The always entertaining Peter Huber has a piece in Forbes this week entitled “The Inegalitarian Web” explaining why Net neutrality regulation “is great news for all the telecom lawyers (like me) who get paid far too much to make sense out of idiotic new laws like this one.”
Huber notes that NN advocates are trying to make the case that just “a simple two-word law is all we really need–an equal rights amendment for bits” to achieve Internet nirvana. But, in reality, he argues, “It will be a 2 million-word law by the time Congress, the Federal Communications Commission and the courts are done with it. Grand principles always end up as spaghetti in this industry, because they aim to regulate networks that are far more complicated than anything you have ever seen heaped up beside an amusing little glass of chianti.”
After explaining how NN would not block Google, Amazon, Microsoft or other major intermediaries from cutting bit-mangagement deals with Akamai or other Net traffic managers, Huber goes on to explain how it’s going to be difficult to figure out how to draw lines after that:
“So what will [Net neutrality regs] block? Now, at last, we’re getting close to where the lawyers will frolic. What the neutralizers are after is what they call “last mile” and “end user” neutrality. But that only raises two further questions: How long is a mile, and where does it end?
The proposed law would block any Akamai-like technology embedded in the very last switch, the last stretch of wire that links the Net to digital midgets like you and me. That would be any technology that–for a fee–caches content or provides priority routing to speed throughput. But the ban on the fee would apply only if two legal conditions are met. First, the hardware or software that gives preference to some bits over others would have to be situated close to us midgets. Second, the fee would be banned only if it was going to be charged to someone quite far away. Exactly how close and how far, no one knows. Give us five or ten years at the FCC and in the courts and we lawyers will find out for you. Do you follow the arcane distinctions here?”
Of course, the NN proponents tell us not to worry about any of this. Just trust the friendly folks down at the FCC to use their collective wisdom to define “network discriminiation” and come up with an perfectly efficient set of regulations to govern the high-speed networks of the future. It’s all so simple! (Right.)
In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.
For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today’s entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades–the regulation of “excessive violence” on television.
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The New Yorker has a dispatch from Jefferey Toobin updating us on the Google Book Search case. It’s a good primer if you haven’t been following this issue, and also fills in some details if you have. Interesting tidbits include the fact that they haven’t started witness depositions yet, and the parties won’t be able to make motions for summary judgment for another year. More interesting is the fact that both Google and the plaintiffs (authors and publishers) are sure this will settle out of court.
“The suits that have been filed are a business negotiation that happens to be going on in the courts,” [Google’s] Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”
Lawrence Lessig points out that while a settlement would be good for both parties, it could create a practical precedent that if one wanted to start a book-scanning project, one had to license the books–a lot like the precedent set by the MP3.com case that was ultimately settled out of court.
Another interesting bit about the technology itself is how Google plans to rely on linking from the wider web to give the information in books the context its search algorithms need to produce good results:
“Web sites are part of a network, and that’s a significant part of how we rank sites in our search—how much other sites refer to the others.” But, he added, “Books are not part of a network. There is a huge research challenge, to understand the relationship between books. … We just started, and we need to make these books networked, and we need people to help us do that,” [Google’s Dan] Clancy said.
Apple has declined to appeal its loss in last year’s Apple v. Does decision. Instead, Apple has complied with the court’s order to pay the winners nearly $700,000 in legal expenses. As I put it in Ars:
Apple had asked the courts to compel two Mac rumor sites, Apple Insider and O’Grady’s PowerPage, to disclose the names of their sources for a series of stories on an an unreleased Apple audio device. In its lawsuit, Apple argued that amateur websites are not eligible for the legal protections afforded to professional journalists under the First Amendment and California’s shield law. But the court rejected this argument, ruling that “We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” and that the defendants’ sites appear “conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently.”
In an email interview with MacNN, EFF staff attorney Kurt Opsahl wrote that like their print counterparts, online journalists “must be able to promise confidentiality in order to maintain the free flow of information. Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society.”
The court awarded the defendants more than twice their actual legal expenses in order to deter companies like Apple from harrassing journalists with lawsuits. Not only does the decision set an important precedent regarding freedom of the press online, but the financial award will also enhance EFF’s ability to defend free speech online.
The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.
But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.
Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”
Continue reading →
Brian Emmett, a self-described space buff (who has even attended space camp) won a trip to space in an Oracle competition, but he won’t be able to take the ride. That’s because the government counts contest winnings as income, and the tax on the ride would be about $25,000–a huge chuck of money that the average person (including Emmett) cannot afford to pay.
In an interview with CNN, Emmett said, “There was definitely a period of mourning. I was totally crestfallen. Everything you had hoped for as a kid sort of evaporates in front of you.”
This is a sad story that should be recalled not only in the lead-up to tax season. We should be asking what precisely the government planned to do with that $25,000. Social security is broken, the health care system is a mess, and the education system is failing miserably. It’s time for citizens to demand that government become less wasteful and more accountable.
Is Sam Brownback the answer for limited government types in the Republican party? He bills himself as a “full-scale Ronald Reagan conservative,” which implies a leave-us-alone attitude. Doing research at the FCC’s site today, I came across a press release (PDF) announcing the formation of something called The Task Force on “Media and Childhood Obesity: Today and Tomorrow.” Co-sponsor of the “task force” is Brownback.
The Task Force will produce a report that will recommend “voluntary” steps advertisers and broadcaster will be able to take to protect children from getting fat. Again, these suggestions will be completely voluntary, but the FCC just wanted to make sure to remind you on its obesity website that it has adopted children’s TV rules including “the requirement that television broadcasters, cable operators, and satellite providers protect children from excessive and inappropriate commercial messages,” and they can do so again.
Republican Commissioner Deborah Taylor Tate is “elated” about the task force, but shows her conservative principles, saying (PDF), “Government cannot and should not be responsible for solving every societal problem; however, this affects not only our nation’s health but our budget as well.” Right.
“Given the saturation of media in our children’s lives, we need to understand how media impacts their health and behavior,” said Brownback. “Because parents have no control of how much media saturates their children’s lives, nor how it impacts their health,” he didn’t say, but he might as well have.
Chris Anderson points out another thriving sector of the music industry:
Music as a digital product enjoys near-zero costs of production and distribution–classic abundance economics. When costs are near zero, you might as well make the price zero, too, something thousands of bands have figured out.
Meanwhile, the one thing that you can’t digitize and distribute with full fidelity is a live show. That’s scarcity economics. No wonder the average price for a ticket was $61 last year, up 8%–in an era when digital products are commodities, there’s a premium on experience. No surprise that bands are increasingly giving away their recorded music as marketing for their concerts, which offer something no MP3 can match.
Live performance is the fastest growing part of the music industry (up 16% in 2006 to a record $3.6 billion in North America) and with services such as SonicLiving (brilliantly described as a “digital-to-analog lifestyle converter”) and TourFilter that notify you when some band in your library is coming to town, that’s only going to grow more.
So there’s big money in live shows (92% of the Rolling Stones’ revenues comes from performance, not recorded music). Sadly for the labels, they don’t get any of it. No wonder they’re so against free music. It only helps the bands (and consumers)!
When discussing the economics of copyright, it needs to be constantly kept in mind that the interests of artists and the companies that distribute their content are not always aligned. The distributor only benefits from the revenues generated by the product being sold. The artist, however, also receives publicity benefits from wide distribution of his product. It makes perfect sense, then, that many bands especially up-and-coming ones put a higher priority on getting their music to as many fans as possible than they do to maximizing revenue in the short term. Being less concerned about piracy is one aspect of this phenomenon. But even in a world with no piracy, many bands would find it in their interest to give a lot of their music away for free in order to build their fan base.
As the recording industry flirts with releasing music in MP3 format, Ed Felten points out that the labels have become a victim of their own twisted rhetoric about DRM technology:
Of course the industry won’t sell music “with no copying restrictions” or “unrestricted”. The mother of all copying restrictions–copyright law–will still apply and will still restrict what people can do with the music files. I can understand leaving out a qualifier in the headline, where space is short. But in a 500-word article, surely a few words could have been spared for this basic point.
Why did the Times (and many commentators) mistake MP3 for “unrestricted”? Because the industry has created a conventional wisdom that (1) MP3 = lawless copying, (2) copyright is a dead letter unless backed by DRM, and (3) DRM successfully reduces copying. If you believe these things, then the fact that copyright still applies to MP3s is not even worth mentioning.
The industry will find these views particularly inconvenient when it is ready to sell MP3s. Having long argued that customers can’t be trusted with MP3s, the industry will have to ask the same customers to use MP3s responsibly. Having argued that DRM is necessary to its business–to the point of asking Congress for DRM mandates–it will now have to ask artists and investors to accept DRM-free sales.
The phrase “using DRM responsibly” calls to mind an analogy to “drinking responsibly.” In particular, most drivers would find it intolerably paternalistic for their cars to be fitted with breathalyzers that prevented the car from being started up if the driver was intoxicated. Only a minority of drivers drive drunk, and so it’s unreasonable to impose the inconveniences of a breathalyzer system on everyone.
Given that driving drunk is a much more serious crime than sharing a copyrighted song, why should consumers be any less angry that they’re being subjected to a similarly intrusive scheme with respect to the music they purchase. The vast majority of people who buy music online have no intention of engaging in mass piracy, yet each and every one of them is subjected to the indignities of DRM restrictions.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.