Keeping politicians' hands off the Net & everything else related to technology
Senior Fellow in Technology & Innovation at the R Street Institute in Washington, DC. Formerly a senior research fellow at the Mercatus Center at George Mason University, President of the Progress & Freedom Foundation, Director of Telecommunications Studies at the Cato Institute, and a Fellow in Economic Policy at the Heritage Foundation.
Communications Daily reports today that the only thing the Republican platform has to say about telecom policy is that “every American [should have] access to affordable broadband by 2007.” Well, that’s nice. I guess I missed that section of the Constitution that granted every human being an inalienable right to high-speed Net connections. Perhaps the new Republicans technology platform should be labeled “Life, liberty, and the right to speedily download porn and P2P music.”
Catherine Yang reports in the current Business Week that America is “Behind in Broadband” and implies that the deregulation of telephone operators is the primary culprit. She argues that “To have any hope of joining the world’s broadband vanguard, the U.S. must create a viable third competitor” to telco and cable providers. But she then suggests that forcing at least the Bells to share the infrastructure with rivals is the primary way of accomplishing this goal in the short term.
How many times and in how many ways must it be said: SHARING IS NOT COMPETING. Infrastructure sharing is not the same as infrastructure creation and innovation. Simply mandating that more “rivals” share someone else’s embedded infrastructure is hardly a sensible way to bring about the additional facilities-based competition America really needs. We don’t ask policymakers by regulatory fiat to create new car companies by forcing Ford to share their facilities with another companies at regulated rates. Instead, we expect companies to build all new facilities to compete and offer us a legitimate choice.
Yesterday, the FCC extended the comments period for its inquiry into the impact of violent TV programming on kids. The FCC launched the inquiry this summer after several members of Congress wrote to the FCC earlier this year requesting that the agency study what it could do about violence on television. The Senate recently included a measure in a military spending bill (how’s that for irony!) that would ban violent video programming on broadcast TV during hours in which children might be in the audience (basically anytime before 10:00 p.m.). Thus, this latest “for the children” censorship crusade du jour, aimed at getting “excessive violence” out of the media, suddenly seems like a very real possibility.
Yesterday, the U.S. Court of Appeals for the Federal Circuit denied a DMCA anti-circumvention claim made by garage door opener manufacturer Chamberlain against rival SkyLink. SkyLink developed a universal remote control that could operate Chamberlain’s garage door openers and Chamberlain didn’t like that so they filed a lawsuit. Luckily, they lost.
Many in industry are already making a big stink about the potential copying of digital music played on either over-the-air or satellite radio stations. They fear the unrestricted play will result in unrestricted copying, and then massive redistribution of that music via P2P systems. As this AP story notes, there are already devices on the market to faciliate this.
The story also notes that the RIAA has told the FCC that “Digital audio broadcasting without content protection is the perfect storm facing the music industry,” and asked for new regulatory mandates to help them address this concern. Specifically, the RIAA would like the FCC to build on the “broadcast flag” regulatory model they imposed recently at the request of the television and movie industries. Thus, the RIAA wants “an audio protection flag” mandate that would require all consumer electronic devices to read a special string of code embedded in every digital audio transmission that signalled to the device that the music was copyrighted and could not be copied.
As I wrote in a newsletter last fall, I’m concenred about all this mandatory “flag” nonsense:
Earlier this year I read an interesting new book by Harvard Business School professor Debora Spar entitled “Ruling the Waves: Cycles of Discovery, Chaos, and Wealth from the Compass to the Internet.” Spar’s book is important because it can tell us a lot about where cyberspace and the Internet economy might be heading next.
The central thesis of Spar’s book is that there are predictable patterns associated with technological revolutions that can help us understand how rules for future industries might unfold. Importantly, when Spar speaks of rules, she doesn’t necessarily mean government regulation. She includes property rights, contracts, intellectual property, and industry standards as “rules” that are every bit as important in shaping how industries and technologies develop. Spar then examines the history of several important technologies or industries–shipping, the telegraph, radio broadcasting, satellite television, encryption, and online music–to help explain the four phases every industry or technology goes through:
The Justice Department’s Office of the Solicitor General announced today that it would be seeking Supreme Court review of an case with important ramifications for the future of broadband Internet regulation in America. The decision in question, Brand X Internet Services vs. the Federal Communications Commission, was handed down by the Ninth Circuit Court of Appeals late last year.
In the Brand X case, the Ninth Circuit foolishly decided that high-speed Internet services provided by cable companies could be considered a “telecommunications service” and regulated accordingly. In other words, all the silly damn laws that apply to telcos–including misguided infrastructure sharing rules–could be rolled over onto cable operators. Thus, regulators–including state and local regulators–would be allowed to regulate rates and terms of service for nationwide Internet services under the logic of Brand X.
Like my TFL colleague Tim Lee, I’ve been spending some time lately thinking about digital rights management (DRM), trusted computing (TC) and copyright skirmishes. Just so you know right up front, I consider myself to be right smack in the mushy middle of most copyright battles going on out there these days. I’m hopelessly undecided on many of the more controversial issues out there, but I’d like to think I still might have a little something to contribute to the debate.
In particular, I’d like to comment on this very interesting battle over the role DRM should play in the future of copyright. The current debate pits those who generally claim that “DRM is the devil” against those who claim “DRM is our savior.” Just by way of background, DRM is generally defined as a system of content protection that employs various technological tools and capabilities to shield against undesirable use or distribution of digitized works or products. Trusted computing is essentially an extension of DRM, or a new, more robust flavor of it, which focuses on how to make computing platforms and technologies even more tamper-resistant.
Reuters is reporting that the European Commission is launching an antitrust investigation into a plan by Microsoft Corp. and Time Warner Inc. to acquire joint control of U.S. ContentGuard Holdings, a firm that makes digital rights management (DRM) technologies to help protect copyrighted files from unauthorized use.
This is foolish. Most IP providers today are struggling to win a technological arms race against users who are hell-bent on devising ways around most forms of content protection. My own view of this technological arms race is that it is a good thing overall and that government shouldn’t enter the debate and try to tilt the balance one way or the other. Generally, therefore, I oppose new laws like the DMCA and the Induce Act, but I also oppose laws cutting the other way, like proposals to expand compulsory licensing. When I see an announcement that government is taking steps to limit collaborative efforts by industry to create new DRM techniques or products, I view it as an unnecessary government barrier to the marketplace’s ability to protect intellectual property. (See this intro to the “Copy Fights” book I co-edited with Wayne Crews for additional details).
To elaborate, if two or more content providers want to get together and try to devise new DRM systems to protect their content, power to them. They should have every right and freedom to do so without being subject to government interference (including antitrust which hunts like this latest EU case). On the other hand, if someone out there circumvents their new DRM scheme the day after it hits the market, those companies should not come running to government seeking redress. Let the technological arms race continue I say! I’ll be expanding upon this theme in an upcoming blog entitled Is DRM the Devil?
Tom Hazlett has a nice piece on page A12 of the Wall Street Journal today explaining why South Korea is kicking everyone else’s butt when it comes to broadband connectivity and speed. Surprise, surprise, it comes down to their reliance on facilities-based competition instead of regulatory micromanagement. Hazlett notes that “Korea’s policy has proved a smashing success… (because) the government ended regulation of advanced telecom applications. The result: While competitors largely avoided (regulated) voice services, they invested billions to create new (unregulated) high-speed Internet networks. The broadband technologies unleashed by telecom rivals forced (Korea Telecom) to modernize its network, which now serves just half of the high-speed market.”
As a result, 78 percent of Koreans now have broadband access, the highest penetration rate in the world and double that of the U.S.
The bottom line: “forced access” infrastructure sharing regulation cannot deliver the goods. Only true, facilities-based competition, brought on by comprehensive market liberalization, will bring about the investment and innovation this country so desperately needs. John Wohlstetter of the Discovery Institute has come to the same conclusion in a recent piece.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
