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AT&T has clarified that its bad policy of restricting video chat apps is still in place. We've also found out that handset providers need to jump through hoops to avoid being blocked. But AT&T has promised to end these practices by the end of the year.

When I wrote about AT&T's blocking of Google Hangouts over cellular last week I admit I was confused. I didn't understand why AT&T would allow Hangouts on iOS but not Android. It really looked like some kind of oversight, because the Android app, just like the iOS app, was installed from an app store and not "pre-loaded," which is a distinction AT&T has made before. I also wondered if app developers had to somehow work some special magic to make their apps work on AT&T's network.

But, yesterday AT&T put out a statement that clarifies some things while confusing others. First, it really does appear that AT&T defines Hangouts for Android as "pre-loaded." Even though it hasn't actually been pre-loaded on any phones yet, an app by the OS developer appears to count.

Second, it also appears that handset manufacturers, not app developers per se, are the ones who have to call an AT&T hotline to figure out how to make "pre-loaded" apps work. AT&T points out that BlackBerry, Apple, and Samsung have done this. But since none of these companies developed Hangouts it's not surprising that none of them have done whatever it takes to make it work. Presumably Google's subsidiary Motorola could have called up AT&T and figured this out, but this wouldn't have been much help to users with other handsets (by HTC, LG, Pantech, etc).

All this is unfortunate. Video chat apps are being arbitrarily blocked and the only way to make them work is through some cumbersome process that hinges on confusing distinctions between pre-loaded and "downloaded" and the handset provider and the app developer. In addition to being 1) The Law, 2) Good for Consumers, and 3) Good for Innovation, the Open Internet is also good for your sanity. Every attempt we've seen by AT&T and others to restrict what subscribers can do with their connections or to come up with new monetization schemes has been defined by complicatedness and ambiguity. This should not be the mobile future.

But there's sort-of good news. Somewhat in keeping with what AT&T said when PK and others agreed not to file an Open Internet complaint over its blocking of FaceTime last year, AT&T has re-iterated that Real Soon Now, it's not going to distinguish between price plans or category of app. Data caps might still be in place—and that's another issue—but what customers do with their data is up to them. That's good news. It's also the minimum that users should expect.

Image by Flickr user gfpeck.

Parts of the debate are still missing from the discussion of copyright reform in Congress, but we’re starting to fill in the gaps. This includes the need to look at individual artists, creators, and users instead of the intermediaries and big incumbents.

Yesterday, I briefly summarized some of the major themes coming from the witnesses in the House IP Subcommittee’s copyright reform hearing. Since the witnesses covered those same points in their oral testimony, I thought I’d devote this post to some of the themes that emerged from the other side of the room—from the representatives in their statements and questions.

Content or Tech? Tech or Content?

I don’t think I’d be exaggerating if I said that most of the members in attendance began their statements with something like this:

“Copyright law is important because we need to make sure to protect artists and creators, and ensure they keep making wonderful things that help drive the economy. Of course, we need to do this while making sure that the law allows technological innovation that is also an important part of our lives and our economy.”

I’m paraphrasing, but I’m still pretty certain that the above could be tacked on to the beginning of any Congressional statement about copyright today, or in the near future. And that’s frustrating.

It’s not wrong, per se, it’s just a woefully incomplete picture of what copyright is about, distilled only to the biggest, most visible players in the political side of the copyright debate. And while it’s natural that members of Congress would focus on the biggest, most visible players (a cynic would accuse them of caring only about potential donations; someone less cynical would say they’re rightly focused upon large employers and jobs), but in doing so, they ignore the two sets of people who copyright was explicitly designed to help.

What about Artists and Audiences?

One of the things that Daniel Gervais pointed out in the Q and A was that, taken at a very abstract level, copyright is actually simple. As he put it, it’s basically about artists and the public. After that, there’s the question of getting the works of art to the public. 

The funny thing about copyright law is that for most of the recent past, it’s been concerned primarily with that bit in the middle—the intermediaries—whether they’re record labels or ISPs. But the Constitution is concerned first about the effects on the public—the progress of science and the useful arts—and with incentivizing authors to further that end. What happens in the middle is just a means to those ends.

Some of the questions asked by the members went to at least part of this—they asked about how to ensure that copyright law looks out for individual artists.

But the question remains as to how those necessarily disparate voices can be represented in a forum like Congress or at a roundtable of a few academics.

Certainly trade associations funded by the major conglomerates won’t represent the vast majority of individual creators; and cherry-picking an author here and a singer-songwriter there can’t give you more than a few isolated anecdotes—data points, to be sure, but certainly not enough to paint a reliable picture of the landscape.

Some groups have tried to fill in this picture—the Future of Music Coalition put together a project to study how musicians are making their money today—their results would seem to show that a lot of assumptions about art and artists that drive lawmakers’ decisions aren’t as true today as they may have been in 1976—if they ever were.

It’s therefore important that policymakers keep in mind the vast majority of creators who don’t have contracts with labels, who may not be members of guilds or societies, and who may be more involved with touring or promoting their new album than placing op-eds in major newspapers or drafting comments to federal administrative agencies.

And the other side of the copyright bargain must likewise be accounted for. Just as publishers and labels aren’t the same as authors and musicians, consumer electronics companies aren’t consumers. This often gets lost when people draw the battle lines as being between Silicon Valley and Hollywood.

Individual users, for instance, are unlikely to have the ability to defend against lawsuits threatening massive statutory damages for even small alleged offenses, and are more likely to fall victim to copyright trolls, who abuse the copyrights laws to extort “settlement” payments from masses of users.

Individual users are also the ones who operate under a cloud of legal uncertainty about whether their in-home activities, like moving media from one device to another, can get them in trouble. A solution that works for tech companies, like an intermediary safe harbor or limits on secondary liability, leave the consumers of copyrighted works on the hook.

It’s also important to remember that “the public” isn’t some abstraction of consumerism—it includes consumers, sure—the people who are the readers of authors, the listeners of musicians, the players of games, and the viewers of movies and TV shows.

But an outdated copyright system that finds harmless uses illegal ends up treating paying customers as if they were “pirates.” While many of the members indicated they didn’t believe that “everything should be free,” it’s hard to actually find anyone seriously proposing that.

Plus, consumers are only one part of the public. The same people who are buying creative works are also creating with them themselves, not just remixing, but learning to play music by singing their favorite songs for the benefit of their friends, whether in a dorm room or on YouTube. Those creators in the making and remaking creators are part of the public, too.

How Are They Affected?

And the scope of artists and the scope of the public leads to another theme present throughout the hearing—the anxiety over what happens when copyright law changes. A number of members expressed concern about “weakening” or “watering down” copyright law; others more generally were concerned about changing it more generally. A bit of the back-and-forth between Baumgarten and the other witnesses was about whether copyright law needed “fixing,” or just “amending.”

The concern is certainly reasonable. It’s become a cliché to call copyright law something like “the engine of the creative economy” or similar such things. And people whose livelihoods depend on that machine running are naturally anxious about tinkering with it.

But the need for that tinkering is becoming increasingly clear. Maybe not to those around whom the system was designed those several decades ago, but for all of the people who weren’t, or couldn’t be, at the table in 1976. The fact that it still works, in some cases, for some people (even, or especially, the well-represented and powerful ones) isn’t a justification to fossilize the system as it is. That engine is doing anything but running smoothly for small users, small artists, and small tech companies.

The Copyright Act is a law, not a symbol. It exists for a particular purpose. Altering it to make it better fit that purpose isn’t attacking some sacred object or inviolable principle. Would anyone weep if the mishmash that is section 110 were streamlined? I doubt it somehow.

So changes are needed. And the changes proposed by groups like PK and noted by the Copyright Principles Project seek to make some of those changes—and none of them propose doing away with copyright, or making everything free of charge.

As to how to make those reasonable changes without harming legitimate interests, there are a number of modest changes whose effects would seem not to upset the applecart too much. As for more ambitious proposals, well, there’s the need to gather more facts.

Getting to Answers

This leads to the question of how to measure the effects of even the copyright law we have today. As both the Government Accountability Office and, more recently, the National Academies have noted, the empirical data on the ground is quite thin, and a lot of the studies that are out there come from interested groups.

Which is why it’s troubling to see people trying to downplay the need for good data on the economic effects of the different aspects of our copyright system. People begin questioning whether or not the authors of the NAS call for more information are biased, or ask whether we should even really care about the economics of copyright, when there’s intangible, non-economic justifications for the law. 

Which is a strange thing to ask for, if you’re the one who has been touting the economic boon that copyright law brings to the country. If that’s so, how can it possibly hurt to discover which parts of the law are pulling their weight and which are not?

The Constitutional justification for copyright is certainly a utilitarian one, and beyond that, even if there are deontological reasons for copyright, well, there are practical ones, too. What harm does it do to measure those? And if an uneconomical part of copyright is near and dear to creators’ hearts, surely no one loves section 114, as it’s written, in their bones. 

Chairman Goodlatte noted the need for answers to the empirical questions about copyright at the beginning of the hearing. In fact, he framed the discussion in terms of three particular questions:

• What metrics do we use to measure the success or failure of copyright law?
• How do we measure the effect of copyright on the economy?
• How do we ensure that all stakeholders, including individual artists, are included in policy discussions on copyright? 

These are the right questions to be asking as we move forward. A lot of assumptions about markets, technology, and artists have been at the foundation of our laws today. Making sure that we have the information to move forward, and account for artists and their audiences in the future, is critically important and a necessary part of necessary reform.

Senators are challenged to think outside the industry talking points, to what consumers are saying loudly in their marketplace choices.

As a part of a series of hearings, the Senate Commerce Committee held a hearing on the “State of Video” communications Tuesday May 14, 2013. 

Leaders from the cable, satellite, and broadcast TV industries joined PK’s own video & media policy guru, John Bergmayer on the panel and made one thing very clear: These industries are making a fine profit right now and are not interested in having the power of the Internet change that.

Hearings such as this, that have (somewhat) balanced witness panels are very helpful because they remind us that no matter how much we are told through advertising that what cable, satellite, and broadcast are giving us is what we want, these companies are in the business of protecting their business. The technology that can increase competition and lower the price of cable is already available in online video. Millions of viewers are making this choice to take advantage of online video options today.

However none of the witnesses (save Bergmayer) pointed to ways to ensure that this new outlet for local, diverse content is able to grow and compete with the traditional video providers of cable, satellite, and broadcast. It was simply not in their interest to say so.

Thankfully, Senator Pryor included Bergmayer as the voice of the consumer and the Senate heard several examples of online options that are currently disrupting the local broadcast and cable dominance with their innovative ways to watch video. Aereo, Sky Angel, and others have brought content to viewers in innovative ways but have been greeted with legal threats from those who fear that millions of eyes will choose to watch somewhere else.

You can read Bergmayer’s full testimony here and watch the full hearing on the Senate Commerce Committee website.

Given the average age of Senators you might assume that their idea of watching TV might be stuck in the 1990’s with the broadcast and cable industry. And yet several Senators demonstrated that they realize there are other options. 

Senator McCain led by suggesting legislation that allows consumers greater choice in their cable viewing options.  Senator Warner inquired about Aereo’s service and suggested that broadcasters who overreact to viewers choosing an antenna service rather than buying a home antenna by ceasing to broadcast, need to turn their free government spectrum back in. And Senator Johnson inquired into what the roadblocks to competition from online video are.

Instead of hearing how online video can be promoted and grown, Senators listened to how broadcasters provide crucial local content, or cable is offering TV everywhere options to its customers.

What consumers are looking for is choices and lower prices, and if online video was given the same abilities to access content that other video distributors are given in the Communications Act, they might have those options. 

I was encouraged to see several Senators willing to think outside the box and ask how they can support these new TV viewing choices. As with past disruptions to the video marketplace, it may require Congress to act before we see the full potential of this new source of content.

Today’s witnesses for the copyright reform hearing in Congress will introduce ideas for improving America’s copyright system.

Today at 2:00 PM EST, the House Subcommittee on Intellectual Property is holding a hearing on potential copyright reform.

The structure of today’s hearing owes a lot to a multi-year project organized by Professor Pamela Samuelson called the Copyright Principles Project. Each of today’s five witnesses participated in the project, which was an attempt to bring together a number of stakeholders from different parts of the copyright debate.

The five selected today reflect that range, including, in addition to Samuelson, two academics, one representative of the content industry’s perspective, and one representative of the tech industry’s perspective. In addition to their existing credentials, the witnesses also share among them institutional ties to copyright policy-making bodies:

• each of the industry representatives has also served within a prominent position within the Copyright Office;
• one of the academics was a co-chair of a Copyright Office study group on libraries and copyright; and
• another worked at the World Intellectual Property Organization, the World Trade Organization, and collecting societies as well. 

Their testimony has been posted on the House site here. Here’s a quick overview of their statements.

Pamela Samuelson, Professor, Berkley Law School & School of Information

Samuelson’s testimony focuses on the need for a rational discussion on copyright reform and the results of the Copyright Principles Project. While a number of ideas (25, actually) for potential reform result from the project, the report is quick to note that those suggestions don’t represent the full consensus of the group, and some reservations with some for the proposals, and the need for further study are noted.

That being said, the level of discourse and the ideas emerging from the project represent progress on these issues that Congress evidently thinks a useful model for its own copyright reform efforts. 

In her testimony, Samuelson names four reasons that reform is needed:

1. The need for a decades-old law to keep up with new technologies;
2. The current Copyright Act is a messy patchwork quilt of special-purpose laws that conflict often in odd and inconsistent ways;
3. The Act is long and often incomprehensible—in many places, opaque even to people who have studied it since its passage;
4. The law was largely drafted at a time when people assumed it would only apply to people who worked in the movie, music, or publishing industries, not to everyone with access to a computer with a webcam or GarageBand.

Of the many proposals in the Copyright Principles Project, Samuelson’s testimony focuses on two in particular: copyright registration and statutory damages.

A system that encourages more copyright owners to register their works would do a lot to alleviate the problems of orphan works, giving would-be users an easier way of finding and licensing works.

Statutory damages, which let copyright holders claim anywhere from $750 to $150,000 per work infringed, regardless of the actual amount of money they’ve lost due to infringement, also could use reform. While some infringements (like making thousands of copies of an unreleased movie) can certainly generate that kind of damage, these penalties also apply to pitifully small offenses—a single bittorrented mp3 could just as easily be the cause of a $150,000 lawsuit (or, more likely the cause of a settlement offer for “only” $3,000).

Laura Gasaway, Professor, University of North Carolina School of Law

Professor Gasaway’s testimony focuses on the needs of libraries, archives, and museums under the current copyright law.

While the Copyright Act gives libraries and archives a certain number of protections now, those protections are so outdated as to be almost useless in some cases. (For instance, they allow libraries to make up to three backup copies of a work to preserve it; this might have made sense in a photocopying era; right now, the number of copies made by a modern backup system is a bit harder to quantify, given various techniques for data storage and compression.)

Gasaway proposes three broad alternatives to improve copyright law for educational institutions, each with more detailed parts:

1. Create a new Copyright Act that has built-in principles that allow for libraries, archives, educational institutions, and museums to use copyrighted works in non-commercial ways to give access to those works to their users;
2. Repeal the overly-specific and complicated library exceptions that exist today and allow libraries to rely upon a broader sense of fair use (Gasaway notes that this may make sense structurally, but could cause uncertainty for many librarians and educators on the ground);
3. Make certain specific changes to update the current library exceptions, including modernizing its idea of what “preservation copies” are and can be, and including museums within its scope.

Daniel Gervais, Professor, Vanderbilt University School of Law

Professor Gervais provides the longest and most detailed testimony for the hearing—it’s doubtful that his oral testimony could include even a fraction of the issues within it. He makes a variety of suggestions for copyright reforms; some expanding the rights of copyright holders; other expanding exceptions and limitations to copyright.

As an example of the former, he suggests creating a “right of making available” in place of our current rights of distribution and public performance. The idea would be to include all of the various ways people access material now. New ways of sharing, streaming, and storing media can let certain types of commercial exploitation end up in between the various areas of the law.

Another proposal to expand authors’ rights would be to strengthen protections for moral rights—creating, for example, a right of attribution—something that Creative Commons licenses recognized, but that isn’t built in to our copyright laws.

He also proposes better-defined exceptions and limitations around libraries and archives, and for educational uses. Another exception he proposes is one that would, for instance, allow users to move copies they have purchased between devices—a soft of “digital first sale” of the sort that is currently controversial under the law.

He also emphasized the need for licensing of copyrighted works to be easy and consistent. The current licensing structures, including ones built into the law, are complex, often incomprehensible, and treat different technologies in wildly different ways, giving a free pass to some while charging others wildly different rates. The more rational and easy to use licensing is, Gervais says, the more likely that people will make authorized uses of works, paying artists and also spreading their work more broadly.

Gervais, like Samuelson, also notes the importance of registration and other “formalities”—the procedures that copyright owners can be asked to go through to get certain benefits for their copyrighted works. He suggests beefing up the incentives for people not only to register when they create something, but when they transfer its ownership. This would make copyright owners easier to find, increasing licensing and reducing the number of orphan works.

Jule Sigall, Assistant General Counsel for Copyright, Microsoft

Sigall is currently a copyright lawyer at Microsoft, but he worked for a number of years as Associate Register for Policy and International Affairs at the Copyright Office. He notes that, in his current position, he represents a company that both owns a vast number of its own copyrights in software, as well as a company that makes devices and services that store, transfer, and copy others’ copyrighted material (in search engine caches, web services, and storage on computers and other devices).

In his testimony, He emphasizes three main points:

1. That an evolving copyright law needs to account for creators and the new ways in which they reach their audiences;
2. That ordinary personal uses of copyrighted works, like space-shifting and time-shifting, often run up against copyright law in ways they probably shouldn’t—he suggests the possibility of a safe harbor for consumers, like the one that currently applies to ISPs and online hosts; and
3. Like Samuelson and Gervais, he notes the importance of recording registrations and transfers of copyrights more often and better.

Jon Baumgartem, Former General Counsel, Copyright Office

Baumgarten served as General Counsel of the Copyright Office from 1976 to 1979. He has also, both before and after his tenure at the Copyright Office, represented copyright holders and copyright trade associations as counsel and in litigation.

His testimony stands somewhat apart from the others; emphasizing more the caveats already contained with the Copyright Principles Project. He suggests that it contains proposals that seem to be of more use to users, rather than copyright holders, and notes that enforcement of copyright law can still be improved, as well as noting that the Sony decision that legalized videotaping has been interpreted too broadly.

“At the risk of…introducing suddenly an extra discordant note into the discussion,” he suggests that the views of copyright holders need to be more present in future discussions about changes to copyright law, and remains confident that the Committee will do so, having done so in the past.

--

We’ll have to wait another few hours for more indications as to how the Committee will take up the call for copyright reform, and the extent to which they recognize the need for it.

I’ll be providing additional impressions once the hearing is over.

The video chat feature of Google's new Hangouts app for Android doesn't work over cellular if you're an AT&T subscriber. Does that sound familiar?

If you've been reading our blog this week, yes it will, because it's another story about AT&T and restictions on the Open Internet. But it should also be familiar for another reason, because at first glance this is the same as what happened with Apple's Facetime video chat app last year—AT&T is deciding what apps its users can use on the data connections they pay for.

It's interesting how arbitrary this is. The iOS version the app has no such restrictions. This shows how odd it is that AT&T continues to maintain that there is some clear distinction between "pre-loaded" and downloaded apps, where it can block one kind but not the other. There is no way to characterize a downloaded Google app for an Apple device as pre-loaded, of course—but based on the statement AT&T has given out in response to questions about this, the company appears to have decided that a Google app for Android counts as "pre-loaded" even when you have to download and install it from an app store. In other words, when it plainly is not pre-loaded. That's wrong, but it's just the start of what's wrong here.

It's too early to reach firm conclusions as to exactly what's happening, and I hope it's just some sort of miscommunication or oversight and that Android users on AT&T will be able to use the same features in the same ways as their iOS counterparts. Preliminarily, I think the most likely cause is right there in AT&T's statement: it's "up to each OS and device maker[] to enable their systems to allow pre-loaded video chat apps to work over cellular for our customers on those plans," with "those plans" referring to the plans AT&T has decided should be allowed to use built-in video apps.

In the first place, as PK has said before, AT&T should not be in the business of telling its customers what apps they can use, and what plan the customer subcribes to doesn't change that. AT&T charges its customers for data and new customers can only sign up for capped plans. How a subscriber uses the data she pays for is her business. (And she shouldn't have to try to figure out what AT&T means by "pre-loaded.")

Second, putting the burden on app developers to detect what plan a customer has and selectively enable or disable particular features is overly burdensome. A developer who writes an app for Android or iOS or Windows Phone should not have to worry about what carrier a user is on, any more than the developer of an XBox game should have to worry about what ISP a gamer has, or the developer of a Mac app should have to worry about whether the user is connected to the Internet via Starbucks WiFi or a home ethernet connection.

The proposition when you buy an Internet connection is simple: You buy an Internet connection. Then you use it. AT&T (and others, to be sure) want to complicate that proposition and come up with new ways to get paid from users, new ways to get paid from content creators, and new ways to get paid from app developers.

But even apart from the financial considerations, all these schemes make using the Internet and creating apps a lot more complicated than it needs to be. Users have to keep track of what kinds of apps they're allowed to use and what kind are forbidden. And if even a huge company like Google can have a hard time making its products work the same way across all carriers, imagine how hard it could be for a new entrant trying to break into the market?

The Internet is great because anyone can make any app that any user can run. Let's keep it that way.

The way to lower prices for consumers and create a competitive video marketplace is to embrace online video as the future.

One of our Senior Staff Attorneys John Bergmayer testified before the Senate Subcommittee on Communications, Technology, and the Internet on Tuesday. His testimony described why the online video marketplace could lower high cable bills for consumers, while still allowing service providers the opportunity to obtain adequate profits. Representatives from the cable, broadcast, and satellite industries also came to detail their problems with the video market. One theme that rang throughout the hearing was the negative impact sports blackouts and drawn out retransmission disputes have on the public.

[View the story "State of Video Hearing" on Storify]State of Video HearingSenior Staff Attorney John Bergmayer testified today before the Senate to show what the online video marketplace could look like with laws to promote competition.

Storified by · Wed, May 15 2013 11:17:55

#Stateofvideo hearing in the Senate is just now kicking off! Watch live: 1.usa.gov/11BqUm7 PKer @bergmayer testifying laterPublic KnowledgeMy opening stmt on a la carte cable bill before Commerce Committee #stateofvideo hearing today: mccain.senate.gov/public/index.c…John McCainSen. John McCain started the hearing off with an explanation of why his newest bill to introduce more a la carte options to the video marketplace is needed. He highlighted that consumers need more choices, and that without them they are being underserved. We "shouldn't pay for TV channels we don't watch and have no intention of watching" says @SenJohnMcCain #stateofvideo commerce.senate.gov/public/index.c…Joshua LevyAfter Sen. McCain made his points he left the stage making room for representatives from the National Associate of Broadcasters (NAB), the National Cable & Telecommunications Association (NCTA), DISH, and Public Knowledge to give their testimonies. Gordon Smith, President/CEO @nabtweets presents strong case for #Broadcasters in the Senate State of Video hearing, bit.ly/10XsHKFSusan M. Apgood.@NABTweets: Think of the shut-ins! #stateofvideoLydia DePillis.@NCTACable Powell says video world's changing. BUT one thing not changing are cable's huge profits #stateofvideo ow.ly/kZi7TMatt WoodDISH's Stanton Dodge is up next. Makes case for Hopper. Also asks for protection from retrans dispute blackouts.Amy MacleanDISH's Stanton Dodge:When local station is pulled during retrans dispute, we should be able to import comparable signal from outside marketJohn Eggerton. @Bergmayer is right TV market boundaries are funny, but remember private companies also contract to prohibit distant signals #stateofvideoMatt Wood"People don't mind paying for programming. They just don't want to feel like they are being ripped off" @bergmayer #stateofvideoBartees L Cox Jr.Tuning into #stateofvideo hearing, where the broadcasters are trying to convince Senate that they've got innovation under control.Lydia DePillisRetransmission consent and the recommendation to "do something about sports blackouts" was a theme in the hearing. Each representative felt that there needs to be a more effective way to deal with retransmission consent. Dodge: Retransmission consent makes no sense when there is competition for content by distributors like we have today. #stateofvideoMatthew StarrSen. Pryor says retransmission consent deserves attention as part of the STELA reauthorization that will occur in 2013 and 2014.Ross LiebermanWatching the #stateofvideo hearing...Nielsen maps, retransmission, a la carte, rewrite the Comm Act. Time really can stand still.Cynthia BrumfieldAs Senators started to ask how the market could be more competitive, Public Knowledge's Senior Staff Attorney John Bergmayer laid out his recommendations to enhance competition."We can't change copyright law to make services like @AereoTV unlawful." It could have so many bad consequences. @bergmayer #stateofvideoBartees L Cox Jr.Internet could change video marketplace, but incumbents can use control to stifle competition @bergmayer #stateofvideoPublic Knowledge.@bergmayer: There are rules in place created by Congress and the FCC that prevent cable companies from offering a la carte cable.Matthew StarrI support the goals of localism the broadcasters want but I think there is a better way to reach these goals @bergmayer #true #stateofvideoBartees L Cox Jr.Sen. Wicker giving Michael Powell the 3rd degree at this #stateofvideo hearing.Martyn GriffenFormer FCC Commissioner and President and CEO of the NCTA Michael Powell piggy backed onto Bergmayer's ideas of using the Internet to promote competition by saying the internet is already bringing innovation. Michael Powell: Internet is bringing "convulsive change" to industry, forcing rapid innovation. But future is exciting for consumers.Dan NowickiAs the hearing came to a close, it was clear that online video is a considerable option in providing answers to many questions surrounding the video marketplace. Will online video become a true competitor to cable? Will a la carte options become a deciding factor in lowering prices for consumers? This hearing didn't get to the bottom of these questions, but it definitely will start the conversation on Capitol Hill, which will help change the landscape of video on the web. Congratulations John! “@gigibsohn: .@bergmayer hits a home run at his first hearing! Here's to many more! #stateofvideo”mpetricone

By imposing data caps on consumers, ISPs can charge content providers to be exempt from those same caps.

The quest to determine why data caps really exist may be starting to wind down.  ISPs have admitted, either explicitly or implicitly, that monthly data caps have nothing to do with network congestion. And, while some have started to portray data caps as legitimate forms of price discrimination, that argument did not hold up to close scrutinty either. So what's left?  Why are ISPs going to all of this effort to make customers deal with something they hate?

AT&T CEO Randall Stephenson has finally let the cat out of the bag.  Data caps are all about forcing content creators to pay in order to reach subscribers.  By creating data caps, ISPs create a new market that never needed to exist and never existed before: the market for not being counted against data caps.  And that market can be big money.  But it can also fundamentally change the way the internet economy functions.

There are problems with this market. Many of them, as we detailed late last week when we saw stories about ESPN trying to buy its way out of the caps , were identified by the FCC in its Open Internet Order. It gives ISPs an incentive to keep data caps low and overage fees expensive, in order to make its “data cap exception service” attractive to content creators. It creates an arms race where content providers compete on their ability to negotiate deals with and pay big bucks to ISPs, not on the quality of their offering. And it increases the barrier to entry for new services, thereby reducing the number of new products and competitors entering the market.

Fundamentally, this market turns ISPs from services that connect people to the internet into arbiters of which services succeed and fail online. This kind of “fast lane” (or “uncapped lane”) for some content while everyone else is stuck in the slow (or capped) lane is exactly what net neutrality is designed to prevent.

ISPs will continue trying to damage the open internet for fun and profit for as long as they can. That is why it is time for the FCC to step up and prove that it stands behinds the words in its Open Internet Order.

We're teaming up with up with Eyebeam, an art and technology center in New York, to create an artist residency program. Interested? Apply below.

One of the things we struggle with at Public Knowledge is how to make our issues accessible to people. While we think the intricacies of copyright law and authority statutes are fascinating, not everyone can see how those things affect their lives. Some people don't have a visceral reaction when they hear about net neutrality or the end of the PSTN.

We wanted to change that, so we teamed up with Eyebeam, an art and technology center in New York, to create an artist residency program.

The goal of the artist residency is to make any one of our policy issues more compelling to the public. We are looking for someone (or a group of someones) who can use the technology that we advocate for - think open hardware and 3D printing - to make sense of the issues we work on.

The project is open to the creativity of the artist - anything from a fandango to an installation. The residency itself will run from September through February, with a flexible start date.

So please apply and spread the word!

Image by Flickr user See-ming Lee 李思明 SML.

If networks really were overloaded, would carriers try to cut special deals to bring even more streaming video onto them?

Last week’s announcement that ESPN was in talks with at least one major wireless carrier to exempt its video from data caps raised fundamental net neutrality issues.  But it also raised an important question about the robustness of wireless networks.  If wireless networks were really as congested and starved of spectrum as some carriers like to claim, why would they be negotiating to bring more video onto them?

Wireless carriers have long complained about their network’s inability to meet customer expectations.  It was proposed as a justification to exempt wireless networks from net neutrality rules and destructively consolidate the industry (both failed convince the FCC).  It also shows up as a reason to move away from unlimited data towards more expensive tiered plans, and generally to explain why carriers over-promise and under-deliver on service.

This history of griping makes it all the stranger that carriers would be negotiating to bring more streaming video onto their network.  If the networks really are strained, then bringing more video onto your network would seem like the last thing to do. 

On the other hand, if all of the strained network talk is really an excuse to impose anti-consumer price discrimination policies and consolidate spectrum, then charging a content provider to reach subscribers makes all the sense in the world. Of course if that is the case, any carrier considering those deals has lost any credibility when they complain about their customers clogging up their networks.

Image by Flickr user michaelb1.

Dear USTR, copyright has meaningful non-economic and social value; keep it out of the U.S.-E.U. Free Trade Agreement. If you have to have it, make sure it protects all Americans and not just large content owners. (And make the agreement transparent and inclusive while you’re at it.)

Today we filed comments about the proposed United States-European Union Free Trade Agreement – the Transatlantic Trade and Investment Partnership (TTIP). We told the Office of the United States Trade Representative (USTR) that copyright is an uncomfortable fit for a trade agreement and should be kept out of the TTIP.

If the USTR still wants to include copyright within the TTIP, it should make sure that a copyright chapter in the TTIP will not impede Congress’s ability to change U.S. copyright laws.

We also asked the USTR to break from the past and not negotiate the TTIP in secret.

Copyright is about more than economics and isn’t a good fit for trade

The purpose of trade agreements is to open markets and ensure that American producers have the best opportunity to sell their products in foreign markets. Its primary focus is thus increasing economic benefit. Its primary constituencies are companies that produce goods and services. The public is indirectly benefited when companies can make more domestically and sell more to foreign markets.

Some aspects of copyright fit well within this trade paradigm and others don’t.

The aspects that fit well relate to exclusive rights of U.S. copyright owners. Protecting these rights and improving their ability to penetrate foreign markets increases revenues for U.S. companies and that is good for the U.S. economy.

The aspect that does not fit so well within the trade paradigm, relates to non-economic aspects of copyright. These aspects promote cherished U.S. values such as free-expression and cultural enrichment. They are preserved and promoted through copyright limitations and exceptions, such as fair use. These exceptions allow others to use copyrighted material to comment on and criticize popular cultural products. For instance, fair use allows electoral candidates to use news clips of their opponents in creating their own campaign videos.

Limitations and exceptions, however, also promote economic benefit. For instance, fair use allows search engines, such as Google, to copy entire web pages in order to function. Fair use allows you to copy your song from a CD to an MP3 player and it allows companies to make those MP3 players. The USTR routinely overlooks this aspect of copyright.

So, overall the trade paradigm is an uncomfortable fit for copyright because it is just not suited to consider non-economic, social values. Furthermore, many existing international institutions, such as the World Intellectual Property Organization (WIPO) are better suited to deal with copyright. So, we don’t need trade agreements to deal with international issues raised by copyright.

However, if the USTR decides to have a copyright chapter in the TTIP, that chapter must reflect the purpose of the copyright system. It must provide for limitations and exceptions, just as it provides for protection of exclusive rights. This approach will ensure that countries will confidently introduce new limitations and exceptions within their copyright laws without fear that doing so will put them out of compliance with international treaty obligations.

Try an inclusive approach; secrecy is deeply flawed

Remember ACTA – the Anti-Counterfeiting Trade Agreement? The USTR and the EU authorities negotiated ACTA in secret. They ignored public interest concerns as they negotiated ACTA. Public interest representatives had an impact on ACTA mainly because texts leaked throughout the negotiating process and public interest representatives presented analyses of these texts and raised concerns about various issues. ACTA’s secrecy was a big factor in its downfall in Europe.

In our comments, we urged the USTR not to repeat that mistake with the TTIP. Ignoring public interest concerns will only hurt the legitimacy of the process. It will also prevent public interest representatives from providing their expertise and perspectives to the negotiators. These perspectives are essential for a balanced agreement.

We don’t know what a possible copyright chapter of the TTIP will look like.

The U.S. and E.U. governments have hinted that they might not follow the model of the past for intellectual property issues (copyright is part of these issues). This may be because of the significant differences in U.S. and E.U. copyright policies. While we hope that there will be no copyright chapter at all, if there is one, it should promote the interests of all Americans and not just copyright owners. 

Content providers paying ISPs special fees to access customers is exactly what net neutrality is supposed to prevent.  It is time for the FCC to heed its own warning.

News broke today that ESPN is in negotiations with at least one major wireless carrier to pay to exempt ESPN content from data caps.  This type of structure, where content providers who pay get better access to customers, is exactly what net neutrality is designed to prevent. 

At its core, net neutrality is all about making sure that the company that connects you to the internet does not get to control what you do on the internet (if you ever forget that, just head on over to WhatIsNetNeutrality.org for a reminder).  Imposing data caps on consumers and then allowing wealthy content holders to buy their way around them is a recipe for stagnation online.

What kinds of problems does this create?  Fortunately, in its Open Internet Order, the Federal Communications Commission (FCC) provided us with a taste of what may happen (“edge providers” are anyone who creates content like ESPN, Facebook, local governments, and personal websites):

• “a broadband provider may act to benefit edge providers that have paid it to exclude rivals” (Paragraph 23)

• “broadband providers may have incentives to increase revenues by charging edge providers, who already pay for their own connections to the Internet, for access or prioritized access to end users.” (Paragraph 24)

• “Broadband providers would be expected to set inefficiently high fees to edge providers because they receive the benefits of those fees but are unlikely to fully account of the detrimental impact on edge providers’ ability and incentive to innovate and invest, including the possibility that some edge providers might exit or decline to enter the market.” (Paragraph 25)

• “Fees for access or prioritized access could trigger an ‘arms race’ within a given edge market segment.  If one edge provider pays for access or prioritized access to end users, subscribers may tend to favor that provider’s services, and competing edge providers may feel that they must respond by paying too.” (Paragraph 25)

• “Fees for access or prioritization to end users could reduce the potential profits that an edge provider would expect to earn from developing new offerings, and thereby reducing edge providers’ incentives to invest and innovate.” (Paragraph 26)

• “if broadband providers can profitably charge edge providers for prioritized access to end users, they will have an incentive to degrade or decline to increase the quality of the service they provide to non-prioritized traffic.” (Paragraph 29)

The deal being discussed could cause all of these harms and more.  Now is the time for the FCC to step up and preserve an open internet.

Image by flickr user espensorvik.

New cell phone unlocking bill would not only allow you to unlock your cell phones, it would address a long-standing problem in copyright enforcement.

Today, Rep. Zoe Lofgren, joined by Rep. Thomas Massie, Rep. Anna Eshoo, and Rep. Jared Polis, introduced another cell phone unlocking bill. Unlike those that have come before, though, this one also takes aim squarely at the problems with the 1998 Digital Millennium Copyright Act (DMCA) itself—the law that may make it illegal to break digital locks, even for noninfringing purposes.

The bill, named the "Unlocking Technology Act of 2013," specifies that you're not infringing copyright when you unlock your cell phone—which is when you adapt or alter the phone's firmware so it can be used with a different cell phone company.

This differs from other bills that have been proposed to solve the same problem. Those bills try to make sure that phone unlocking is legal under the DMCA, not the Copyright Act. And the phone unlocking portion of this bill doesn't mention the DMCA at all. So under that section of the bill, someone who unlocked their phone couldn't be sued for copyright infringement, but could still be sued under the DMCA. That's likely only a small improvement over the current situation, since it's already pretty unlikely that someone could win a copyright infringement suit against an unlocker.

But this latest bill is more than just a slight improvement—it's a massive one. That's because of the boldest part of the bill—a section that says that breaking digital locks won't violate the DMCA if what you do with the copyrighted work after you break the lock doesn't infringe copyright.

This solves a problem that has plagued the DMCA since its passage, and one that was warned of even before then.

• It's what keeps people from space-shifting movies from their DVDs onto their tablets, even though that doesn't infringe copyright.
• It's what prevents the development of lots of accessible technologies to help people with visual and hearing disabilities access copyrighted works—again, something totally noninfringing.
• It's what has delayed computer security researchers in disclosing the fact that copy protection mechanisms were putting dangerous back doors in people's computers.

This new bill would also make it clear that providing devices and services to get around digital locks wouldn't be illegal—unless those devices or services were intended for copyright infringement.

The idea is to make sure that tools that can be used for noninfringing purposes aren't outlawed in an overbroad attempt to prevent illegal copying. Just like VCRs, DVD burners, and photocopiers aren't outlawed, even though they can easily be used to infringe copyrights, tools that let users rip their DVDs, or format-shift their ebooks, shouldn't be illegal just because some bad actors might abuse them.

Added bonus: The bill also puts to rest one of the red herrings that people have raised about “international agreements” blocking our ability to amend the DMCA. While a number of trade agreements pushed by the U.S. say that the countries signing the agreement should only have a limited number and type of exemptions to the DMCA, these agreements can’t legally bind Congress’ hands and prevent it from exercising its Constitutional role to make laws.

Nonetheless, if we want to make sure that our trading partners aren’t upset with us for having more freedoms in domestic law than in the agreements, we can resolve that by removing those restrictions from the trade agreements—something that trading partners may well prefer, since these restrictions certainly seem to have been pushed by the U.S. anyway.

The Lofgren bill therefore also directs the administration to ensure that the free trade agreements are consistent with the update to the DMCA, and doesn’t take effect for nine months in order to create time for those discussions to get under way. 

We're extremely glad to see such a comprehensive bill put forward to not only fix the problem of cell phone unlocking, but also that looks forward to a future with copyright laws less susceptible to abuse.

Image by flickr user izqrdo.

Verizon wants to replace copper landlines destroyed by Hurricane Sandy with a new fixed wireless service called Voice Link. But should victims of natural disaster be guinea pigs when fundamental basic services are at stake? Especially when it means losing access to broadband?

Ever since Hurricane Sandy destroyed huge pieces of its landline network last October, Verizon made it clear it did not want to rebuild its traditional copper network. Most folks assumed that meant replacing damaged copper with fiber. While some consumers have grumbled about being upgraded to a more expensive service, no one doubts fiber to the home represents a step up – especially on the broadband side. 

But what about those communities where Verizon does not want to spend the money upgrading to FIOS? Turns out, rather than an upgrade to fiber, these communities will play guinea pig for Verizon’s new, cheaper, more limited wireless alternative called “Voice Link.”

Last Friday, Verizon filed an application with the State of New York to replace traditional copper lines destroyed by Sandy on Fire Island with a brand new fixed wireless product called Voice Link. Whether or not Verizon is right that Voice Link is “just as good or better” than copper lines, that does not justify making a community recovering from a natural disaster into test subjects. If Verizon does not want to replace its copper system, it should offer customers that don’t want a never-before-deployed fixed wireless system an upgrade to FIOS.

Why Not Copper or Fiber?

Verizon’s decision to avoid replacing its traditional copper phone lines is part of the overall transition of the phone system and the shut down of the traditional “Public Switched Telephone Network” (PSTN). For Verizon, eliminating copper wires to the home using traditional phone technology will save it a great deal of money. From Verizon’s perspective, it makes no sense to rebuild an expensive and obsolete traditional copper network. While Verizon could deploy FIOS to replace copper, FIOS is also expensive to deploy. That’s why Verizon stopped deploying FIOS to the 10 million customers outside its existing FIOS footprint.

So if copper is obsolete, but fiber won’t be profitable enough, what can Verizon do (and still make the kind of profit it expects)? Verizon’s answer is a new wireless product called Voice Link. Verizon has started deploying Voice Link on Fire Island and in other small communities hit by Sandy.

This Isn’t Your Cell Phone Kind Of Wireless

Voice Link is a completely new product Verizon has built to provide a cheap alternative to copper phone lines. It is not the same technology used in your Verizon Wireless cell phone. It does not give you mobile service, and you can’t get Internet access with it. As the mayor of one of the towns on Fire Island put it, “Verizon has given us a dial tone, basically.”

But its not just that DSL subscribers have lost access to broadband and won’t get it back. The lucky citizens of Fire Island get to be the first beta testers for Voice Link’s first-ever real world deployment.

While Verizon says they have tested it and it works just as well as a copper line, no one has ever used this product in the real world. Businesses that relied on Verizon’s copper network are experiencing problems processing credit card payments and handling other electronic transactions that relied on the old copper lines. Fax machines may or may not work with the new technology. Services for the hard of hearing, such as Telecommunications Device For the Deaf (TDD) or Video Relay Service (VRS), may require new equipment—or may not work at all.

Storm Victims Should Not Be Guinea Pigs

It’s one thing for Verizon to stop offering copper and offer fiber services instead. While customers may not like losing their old service (including the fact that Verizon copper lines are self-powered and fiber is not), Verizon’s FIOS is a well-established technology. We know how it works and how to troubleshoot it when it doesn’t. 

But Voice Link remains a great unknown.

No one knows what problems might come up, or how to solve them if they do. If deaf subscribers have to buy new equipment to have access to TDD, will Verizon cover the cost? What happens to businesses that can no longer process credit card payments?

Verizon should not use Sandy victims as guinea pigs for its new technology.

I can sympathize with Verizon not wanting to invest money in copper lines it hopes to replace anyway, but Verizon does have an alternative. It can extend its FIOS build out to these communities and offer Voice Link as a cheap alternative on a voluntary basis. This lets customers decide if they want to be Beta testers or pay for an upgrade. There will still be problems for some (fiber is not compatible with every old technology either), but the possible compatibility problems for customers moving from copper to FIOS are well understood and handled on a routine basis by Verizon’s customer service.

We at Public Knowledge have stressed that the conversion of telephone system to new technologies needs to rest on Five Fundamental Principles. If the principle of consumer protection means anything, it surely protects victims of natural disaster from being forced to switch to untested alternatives with no safeguards or protections. Sandy victims deserve the choice of upgrading to fiber rather than being guinea pigs for Verizon’s new Voice Link.

Image by flickr user New York District, U.S. Army Corps of Engineers.

The 10th Annual IP3 Awards are coming up on October 9th, 2013! Who do you think deserves IP3 Awards this year?

This is an exciting time for the public interest community and tech policy! 

Over the last year, we have celebrated winning court decisions such as the Aereo case and Kirtsaeng v. John Wiley & Sons, and we have continued to stand up net neutrality rules when we forced AT&T to step back from its blocking of Facetime.  From bringing about a balanced discussion around copyright reform following the dark days of SOPA/PIPA, to carrying the torch for the social contract of the Communications Act in discussions over the PSTN transition, to introducing DC to innovative new technologies like 3D printing, we are the thought leaders and activists who are leading the way forward. 

Public Knowledge's IP3 awards are a special occasion to honor those who have made significant contributions in the three areas of "IP"—intellectual property, information policy and Internet protocol.   

This year will be the tenth year PK has made the awards, and now it's time for you to submit nominations. They can be for a career's worth of work, or for a more recent accomplishment. It's up to you.

Winners in 2012 were Rep. Darrell Issa, New America Foundation’s Rebecca MacKinnon, Michael Masnick of TechDirt, and longtime public interest leader and attorney Andy Schwartzman.

Recipients from past years include Senator Ron Wyden and Rep. Zoe Lofgren, Ben Scott, then with Free Press, Fred von Lohmann, then with the Electronic Frontier Foundation, members of the band OK Go!; professor Tim Wu; Blake and Jason Krikorian, founders of Sling Media; Gregory Maguire, author of “Wicked: The Life and Times of the Wicked Witch of the West.”

Here’s how it works:

• Send in your nomination to this email address: ip3nominees@publicknowledge.org. 
• Give us the name of your nominee and a short explanation for why you think your nominee should win.
• We’ll pass along that information to a panel of judges who will narrow down the list of nominees to three winners.

This year’s judges will be:

• Leslie Harris, President & CEO, Center for Democracy and Technology
• Sally Shipman Wentworth, Senior Director, Strategic Public Policy, Internet Society
• Andrew McLaughlin, CEO, Digg and Senior VP, Betaworks
• Joe Torres, Senior External Affairs Director, Free Press
• Christopher Lewis, VP for Government Affairs, Public Knowledge

Please make your nominations by June 3. You can see a list of past winners here.  This year’s winners will be recognized at the 10th Annual IP3 Awards on October 9, 2013. 

Friday may well go down as a turning point in the debate around 3D printed guns, and 3D printing policy in general.  Two important sides seemed to step away from confrontation and instead focus on what is important to them.  Defense Distributed included metal parts in their otherwise fully 3D printed handgun.  And Rep. Steve Israel used Defense Distributed’s announcement to raise concerns about undetectable firearms, not 3D printing.  Both should be praised for these decisions.

Bur first, some background

Conversations about firearms have been bubbling around the edges of 3D printing for some time now.  Things really started heating up when an organization called Defense Distributed announced its intention to help design a fully 3D printed firearm.  This raised some policy concerns (some novel, some not) about home manufacture of firearms.

Perhaps the highest profile critic of Defense Distributed was Rep. Steve Israel.  Although his primary concern was with undetectable firearms, much of his framing seemed to single out one way to make undetectable firearms – 3D printing.  This 3D printing focus came to a head when Rep. Israel sent out a “Dear Colleague” letter to other Members of Congress raising fears about 3D printed firearms.

What Defense Distributed did

On Friday, Forbes reported that Defense Distributed released photos of what it claims to be a fully 3D printed handgun.  But the handgun had an important feature – it included six ounces of steel, thus making it a detectable firearm.

This was a savvy decision on Defense Distributed’s part.  The organization has a substantial list of intriguing goals but making a gun that can be smuggled into an airport does not seem to be one of them.  By including metal in the design, Defense Distributed stepped away from what may have been a distracting side conversation. This should allow it to focus on the things it really cares about without unnecessarily reaching into other policy areas.

What Rep. Israel did

We were quite critical of Rep. Israel’s previous Dear Colleague letter.  As we wrote then, the letter seemed to muddle his concerns and be overly-focused on one way to make undetectable firearms, not on undetectable firearms themselves.  Friday’s announcement could have been an opportunity to return to that argument.

But instead, to his credit, Rep. Israel focused on the real concerns that Friday’s announcement raised for him.  In a new Dear Colleague letter, Rep. Israel points to Defense Distributed’s design as a high profile reminder that undetectable firearms are a real possibility.  Rep. Israel’s letter focuses on his real concern – undetectable firearms – without singling out one way to manufacture them.

None of this will be the last word

While these are both encouraging steps, they certainly do not represent the end of the line.  Including metal in a gun design does not mean that it cannot be modified to be undetectable.  And removing 3D printing references from a Dear Colleague letter does not mean that no Member of Congress will ever unnecessarily vilify 3D printing. 

But both sides appear to have shifted their focus back to what they really care about.  This type of evolution is positive for policy conversations surrounding 3D printing.  Hopefully they are signs of positive things to come.  And you can rest assured that we here at Public Knowledge are working to make sure that this momentum keeps moving in the right direction.

 

Co-Sponsor Legislation to Continue the Ban on Plastic Guns From: The Honorable Steve Israel
Bill: H.R. 1474
Date: 5/3/2013

 

Dear Colleague:

As you might have seen today, Defense Distributed unveiled a technologic feat that many said was years from development: a gun made almost completely of plastic. Just as the true threat of plastic guns is becoming more and more apparent, the law that keeps these firearms off of our streets is set to lapse. Now that the technology has advanced to a point where these guns are real and will soon be able to reliably fire bullets, Congress must act. Below please find an article from Forbes outlining today’s news.

I urge you to co-sponsor legislation I introduced to give law enforcement the tools they need to protect American families from plastic firearms and gun components that can slip past security checkpoints. My legislation would extend and update the ban on guns and gun parts that cannot be detected by metal detectors or x-ray machines, entitled the Undetectable Firearms Modernization Act.

The Undetectable Firearms Modernization Act would update current law and extend key provisions to include both lower receivers and magazines printed in plastic by individuals. The legislation specifically targets individuals who produce plastic gun components and magazines, while exempting legitimate manufacturers. Extending this ban is necessary to give law enforcement the tools they need to keep plastic guns that can slip through security lines off of our streets.

To sign on as a cosponsor, please contact ******* in my office at *-**** / *********.

Sincerely,

/s

STEVE ISRAEL
Member of Congress

Last week Public Knowledge hosted the second 3D/DC event on Capitol Hill. More than 20 representatives from the 3D printing community came to Capitol Hill to showcase the innovation taking place in their field. 

Members of Congress, staffers, enthusiasts and people walking by the Rayburn House Office Building came in to see 3D printing in action. Some of them for the first time. There were so many printers and exhibitors there that it was easy for every participant to find something they were intersted in. This event showed that 3D printing wasn't just about making toys out of Lego plastic. This event showed people how bright the future of printing could be. Printing is becomming an educational tool and soemthing that other fields are starting to take advantage of. Allowing the participants to see the scale and scope of 3D printing. 

3D/DC showed that the future of 3D printing is now. More importantly, in the midst of 3D printing patent drama and the conversation of undetectable 3D printed guns, it was refreshing to see all of the good things people are doing with this revolutionary technology. 

Below is our video and be sure to look at our photos from the event on our Facebook page. 

 

This week, a federal district court in California refused to toss craigslist's claims that it owns its users' postings. More and more, we're seeing fine print in terms of use ("TOU") agreements and end user license agreements ("EULAs") that try to make copyright claims. Why? Because copyright law is so overpowered that sneaking a smidge of copyright into what should be an ordinary affair can give a business a huge amount of leverage to bully others into doing what it wants.

Craigslist: We Own Your Writing

We've covered this case (and some of its other implications) before, and Kurt Opsahl at EFF has a good rundown of the various issues in the case, including both copyright and "computer intrusion" charges. But I want to discuss how this case fits into a larger pattern of using the combined power of fine print and copyright law to kick consumers and competitors around.

In this case, craigslist wanted to keep other companies from scraping craigslist listings and repackaging them. Since craigslist has a famously minimalist site without a lot of advanced searching tools, there was a serious demand for someone to add more information on top of the base listings. For instance, a site called Padmapper would scrape craigslist, figure out the locations of apartment listings and show users where the listings were on an online map. Craigslist, of course, didn't like the idea that others were reposting listings from its site. So, as part of its terms of use, craigslist claimed that users had to give it the right to sue others who reposted the users' writings. And, for a few weeks last summer, it also included a clickthrough where users had to agree that they were giving craigslist the exclusive right to host the users' postings.

The court concluded that the combination of these two factors meant that craigslist actually owns rights to the listings written by their users. And there's not much that would have prevented craigslist from claiming not just an exclusive right, but near-full ownership of the copyrights, if the court's reasoning is to be believed. In other words, craigslist was saying it had the sole right to post those listings—it could even, theoretically, sue the listings' authors for posting them elsewhere.

Practically speaking, this means that craigslist can sue anyone who reposts its users' listings—even if the users themselves want them reposted. If I'm trying to sell (or give away) an ancient laserjet printer (it can connect with either serial or parallel cables), I'd want it posted on as many different sites as possible. To the extent that there's anything creative in what I'm writing, I should decide what happens to my post, right?

But no. craigslist isn't so much concerned with the value of the creativity in the post itself; it's interested in maintaining its position as the biggest online hub for classified ads. Building copyright restrictions into its fine print, in this case, is just the easiest way to bring some legal guns to bear on restrictions of what other people have written.

Medical Justice: We Own What You Might Say About Us

There are instructive parallels between the craigslist case and a company that called itself Medical Justice. A couple of years ago, Medical Justice was offering a service to doctors that it said would protect them against bad reviews on sites like Yelp. They provided doctors with a form for patients to fill out upon arriving at the office. The form required the patient to sign over all copyrights in any review they might write about the doctor. That way, if the patient wrote a negative review, the doctor could claim copyright infringement and issue a takedown notice to the review site. Why copyright? Because, under a part of communications law, online service providers like review sites aren't liable for the statements of their users. But that law has an exception for copyright and other intellectual property claims. That means that someone who wanted to suppress a critical review on Yelp might not be able to sue Yelp for libel, but they could issue a takedown notice under copyright law if they could claim that the review infringed their copyrights.

So, according to Medical Justice's plan, if a patient has a bad experience with a clinic and vents that frustration online, they're suddenly violating copyright in something they themselves wrote. Needless to say, this is far from what copyright law was meant to do. And again, we see the way in which the big guns of copyright law (in this case, the power of the notice-and-takedown) are smuggled into the situation through the use of fine print that people are highly unlikely to read.

It takes a special kind of company to simultaneously inflate and prey upon doctors' fears of libel and also take advantage of patients' confusion as they navigate both disease and paperwork. Fortunately, complaints in court (by Public Citizen) and before the FTC (by CDT) apparently generated enough pressure for Medical Justice to stop offering those particular contracts.

Abusing Copyright

In both of these cases, we have two separate problems being exploited—flaws in how we handle written agreements and fine print; and the ease with which copyright law can be abused. Together, they can form a potent combination. Copyright lends itself to this sort of abuse for at least three reasons.

First, copyright law bears stronger penalties than lots of other areas of law. Break a contract with someone, and a court will likely only make you pay what you'd have owed them if you hadn't reneged. But infringe someone's copyrights, and you can be dinged for anywhere between $750 and $150,000 per work infringed, regardless of how small the offense. And, as we can see in the Medical Justice case, copyright law also gives copyright holders special abilities not available to other potential plaintiffs, like the ability to send takedown notices to online hosts that the hosts have to honor at the risk of getting sued themselves.

Second, it's easy for copyright to be inserted into almost any given situation where speech or writing is involved. Since anything with a modicum of creativity can be copyrighted, and is considered copyrighted as soon as it's "fixed in a tangible medium," those powerful penalties listed above can be shoehorned into disputes that are often really about something else, like libel, or trademarks, or rights of publicity. Just look at the Supreme Court case of Costco v. Omega.

Fancy watchmaker Omega didn't like the fact that discount retailer Costco was selling its watches cheaper than their dealers, so it copyrighted a little globe logo and started stamping the backs of its watches with it. When Costco continued to sell those watches, they got sued for copyright infringement. Clearly, no one in the entire dispute cared one bit about the artistic worth of the copyrighted design—they were concerned about things like the value of the watches, the reputation of the watchmaker, and so on—all things that are irrelevant to copyright law. But copyright law was an easy lever, so in it went.

Third, the law tends to go a little nuts around copyright. While we normally have strong safeguards for freedom of speech that stand on their own, a lot of people will argue that those protections for free speech don't override copyright considerations; they're just sort of built in to the existing copyright law we have (through things like fair use). Similarly, while the law will recognize that there are certain kinds of contracts that just shouldn't be honored—sometimes because the terms of the contract are bad enough on their own, sometimes because it's clear that the contract was signed through some sort of deception or trickery—courts have been pretty generous in taking contracts and license agreements at their word in the copyright context—even though it's clear that no one reads the fine print—it'd take years just to do that, much less understand it. There seems to be a sort of tendency among lawyers to assume that if copyright's involved, it gets to control the entire situation—even when the situation isn't fundamentally a copyright one.

These factors all add up to a situation where copyright is ripe to be abused. Those terms of use on the websites you use are all "subject to change without notice." There's not a lot keeping them from trying to pull a craigslist on you and then assert copyright if they don't like what you're doing. The software you're using, too, had a nice long EULA you clicked through when you installed it. Are you violating any of its terms? Maybe the company will try to sue you for copyright infringement—never mind that the program cost you a good deal less than $750, and nowhere near $150,000.

Copyright abuse thus has the potential to touch just about anyone. And as long as the law keeps copyright penalties high and makes copyrights trivially easy to get, it's not going to go anywhere anytime soon.

Of the many problems with data caps, one of the most pernicious is the way they freeze innovation and the evolution of online services. Today’s announcement from Kaleidescape that they will begin offering “Blu-ray quality” video downloads illustrates that beautifully. That means that one video weighs in at over 50 GB of data.
Remember, there was a time when this video was "good enough" for most people. | image by flickr user Louis Abate
Usually we embrace services that offer higher quality than their competitors as an important evolution. If the improvement proves popular the market will reward the innovator, all of the competitors will have to adopt the new standard, and consumers’ experiences will improve. 

But data caps can stop that from happening. If a consumer has a low data cap, instead of thinking “maybe I’ll try out this new service because it sounds better,” she may think “this new service sounds like it will cost me a lot of money in overage fees.” Worried about paying overage fees, she sticks with what she knows. Since she does not try the ne service, Kaleidescape does not get any new customers and Kaleidescape’s competitors are not forced to improve to keep up. Instead of an internet constantly striving to improve itself, we get one that is satisfied with a “good enough” world. 

Copyright law doesn't give rightsholders control of the "use" of their works. If it did, trying to use a copyrighted work would be like being trapped in the world of Philip K. Dick's Ubik, where everything, including the door to your apartment, is coin operated. You'd need a license to read a book, a license to listen to music in your car, a license to watch a movie, or a license to receive broadcast signals. We don't live in that phildickian world and you don't need licenses for any of those things because copyright law doesn't confer such broad rights. It allows copyright holders to control just certain uses of their works, as spelled out in 17 U.S.C. § 106:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The question in the Aereo case is whether Aereo is "publicly performing" copyrighted works when it rents individual antennas to customers to allow them to view over-the-air programming over the Internet. I say it isn't, and so far the courts agree with me, but many people don't, and it might be helpful to dig down on this controversy. This requires a closer look at the statute, which provides some definitions that spell out what the various exclusive rights granted by Section 106 actually mean.

Of course, there are many interesting questions about the role of broadcasting and whether Aereo is consistent with the public policy that requires cable and satellite systems to pay to retransmit programming (it is), but the basic copyright question that the courts have been grappling with is distinct from those concerns. In this post all I'm addressing is whether an antenna rental service constitutes a public performance, not the broader policy questions that Aereo might raise.

To help answer these sorts of technical copyright questions, in 17 U.S.C. § 101, the statute provides a definition of what it means to perform a work:

To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

This seems pretty straightforward. But remember, copyright holders don't have the right to control "performances"--just "public" ones. This is the point of controversy in Aereo. Helpfully, statute also sets out what that means:

To perform or display a work "publicly" means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Finally, the statute also specifies what a "transmission" is for copyright purposes:

To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

Thus, the statute has laid out a number of activities that constitute a public performance:

• To perform it in a public place
• To transmit it to a public place
• To transmit it to the public

Many lawyers have stumbled on this last part of the of the definition of "publicly," positing that a something like Aereo is "public" because various people use it (even though they are in "separate places" and might be use it at "different times"). And under the definition of "transmission," they see "any device or process" and imagine this must include Aereo.

But while some of the controlling definitions are broad, they are not broad enough to make the word "public" meaningless. Aereo does not publicly perform any copyrighted works because each of its transmissions has an audience of one--the individual subscriber. That is, there is only one person per transmission that is "capable of receiving the performance." You can't jump past that crucial language to the separate places/different times part, because doing so effectively deletes the "public" part of "public performance" out of the law. Similarly, you can't "aggregate" various private perfomances together to creata a "public" performace, because again, this would change the meaning of the right granted by 17 U.S.C. § 106 from "public performance" to "performance." If it was permissible to "aggregate" performances to make them public, cloud services like Dropbox might have to get "performance" licenses for enabling people to access their own private files, and even television or smartphone manufacturors might liable for infringment since users use their devices to privately perform copyrighted works. (This would depend further on how an analysis of "volition" plays out--even in the worst-case scenario you can't aggregate together different performances that are by different performers. For that matter, it is likely that Aereo is not even making multiple private performaces--it is simply providing equipment its customers can use to create private performances. But this is a complex side issue that is not relevant to the main discussion of this post.)

The kinds of uses of copyrighted works the broad language in the statute intends to cover are well-known. Broadcasters publicly perform because they create single transmissions that various members of the public can tune in to. (This is why the "separate places" language is in the statute.) Movie theaters publicly perform movies--and they would even if only one person at a time was actually in the theater. ("Open to the public" does not mean "open to crowds of people," and if you were transmitting the movie to the one-person theater, you would still be covered by "same place...different times.") Finally, a few courts have said that if you repeatedly, at different times, show the same copy of a work to individual members of the public, this is a "public performance." (Aereo recites this rule, but it doesn't apply in this case, since there is no "master copy" at issue. Frankly, this analysis is a bit of a stretch--it's intended to make sure that various video-on-demand services have to obtain licenses. But while there are probably better ways to get to that result than via "aggregation"-type arguments, such as through a deeper analysis of what it means to be "open to the public" or simply noting that many such services already make reproductions of works, at least the "master copy" scenarios require there be some element of physical commonality between various private transmissions before they are grouped together and considered "public." It's not enough, in other words, for the various transmissions to merely be of the same "work.")

Some readings of the statute, such as the article I linked to earlier by Professor Jane C. Ginsburg or this one by Terry Hart, adopt a reading of the statute that in one way or the other eliminate the requirement of "public" from the public performance right. The way they do this is sometimes very subtle. For instance, Professor Ginsburg believes that the Second Circuit is wrong to see a "transmission" as a kind of "performance." But the statute plainly sets out certain kinds of transmissions as public performances--that is, a "transmission to the public" is a kind of "public performance." "Public performance" is the set, and "transmission to the public" is the subset. If Congress intended to grant copyright holders some new, standalone right to control "transmissions," it would have done so in Section 106 alongside all of the other exclusive rights. And if copyright holders do have the right to control all transmissions, even private ones (even if they are only "retransmissions" of ongoing public performances), then all manner of uses of copyrighted works that today simply don't even touch on copyright may require a license. In addition to the implications for Internet services and electronics manufacturers I mentioned earlier, the transmission of copyrighted works around your house for private use (using technologies like Apple's AirPlay, or Sonos's home music system) might now infringe copyright.

I agree with the critics of the Aereo decision that it's important to read the entire statute and give effect to all of its language. But the word "public" must be given real meaning as well. If transmissions are private then they are private. This is not evading the public performance right any more than not making reproductions evades the reproduction right. Even if you don't like the result in Aereo, the consequences of reading the law to rule out private antenna rental services could be very wide-ranging, because it is difficult to see a way to do this that does not also grant copyright holders a new exclusive right to control all "transmissions" of their works, something they have never enjoyed.

After weeks of speculation, it now appears certain that President Obama will nominate Thomas Wheeler to replace Julius Genachowski as Chair of the Federal Communications Commission (FCC), with Commissioner Mignon Clyburn to serve as acting until Wheeler’s nomination gets confirmed by the Senate. In recent weeks, Wheeler’s background as a lobbyist many years ago for first the cable industry and then the wireless industry have raised concerns that Wheeler remains more sympathetic to business interests than the public interest. As anyone who has read Public Knowledge’s official statement in response to the nomination can see, while we understand those concerns, we agree with many other public interest colleagues who think that Wheeler has an independent perspective and an open mind. Certainly we will have disagreements with the new Chairman (assuming Wheeler is confirmed), but we expect that Wheeler will actively work to promote competition and protect consumers.

 

Yeah, I know, that sounds like either wishful thinking or Washington insider talk. So allow me to explain my line of reasoning (since, unlike a number of other Wheeler supporters, I actually don’t know Wheeler at all). In particular, I want to tackle the current “Tom Wheeler would have approved the AT&T/T-Mo merger in 2011.” It’s easy to say “oh, all that lobbying for the cable and wireless industry was long ago when they were scrappy upstarts. Why, that was so long ago that the cable industry were battling the broadcasters and the wireless industry were battling the telcos (as opposed to these days when the cable industry battles the telcos and the wireless industry battles the broadcasters)!” But if Wheeler was actually a supporter of AT&T/T-Mo, then it would seem to prove he still has sympathies to his old industry incumbent comrades.

 

I confess I don’t see the same enthusiasm for a combined AT&T/T-Mo that some have seen. Mind you, perhaps I am unduly charmed by Wheeler’s embrace of unlicensed spectrum, WiFi and federal spectrum sharing back in October 2011 – well before his supposed cable masters embraced it  and while his supposed wireless masters at AT&T and Verizon still rejected this as a “distraction” from clearing and auctioning. Or perhaps as a fellow who writes long winded blogs on complex telecom policy I’m unduly sympathetic to complaints that one’s blog posts get misinterpreted. But in any event, it’s worth looking at what Wheeler actually said.

 

The first blog post comes from April 1, 2011. For those too lazy to click through and judge for themselves, Wheeler argues that rather than block the merger, the FCC should view this as the opportunity to reregulate the (wireless) broadband industry after the fashion that the “Kingsbury Commitment” of 100 years ago – when AT&T and federal trustbusters agreed to allow AT&T to become a monopoly in exchange for universal service and – ultimately years later – public utility regulation. Wheeler argued that the inability of the FCC to muster the political will to deal effectively with net neutrality and other broadband regulation made a consent decree around AT&T/T-Mobile the best way to update consumer protection rather than leave these services essentially unregulated.

As Wheeler wrote:

 

“Given the statutory paralysis preventing the Communications Act from keeping pace with new technology and market structures, a mutually-agreed-to set of merger terms could become the de facto regulatory template for the wireless industry. While most merger terms last for a limited period, a Kingsbury Commitment-like agreement can have a longer shelf life. The FCC has the opportunity to follow the new template in reviewing all future mergers, as well as in establishing the rules for future spectrum auctions. Finally, future policy debates would be shaped by an attitude of “we’re already having to do it,” which could dull opposing arguments.“

 

Hardly the ringing endorsement of AT&T-TMO one would expect from someone still basically in synch with the largest wireless incumbents – especially when compared to what actual AT&T/T-Mo cheerleaders were saying. Further, in reading this blog post, it’s rather important to keep in mind that only a handful of us genuinely believed when we started opposition to the proposed transaction that the Department of Justice and the FCC would find their spines and block AT&T/T-Mo. After totally caving on network neutrality and permitting Comcast to acquire NBC-Universal, conventional wisdom (that those of us opposing the merger kept swimming against even after the DOJ filed its lawsuit against the merger) was that AT&T would get approval subject to far more modest and temporary conditions than the sort of comprehensive reregulation of the industry proposed by Wheeler.

 

The second blog post in The People v. Wheeler likewise, in my opinion, falls short of the ringing endorsement of consolidation and deregulation some would make it. Written after the DoJ filed their action to stop the merger, Wheeler recalls his previous suggestion that a consent decree could form the basis for reregulating the wireless industry. Lamenting this, he reflects on “the perverse situation where a government win means less regulation while a victory for the corporate interest opens the door to more. Absent a court ruling reversing the Justice Department the regulatory oversight of wireless carriers will continue to atrophy as the digital nature of the wireless business separates it from the legal nexus with traditional analog telecom regulation.”

 

Depending on one’s predispositions about Wheeler’s likely sympathies, one could as easily read these blog posts as expressing a desire to vigorously regulate the industry with a preference for reclassifying broadband as a Title II telecommunications service rather than support for AT&T/T-Mobile. Indeed, my friends most critical of Wheeler who regard these blog posts as proof of his pro-incumbent convictions point to Wheeler’s praise of AT&T’s chief lobbyist Jim Cicconi, and argue that the industry reregulation Wheeler proposed was a mere sham because “such preconditions are often mild, quickly expire, and are predictable for the companies involved.”

 

It’s certainly true that behavioral conditions often fall short, are short lived, and that companies generally find ways to work around them (and the FCC’s track record for enforcement is pathetic). Indeed, we at PK made these arguments in the context of the AT&T/T-Mo merger for why no set of merger remedies could adequately address the harms such a merger would cause. But there is a huge difference between my belief that Wheeler was wrong about the best strategy to advance the public interest and accepting that he was motivated by a covert desire to support consolidation and deregulation.

 

Finally, and again my own experience and sympathies betray themselves, it’s important to keep in mind that what someone writes in a couple of blog posts is not terribly indicative of what he or she would do as an actual policy maker. Absolutely a person’s writing is fair game. But in the ten years I’ve been blogging, I know that I’ve said many things that do not necessary reflect what I would have done if I had been the ultimate decisionmaker -- as I have said on more than one occasion (noting that actual decisionmakers are not advocates). Certainly anyone who reads ten years worth of Tales of the Sausage Factory (has it really been ten years?)  will have an excellent sense of my overall priorities and approach. But I can’t swear that all approximately 500 or so blog posts could hold up today as being either accurate predictions (like Wheeler, I too was a big believer in WiMax) or final expressions of what I would have done as Chair of the FCC.

 

 

Conclusion

 

I understand where my friends are coming from when they look at Wheeler’s resume and think “oh God, another Washington insider, why can’t we ever get a real progressive!” But I cannot agree with Senator Rockefeller’s statement that “a lobbyist, is a lobbyist,” or the view of some that the taint of industry clings insidiously forever and corrodes the soul. It’s been ten years since Wheeler left CTIA, longer than that since he left NTCA. Had he really been interested in advancing the agendas of these industries, he was in an excellent position to do so when he headed up the Obama transition team. He did not. Indeed, Susan Crawford and Kevin Werbach,, long-time stalwarts of the public interest who worked for Wheeler on the transition team, have joined other public interest luminaries as Wheelers strongest public supporters. Had Wheeler been working behind the scenes in the transition to promote the incumbents, I expect Susan and Kevin would have known. 

I also recognize that support from public interest friends is also not conclusive. But it should surely weighin the evaluation of Wheeler as much as any blog post. And I recognize I’m also a “Washington insider” and as likely to be led astray by my personal friendships and the whole “Washington Bubble” culture as any other human being. That’s why I’m glad people in the community are asking the right questions and putting Wheeler on notice that, like any Chairman, he needs toprove himself as a champion of the public interest. We at PK have also made it clear we expect Wheeler to not just talk a good game, but to get his hands dirtyand make tough decisions that will piss off incumbents. And when we disagree, as we expect we will, have no doubt we will make our displeasure known.

 

 

But while it is important to ask the right questions and give no one a free pass, it is equally important to evaluate the answers and the evidence fairly and accept their logical conclusions. The evidence that Wheeler would have approved the AT&T/T-Mo merger had he actually been Chairman (rather than playing pundit) is pretty weak. To take that a step further and say that Wheeler’s justification for approving the merger as a means of reregulating the wireless industry was mere sham to hide his true sympathies seems to me exceedingly unjustified.