Lots going on this week on the wireless Net neutrality front. You will recall that a couple of weeks ago several of us here were blasting the new paper by Tim Wu and the petition by Skype asking the FCC to impose Carterfone-like regulatory mandates on the wireless industry. This new battle is now just known as “the wireless Net neutrality fight” here in Washington. And this week some important studies have been released opposing it by the CTIA, the wireless industry’s trade association, and economists from the American Enterprise Institute, Brookings Institution, and the Phoenix Center. I don’t have time to summarize them, but here are the links to each major report if you are interested:
(1) Filing of CTIA – The Wireless Association In the Matter of Skype Communications Petition to Confirm A Consumer’s Right to Use Internet Communications Software and Attach Devices to Wireless Networks (April 30, 2007).
(2) Robert W. Hahn, Robert E. Litan, and Hal J. Singer, “The Economics of ‘Wireless Net Neutrality,'” AEI-Brookings Joint Center for Regulatory Studies, AEI-Brookings Joint Center Working Paper No. RP07-10, (April 2007).
(3) George S. Ford, Thomas M. Koutsky and Lawrence J. Spiwak, “Wireless Net Neutrality: From Carterfone to Cable Boxes,” PHOENIX CENTER POLICY BULLETIN No. 17 (April 2007).
In October, I wrote about the five stages of DRM failure. At that point, I wrote that the MPAA was just moving from the anger stage to the bargaining stage. Now, it’s looking like they’ve reached the bargaining stage in earnest:
In his speech to industry insiders at the posh Beverly Hills Four Seasons hotel, Glickman repeatedly stressed that DRM must be made to work without constricting consumers. The goal, he said, was “to make things simpler for the consumer,” and he added that the movie studios were open to “a technology summit” featuring academics, IT companies, and content producers to work on the issues involved. He also pointed to the $30 million MovieLabs project that the studios are currently funding as proof of their commitment to interoperability.
Speaking to Ars after the speech, Glickman acknowledged that the plan was still in the early stages. I asked him specifically about DVDs, which are currently illegal to rip under the DMCA, and how the law would square with his vision of allowing consumers to use such content on iPods and other devices. “You notice that I said ‘legally’ and in a protected way,” Glickman responded, suggesting that some form of DRM would still be required before the studios would sign off on such a plan. He noted, however, that no specific plans have been made.
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The Wall Street Journal reports that Vonage has asked the Federal Circuit to send its patent case back to the district court to consider whether the Teleflex decision renders Verizon’s patents invalid. As I argued last week, at least one of Verizon’s patents should be extremely vulnerable to challenge under Teleflex:
The third patent at issue is patent 6,359,880, “Public wireless/cordless internet gateway.” The patent describes a variety of prior systems that allow telephone calls to be made wirelessly. Some use cellular technology to achieve coverage over large areas, while others serve as a gateway to a traditional phone line, and only work over limited areas. The patent also discusses the existence of several Internet telephony applications that allow Internet users to engage in voice communications via the Internet. However, the patent argues, no prior systems have combined wireless calling with Internet telephony.
In this sense, the patent is a precise analog of the patent at issue in KSR v. Teleflex, due to be decided in the next two months by the Supreme Court. In that case, KSR held a patent that covered the combination of two otherwise obvious components: a gas pedal and an electronic sensor. Here, as in Teleflex, Verizon admits that both VoIP and wireless calling were well-known technologies at the time the patent was filed. However, they claim, no one had thought of having both features in one system.
Vonage should have a pretty strong case that the wireless calling patent is obvious. For the other two patents, they’ll probably have to rely more on Teleflex’s general theme of “common sense,” which doesn’t seem like quite as much of a slam dunk but can’t help but strengthen their hand somewhat.
Ed Felten reports on the high-def video cartel’s hopeless campaign to keep a 128-bit key that can be used to unscramble HD-DVD and Blu-Ray discs secret.
I’m not going to post the key here, because I don’t especially want to get a takedown notice myself, but a little searching is likely to turn up dozens of copies posted around the web. As Felten points out, once the key has been posted to a significant number of websites (and “significant” here probably means about a dozen), it becomes counterproductive to continue to pursue it, because sending out takedown letters only generates more publicity (like this post!) which in turn causes more people to hear about the key and get a copy for themselves.
The whole incident makes me feel nostalgic for my college days, when I had friends who got T-shirts with the DeCSS algorithm printed on them. It took four years for the DVD CCA to formally concede that suppressing the DeCSS code was impossible. Hopefully the people in charge of the AACS keys will give up sooner than that.
Over at National Review Online today, Peter Suderman has a good discussion of the current state of video game politics. As usual, a lot of politicians are playing games; political games, that is. Suderman notes that:
…attacking the video-game industry has long been a favored sport amongst politicians eager to shore up their credibility with the concerned parent crowd. At the state level, at least ten laws banning the sale of certain video games to minors have been brought to life. In California, Governor Arnold Schwarzenegger, a guy who made his name hacking and slashing his enemies to a bloody pulp on the big screen, apparently didn’t want high schoolers doing digital imitations: He tried to ban the sale of violent games to minors back in 2005. Oregon is currently considering a similar law, and New York Governor Eliot Spitzer recently stated that he intends to pursue one as well. But these laws go down like a final level boss once they hit the courts. To date, not one of the dubious proposals has stood up to a court challenge.
Some lawmakers can’t even be bothered to worry about anything so insignificant as considering whether a law is constitutional. Regarding one video-game ban, Minnesota state legislator Sandy Poppas shrugged off any such responsibility, saying, “Legislators don’t worry too much about what’s constitutional. We just try to do what’s right, and we let the courts figure that out.” The recurrent bashing of the game industry tends to resemble a major league team taking on a troop of t-ballers: Politicians get to knock a couple of balls out of the park in front of parents, but the whole thing is just a show.
Indeed it is. I made a similar argument in a piece for NRO last year as well as my big PFF study, “Fact and Fiction in the Debate over Video Game Regulation.”
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.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.