The Parents Television Council has a new report out this week about the supposed decline of the TV “Family Hour.” The City Journal has just posted my response to that PTC report here. It begins as follows…
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Who Killed TV’s “Family Hour”?
It’s not who you think.
by Adam D. Thierer
7 September 2007
The nonprofit Parents Television Council (PTC) released a report this week lamenting the supposed death of broadcast television’s “family hour.” Though neither the Federal Communications Commission nor Congress ever mandated it, 8 to 9 PM Monday through Saturday (Eastern time), and 7 to 9 PM on Sunday, have traditionally been devoted to family-friendly programming. But the PTC’s new report claims that these blocks of time are now “no place for children,” because “corporate interests have hijacked the family hour” and “have pushed more and more adult-oriented programming to the early hours of the evening.”
One might respond to this claim by questioning the PTC’s methodology, particularly its definitions of foul language. Simon Vozick-Levinson of Entertainment Weekly’s “PopWatch Blog” takes this approach, accusing the PTC of “cooking the numbers” to suit its cultural agenda. But I don’t want to engage in methodological nit-picking, since it quickly devolves into a subjective squabble about acceptable language and appropriate programming. Instead, I want to point out the fundamental flaw in the report’s premise. The family hour may well be dead—but parents, not broadcasters, were the ones who killed it.
… read the rest at the City Journal’s website.
Brian Beutler has a generally good summary of the coming FISA debate. Unfortunately, it reflects the defensive crouch the Democrats continue to take on this issue, and the great degree of lattitude lefty commentators are giving the House leadership for its craven capitulation to the Bush administration. The article starts out thus:
House Democrats went limping into August recess, having watched a president with historically low public support nonetheless cram his surveillance agenda past them.
I’m no parliamentarian, but my understanding of House rules is that the House leadership can never have anything “crammed past them”—certainly not in 48 hours. What happened, rather, is that Nancy Pelosi was faced with a choice between a bad FISA bill or no FISA bill, and made the political calculation that the bad FISA bill would hurt Democrats less.
The story continues in the same vein. For example:
But Judiciary Committee aides say meeting such an ambitious timeline may be easier ordered than done. They are not at all certain they can move legislation that would survive a presidential veto before the February 2008 sunset.
Obviously any FISA legislation reining in the executive branch is likely to be vetoed, because President Bush has staked his administration on expanding executive power. Which is why Democrats in Congress should be crafting a bill that, if vetoed, will put them in a good position to shift the blame to the president for vetoing the legislation. President Bush is not a nice guy who will sign FISA legislation that strikes a reasonable balance between executive power and civil liberties. He’s a ruthless partisan who will wield his veto pen any time he thinks it will either expand executive power or put Democrats at a political disadvantage.
One of the things I think the conservative movement understands better than the liberals is that politicians will only toe the line if they’re subjected to withering criticism when they fall short. If an activist base cuts its politicians slack when they screw up, as Brian is cutting Pelosi slack here, the politicians won’t reciprocate by trying harder next time. They’ll conclude they can take their base for granted and shift even further to the center. Which is why I think it’s a mistake for left-of-center writers to act as though this was a freight train that the House leadership just couldn’t have stopped (and by implication, can’t stop this fall). It’s not true, but if it’s repeated often enough as if it were, it’s likely to be a self-fulfilling prophesy. It would be far more helpful for left-of-center journalists to write articles pointing out that Pelosi sold out her principles for the sake of short-term political gain, or depicting her as a hapless Charlie Brown being suckered once again by George Bush’s Lucy.
Don’t miss the comments to this post, wherein Joe Gratz, who unlike me is an actual lawyer, sets me straight on the Golan decision and the relationship between copyright and the First Amendment. It’s awesome having smart and knowledgeable readers.
Here’s another thing I disagreed with in this week’s podcast, from Solveig:
I think fair use often gets used very broadly as a generic term for any kind of limitation or exception to copyright law. But properly understood, the argument that fair use can evolve away and needs to change over time is really a pretty narrow one. It doesn’t mean that there shouldn’t be outer limits to copyright or that there can’t be exceptions to copyright. It just means that they don’t necessarily need to take the form of fair use. For example, there’s a hugely important outer limit that you can’t copyright ideas or facts. That’s not fair use, that’s just: copyright law doesn’t go there. Transformative use, another one. That’s not fair use, that’s transformative use.
Is that sentence right? My understanding is that the concept of “transformative use” comes from the 1994 Campbell decision, which concerned the fair use of parody. In particular, Justice Souter wrote that whether or not a work was transformative lay at the heart of determining “the purpose and character of the use,” the first and most important of the four fair use factors. For example, Judge Nelson quotes the Campbell decision in holding that displaying thumbnails in a search engine is a transformative use, and therefore fair.
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Well I apologize if I’m starting to sound like a broken record by asking this question yet again, but what would be wrong with metered pricing for broadband pipes? I have asked that question several times before, most recently in my post earlier this week on wi-fi piggybacking. I pose it again today in light of another article about a handful of customers apparently having their broadband connection cut-off because of excessive downloading.
According to a front-page article in today’s Washington Post entitled “Shutting Down Big Downloaders“:
As Internet service providers try to keep up with the demand for increasingly sophisticated online entertainment such as high-definition movies, streaming TV shows and interactive games, such caps could become more common, some analysts said. It’s unclear how many customers have lost Internet service because of overuse. So far, only Comcast customers have reported being affected. Comcast said only a small fraction of its customers use enough bandwidth to warrant pulling the plug on their service.
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Regular TLF readers won’t be shocked to learn that I had some strong disagreements with the opinions expressed in this week’s podcast: (Update: This quote is Bill Rosenblatt of DRM Watch)
The problem with fair use is that you need a court to decide it. The whole idea of these digital content technologies is to make things happen immediately. Whenever you are in a situation where you have to revert to the legal system to figure out if you can or cannot do something, you lose. Because the legal system is very slow-moving and clunky and inefficient mechanism compared to technology. So everyone loves the fact that digital media can be distributed instantaneously and very very cheaply. But when there are deliberations about what’s kosher and not kosher, you’re often in the realm of deciding on fair use… You’re talking about what’s been called cut and paste culture, basically, which is a very controversial topic. You know, I’m not going to venture an opinion on whether that’s good or bad. I have no opinion about that. But there’s no reason why fair use has to be the mechanism that decides that or not. My feeling, which is an unconventional opinion and probably one that no lawyer would ever share is that fair use, in order to be made to work at all, needs to be expressed in ways that technology can accommodate.
The hidden premise here, which I think should be rejected outright, is the notion that our digital devices should, by default, disallow any uses of content that haven’t been explicitly approved beforehand by the copyright holder or a court. If that’s our operating assumption, then it’s absolutely true that fair use becomes cumbersome because it’s obviously not feasible to go to court every time I want to take a 5-second snippet from an iTunes song.
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We took the podcast on the road this week and recorded at our Alcohol Liberation Front event on the last day of the PFF Aspen Summit conference. First off, Bill Rosenblatt of DRMWatch.com tells us why he thinks fair use might just be a quaint old notion that’s on its way out the door. We continue the fair use discussion with Solveig Singleton of PFF and Jim Harper of the Cato Institute. Finally, Adam Thierer of PFF and Declan McCullagh of C-Net’s News.com discuss the specter of data retention mandates.
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At Burning Man last week, I came across a young fellow whose backpack had been stolen – with it, his ID, car keys, and credit cards. Among his stresses was getting on a plane to return home without ID. I explained to him that the TSA doesn’t require you to show ID, they just pretend to require it, and I told him about the Great No-ID Airport Challenge. Even the local sheriff who took the report on the theft didn’t know what the TSA’s rules were.
Happily, Chris Soghoian has been bird-dogging the no-ID issue through the auspices of Senator John Warner’s office. He has finally received written confirmation from the Transportation Security Administration that people are not required to show ID at the airport. (His discussion here.)
I also explained to the stressed young man that merchants and his credit card association would absorb the liability for wrongful use of his credit cards. His remaining problem was conjuring car keys from Reno out to the Black Rock Desert. Now that’s a tough one.
Clay Shirky is one of my favorite commentators about the economic and social changes that the Internet is bringing to the media world. Last year I linked to his fantastic essays on the folly of micropayments. Last month, Shirky wrote this excellent post about what’s wrong with the Nick Carr brand of Internet old-fogeyism:
Prior to unlimited perfect copyability, media was defined by profound physical and economic constraints, and now it’s not. Fewer constraints and better matching of supply and demand are good for business, because business is not concerned with historical continuity. Fewer constraints and better matching of supply and demand are bad for current culture, because culture continually mistakes current exigencies for eternal verities.
This isn’t just Carr of course. As people come to realize that freedom destroys old forms just as surely as it creates new ones, the lament for the long-lost present is going up everywhere. As another example, Sven Birkerts, the literary critic, has a post in the Boston Globe, Lost in the blogosphere, that is almost indescribably self-involved. His two complaints are that newspapers are reducing the space allotted to literary criticism, and too many people on the Web are writing about books. In other words, literary criticism, as practiced during Birkerts’ lifetime, was just right, and having either fewer or more writers are both lamentable situations.
In order that the “Life was better when I was younger” flavor of his complaint not become too obvious, Birkerts frames the changing landscape not as a personal annoyance but as A Threat To Culture Itself. As he puts it “…what we have been calling “culture” at least since the Enlightenment — is the emergent maturity that constrains unbounded freedom in the interest of mattering.”
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.