We at The Progress & Freedom Foundation announced a series of eight upcoming policy events today, taking the place of our previously scheduled Sundance Summit. Beginning this month, the events will run through the summer in the nation’s capital. By moving these events closer to home in this manner, PFF will be better positioned to speak to legislators, policymakers, and tech policy press before Washington turns its attention to the midterm elections.
The series of events (which you can add to your calendar here) will include several breakfast and luncheon panel presentations and two half-day conferences. Covering such areas as communications and competition policy, digital property, digital media freedom and Internet freedom, the events will include:
- Tuesday, April 27: “Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?” — A panel of experts will debate the future of “must carry” rules in the wake of a new challenge to their constitutionality by Cablevision, and what this decision could mean for other media. (RSVP here)
- Friday, May 7: “What Should the Next Communications Act Look Like?” — A discussion with key industry stakeholders about the future of the Telecom Act in the wake of the Comcast v. FCC decision and the looming battle over Title II reclassification of broadband. (RSVP here)
- Thursday, May 20: “Can Government Help Save the Press?” — This conference will discuss the FCC’s new “Future of Media” proceeding and debate what role government should play in subsidizing the press or bailing out failing media enterprises. (RSVP here)
- Monday, June 7: “The Future of Speech on the Borderless Internet” — A panel of leading cyberlawyers will discuss trans-national regulation and litigation of defamation, hate speech, indecency and political dissent. (RSVP here)
- Monday, June 21: “Sports Programming & the Challenges of Digital Piracy“— A discussion of the challenges that digital piracy, including unauthorized streaming, poses to professional and collegiate sports that have traditionally earned revenues from telecasts of games, bouts, etc. Continue reading →
Last week there was another leak of the secretly negotiated Anti-Counterfeiting Trade Agreement (ACTA). This time it was a copy of the of the entire latest draft. It seems to dispel some of the initial worries bloggers had written about, including customs searches of your iPod at the border, but also stokes other concerns. For one thing, the U.S. seems to be pushing for protocols to cut off copyright violators from their internet access.
In the most recent episode of the Surprisingly Free Podcast, I talk with Prof. Michael Geist of the University of Ottawa, who has been following ACTA more closely than anyone else. He explains that not only is the content of ACTA troubling, but the fact that it’s being negotiated in such secrecy.
Listen to other episodes and remember to subscribe to the podcast using RSS or iTunes.
I had a long interview this morning with the Christian Science Monitor. Like many of the interviews I’ve had this year, the subject was Google. At the increasingly congested intersection of technology and the law, Google seems to be involved in most of the accidents.
Just to name a few of the more recent pileups, consider the Google books deal, net neutrality and the National Broadband Plan, Viacom’s lawsuit against YouTube for copyright infringement, Google’s very public battle with the nation of China, today’s ruling from the European Court of Justice regarding trademarks, adwords, and counterfeit goods, the convictions of Google executives in Italy over a user-posted video, and the reaction of privacy advocates to the less-than-immaculate conception of Buzz.
In some ways, it should come as no surprise to Google’s legal counsel that the company is involved in increasingly serious matters of regulation and litigation. After all, Google’s corporate goal is the collection, analysis, and distribution of as much of the world’s information as possible, or, as the company puts it,” to organize the world’s information and make it universally accessible and useful.” That’s a goal it has been wildly successful at in its brief history, whether you measure success by use (91 million searches a day) or market capitalization ($174 billion).
As the world’s economy moves from one based on physical goods to one driven by information flow, the mismatch between industrial law and information behavior has become acute, and Google finds itself a frequent proxy in the conflicts.
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Should ISPs be barred under net neutrality from discriminating against illegal content? Not according to the FCC’s draft net neutrality rule, which defines efforts by ISPs to curb the “transfer of unlawful content” as reasonable network management. This exemption is meant to ensure providers have the freedom to filter or block unlawful content like malicious traffic, obscene files, and copyright-infringing data.
EFF and Public Knowledge (PK), both strong advocates of net neutrality, are not happy about the copyright infringement exemption. The groups have urged the FCC to reconsider what they describe as the “copyright loophole,” arguing that copyright filters amount to “poorly designed fishing nets.”
EFF’s and PK’s concerns about copyright filtering aren’t unreasonable. While filtering technology has come a long way over the last few years, it remains a fairly crude instrument for curbing piracy and suffers from false positives. That’s because it’s remarkably difficult to accurately distinguish between unauthorized copyrighted works and similar non-infringing files. And because filters generally flag unauthorized copies on an automated basis without human intervention, even when filters get it right, they often disrupt legal, non-infringing uses of copyrighted material like fair use.
Despite copyright filtering technology’s imperfections, however, outlawing it is the wrong approach. At its core, ISP copyright filtering represents a purely private, voluntary method of dealing with the great intellectual property challenge. This is exactly the sort of approach advocates of limited government should embrace. As Adam and Wayne argued back in 2001:
To lessen the reliance on traditional copyright protections, policymakers should ensure that government regulations don’t stand in the way of private efforts to protect intellectual property.
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My colleague (and boss) Adam Thierer had a great post last week about how “fart apps” are a great example of the generative nature of the mobile phone application marketplace. But Fart apps are just one type of “soundboard” application. A typical soundboard app has a bunch of buttons, and each time you press a button a sound is played. Most soundboards play catchphrases from popular movies and TV shows. According to AndroidZoom.com, there are 319 applications in the Android Market with “soundboard” in the title or description. Most (280) of them are free.
Almost all the free soundboards I tried include advertising from Google. The three main developers of soundboard apps for Android are Androidz , aspidoff, and Raz Corp. Androidz has ads from DoubleClick and aspidoff and Raz Corp (who’s apps seem exactly the same) both have ads from AdMob (which Google recently acquired). I’m all in favor of ad-supported content, but I suspect that the sound clips used in these soundboards are not licensed.
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Why do (most) stores have walls? Because, obviously, walls are generally (at least in the developing world) a cost-effective technology for enforcing the value exchange that stores offer customers: products or services for customers’ cash. Open-air markets exist, but tend to be reserved for items cheap enough that the costs of theft fall below some “acceptable loss threshold.” All stores ultimately rely on employees and the police to chase down shoplifters.
Yet many valuable media products have long been simply given away by their producers in the implicit value exchange of advertising: newspapers, magazines, radio, television and online content/services for customers’ attention. It’s as if publishers set up a store with no walls and put up a big “steal this book!” sign inviting shoplifters in. Advertisers simply have to hope that their ads are interesting enough to catch the attention of readers/viewers/listeners—and, on the Web, maybe even get users to click on the ad! It should be obvious that the lack of any “enforcement technology” simply means that there will be less funding for this “free” stuff enjoyed by consumers—just as there would be fewer goods and/or higher prices if stores were prevented from discouraging or punishing shoplifting.
Ethicists could debate until the cows come home whether ad-blocking (or ad-ignoring) is morally tantamount to shoplifting—taking without “paying” (through attention)—but who cares? Whatever the morality of it, the important, and undeniable, thing is that those who ignore/block commercials are free-riding on the economic value created by those who don’t.
Enter Apple, which recently filed a patent application for a technology intended to ensure that users are seeing, and actually paying attention to, ads. Randall Stross, author of the excellent book Planet Google, hates the idea of “compelling attention” and suggests that it would so annoy consumers that it would cost Apple more in reputational capital than it’s worth. Stross may well be proven right in the marketplace (and, if so, fine), but does that make Apple’s proposal wrong? The brilliantly satirical “Secret Diary of Steve Jobs” calls the idea “evil,” and suggests that, in the pretended voice of Steve Jobs: Continue reading →
IDG News reports that the European Parliament has negotiated a telecom bill that “now contains a new Internet freedom provision that states that access to the Internet is a human right of every E.U. citizen, and that if authorities take away that right people must have the opportunity to defend themselves.” If indeed the bill merely creates what Americans would recognize as a “due process” right against government action, that may not be such a bad thing. IDG notes that, “The issue is very sensitive, and not just in Europe, where a number of countries including France and U.K. are passing laws threatening to sever users’ Internet connections if they are found to have breached the copyright on music or movies.” Whatever one thinks of such “three strikes” laws as a remedy for copyright infringement, it seems reasonable that users should indeed have the right to “defend themselves” if accused of copyright violations before their Internet access is turned off.
But we should all be uncomfortable anytime government purports to invent a new “fundamental right” if that right is a “positive” one—i.e., a moral entitlement to a particular product or service that must be guaranteed by other taxpayers paying for something someone can’t afford or simply doesn’t value enough to pay for out of their own pocket. That’s precisely what Finland recently did, guaranteeing Finns the “right” to a 1 megabit broadband connection. That sort of entitlement is pure cyber-collectivism. Cyber-libertarianism recognize instead that:
true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.
So if the Europeans want to guarantee a due process right, I hope they would find another term for that concept doesn’t have such cyber-collectivist implications.
The new episode of Surprisingly Free Conversations is up and it features Michael S. Sawyer, a fellow at the Berkeley Center for Law and Technology, discussing the impact of the DMCA on user-generated content. The discussion also turns to the principle of fair use and competing solutions for dealing with copyright infringements on user-generated content sites. You can listen to the podcast on the site or subscribe in iTunes. While you’re at it, check out our last episode, featuring TLF alum Tim Lee discussing bottom-up processes, the innovators dilemma, the link economy, and the future of newspapers.
On October 1 I attended a panel discussion on the use of technology to restrict the illegal transfer of copyright-protected content online. The panel talked about a new French law requiring ISPs to block users who had “three strikes” against them for illegal transfers, recent developments in watermarking and fingerprinting, and the future of fair use.
I blog further at Convergences and also supply sketches for your amusement. For it is important that you be amused.
We’ve discussed extensively the controversy that recently erupted when Apple rejected Google Voice applications from the iPhone App Store. With the FCC sniffing around and tech pundits around the blogosphere weighing in on the merits of possible government intervention, it’s important to remember that jailbreaking an iPhone may be illegal under the Digital Millenium Copyright Act (DMCA). In other words, if you use a hack or workaround that enables you to run banned apps like Google Voice on your iPhone, you could be violating federal law.
The DMCA hasn’t stopped millions of iPhone owners from jailbreaking their phones and installing Cydia, an unofficial alternative to the official iPhone App Store. Cydia, which lets users download banned iPhone apps like Google Voice, has been installed on a whopping one in ten iPhones, according to its developers.
But jailbreaking programs and applications like Cydia are in risky legal territory. Developers who circumvent the iPhone’s copy protection systems are at risk of being sued by Apple, as are users who run jailbreaking software. Apple maintains that jailbreaking software is illegal under federal law, though it has not taken legal action against any unauthorized iPhone developers to date.
To clear up the muddy legal waters surrounding iPhone jailbreaking, Fred von Lohmann of the Electronic Frontier Foundation has asked the U.S. Copyright Office to grant a legal exemption to iPhone jailbreaking on the grounds that users should be able to install apps of their choice on the phone without risking civil or criminal sanctions. In a recent DeepLinks post, von Lohmann argues that the FCC should throw its weight behind EFF’s call for exempting jailbreaking from anti-circumvention rules.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.