For better or (more likely) worse, copyright now automatically encumbers every new fixed work of authorship. Copyright kicks in as soon as anyone writes an essay, doodles a sketch, or bangs out an email. A copyright’s holder need not register the work or put notices on copies of it to qualify for copyright protection.
If you want to play it safe, you should thus probably assume that some sort of copyright claim binds every fixed work. Even very old works often come with modern copyright strings attached. Consider, for instance, John Stuart Mill’s classic work,
On Liberty. Though the book originally issued in 1859, and has long since fallen into the public domain, my library’s copy includes a notice reading, “Copyright 1978 by Hackett Publishing Company, Inc.” Presumably, that copyright covers only the editor’s introduction and selected bibliography. Yet Hackett’s overbroad notice doubtless discourages some people—especially those who know little about copyright law—from reproducing even the free parts of On Liberty.
In that and other ways, copyright policy currently fails to admit to its limitations. Cautiously presuming that copyright covers every fixed work, and duped by inflated copyright notices, we fail to fully enjoy our rights to the public domain. We should aspire to a more open copyright system, one that encourages both the creation of new works and the liberation of extant ones. For that, we need a way to signal, clearly and reliably, when a work has escaped the bounds of copyright. We need, in other works, an
uncopyright notice.
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Today Sen. Barack Obama gave a speech at Google where he laid out his tech policy platform. (Platform here in PDF; speech soon available here and here.) There’s much not to like, including a net neutrality regulatory agenda and support for media ownership restrictions, but I’d like to focus on the positive aspect of his speech. In the arena of technology-aided government transparency, Obama laid out a terrific set of ideas that every candidate, Republican or Democrat, should be able to adopt. From his speech:
To seize this moment, we have to use technology to open up our democracy. It’s no coincidence that one of the most secretive Administrations in history has favored special interests and pursued policies that could not stand up to sunlight. As President, I’ll change that. I’ll put government data online in universally accessible formats. I’ll let citizens track federal grants, contracts, earmarks, and lobbyist contacts. I’ll let you participate in government forums, ask questions in real time, offer suggestions that will be reviewed before decisions are made, and let you comment on legislation before it is signed. And to ensure that every government agency is meeting 21st century standards, I’ll appoint the nation’s first Chief Technology Officer. (Emphasis mine.)
I hope whoever becomes president can carry out these technically simple but socially powerful reforms. Mr. Obama himself doesn’t even have to wait to be president to do something about this. He successfully teamed up with Sen. Tom Coburn to bring us the Federal Funding Accountability and Transparency Act. There’s no reason why he shouldn’t try for an encore with a “government data online in universally accessible formats” bill. Heck, adding one sentence to the E-Governemt Act reauthorization bill I wrote about yesterday might just do the trick.
Kevin J. Martin, politically-savvy and a highly effective chairman of the Federal Communications Commission, has a strong free-market orientation. So why would the New York Times report that the FCC may be on the verge of enacting new regulation which would:
- Force the largest cable networks to be offered to the rivals of the big cable companies on an individual, rather than packaged, basis;
- Make it easier for independent programmers, which are often small operations, to lease access to cable channels; and
- Set a cap on the size of the nation’s largest cable companies so that no company could control more than 30 percent of the market?
Martin believes “[i]t is important that we continue to do all we can to make sure that consumers have more opportunities in terms of their programming and that people who have access to the platform assure there are diverse voices,” according to the
New York Times article. In other words, regulators (i.e., philosopher kings) should intervene to improve on the free market.
There are already plenty of opportunities for independent programmers to lease access to spare cable channels. The independent programmers aren’t excluded from cable networks. Making it “easier” for independent programmers to lease access to cable channels, according to one report, is code for a government-mandated rate reduction of 75 percent.
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It’s a familiar storyline: frustrated by political opposition to his agenda, the government head declares a state of emergency, invoking an obscure, never before used, provision of the law to assert virtually unlimited authority. Television is the first target. And lawyers are mobilizing.
A summary of Pervez Musharraf’s power grab in Pakistan? Not quite: the story is being played out right here in Washington, D.C., with reports that the FCC – led by Chairman Kevin Martin – will soon assert emergency rule over cable television. 
The tool is section 612(g) of the Communications Act. This rather obscure statutory provision states that if cable systems reach 70 percent of U.S. households, and 70 percent of those households actually subscribe to cable, then “the Commission may promulgate any additional rules necessary to provide diversity of information sources.” Never mind other provisions of law – 612(g) — read literally — says that if it flickers and arrives by cable, the FCC can regulate it. (It is far from clear, however, whether Congress intended the provision to have such a sweeping impact).
The Commission reportedly plans to assert powers under this “70-70” rule at a meeting later this month. The declaration would buttress a phalanx of new regulations on cable TV service being pushed by Chairman Martin, including mandated carriage of multi-cast broadcast channels, mandated unbundling of cable channels, caps on the cable ownership, new rules on the purchase of content from programmers, expanded mandates on leased access to channels, and new regulations on cable set-top box devices.
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The New York Times reports today that New York Governor Eliot Spitzer (D) has dropped his plan to issue licenses without regard to immigration status.
His original, correct decision to break the tie between driver licensing and immigration status met with hails of derision from anti-immigrant groups and his political opponents. He attempted to quell the outrage by agreeing to sign New York up for the federal government’s “REAL ID” national ID system, but this did not please anyone. So now he’s back at square one.
He said the state would put on hold the plan to adopt the Real ID, which has been championed by the Bush administration. The governor said he wanted to wait until federal regulations for Real ID licenses were issued next year before deciding how to proceed.
Now that he’s – ahem – studied the issues, one hopes he’ll recognize that REAL ID is costly, privacy-invasive, and ineffective, and he’ll decline to involve his state in the national ID program.
Geoffrey Stone has a great rebuttal to John Ashcroft’s op-ed in the New York Times on wiretapping:
Suppose the government asked a private security firm to commit murder or torture or rape. Would they, too, be entitled to immunity because they acted on the basis of “explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful”? Is there a difference in principle between these situations? Perhaps in Mr. Ashcroft’s view unlawful surveillance is different because it’s just not a sufficiently serious violation of individual freedom to expect private individuals and organizations to question the legality of the government’s request. Perhaps Mr. Ashcroft would demand legislative immunity even in cases of murder, torture, and rape. I would like to know.
Second, what makes Mr. Ashcroft think that the government or the telecommunications companies could reasonably have believed in this situation that the government’s surveillance program was lawful? As a matter of fact, the clear consensus among legal and constitutional experts is that Mr. Bush’s surveillance program violated the 1978 Foreign Intelligence Surveillance Act, which expressly prohibited such conduct. Only a tiny slice of the legal profession believes that the Bush surveillance program was lawful, and almost all of them had been recruited into the Bush White House.
It was hard to pick one excerpt because it was all really good, so go read the whole thing.
In this very entertaining piece, our frequent intellectual sparring partner Tim Wu admits that certain New York City bureaucrats may be driving him to libertarianism.
I really wish Tim would become a true libertarian. As that essay and his brilliant 5-part series essays on “American Lawbreaking” for Slate illustrate, he is an incredibly gifted writer and a first-rate thinker. And, at times, his thinking does lean in the libertarian direction, but not enough to grant him credentials to the club just yet! (Tim and I also share a nerdy affection for Dungeons & Dragons, so I have to admit to liking him for that reason. I was far to familiar with 20-sided dice as a youngster. Sad, but true).
I’ve written plenty here before about the potential pitfalls associated with a la carte regulation of cable and satellite television. What troubles me most about a la carte regulatory proposals is that proponents make grandiose claims about how it would offer consumers greater “choice” and lower prices without thinking about the long-term consequences of regulation. As I pointed out in a recent editorial in the Los Angeles Daily Journal, the problem with these regulatory activists is that “Their static view of things takes the 500-channel universe for granted; they assume it will always be with us and that it’s just a question of dividing up the pie in different (and cheaper) ways.” But as I go on to explain, a la carte regulation could bring all that to an end:
To understand why [it will harm consumers], we need to consider how it is that we have gained access to a 500-channel universe of diverse viewing options on cable and satellite. All of these channels didn’t just fall like manna from heaven. Companies and investors took risks developing unique networks to suit diverse interests. Thirty years ago, few could have imagined a world of 24-hour channels devoted to cooking, home renovation, travel, weather, religion, women’s issues, and golf. Yet, today we have The Food Channel, Home & Garden TV, The Travel Channel, The Weather Channel, EWTN, Oxygen, The Golf Channel, and countless other niche networks devoted to almost every conceivable human interest. How did this happen?
The answer is “bundling.” Many niche-oriented cable networks only exist because they are bundled with stronger networks. On their own, the smaller channels can’t survive; nor would anyone have risked launching them in the first place. “Bundling” is a means for firms to cover the enormous fixed costs associated with developing TV programming while also satisfying the wide diversity of audience tastes. Bundling channels together allows the niche, specialty networks to remain viable alongside popular networks such as CNN, ESPN and TBS. Bundles, therefore, are not anticonsumer but proconsumer.
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Last week, Joe Lieberman and others introduce a bill in the Senate to reauthorize the E-Government Act of 2002. In my new paper about online government transparency I explain how most agencies are likely in compliance with the Act by simply putting their regulatory dockets online, even though those dockets may be largely inaccessible by the public. For example, the FCC’s online docketing system, about which I’ve been griping lately, is probably up to par as far as the Act goes.
The good news is that the reauthorization bill includes an amendment that aims to make federal websites more accessible. It reads in part:
Not later than 1 year after the date of enactment of the E-Government Reauthorization Act of 2007, the Director [of OMB] shall promulgate guidance and best practices to ensure that publicly available online Federal Government information and services are made more accessible to external search capabilities, including commercial and governmental search capabilities. The guidance and best practices shall include guidelines for each agency to test the accessibility of the websites of that agency to external search capabilities. … Effective on and after 2 years after the date of enactment of the E-Government Reauthorization Act of 2007, each agency shall ensure compliance with any guidance promulgated[.]
The purpose of these changes are to make federal sites more easily indexed by commercial search engines, such as Google, which are what most citizens use to find information. Some agencies have begun looking into this already. That is great in itself, but what really interests me here is the notion of “best practices” guidelines with which the agencies must comply. This could be the Trojan Horse that gets XML into federal sites. Once data is available in a structured format, then third parties can use it to create different (and likely better) user interfaces for the data, as well as interesting mashups.
I hope OMB will take this opportunity to revamp their e-gov efforts. Regulations.gov, a site they manage along with EPA, does not offer XML. (I’ve talked about this before here.) It also does abysmally on search engines, perhaps because they use outdated frames markup. A quick check shows Google last indexed the site in January. I sincerely hope this kick-starts things.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.