To make it a copyright trifecta today, here’s an interesting story about ambiguity in how copyright applies to RSS feeds. Does merely offering an RSS feed imply that anyone can take the feed and repurpose it on another site? Many “splogs” (spam blogs) aggregate unsuspecting RSS feeds to attract keyword-driven traffic and thus make money with Adsense.
EFF’s Fred Won Lohman says, “Frankly, until there is some case law on this or related issues, we simply can’t be sure of the answers to these questions.” IP prof Eric Goldman says “In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed. However, because it’s implied, I’m just not sure of the license terms.”
I’m not sure how an RSS feed is different from any other content on the web. Unless text on a site makes it clear that a feed is available to be used any way you’d like, why would should we presume that the owner is giving up any rights? Sure, RSS is XML, which makes it easy for others to repurpose your content, and presumably you wouldn’t be publishing easy-to-repurpose XML unless you intended others to do that. However, the most prevalent consumer application of RSS are newsreaders, so I think it’s much more reasonable to assume that personal news aggregation sites publish RSS. As far as copyright is concerned, I don’t see how this kind of use is any different than browsing content on the web.
Some sites, like the
New York Times, offer RSS feeds with special instructions about using them on your own site. As long as that’s not the case, the usual web norms (increasingly accepted by courts) should apply: copying even large chunks of content with attribution is fair use (a la Google News or Eyebeam’s reBlog), taking entire sites wholesale is not.
Yesterday the FCC ruled that the Massachusetts Airport Authority cannot prevent Continental from putting up a Wi-Fi antenna in its Logan Airport lounge. Some folks, such as Julie Ask of Jupiter, have see this ruling as validating the “no one owns it” character of unlicensed spectrum. As I’ve argued before, unlicensed spectrum works in part because it is used consistent with physical property rights. This is why Ask goes on to say that she “dread[s] the day that a Muni network is overlayed or my neighbors set up 802.11n.” This particular case is actually about property and competition.
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A quick recap and then some thoughts. As part of the digital TV transition, broadcasters will return spectrum they currently use in the 700 MHz band to the federal government. Congress decided that 24 MHz of that returned spectrum will be given to public safety agencies and the rest (36 MHz, I believe 60 MHz) will be auctioned.
The system by which spectrum is doled out to, and used by, public safety agencies is broken. If you or I want mobile communications, we don’t file for an FCC license or build our own towers, we simply go to a wireless carrier who has a comparative advantage and economies of scale and buy capacity from them. Public safety agencies, on the other hand, build their own infrastructure, which, as Thomas Hazlett has said, is much like “shipping each police department tons of steel, plastic and rubber to make them responsible for constructing their own patrol cars.” Not only is that inefficient, but because they don’t often coordinate, their different systems are incompatible.
Nextel founder Morgan O’Brien’s new venture, Cyren Call, recently filed a petition with FCC that proposes creating a nationwide, completely interoperable wireless network that could be used by public safety users. To help finance it, private users would also be sold capacity on the network, but would be bumped off in case of emergency to give public safety users priority. The catch, however, is that Cyren Call’s plan calls for this network to be built not on the 24 MHz of spectrum set aside by Congress for public safety, but on 30 MHz of the spectrum slated for auction, which Cyren Call wants (Congress, presumably) to give free and clear to a national “public safety broadband trust.”
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Quick plug: I have a new article up at Tech Central Station in which I argue that reports of TV’s demise at the hands of the Internet are greatly exaggerated. A teaser: “The success of the iTunes Music Store and the iPod has not spelled the end for radio broadcasting or CDs, and the same is likely to be the case in the video market. Satellite radio, iPod and iTunes have shown, however, that consumers are hungry for new ways to access and consume media. The telephone companies’ efforts to roll out robust broadband networks in order to compete with cable, helps get everyone closer to a competitive market. Not only will these networks offer new services and increased broadband capacity, but the burgeoning competition will also spur cable companies to make upgrades of their own, as well as lower their prices.”
The Wall Street Journal gets it right in an editorial today, saying that Sprint’s announcement that it plans to invest $3 billion to deploy a nationwide high-speed wireless WiMax network by 2008 is another blow to proponents of Internet neutrality regulation who claim that the broadband industry is not competitive. Hooray for Sprint and the WSJ for pointing out “that out in the real world” competition grows despite the rhetoric in Washington. However, the same editorial gets it wrong when it reports: “WiMax, meanwhile, operates in unlicensed spectrum, meaning Sprint doesn’t have to shell out money in auctions to deploy the technology. WiMax is like a wireless home network or a hot-spot in a coffee-shop, but it works over much longer distances, allowing greater coverage and a wider variety of uses.”
WiMax
can be deployed over unlicensed spectrum, but that is not what Sprint is doing. Sprint plans to “put the wireless broadband network together across its 2.5GHz spectrum holdings,” according to The Register and other sources. As I’ve noted before, unlicensed spectrum is great for short-range applications but can’t viably sustain large networks with any serious quality of service.
According to the AP, FEMA yesterday unveiled an upgrade to the Emergency Alert System that will eventually allow the feds to text-message every single cell phone in the country in the event of an emergency. (What would these messages say? “N.Korean Missl coming Ur way. Duck!” or “Grab Ur duct tape now”?) It looks like the $5.5 million system will initially be targeted at public safety officials, but Homeland Security Department spokesman Aaron Walker said yesterday, “Anything that can receive a text message will receive the alert. We find that the new digital system is more secure, it’s faster, and it enables us to reach a wide array of citizens and alert them to pending disasters.”
Now, apart from the obvious problem of network overloading that could occur not only by sending millions of text messages at once, and, as a result, by prompting everyone in the country to call their loved ones to see if they’re OK, there is the larger question of whether text alerts are necessary at all. The original Emergency Alert System was never activated–not even on 9/11. With at least three television networks, dozens of cable news channels and radio networks, and the internet, can anyone possibly escape being alerted of an emergency? Is there any reason to believe that the networks won’t pass on instructions from the government to citizens (or even give government airtime)? What value could text messages possibly add?
John Lawson, president of the Association of Public Television Stations (which, by the way, has the biggest interest here since public TV stations are the ones getting paid to use their DTV spectrum to broadcast the messages), explains why text messages are useful: “[W]e’re hoping that your cell phone will go off saying something bad is happening, and you need to get to a TV or radio to find out what’s going on.” Exactly.
The Washington Post reports today that “Virginia’s public and private colleges and universities soon will be required to submit the names and Social Security numbers of tens of thousands of students they accept each year to state police for cross-checking against sexual offender registries.” The law, recently signed by Gov. Tim Kaine, is aimed at tracking sex offenders. It “also requires Department of Motor Vehicles officials to turn over personal information to police any time a Virginian applies for a license or change of address.”
“I’ve got two kids in college right now,” said Kenneth W. Stolle (R-Virginia Beach), the bill’s chief sponsor in the state Senate. “You’re going to have a . . . hard time explaining to me why my daughter is living next door to a sexual offender. My guess is every parent out there would have the same expectation that I do.”
Since it doesn’t take more than a stolen laptop to put 2.2 million identities in jeopardy, and since one person’s Social Security number can be used fraudulently by up to 80 different people, I’m not sure I want my information spread any wider than it already has to be. And it’s not clear to me why I, an innocent (I assure you) private citizen is forced to get a background check before I can enroll in a private institution, which may otherwise not care about my background. If your daughter is living next to a ex-offender, it’s because that’s life. What’s next? Legislating safety scissors and circles of paper?
Today, Tyler Cowen posted some cautious, but surprising words about his stance on the net regulation issue:
I favor net neutrality in the current environment. Without neutrality, Comcast and Verizon would use differential pricing schemes to extract more revenue and thus diminish some forms of Net output, including Google, Amazon, ebay, and possibly blogs. … If the cable and telecom companies had no legally-backed monopoly powers, I would not favor legally enforced net neutrality. “Let the market decide” would be a good answer.
You should read his whole post for more of his argument. But I wonder: If a lack of competition is caused by a government-backed monopoly power, as Cowen suggests, wouldn’t removing the regulations that create that power be the preferred course of action? Shouldn’t adding a new layer of “legally enforced net neutrality” regulation be our last, hopeless recourse? And aren’t we headed in a generally pro-competitive direction? Even putting aside the tremendous growth in competition over the past 25 years, don’t steps like the COPE Act’s streamlining of franchising help to continue to eliminate the very government-imposed barriers to entry that create market power?
I don’t know the answers to these questions, and that’s why I will remain “neutral” and simply moderate a panel discussion on neutrality regulation this Thursday, June 15, hosted by America’s Future Foundation. TLF’s own James Gattuso will be joined by Patrick Ross of PFF on the anti-regulation side, while Alex Curtis of Public Knowledge and Frannie Ross of Free Press will take the pro-neutrality side. The event will take place on the Hill with drinks beginning at 6:30 and discussion at 7. I hope you can join us! More information here.
Seven Hollywood studios and TV networks are suing Cablevision over its new network DVR service. To a consumer, the service is just like TiVo in that they choose programs to record and watch at a later time. The difference is that there is no set-top DVR on the consumer’s premises; it’s all recorded at Cablevision’s end and sent to the customer when they request it. The studios and networks claim that this is not like TiVo but instead like video-on-demand, which would require Cablevision to license the shows it broadcasts to its customers. Cablevision counters that time-shifting is a well-established consumer fair use right.
William Patry wonders if this is the next Betamax case. I think two things are key to establishing that this is consumer time-shifting. First, does Cablevision record only one copy of a show that is requested by customers and does it then multicast that copy? (Isn’t this how MP3.com did it?) The news accounts I’ve read have been sketchy on the technology, but the WSJ reports that “Rather than recording all content automatically on a centralized device, the Bethpage, N.Y., company would create individualized storage within the network for each subscriber that paid for the service.” Second, is a show available only to a customer that had the foresight to record it, or can you simply say, “You know, I’d like to watch the last two episodes of 24 even though I never recorded them, but the cable company did, so I’ll just call them up.” If not, and if each customer has hard drive space on the server that they fill up with their own copies, there’s a good case that this is just like TiVo and thus a fair use by consumers that are merely using Cablevision as their tool for recording.
But who knows, the Ninth Circuit decided this week that when Congress wrote the word “less” in a statute they really meant “more.”
Today there are reports that a startup headed by former FCC Wireless Bureau chief John Muleta and @Home founder Milo Medin has asked the FCC to give it a spectrum license to offer a national wireless broadband service. No auction, just an assignment. According to Reuters, “Most wireless spectrum is auctioned to the highest bidder but M2Z has offered to pay the U.S. Treasury 5 percent of its gross revenues from the premium broadband service it plans to offer alongside free, but slower, Internet access.” You can read their filing here (PDF).
If this deal goes through, we will have officially learned nothing. The FCC Spectrum Policy Task Force Report found that “To increase opportunities for technologically innovative and economically efficient spectrum use, spectrum policy must evolve towards more flexible and market-oriented regulatory models.” But this would cut in just the opposite direction. Spectrum would be licensed for one particular use and wouldn’t be flexible. The five percent kickback to the U.S. Treasury is eerily reminiscent of the uncompetitive franchise fees that cable operators have paid to municipalities for a local monopoly. And what would this do to the natural development of a market in wireless broadband when every other competing network has to bid for spectrum at auction? M2Z was able to raise over $400 million in venture capital, so why can’t it put it’s money where it’s mouth is and buy the license?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.