You really have to hand it to the folks over at the (Un)
Ah yes, “Internet fairness.” Who can possibly be against it? Well, before you rush to click send on that UnFree Press form letter, let’s be clear what this effort is really all about. Free Press claims that the Massa bill is needed because “phone and cable giants [are] weighing schemes to hike prices, shut down the free-flowing Web and keep user innovation in check.” How are those companies doing that? Tiered pricing! Rep. Massa says that, “Time Warner has announced an ill-conceived plan to charge residential and business broadband fees based on the amount of data they download.” Oh my God, no… you mean some people might be charged for the costs they impose? What’s next? Are we going to force people to pay for their own energy use by metering gasoline, electricity, or water? Think of the horror! (This is sarcasm, folks. All those things are metered currently. And yet, somehow, the Earth hasn’t spun off its axis.)
Like all the other propaganda produced at the Free Press techno-spin factory, their latest crusade is based on a combination of outright lies and blatant economic ignorance. Metering broadband access is not an effort “to restrict Internet use,” as Free Press claims. Rather, like every other metered system under the sun, it’s an effort to price a scarce resource in such a way so as to
maximize use. Broadband operators don’t sit around all day scheming to find ways to decrease network usage. They wouldn’t make any money that way!! They need to find business models that encourage increased uptake while also investing in and growing their networks to meet new demand and competitive challenges.
Moreover, there are other pro-consumer reasons for companies to consider metering options. Unless it is your goal to allow some particularly aggressive users to be subsidized by all other users, it is sometimes sensible to price usage based on demand. If you don’t, you potentially create a perverse incentive for a small handful of over-grazers to to be feeding at the trough at everyone else’s expense. As economist Russell Roberts aptly noted in the title of a famous 1995 Wall Street Journal editorial, “If You’re Paying, I’ll Have Top Sirloin.” Thus, you would never want to make the “all-you-can-eat” pricing model the only option for the provision of a scarce resource. Even if you choose not to deploy it, it is useful to have the metered pricing model available in case you need to charge the over-grazers at some point.
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Berin recently encouraged me to re-read Thomas Sowell’s The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, which I hadn’t looked at since I first read it back in 1995 or 96. I’m glad I did since Sowell’s work has always been profoundly influential on my thinking (especially his masterpiece, A Conflict of Visions) and I had forgotten how useful The Vision of the Anointed was in helping me understand the reoccurring model that drives ideological crusades to expand government power over our lives and economy.
“The great ideological crusades of the twentieth-century intellectuals have ranged across the most disparate fields,” Sowell noted in the book. But what they all had in common, he argued, was “their moral exaltation of the anointed above others, who are to have their different views nullified and superseded by the views of the anointed, imposed via the power of government.” (p. 5) These elitist, government-expanding crusades shared several key elements, which Sowell identified as follows:
- Assertion of a great danger to the whole society, a danger to which the masses of people are oblivious.
- An urgent need for government action to avert impending catastrophe.
- A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.
- A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.
You can see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but I think this model is equally applicable to debates over social policy and speech control. In particular, the various “technopanics” I have been writing about recently fit this model. (See 1, 2, 3, 4, 5). For example, consider how this plays out in the debate over online social networking:
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As Berin mentioned last week, we have a new paper out on proposals to expand the Children’s Online Privacy Protection Act (COPPA) of 1998. We generically refer to those COPPA-expansion efforts as “COPPA 2.0.” Hence, the title of our paper: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.” To recap what Berin already noted, in the name of improving online child safety, some legislators and state attorneys general (AGs) are advocating the expansion of COPPA’s “verifiable parental consent” model of age verification before certain sites or services may collect, or enable the sharing of, personal information for children.
Unlike “COPPA 1.0,” however, which only applied to children under the age of 13, “COPPA 2.0” would apply to all minors up to age 17. Moreover, the range of sites covered by the new law would generally be expanded to include just about any site or service with social networking functionality.
Since Berin has already summarized our general concerns with efforts to expand COPPA’s “verifiable parental consent” online age verification system to cover more online users and sites, I thought I would focus here on what I believe will be the most controversial (and important) part of our paper — our discussion about how COPPA 2.0 affects the speech rights of both adults
and adolescents.
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Says Epic Games founder and CEO Tim Sweeney. I wonder what the FTC will think about this prospect in the report Congress asked them to send this year about video games. I think it’s safe to assume that the thought of life-like sex and violence will create a true technopanic.
Speaking of socializing media, acting FCC Chairman Michael Copps is someone who has devoted much of his life to regulating the media marketplace into the ground. If he had his way, federal bureaucrats would be controlling virtually every aspect of the media universe. Nothing would get done with Big Nanny’s permission.
That’s what makes his recent comments about the impact of media regulation so delicious.. and hypocritical. According to an article Bloomberg ran on Thursday, Copps is now saying that, with newspapers struggling to remain afloat, the FCC should now reconsider regulations that prohibit combined ownership of broadcast stations and newspapers. The agency should “visit this whole problem” before long, Copps apparently told Bloomberg.
“Visit this problem before long”?? Please! Congress and the FCC have had opportunities to “visit” and revisit this problem for many years now, but it has been Michael Copps and his merry band of media reformistas who have stopped every reform effort dead in its tracks. (See my essays “Congress Fiddles, Newspapers Burn” and “Media Deregulation is Dead” for more evidence of how these radicals hijacked media policy in this country.) As I documented in my 2005 Media Myths book, these charlatans have used hyperbolic rhetoric, shameless fear-mongering, and unsubstantiated claims in opposition to each and every sensible effort to reform our nation’s outdated media ownership policies. Those laws and regulations have created artificial market structures and hindered the ability of media operators to find new business models that might throw them a lifeline in difficult times.
Consider the fact that it was just 14 months ago that then-Commissioner Copps issued this gem of a hysteria-ridden statement in response to the agency’s last effort to ever-so-slightly loosen the newspaper-broadcast cross ownership rule:
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Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak. And our own Tim Lee is currently studying there as well. I wish I was smart enough to get into that program!
The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.
http://www.youtube.com/v/xJo3tVMScyI&hl=en&fs=1
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The Federal Communications Commission (FCC) has just released a Notice of Inquiry (NOI) in the matter of “Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming.” (MB Docket No. 09-26) This NOI was required by S. 602, the “Child Safe Viewing Act of 2007,” which Congress passed last October and President Bush signed into law on December 2nd. The measure requires the FCC to examine:
(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms;
(2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and
(3) the existence, availability, and use of parental empowerment tools and initiatives already in the market.
The Act defines the term “advanced blocking technologies” as “technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent.” Importantly, the Act also directs the agency to look into blocking technologies that “may be appropriate across a wide variety of distribution platforms, including
wired, wireless, and Internet platforms” and which “operate independently of ratings pre-assigned by the creator of such video or audio programming.” The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.
When writing about the Child Safe Viewing Act shortly after its introduction in the summer of 2007, I noted that the measure potentially represented the beginning of “convergence-era content regulation” at the FCC. Those two clauses highlighted above are of particular importance in that regard. Congress has essentially invited the FCC to engage in unprecedented oversight of media platforms and ratings systems that the agency previously had very little ability to influence. Continue reading →
Over at CDT’s “Policy Beta” blog, my friends John Morris and Sophia Cope have penned two important essays about online free speech issues that are worthy of your attention. In the first, Sophia argues that the “Next President Must Preserve Free Speech on the Internet.” She argues:
It will be critical for the next President to do his part to uphold the Internet’s robust culture of free speech and innovation as we march further into the 21st Century. In stark contrast to the mass media of the last century, the Internet has provided, at very low cost, virtually unlimited forums for both creators and consumers of new content and technologies. This in turn has created a huge boost for participatory democracy and our economy. The next Administration must reject Congressional or agency efforts to censor content or stifle the fire of innovation on the Internet and other communications media.
Amen! Importantly, Sophia points to the essential role of Section 230 of the Telecommunications Act of 1996, which protects online service providers from crushing legal liability in a variety of circumstances. Sec. 230 is probably the most important — and most often forgotten — law dealing with online freedom. Unfortunately, however, it’s increasingly under attack and we need to be vigilant in defending it. (I’m working on a big paper about that right now with my PFF colleagues Berin Szoka and Adam Marcus).
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The New York Times, that dinosaur of old media, is currently live-blogging the most important Congressional debate since that epochal, thoughtful discussion back in October 2002 as to whether Iraq posed a clear and present danger to the United States justifying a declaration of war—I mean, total non-debate that preceded Congress’s decision to issue President a blank checkthat has proved nearly as expensive as the blank check currently before the Congress.
The highlight of the debate thus far:
11:39 a.m. | No socialism!: After Jeb Hensarling, a Republican representative from Texas, affirmed that he was voting against the bill because it smacks of socialism and might represent limits on liberty, Barney Frank, a Democratic representative from Massachusetts, said that he is “ever mindful” that George Bush might “lead us down the road to socialism,” and so Congress would monitor the bailout closely.
Wow. When Barney Frank, just about the closest thing to an avowed socialist in Congress after Bernie Sanders, warns about the dangers of a Republican president and supposed “free market” champion leading us down the “Road to (socialist) Serfdom,” we should all feel a terrible chill. To paraphrase the over-paraphrased Yeats:
Surely some revelation is at hand
Surely the Second Coming is at hand!
… what rough beast, its hour come round at last,
Slouches towards [Washington] to be born?
Yesterday bills were introduced in the House (PDF) and the Senate (PDF) addressing the orphan works copyright issue about which I’ve written many times before. Alex Curtis has a great write-up of the bills over at the Public Knowledge blog.
An orphan work is a work under copyright the owner of which cannot be located so that a potential re-user cannot ask for permission to use or license the work. If you can’t find the owner, even after an exhaustive search, and use a work anyway, you risk the possibility that the owner will later come forward, sue you, and claim statutory damages up to $150,000 per infringing use.
Both bills are largely based on the Copyright Office’s recommendations and not the unworkable Lessig proposal that had been previously introduced as the Public Domain Enhancement Act by Rep. Zoe Lofgren. The bills limit the remedies available to a copyright owner if an infringing party can show that they diligently searched for the owner before they used the work. (What constitutes a diligent search is specifically defined, which should address the concerns about the Smith bill expressed by visual and stock artists.)
Rather than statutory damages, the owner would simply be owed the reasonable compensation for the infringing use—that is, what the infringer would have paid for the use if they had been able to negotiate. I think this is a fine solution because it gives all copyright holders an incentive to keep their registrations current and their works marked to the best of their abilities (i.e. what old-time formalities used to accomplish). I’m also happy to see that injunction is also limited.
Like the Smith bill, both of these new bills direct the Copyright Office to complete a study and produce a report on copyright small claims. There are many instances of copyright infringement that are too small to be litigated in federal district court—like a website that uses my copyrighted photo they got off flickr. Professional photographers and other visual artists face this all the time and there should be a way to address their concerns. One idea is to create a copyright small claims court and it’s something I’d love to research and contribute to a Copyright Office proceeding. So if Congress has been thinking about this for a few years, what’s stopping the Copyright Office from taking on the project
sua sponte?
Anyhow, stay tuned as these bills wind their way through committee and the IP maximalists are engaged.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.