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 of the Mercatus Center at George Mason University, Tim Lee of the Cato Institute, Hance Haney of the Discovery Institute, Radley Balko of Reason magazine, and Ryan Paul of Ars Technica. Topics include,
- Congress considers repealing the Internet gambling ban,
- Frontline proposes open access rules for the 700 MHz band, and
- a judge rules that trade secrets prevent source code disclosure.
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Only a couple of days ago, it seems like the debate over the Fairness Doctrine was fading. Opponents were reduced to citing overheard elevator conversations for Pete’s sake.
Then the dam burst. So far this week three Democratic senators have come out in support of reimposing the restriction. (One — John Kerry — was probably as surprised as anyone, since his comments had been recorded months ago, but only released Tuesday by New York public radio host Brian Lehrer).
In the House, all the action has been by Fairness Doctrine opponents, led by Rep. Mike Pence of Indiana — who have crafted a bill to take away the FCC’s authority to impose such regulation.
Now comes the real shocker — the idea will be voted on today by the full house, as an amendment to the FCC appropriations bill. Now that’s what I call fast action.
Odds are that the amendment won’t pass. But the up or down vote will tell us a lot, as members will, on the record, have to declare whether they believe in government control of the media or not.
The results should be interesting. Stay tuned.
Yesterday, the immigration reform bill stumbled over the bill’s REAL ID provisions, which attempt to revive the moribund U.S. national ID system. Apparently, REAL ID does not enjoy the support of a majority of Senators.
Though Senate procedure is quite murky to me, apparently the Baucus-Tester amendment, to strip REAL ID-related requirements from the immigration bill (being considered as one division of an omnibus amendment known as a “clay pigeon”), was the subject of a motion to table. (“Tabling” an amendment means setting it aside indefinitely, which usually means forever.) The motion failed.
Several Senators who support overall immigration reform voted against tabling the amendment. This means that including the REAL ID provisions in the bill is enough to kill it.
Though only time and further machinations will tell, it looks like REAL ID-based internal enforcement can not be a part of any immigration law reform bill that gets through Congress.
That’s good news for all the native born, law-abiding Americans who would have been treated as suspects and made subject to surveillance in a vain attempt to get at illegal aliens.
Update: It appears that a cloture vote on the bill has failed, meaning the Senate is not prepared to continue with the bill. The inclusion of REAL ID killed immigration reform.
Tom Lee has a great post on this New York Times article, which looks at the pressing problem of culinary piracy. Tom points out that the law is very clear—you can’t prevent other people from copying your recipes—and that’s a good thing:
All of this ignores the public domain innovations that Ms. Charles benefits from, royalty-free: the cocktails her bartenders serve, the system of reservation-making she presumably employs, and, most amazingly, the Caesar Salad recipe that she says her mother got from another restaurant, but which she’s now suing her sous chef for using. Diffuse borrowing seems to be okay; borrowing too much from one place isn’t, I guess. But where do you draw the line?
The story mentions that nondisclosure agreements are coming to more and more kitchens, but fails to point out why this is: as screwed-up as our IP system is, it actually dealt with these questions before the food industry was sufficiently powerful to corrupt the process. That’s why lawyers are now trying to shove all of this stuff into contract law, where you can get away with much more. In other words: it’s because the sorts of claims Ms. Charles is making are untenable under IP law.
There’s no question that the sous chef is being tacky by copying Charles’ restaurant, but it would be very silly to open a Pandora’s box by punishing him for copying paint colors. IP laws are there to encourage people to make new things; the market’s there to get them to make those things better. These distinctions can get blurry in the world of novel cuisine. But restaurants are fundamentally in the business of selling food, not seeking rent on ideas about food. This story is asinine, and Pete Wells would have done better to highlight how stupid everyone involved is being instead of just making the guy getting sued sound like a jerk.
Update: Oops, forgot to actually include the link to Tom’s entry. My bad!
Scott Cleland blogs alertly on the problems with the framework proposed for the 700 MHz auction. Ah, do we never learn?
Dick Durbin — the Senate’s Majority whip — came out four-square in favor of the Fairness Doctrine today, declaring in The Hill — a newspaper for Capitol Hill: “It’s time to reinstitute the Fairness Doctrine” It’s the clearest statement yet from a member of the congressional leadership that there will be a real fight over the issue.
Oddly, Durbin explained his position with an appeal to old-time values: “I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.”
Unfortunately, that “old-fashioned attitude” comes with other old-fashioned ideas — such as government restrictions on what the media can and can not say. Memories of Torquemada no doubt bring tears to his eyes as well.
Of course, if he really wants to be old-fashioned, he could dig up a copy of the First Amendment, adopted way back in 1791, which says “Congress shall make no law… abridging freedom of speech, or of the press.”
How quaint is that?
Well, I know I’m starting to sound like a broken record on this point, but it never ceases to amaze me how some policymakers get away with speaking so poorly of parents during policy debates about media content. First, you will recall that, in late April, the Federal Communications Commission released a report calling for the regulation of violent video content on the grounds that parental control tools and efforts were ineffective. (For details, see my essay: “FCC Violence Report Concludes that Parenting Doesn’t Work.”) Then, just last week, at a House Commerce hearing on “The Images Kids See on the Screen,” Rep. Ed Markey and several other members of the committee argued that parents just couldn’t cope with modern media and that government needed to step in on their behalf. But nothing could top the performance of Sen. John Rockefeller at today’s Senate Commerce Committee hearing on “The Impact of Media Violence on Children.”
Sen. Rockefeller opened the hearing with a verbal tirade “repeatedly bashing TV and its executives as though they were Dan Aykroyd’s Irwin Mainway SNL character out to sell bags-o-glass to unsuspecting kids,” as John Eggerton of Broadcasting & Cable noted. Sen. Rockefeller, who is planning to soon introduce legislation to regulate “excessively violent” television programming, said that the industry is being “cowardly” and “debasing our culture” in a “never-ending race to the bottom.”
Rockefeller went on to say that the industry was “blaming parents” for not dealing with the problem of objectionable content with private controls and methods instead of censoring content themselves before it ever got on air. “Parents do not want more tools,” he argued, “they want the content off the air.” Of course, that point is debatable as I’ll discuss more below.
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Tim’s latest TechKnowledge article explains why why libertarians should celebrate free software, and cautions that we shouldn’t let lefty-sounding ideals about “community” negatively cloud our perception of the GPL and free and open source software. He’s right, even if knee-jerk reactions may be otherwise – but allow me to expand the discussion. What happens when government celebrates free software, such that voluntary cooperation becomes co-opted by public policy?
Libertarians who embrace free software will (or should!) be against government programs favoring it. However, when some free software proponents adopt rhetoric calling government to their cause, it’s not enough (unfortunately) to just make the libertarian case against regulatory intervention. We must also make the deep-dive into analyzing the merits of pro-intervention platitudes.
A discussion on the merits may well require determining whether free software really does offer certain advantages, or if the new version of the dominant license governing free and open source software — the GPL — may have legal or administerability problems with its upcoming version 3.
Analyzing free software in order to debunk advocacy in favor of government preferences for free software could be seen as being against free software itself. But it’s not necessarily so, and it wasn’t meant to be the case when my colleagues at ACT and I took a deep-dive analysis into a report chock full o’ interventionist advocacy.
A European Commission report calls for a new industrial policy to ignite report advocated government programs (a la Airbus) based on free and open source software. ACT analyzed the report with a series of blog posts reviewing each section. We found that the report’s analysis favoring Free/Libre/Open Source Software (FLOSS) wasn’t adequately supported by the data. Moreover, by advocating interventionist public policies the report’s recommendations may harm, not help, Europe’s overall ICT sector. We did this not to attack FLOSS per se, but to oppose interventionist policies on behalf of FLOSS.
The report makes no attempt to disguise its purpose: convince European policymakers to favor FLOSS in their procurement decisions and other programs. Section 9 of the study—Trends, Scenarios and Public Policy Strategies—suggests a number of public policy programs to promote FLOSS, some interesting but all interventionist:
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The debate over the Fairness Doctrine has up until now had a bit of a shadow-boxing quality to it. While opposition to the FCC rule has been abundant — it’s hard to turn on the radio without hearing some discussion of the issue — actual legislative proposals to reinstate the rule have been scarce.
Politics, like nature, abhors a vacuum, however. So, rather than wait for advocates of the doctrine to make their move, Rep. Mike Pence, a Republican from Indiana, has decided to take the offensive by introducing his own legislation to ban the FCC from reinstating the rule. Specifically, Pence’s bill, to be introduced later this week, provides that the Federal Communications Commission “shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating” the Fairness Doctrine.
While the bill’s chances for passage in the Democratic-controlled Congress are unclear, Pence’s bill is significant. First, it gives opponents of the Fairness Doctrine a clear goal around which to rally — endng the “will they or will they not” guessing game. Perhaps more importantly, the legislation potentially redefines the question at hand from “should regulation be imposed?” to “should regulation be allowed?”
It’s a good question, and a debate well worth having. Stay tuned.
A centerpiece of the Leahy-Hatch/Berman-Smith Patent Reform Act of 2007 (S. 1145 and H.R. 1908) is the establishment of an injudicious post-grant opposition procedure (also known as a “second window”). According to Chairman Howard L. Berman (D-CA) of the House Subcommittee on Courts, the Internet, and Intellectual Property, a new layer of review is needed because:
In an effort to address the questionable quality of patents issued by the USPTO, the bill establishes a check on the quality of a patent immediately after it is granted or in circumstances where a party can establish significant economic harm resulting from assertion of the patent. [emphasis added.]
There are several key problems with the proposed new procedure for post-grant review contained in sec. 6 of the Patent Reform Act of 2007.
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