An interesting poll out today by pollster Scott Rasmussen: Asked whether the government should require all radio and television stations to offer equal amounts of liberal and conservative political commentary, 47 percent — nearly half — said “yes.” (39 percent were opposed). Perhaps even more surprising, support has increased since last year, when Americans split evenly (41-41) on this issue.
Perhaps this shouldn’t be a surprise. Americans, after all, have long been lukewarm about the First Amendment, with opinion polls famously (though perhaps apocryphally) have long shown would itself be opposed by most Americans. Moreover, a casual answer to a pollster is a long way from active support of a particular law.
Still, the results of this poll should be troubling for defenders of free speech in general, and opponents of the fairness doctrine in particular. Although an explicit re-institution of the long-dead doctrine is still not likely, this poll underscores the general danger of other content controls that may achieve the same ends under a different name.
Oh, and those of you who get their news from blogs shouldn’t feel too cocky about the dangers faced by the old-fashioned broadcasters. The same Rasmussen poll showed that 31 percent of the public supports Fairness Doctrine controls on blogs, too.
As we’re wont to do this time of year, many of your humble Technology Liberation Front contributors will be attending PFF’s annual Aspen Summit next week and we think many of you will too. So, we’ve decided to hold the sixth in our series of Alcohol Liberation Front get-togethers on Tuesday, 8/19, at 9 p.m. at the Sky Bar located at the base of the Aspen Mountain. Like we did last time, we’ll also be recording our contributors (and hopefully some of you) pontificating for our podcast, Tech Policy Weekly. So drop on by and have a drink with your favorite TLF bloggers.
My ongoing media DE-consolidation series represents an effort to set the record straight regarding one of the leading myths about the media marketplace today: the notion that rampant consolidation is taking place and that operators are only growing larger and devouring more and more companies.
Nothing could be further from the truth. Over the past 3 to 5 years, traditional media operators and sectors have been coming apart at the seams in the face of unprecedented innovation and competition. The volume of divestiture activity has been quite intense, and most traditional media operators have been getting smaller, not bigger. “Traditional media’s numbers are shrinking,” argued FCC Commissioner Robert McDowell in a recent speech. “The ironic truth is,” McDowell continued, that “in many cases, media consolidation has actually become media divestiture. Companies… have been shedding properties to raise capital for new ventures.”
And so that trend continues today with the announcement from Cox Enterprises that it will be selling almost all its newspapers. According to the The Atlanta Journal-Constitution:
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Over at Ars Technica, I cover an important decision from the Federal Circuit. For the first time, a federal appeals court has held that distributing copies of a free software product in violation of its license term is copyright infringement, and not merely a breach of conract.
I think Mike is a little bit off base here in comparing the decision to the recent “promo CD” case:
Creative Commons seems to basically do the same thing that stamping “not for resale” does on CDs: it creates a separate license on top of copyright, and then tries to use copyright’s defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren’t enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.
In the Universal case, the court found that the “not for resale” language wasn’t enforceable because there was no “exchange” that resulted in the “license” (also known as “consideration” — which is usually required for US contracts to be binding): “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” The same is true of Jacobsen’s software, as well. The software is given, never to be returned, and the license doesn’t require the end user to provide Jacobsen with any benefit in return.
I address this point in the final paragraph of my story:
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This morning’s Drudge Report features the stories everyone is talking about today, with reports on U.S. swimmer Michael Phelps winning another couple of gold medals, the latest on the Russia-Georgia war, and — of course — FCC commissioner Robert McDowell on threat of the Fairness Doctrine and net neutrality regulation.
Well, maybe the first two stories are getting a bit more attention, but McDowell’s remarks — made at The Heritage Foundation yesterday after a blogger’s briefing — is getting a surprising amount of coverage in the blogsphere and trade press.
The remarks were originally reported in a story on the Business and Media Institute website, in response to a question about prospects for a Fairness Doctrine revival. McDowell responded that it the issue hadn’t been raised at the FCC, but went on to state that there is a danger of similar rules put into place under a different name. A spot-on analysis, as we’ve argued many times before. (see video here.)
He then went on to say that the Fairness Doctrine “will be intertwined with the net neutrality debate” (net neutrality was the primary focus of his remarks at the Heritage briefing). Referring to concerns of regulation supporters — including what he called “a few isolated conservatives” that large corporations will censor their content, he said the “bigger concern should be if you have government dictating content policy.”
Most of the coverage of McDowell’s remarks interpreted McDowell as saying that the Fairness Doctrine itself might be extended to blogs (i.e, the Drudge headline: “Return of ‘Fairness Doctrine’ Could Control Web Content…”). Such a direct extension of the old broadcast-only fairness rules is unlikely though. Instead, McDowell I think was raising the danger that net neutrality regulation could be the source of such web content controls.
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Lately I’ve been writing about potentially historic upcoming First Amendment case of FCC v. Fox Television Stations. The Supreme Court will hear the case on Tuesday, November 4th. All the briefs in the case are in and can be found on the ABA website here. But I’ve pasted the links for all of them below as well. In coming days and weeks I might be highlighting some of the comments from the briefs. [The docket number for the case is 07-582]. The amicus brief I filed with my friends at CDT can be found here, and I wrote about it last week here on the TLF.
The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Anyway, here are all the briefs in the case, starting with the merit briefs by the lead parties:
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In 1998, the Internet was “green” with an influx of venture capital money. A decade later, green on the ‘Net is rapidly being identified with benefits to the environment. Due to high gas prices, there are a number of reports documenting increased use of the Internet for teleconferencing and telecommuting. I used these two as examples of activities we shouldn’t discourage when arguing in favor of extending the Internet access tax moratorium.
Now there’s a new tax on the horizon – digital downloads. Today’s CNET news article describes how states have recently passed laws taxing downloaded content from the Internet, and quotes my colleague Steve DelBianco: “A digital download is the greenest way to buy music, movies, and software, since it requires no driving to the store, no delivery vans, and no plastics or packaging.”
Indeed, Telefonica, Spain’s largest telecom provider, has a report that discusses the climate benefits of ICT. It’s based on another report published in 2003 from Digital Europe, a project funded by the European Union. The findings:
Resource comparative (minerals, fossil fuels, etc) used to access 56 minutes of music:
Physical retail: 1.56 Kg [3.4 lb]
Online Shopping: 1.31 Kg [2.9 lb]
Digital distribution (without subsequent burning): 0.60Kg [1.3 lb]
Digital distribution (burning on to a CD): 0.67 Kg [1.5 lb]
So download and be green, despite that tax regulators are green with envy about collecting taxes from digital downloads.
Catherine Holahan of Business Week points out that consumer and children’s advocacy groups are looking to expand their efforts to regulate fatty and sugary food advertising in the name of “protecting the children”:
Having successfully lobbied the government to place limits on junk food ads on TV, they now target marketing to kids via the Web. “While there are some rules for TV, there are no rules when you move online,” says Patti Miller, vice-president of children’s advocacy group Children Now and a member of the Federal Communications Commission’s Task Force on Media & Childhood Obesity. “We don’t want to reduce junk food advertising to kids [on TV] and then find that it has just moved to another platform.”
And so another classic case study in regulatory creep is born and the Net gets a little more regulated in the process as Uncle Sam becomes our Super Nanny. What’s that you say? Parents should take more responsibility for what their kids watch and eat? Silly you. Don’t you know that it takes a village to raise a village idiot? Or something like that.
I used to get endless grief from pro-regulatory media activists here in DC when I put forward the argument in days past that Google was a media company and a major player in the battle for eyes, ears and ad dollars in America’s media marketplace. Increasingly, however, more people are coming around to seeing that point, even the crusty old media giants themselves.
In a smart essay over at the Freedom to Tinker blog, David Robinson takes the New York Times to task for an article today again wondering, “Is Google a Media Company?” As David rightly argues:
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