August 2008

A number of TLF readers seem to have leapt to certain conclusions concerning political ads shown on the site.  Most recently, Garrett Dumas responded to Sonia’s post Obama vs McCain: Who deserves the tech vote? (which generally sides with McCain) as follows:

Perhaps you think this because there is a John McCain banner on your site? The “tech vote” is a non issue as it is not up to the president or his cabinet to determine the future of technology. It is market driven and whoever controls the market, controls the direction.

Garrett’s understandable confusion merits a brief explanation.  The only “banner” ad on the site chosen by us is the “Crispy on the Outside” blog ad at the top right.  The ads below that are placed there by Google’s “AdSense” program, which automatically decides which ads to place on a page based on how much advertisers have bid for keyword combinations that appear on that page.  TLF readers will see a mix of political ads on our site until election day from both campaigns and a variety of other groups targeting keywords that appear on our blog.  For example, I currently see the following ads on our blog: Continue reading →

On Wednesday, the FCC released the decision (PDF, text) it adopted back on August 1 holding that Comcast had violated the FCC’s 2005 net neutrality principles (PDF, text) by “blocking” peer-to-peer file-sharing traffic on its network using the popular program BitTorrent.  Paragraphs 3-11 lay out the FCC’s (still-disputed) finding of facts.

Commissioner McDowell‘s Scaliaesquely scathing dissent (PDF pp 61-67) provides an accessible summary of the order and should be required reading for everyone on all sides of the issue.  Despite having been provided with the final version of the order only the night before its release, McDowell distills the order into six key points, rejecting the Commission’s reasoning on all but one point (jurisdiction):

  1. Was a complaint properly brought against Comcast under FCC rules? No, FCC rules allow the kind of complaint brought against Comcast to be brought only against common carriers, which cable modem operators are not.
  2. Does the FCC have jurisdiction over Internet network management? Yes, under the Supreme Court’s 2005 Brand X decision.
  3. Does the FCC have rules governing Internet network management to enforce? No, “the Commission did not intend for the [2005] Internet Policy Statement to serve as enforceable rules but, rather, as a statement of general policy guidelines,” nor can the Commission “adjudicate this matter solely pursuant to ancillary authority.”
  4. What standard of review should apply? No, even assuming this case had been properly brought under enforceable rules, the Commission applied what amounts to a “strict scrutiny” standard–something unprecedented for reviewing private, rather than governmental, action.
  5. Was the evidence sufficient to justify the Commission’s decision? No, the “FCC does not know what Comcast did or did not do” and should have “conduct[ed] its own factual investigation” rather than relying on “apparently unsigned declarations of three individuals representing the complainant’s view, some press reports, and the conflicting declaration of a Comcast employee.”  The evidence did not suggest any discriminatory motive behind Comcast’s network management techniques
  6. Is the decision in the public interest? No.  “By depriving engineers of the freedom to manage these surges of information flow by having to treat all traffic equally as the result of today’s order, the Information Superhighway could quickly become the Information Parking Lot.”  Comcast had already resolved its dispute with BitTorrent through outside arbitration.  The FCC should “allow the longstanding and time-tested collaborative Internet governance groups [already working to establish processes for resolving such disputes] to continue to produce the fine work they have successfully put forth for years.”

One of the frustrating things about telecom debates is participants’ tendency to play fast and loose with the numbers. This tendency exists on both sides, but I think it’s more pronounced for the pro-regulatory side. Consider, for example, Susan Crawford’s post from last week on John McCain’s tech agenda:

First, here’s the fact: We don’t have a functioning “free market” in online access. John McCain thinks we do. That kind of magical thinking takes real practice.

Instead, we’ve got four or so enormous companies that control most of the country’s access, and they’re probably delighted that McCain is promising not to regulate them.

I can’t think of any plausible way of defining the broadband market that gives you four as the number of major firms. We have three major telephone companies and (depending on where you draw the line) somewhere between four and eight major cable companies. And that, of course, is focusing exclusively on high-speed residential service. T-Mobile and Sprint provide lower-speed wireless Internet access, and there are a number of companies that provide access to business customers.

Maybe that’s just nitpicking about the numbers, but her qualitative view of the marketplace is just as distorted:
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Nine months after Barack Obama, John McCain has unveiled his own technology plan for America. At last, both candidates can be graded for their long-term friendliness to the tech sector. You can read my analysis here, but the upshot is that Obama has multiple weaknesses, particularly when it comes to taxes, property rights, labor and government waste that harms America’s tech sector. McCain’s weakness is the transparency issue, but overall he looks better positioned than Obama on issues that matter most to innovators in the tech community.

A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video featuring a kid dancing to a Prince song owned by Universal.

Over at Ars, fellow TLFer Tim Lee has a good overview of the issue in which he explains how the various legal arguments played out. EFF, which represents the plaintiff in the case, offered several compelling reasons why ignoring fair use in a takedown notice might actually constitute “bad faith” under the DMCA.

As Cord discussed a few months ago, my employer, the Competitive Enterprise Institute, recently received a meritless takedown notice for a global warming ad we posted on YouTube which featured about seven seconds from a copyrighted video clip. Our use of a trivial portion of a copyrighted video was clearly both transformative and non-commercial, yet the content owner still deemed it worthwhile to try to get the video removed.

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When you hear that E-Verify and REAL ID databases will be secure, be sure to ponder this. (Via FREEDOMand[STUFF].org)

Getting Back From Aspen

by on August 21, 2008 · 5 comments

The more I hear about people’s experiences getting back from Aspen, the more I want to brag about my double-top-unsecret, non-patented method of accessing the rarified air of that mountain hideaway. Fly to Denver and drive up and back.

This:

Will get you this (click for the whole thing):

And get you this:

Tom Lee critiques professional gossip-turned-professional-navel-gazer Emily Gould, who has a new article about the supposed shallowness of Shirky style Internet triumphalism:

Gould thinks Shirky is a callow idealist, but he’s not. He’s just noting the incredible bounty that technology can afford us while politely declining to complain about the places where it falls short.

Not only is Gould preoccupied with the latter, she’s blind to the former. And hey, I can relate. Digital technology has its own Benjaminian aura, you know — excitement born of novelty, and exclusivity, and revolutionary rhetoric. Once that novelty wears off, though, things can start to look kind of drab. I mean, it’s exciting that the world has collaboratively built an encyclopedia! But it is an encyclopedia. And the idea of an encyclopedia — a comprehensive reference document written without passion or position — is actually kind of boring. The same holds for social communication and our lofty rhetoric about the triumph of a world where information can flow freely. Once you’re done patting yourself on the back you need to start paying attention to what people are actually saying. And that’s hard. Sometimes it’s even boring.

It’s depressing when you realize how much of your excitement about a thing was tied up in its aura; to find out that superficial considerations formed the basis of your enthusiasm. I struggle with this myself: I’m overcome with contempt at every useless, vowel-less internet startup I see, its founders desperate to think of themselves as brilliant revolutionaries despite no one — least of all them — actually caring a whit about what they say they’re trying to do. But that contempt is motivated in no small part by feeling the exact same ignoble impulse.

I think this is basically right, but I’d make a somewhat stronger case. It’s certainly true that the most superficial aspects of the Internet get a lot of press, but I think it’s important not to let the existence of such froth obscure the enormous flow of real, non-superficial value that the Internet revolution is producing. The non-frothy parts of the Internet seem boring precisely because they’ve become so profoundly important to our society that we’ve started taking them for granted.
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WASHINGTON, August 19 – BroadbandCensus.com is pleased to support One Web Day, and I am very happy to be an Ambassador for this effort.

Most Americans who have high-speed internet can’t imagine life without broadband. How could you connect to the Internet of today without it? In today’s world, broadband is as basic as running water and electricity. And yet the U.S. is falling behind globally.

As a technology reporter, I’ve been writing about the battles over broadband and the Internet for more than a decade here in Washington. Yet there is one fact about which nearly everyone seems to be in agreement: if America wants better broadband, America needs better broadband data.

That’s why I’ve recently started a new venture to collect this broadband data, and to make this data freely available for all on the Web at http://BroadbandCensus.com.

One Web Day presents an opportunity for all of us to take stock with the true state of broadband in this country. BroadbandCensus.com wants to work with each of you to help us “crowdsource” the data we need to get a better handle on availability, competition, speeds, prices, and quality of service of local broadband.

What is BroadbandCensus.com?

When an Internet user goes to the BroadbandCensus.com web site, he or she types in a ZIP code. By doing so, the consumer will find out how many broadband providers the FCC says are available. The consumer can compare that number to his or her own sense of the competitive landscape, as well as the names of the carriers published by BroadbandCensus.com.

Continue reading BroadbandCensus.com Joins with One Web Day

How much platform competition is too much competition? For example, what is the optimal number of mobile operating systems or video game consoles that will spur competition and innovation in those respective sectors?

It is an interesting business question, but it also has some policy implications since some might propose laws or regulations to remedy a perceived lack of platform competition in various sectors. After all, many people would answer the above question by saying that there is never such a thing as too much competition. The more platforms the better. But there can be costs associated with too much competition. Let’s consider those two case studies mentioned above: mobile operating systems or video game consoles.

Mobile Operating Systems
As my colleague Berin Szoka has pointed out, we are witnessing the rapid proliferation of mobile operating systems, especially on the open source front. So, we’ve got Apple’s iPhone platform, Microsoft’s Windows Mobile, Symbian, Google’s Android, the LiMo platform, and OpenMoko.

One one hand, all this platform competition sounds great. But as Ben Worthen of the Wall Street Journal’s “Business Tech Blog” points out in a piece today:
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