’s February letter on DRM was that Apple had refused to sell DRM-free music from smaller labels even when those labels requested it. It’s not clear why Apple refused to sell DRM-free music to smaller labels—whether it was a matter of administrative convenience, or whether Apple liked the lock-in effect of DRM. But regardless, Apple appears to have addressed that criticism with an announcement to smaller music partners that starting next month they’ll have the option to sell their music DRM-free if they want to. Good for Apple. Now we’ll just have to wait and see how much longer the other major labels persist in shooting themselves in the foot.

This morning on Minnesota Public Radio, I debated two proponents of FCC efforts to regulate TV violence. I don’t know how long it will be up on their website, but you can currently listen to a stream of the entire show at this link on their website. I was up against Doug Gentile of the National Institute on Media and the Family and Melissa Caldwell of the Parents Television Council.

I’ve got a new editorial up over on the City Journal website today about the FCC’s new effort to regulate violence on television. I begin by noting that the FCC probably wouldn’t approve of my grandmother’s viewing choices for me back in the 1970s since I probably watched every episode of “The Three Stooges” with her as a kid. “Would The Three Stooges constitute ‘excessively violent’ programming unfit for a young child?” I ask. Who knows, and that’s just one of the many problems with the FCC’s new effort. See the rest of my editorial for details.

If you’re interested in this subject, I also want to draw your attention to this excellent editorial by First Amendment guru Robert Corn-Revere on the Freedom Forum website. Bob does an excellent job outlining the legal / constitutional issues that the FCC report ignored in its report. Bob’s essay is part of an excellent online symposium that the Freedom Forum has put together featuring many distinct viewpoints on this issue.

Finally, conservative columnist Cal Thomas had a column in The Washington Times a few days ago opposing the FCC’s regulatory effort. He argued that: “Anyone concerned about preserving the First Amendment and the rights it guarantees to free speech and free expression should worry about this latest assault on the Constitution. Conservatives who oppose regulation of talk radio, which most of them like, must be consistent and oppose overregulation of TV content they dislike.” Good for you, Cal !

The Supreme Court handed down both of the big patent cases today, smacking the Federal Circuit down in each of them. Here is the court’s 9-0 decision in Teleflex that “The Federal Circuit addressed the obviousness question in a narrow, rigid manner that is inconsistent with §103 and this Court’s precedents.” And here is the court’s 7-1 holding in Microsoft v. AT&T that “A copy of Windows, not Windows in the abstract, qualifies as a“component” under §271(f).”

As I predicted, the court did not take the opportunity to rule that software is unpatentable. However, in footnote 13, the majority carefully reserved judgment on whether software could be a component of a patented invention:

We need not address whether software in the abstract, or any other intangible, can ever be a component under §271(f). If an intangible method or process, for instance, qualifies as a “patented invention”under §271(f) (a question as to which we express no opinion), the combinable components of that invention might be intangible as well. The invention before us, however, AT&T’s speech-processing computer, is a tangible thing.

This suggests that the court may be leaving the door open to a direct challenge to the patentability of software in a future case.

Update: Having read the decision more carefully, I think the above isn’t quite right. Footnote 13 was discussing whether software could be a component of an invention for purposes of §271(f), which is a separate question from whether software can be patentable subject matter in the first place. Software could theoretically be patentable in general but not a component of an invention for purposes of §271(f).

George Will, conservative columnist for Newsweek and The Washington Post, is kind enough to cite my recent City Journal essay in his new article that takes liberals to task for trying to revive the so-called Fairness Doctrine. He argues that:

Some illiberal liberals are trying to restore the luridly misnamed Fairness Doctrine, which until 1987 required broadcasters to devote a reasonable amount of time to presenting fairly each side of a controversial issue. The government was empowered to decide how many sides there were, how much time was reasonable and what was fair.

By trying to again empower the government to regulate broadcasting, illiberals reveal their lack of confidence in their ability to compete in the marketplace of ideas, and their disdain for consumer sovereignty–and hence for the public.

Indeed. Will goes on to cite the multiplicity of media options we have at our disposal today relative to the past but he notes–in agreement with my recent City Journal essay–that that’s just not good enough for some liberals who want to guarantee that certain views get heard more than others that win out in the marketplace of ideas.

Vonage has opened up a new front in its war with Verizon, launching a new website at FreeToCompete.com and taking out full-page ads in the nation’s largest newspapers. Corporate PR campaigns tend to use overheated rhetoric, but I can’t really disagree with this:

Today, Vonage is facing one telecom giant — Verizon — in court as they try to to achieve in court what it cannot achieve in the marketplace. We can assure you that whatever the outcome of this legal dispute (which may take several years to fully resolve), Vonage is committed to serving all of our customers and to affordably connect family, friends and colleagues for years to come.

But make no mistake: Verizon’s actions against us have everything to do with limiting your freedom to choose a communications provider — a limitation which may ultimately drive up the cost of phone service for you and other U.S. consumers. (In fact, Verizon recently raised their prices.)

Verizon has chosen to attack Vonage in the courts and threaten consumers’ freedom to choose. Could it be about the money? In a truly fair, free market economy, neither Verizon — nor anyone else — should be able to cripple or eliminate companies seeking to provide more (and better) alternatives.

Unfortunately, I think Vonage faces an uphill battle getting the general public to pay attention to the issue. Patents are a sufficiently complex and esoteric subject that Verizon has plenty of ways to obfuscate the real issues in the case. And it doesn’t help that press accounts of the dispute are so scrupulously even-handed that they give credibility to Verizon’s question-begging claim that Vonage “is trying to shift the subject from their bad and now declared illegal behavior.” It would be nice reporters would plainly state the obvious: that Verizon is seeking a legal monopoly over the VoIP market.

My summary and analysis of this important patent case, and that of Josh Sarnoff is up on SCOTUS.

There’s a good article in the LA Times by David Sarno about the Pirate Bay that includes a short quote from me. As usually happens with these things, a 15-minute conversation got distilled down to a couple of short paragraphs, where I basically pointed out that the MPAA’s 2006 “piracy study” wasn’t a study at all, but the MPAA’s summary of a study that they commissioned and refused to release.

The bulk of the article is about the growing popularity of the Pirate Party, which Sarno says has almost as many members as that country’s Green Party. Apparently, the unexpected popularity of the Pirate Party has prompted several of the larger parties to shift their platforms to be more sympathetic to file-sharing.

It’s an interesting question what the United States government will do if this movement proves to have staying power. It’s hard to imagine the United States slapping sanctions on Sweden, especially since they’re now part of the EU and the EU presumably wouldn’t cooperate with an effort to cut one of its members off from trade. And of course, if a country like Sweden gives file-sharing networks free rein to operate, it will be virtually impossible to prevent Internet users elsewhere from taking advantage of them.

Copyright issues generate a lot of controversy. But here’s a cause I think everyone on all sides of the copyright debate can agree on: the presidential debates should be free from copyright restrictions after they are aired. Larry Lessig has a petition up calling on the RNC and DNC to require any television stations airing the debates to release their copyrights into the public domain, or under a CC-BY (or its equivalent) license.

Makes sense to me. The debates are a central part of the national conversation that is our presidential campaigns. There’s absolutely no reason there should be any restrictions on viewing, re-distributing, or re-mixing them. I’ve left a comment expressing my support. You can call the DNC to express your support at (202) 863-8000, or call the RNC at (202) 863-8500.

Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, Hance Haney, Tim Lee, Adam Thierer, and Mike Masnick of Techdirt.com. Topics include,

  • The FCC releases its report on violence in the media
  • Copyright and the economics of abundance
  • Patent reform heats up in Congress with a new bill

There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!

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