testimony at House hearing on “The Images Kids See on the Screen”

by on June 22, 2007 · 0 comments

I am testifying today at 10:00 in the House Energy & Commerce Committee (Telecom & Internet subcommittee) at a hearing on “The Images Kids See on the Screen.” The purpose of the hearing is to examine the negative things that children may be exposed to on various screens (TV violence, product placement, fatty foods, smoking, etc.) and what should be done about it. My prepared remarks are attached below.
______________________________

Testimony of Adam D. Thierer
Senior Fellow and Director of the Center for Digital Media Freedom
The Progress & Freedom Foundation
June 22, 2007

Mr. Chairman and members of the Committee, thank you for inviting me here today and giving me the opportunity to testify. My name is Adam Thierer and I am a senior fellow with the Progress & Freedom Foundation (PFF) where I serve as director of PFF’s Center for Digital Media Freedom.

This hearing is particularly timely for me because this week PFF released a new special report that I spent the last two years compiling entitled, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” The booklet provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. (Incidentally, this booklet can be downloaded free-of-charge at www.pff.org/parentalcontrols, and I plan on making frequent updates to the report and re-posting the document online as new information comes to my attention).

As I note in my book, we live in an “always-on,” interactive, multimedia world. Parents need to be prepared to deal with media on multiple platforms, screens, and devices. While this can be a formidable challenge, luckily, there has never been a time when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms, or all the screens our children might view.

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The DMCA and Censorship

by on June 21, 2007 · 0 comments

Slashdot has a story about how the ESRB has given Manhunt 2 an AO rating, which means that they won’t be allowed to release it for the major console platforms.

A Slashdot reader asks why they couldn’t just release the game without Nintendo, Sony, and Microsofts’ permission. After all, the Accolade decision held that reverse-engineering a video game console to produce compatible games was fair use under copyright law. So in the 1990s, competitors had the option of producing games for a console without the console manufacturer’s permission.

But this comment puts his finger on what has changed:

Legally they can’t stop you. You’re welcome to release your game. The trick is, it will only run on modded hardware, same as any other homebrew game. They’re not preventing you from *releasing* it, it just won’t run on most hardware without the magical cryptographic signature that licensed games get.

So, they can’t sue you to stop you from releasing it. But they don’t need to, because it won’t work anyway. And if you manage to break the cryptographic signature and release it in a manner that actually works, well, that’s where the DMCA comes into play. Nintendo/Sony/et al. have all their bases covered.

It’s a basic tenet of libertarian theory that limitations on speech by private party isn’t censorship; the Wall Street Journal isn’t censoring me by refusing to run my letter to the editor. But I think it becomes less clear-cut if the law gives a company the legal power to prohibit consumers from playing the games of their choice on a console even after they purchased it. That’s obviously not at problematic as having a government agency make the decision for all consoles simultaneously. But if we’re concerned with liberty, I think we should be trying to maximize consumers freedom to do as they please with their lawfully acquired property in the privacy of their own homes. Reverse-engineering can be an important safety valve for free speech if the companies that control our media devices impose too many unreasonable restrictions. Nintendo should never be forced to sell, support, or endorse any video game. But if consumers want to go to the trouble of acquiring a game without Nintendo’s help or approval, I don’t see what possible rationale there is for the law to stand in his way.

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TPW 18: Parental Controls, Immigration and REAL ID, and Google in DC

by on June 21, 2007 · 0 comments


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 Adam Thierer of the Progress and Freedom Foundation, Tim Lee of the Cato Institute, Jim Harper of the Cato Institute, Hance Haney of the Discovery Institute, and Cord Blomquist of the Competitive Enterprise Institute. Topics include,

  • Adam Thierer releases a new book on parental controls,
  • Congress debates an immigration proposal that would require a beefed up national ID system, and
  • Google beefs up its presence in Washington, DC.

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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Apportionment of Damages Will Reward Infringers

by on June 21, 2007 · 2 comments

According to Senate Judiciary Chairman Patrick Leahy (D-VT), constructive patent reform would “reduce the unnecessary burdens of litigation” in the patent system and “enhance the quality of patents” granted by the Patent and Trademark Office. Better patent quality ought to be the focus of discussion, because only bad patents lead to unnecessary litigation. Most people would agree courts ought to vigorously enforce good patents. The Leahy-Hatch/Berman-Smith Patent Reform Act of 2007 (S. 1145 and H.R. 1908) fails to reflect this basic point. The bills misguidedly treat the goals of improving patent quality and reducing litigation as mutually exclusive goals to some extent. The result will be to reduce protection for all patents, not just the bad ones.

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Protectionism 2.0 – Or, the Rise of the New Mercantilists

by on June 21, 2007 · 0 comments

How do the direct and indirect trade barriers of some nations unfairly harm the ability of foreign (particularly American) IT companies to monetize digital innovations and distribute intellectual assets globally? That’s the focus of a new paper from Rob Atkinson and Julie Hedlund at ITIF, entitled The Rise of the New Mercantilists: Unfair Trade Practices in the Innovation Economy.

Today’s innovations have much shorter life-cycles, so companies need
broader, faster market distribution in order to earn returns on
innovation–money they invest in tomorrow’s innovations. These companies seek
sales and licensing markets all across our “flat world.” The ITIF report discusses how it’s not your father’s form of protectionism anymore (such as tariffs and direct subsidies). Companies also face protectionist trade barriers in the forms of lax enforcement of intellectual property piracy and counterfeiting, disparate competition regulations, government preferences and standards manipulation.

Now here’s the crux of the question: is this a new
form of protectionism – what my colleague Steve DelBianco and I call “Protectionism 2.0”? Or are these more subtle forms of trade barriers the result of legitimate public policy goals? Probably a bit of both, but one has to ask – if Microsoft were a German company would it be facing the full wrath of competition regulators? Or if Apple were Dutch, or Norwegian, or French – would it be scrutinized by regulators in those countries eager to break the link between iTunes and iPod?

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DRM Leaves Consumers High and Dry

by on June 21, 2007 · 6 comments

Hugh D’Andrade points out that Sony is rumored to be on the verge of ditching its proprietary, DRM-encumbered Connect service. As he points out, it’s a cautionary tale for consumers considering the purchase of DRM-infected content:

Sony Connect customers could strip out DRM from their music, or tech creators could reverse engineer the DRM to create compatible devices. But sadly, these solutions are illegal under the Digital Millenium Copyright Act (DMCA).

The truth is, these dangers exist whenever you buy DRMed music from any vendor. You’re locked into the limited array of players that the DRM is compatible with, and, if that DRM some day is entirely unsupported, you’re out of luck.

The continuing appeal of vinyl records shows how wrong-headed this approach is.
LPs continue to play just fine, decades after the makers of the first record players have gone out of business, thanks to the kind of interoperability that DRM lacks. That’s not just good value for customers who bought LPs, it’s also good value for a society that values archives and the ability to access its cultural history long after the companies that distributed it have died off.

This isn’t the first time this has happened. Users who bought music infected with Microsoft’s PlaysForSure DRM faced a similar dilemma when Microsoft announced its introduction of the incompatible Zune format. Buying DRM-encumbered content always means that you’re dependent on the company that created the DRM scheme.

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Correcting the Consumer: New Report Urges Washington to Fix Talk Radio “Structural Imbalance”

by on June 21, 2007 · 4 comments

Why do conservatives do better on the radio than liberals, and what can be done about it? That’s the question addressed in a study released today on talk radio by two left-leaning policy groups, the Center for American Progress and Free Press. The conclusion: conservative success in radio is due to the ownership structure of radio, and Washington can fix the problem through greater controls on radio ownership.

The conclusion is no doubt a comforting one to left-of-center radio programmers. No one, after all, likes to be told they are unpopular. Yet, it is as wrong as it is dangerous. None of the number-crunching in the CAP/Free Press study contradicts the essential fact that conservative talk radio is more successful because it is more popular. More people listen to it, so radio stations provide more of it. And that’s not a problem that Washington can – or should – “fix.”

The CAP/Free Press study is based first on one unsurprising finding: there’s a lot more conservative radio on the air than liberal radio. Of the political talk radio programming in the top ten markets, for instance, the study found 76 percent is conservative, and 24 percent is liberal. That percentage varies quite a bit by market – some markets were overwhelmingly conservative, while others – such as Chicago and New York – were split almost evenly between left and right.

The $64,000 question is why conservatives are doing better. To their credit, the authors dismiss the repeal of the Fairness Doctrine as the root cause, saying correctly that the “Fairness Doctrine was never, by itself, an effective tool to ensure the fair discussion of important issues.” (What they don’t mention, however, is that the doctrine was very successful at discouraging such discussion.)

Instead, CAP and Free Press point to the ownership structure of radio. Radio stations owned by women or minorities, and those owned locally, they conclude, have less conservative programming than those that are not. Twenty-eight percent of minority-owned stations, for instance, air conservative talk shows, compared to just over 50 percent of non-minority owned stations. Their conclusion: Washington should strictly enforce broadcast ownership rules, combined with strict “public interest” requirements, to solve the “problem” of conservative radio predominance.

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The DMCA’s Toll on Innovation

by on June 21, 2007 · 6 comments

You’ll occasionally hear the argument that critics of the DMCA are exaggerating its anticompetitive effects. Sometimes, DMCA supporters will demand examples of technologies that have been stifled. This is, of course, an unfair question because it’s impossible to identify the technologies that weren’t developed due to a bad legal regime.

But today Ars has a textbook example of the way the DMCA is being used not to control piracy, but to strangle a new technology that Hollywood doesn’t like:

The proposed amendment was revealed by Kaleidescape CEO Michael Malcolm, whose company triumphed in a legal battle against the DVD CCA earlier this year. Kaleidescape manufactures pricey home media servers (starting at $10,000) that rip and store all of a customer’s media for DRMed playback throughout the home. The DVD CCA said that Kaleidescape was opening the door to piracy and interpreted the license to say that a DVD must be physically present in a drive in order for a movie to be played.

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Google’s Neutrality Non Sequitur

by on June 21, 2007 · 0 comments

Google makes some excellent points in the comments it filed with the Federal Communications Commission in a proceeding examining proposals for network neutrality regulation.

First, Google argues that packet prioritization (i.e., Quality of Service) is a “poor proxy for additional bandwidth.”

[T]he engineers at Internet2 conducted a detailed technical analysis of QoS
in broadband networks. Their conclusion is that QoS is a relatively poor proxy for additional
bandwidth:

In most bandwidth markets important to network-based research, it is cheaper to buy more capacity and to provide everybody with excellent service than it is to mess with QoS. In those few places where network upgrades are not practical, QoS deployment is usually even harder (due to the high cost of QoS-capable routers and clueful network engineers).

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Privacy and Race in the EU

by on June 21, 2007 · 4 comments

An interesting essay on the downstream effects of keeping government from collecting data about race, ethnicity, or religion in France from the National Journal.

The European vision of privacy has always puzzled me. On the one hand, given the power of their welfare state, it makes sense to take some prophylactic measures to prevent a second holocaust. But why grant the powers to begin with, if one believes the risk of their abuse is so high that the government cannot be trusted with information to administer them?

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