FCC Authority In VZ/SpectrumCo, or “Real Lawyers Read The Footnotes.”

Many years ago, I taught a semester of law school as an adjunct. I assigned the students to read the FCC’s 2005 Internet Policy Statement. I was dismayed to discover that, after doing the reading, none of them had even heard of the concept of “reasonable network management.” How was that possible? Reasonable network management is not mentioned in the main text, but in footnote 15 which says that the principles are “subject to reasonable network management.” Given the centrality of the “reasonable network management” concept to the net neutrality debate, I was rather irritated. “Understand this before you graduate,” I warned them. “Real lawyers read the footnotes!”

I thought of that after reading Geoffery Manne’s and Berin Szoka’s piece about VZ/SpectrumCo over on CNET.

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Could Verizon/SpectrumCo Create Gaping New Loophole In Media Ownership Rules?

Few people would imagine that the Verizon/SpectrumCo deal, now heading rapidly for conclusion, could potentially have huge impact on traditional broadcast ownership rules. Unfortunately, unless the FCC takes action, the deal is likely to create a new and powerful loophole in traditional media ownership rules involving something called the “attribution rules.”  While I do not think the participants themselves are aware of this problem, or intend this outcome, allowing the major cable companies and Verizon to participate in a Joint Operating Entity (JOE) without certain precautions creates a means by which these parties, if they wished, could coordinate their video offerings in a way that Congress and the FCC have traditionally found antithetical to our media policy of viewpoint diversity.


As the attribution rules apply to broadcast media, the mechanism for circumventing the attribution rules set in this case would extend to radio and television broadcast ownership as well. In other words, it’s not just about Comcast and VZ, or even Comcast and TWC, sharing programming info such as what they are paying for ESPN or what tier they plan to place Tennis Channel or EPIX. Approval of the deal in its current form also creates a mechanism whereby broadcasters such as News Corp and CBS could get together to coordinate news coverage on things of mutual interest, such as whether Congress should adopt SOPA.


Fortunately, the DOJ proposed final judgment lays the groundwork for addressing these concerns. But the FCC has to actually focus on this and act. It doesn’t make a difference for the current deal, but it makes a huge difference for the future of media ownership.


I explain below . . .

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Laying Claim to Sundman’s Law

It was a longstanding premise, or assumption, or rule of thumb that I had carried around with me for a decade or two before I formulated it concisely while employed at the late, great, Laszlo Systems, progenitor of the ahead-of-its-time-and-now-sadly-forgotten OpenLaszlo platform.

If I’m not mistaken, my friend Benji Shine was with me when I boiled it down to its essence, viz:

Never upgrade any tool in the build chain, ever.

This rule can be extended to email clients.

You can put this on my tombstone if you like, if I have one, and if Dear Wife says it’s OK to do so. But in any event I want credit for it. Whenever you’re in a situation when some wet-behind-the-ears kid is insisting that you upgrade to Python or PHP 212.3.2 or COBOL 23004040.293949.22, just say “no” and cite Sundman’s Law. Somewhere, Sundman will be smiling.

USTR “Limitations and Exceptions” Proposal Laughably Weak; Time To Get Biblical (Prov 22:15) On Their Ass.

Back in the beginning of July, the USTR made a major policy and rhetorical shift by actually acknowledging the importance of “limitations and exceptions” in copyright. As I noted at the time, this represented a major victory for opponents of copyright maximalism given the USTR’s previous refusal to even acknowledge the validity of limitations and exceptions. While applauding USTR’s positive change in direction (always make it easy for people to agree with you!), I also noted that this change was the direct result of ACTA crashing and burning and the recognition by USTR that any trade agreement must “at least pay lip service to the vital role of limitations and exceptions in the copyright ecosystem” if it expects ratification. So while this concession created opportunity to start turning back the endless erosion of personal rights by the incoming tide of copyright maximalism, I warned that “the actual language of the treaty might still undermine limitations and exceptions in practice while pretending to acknowledge their importance on the surface.” Accordingly, it would still fall to civil society to “help USTR move down the path of wisdom by refining the text” and prevent it from backsliding into its previous position that “limitations and exceptions” is just a fancy way to say piracy.

Last week, the USTR proposal got leaked. Unsurprisingly, it turns out USTR still needs some hand-holding and education on what it genuinely means to embrace the value of limitations and exceptions. Rather than get angry, however, we must approach USTR with the kind of “tough love” advised by Proverbs 22:15. Or, in other words, we just need to get Biblical on their ass — again.

I explain below . . . .

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If I were the MPAA . . . How I Would Deal With My Car Break-In.

My family and I got back from our annual vacation in the Current Middle Ages last Friday morning around 2 a.m.  Exhausted from the trip, I forgot to take in my iPod and left it visibly displayed on the front seat. When I went out to the car the next morning, I found the passenger-side window broken and the iPod (along with some other items in the front seat) stolen. I called the police, and an officer came out to take my report. He was properly professional and sympathetic. He informed me that the chief tool available was a database that pawnshops must maintain of any electronic devices that are pawned. If the serial number on my iPod came up in the database, they would nab the felon. Otherwise, though, there wasn’t much hope. The officer also advised me that there had been some similar incidents in the general neighborhood and that the best way to avoid having my car broken into in the future was to make sure that no electronics or charging cords were visible. I thanked him for his professionalism and advice and that was that.


Then I got to thinking, what if I were the Motion Picture Association of America (MPAA) or the Recording Industry Association of America (RIAA)? How would I handle the theft of my iPod and the advice from the police on how to avoid future break ins? Rather differently, as I explain below . . . .

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Pussy Riot nails their theses to the doors of the Cathedral of Christ the Saviour

You may have heard of the recently concluded trial in Moscow of three members of the feminist-politico punk rock collective known as Pussy Riot. (I first heard of Pussy Riot through Amnesty International, whose mailing list I’m on.) The trial has concluded, and now Maria Alyokhina, Nadezhda Tolokonnikova and Ekaterina Samoutsevitch await the verdict, and presumably, sentencing, on August 17. They face up to three years in prison for the crime of “hooliganism”. They’ve already spent six months behind bars, some of which time they were on hunger strike. From Wikipedia, here is an account of their action which brought them to their current incarcerated state:

On February 21, 2012, as a part of a protest movement against re-election of Vladimir Putin, three women from the group came to the Cathedral of Christ the Saviour of the Russian Orthodox Church in Moscow, crossed themselves, bowed to the altar, and began to perform a song. After less than one minute, they were escorted outside the building by guards. The film of the performance was later used to create a video clip for the song.

In the song, the group asked the “Theotokos” (Mother of God, i.e. the Virgin Mary) (rus. Богородица Bogoroditsa) to “drive Putin away”. The song also describes the Russian Patriarch Kirill I of Moscow as someone who believes in Putin rather than in God. Kirill showed open support for Putin as a candidate before the presidential election.

I urge you to read the closing statement from Ms. Samoutsevitch. It is a document of great subtlety and insight, and read by a woman of obviously great courage. Below the fold, a few observations on this closing statement.

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