Tales of the Sausage Factory

An insider’s view of the media hegemony

If Even Viacom Can Accidentally Infringe, Does Strict Liability For Infringement Make Sense?

Video bloggers VLOG Brothers posted this entry about SpikeTV, a subsidiary of Viacom, violating musician Jonathan Coulton‘s Creative Commons License for one of his songs (I’ve included the video blog below). Briefly, Coulton has released a video of his song Flickr under a Creative Commons license allowing noncommercial use and requiring attribution. SpikeTV grabbed the video and played commercials before it and associated with while playing. Since this is exactly the sort of behavior SpikeTV’s owner Viacom has sued Youtube about, many have delighted at this apparent expression of Viacom hypocrisy and demanded that Viacom pay Coulton damages (either $37 based on commercial value of online advertising, or much higher based on how Viacom has argued the courts should assess damages against Youtube).

In the parlance of today, I’d rather focus on this as a “teachable moment” than as an opportunity to shame Viacom (who, given the choice, would prefer to simply pay $37 and forget the whole thing). Here are a few key takeaways I would hope policy makers (and maybe even Viacom) would learn from this.

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Reminder: Wireless Microphones Must Cease Operation on Former Channels 52-69 by June 12, 2010.

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The FCC has issued a reminder to all users of wireless microphones that they must cease operation on former Channels 52-69 (also called the 700 MHz Band) by June 12, 2010. As part of the transition to digital television, these channels have been repurposed for public safety uses and commercial uses incompatible with operation of wireless microphones.

You can see the FCC’s Public Notice reminder here.

See Greg Rose and I Utterly Revolutionize Federal Spectrum Management Through The Power of Our MINDS!!!!

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Ummmm……OK, maybe that overstates things a tad. Still, fellow Wetmachiner Greg Rose and yr hmbl obdn’t blogger will be unveiling two new White Papers on how we can break past the stale debates on federal spectrum and figure out how to make some wireless magic happen.

The event happens Thursday, June 3, from 8 a.m. to 12:30 p.m. at the Washington Court Hotel, 525 New Jersey Ave, NW, Washington DC 20001. NTIA Administrator Asst Secretary of Commerce Larry Strickling will give the Keynote Address, “Averting the Spectrum Crisis.”

Here’s the event web page, which will also allow you to RSVP. Now go below the fold to see an amusing event description and hilarious video advertisement for the conference.
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Rep. Mike Doyle Calls Out Americans For Prosperity And Tells Genachowski To Follow Third Way. Other Dems Need To Learn To Stand Up And Take Heart.

The faux populist group Americans For Prosperity has been running ads against network neutrality in Mike Doyle‘s (D-PA) district in Pittsburgh. Doyle’s response? A letter to FCC Chairman Genachowski telling him to ignore faux populist FUD from AFP, hold firm, and move full speed ahead to protect consumers while Congress takes up the work of updating the Communications Act for a more comprehensive approach.

Rep. Doyle’s Democratic colleagues should learn from Doyle’s example — on this issue and other issues such as Wall St. reform — where a corporations seek to dress up their agendas in populist clothing combined with some decorative cover from Tea Party protesters.

Some more, and my latest sermon (or, as we say among my people musar schmooze, a speech of moral exhortation) to Democrats below . . .

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I Will Be On Broadband US TV This Tursday, May 27.

Jim Baller and Marty Stern will put on a fantastic show for all you folks with broadband (and who doesn’t have broadband these days? Oh yeah . . .  ) on Thursday May 27 on BroadbandUS.TV. After Austin Schlick, FCC General Counsel, lays out his arguments for the FCC’s “Third Way“, a panel consisting of myself, Barbara Esbin, C. Lincoln (Link) Hoewing and Joanne Hovis will debate “Can The FCC Get This Over The Goal Line and Keep It There.”  This will be followed by Julie Knapp, Chief of the Office of Engineering Technology, will cover technical issues, followed by a discussion by Mark Cooper, Rebecca Arbogast, and Jeffery Eisenbach will discuss the economic and technical issues around an open internet.

If you are the sort of person who reads this blog, you will find this fun, interesting and informative. If you are not the sort of person who reads this blog, you’re not reading this — so who cares?

Stay tuned . . . .

Want to Play FCC Fantasy Baseball? Follow The Title II Debate.

Ever since FCC Chair Genachowski announced his plans to hit the legal reset button and classify some aspect of broadband access service as Title II “telecom” rather than as a Title I “information service,” the little hard core world of policy has been all abuzz about what the FCC might do and how that might work or not work or would have this or that unintended consequence. AT&T’s Bob Quin provides a good example of this sort of analysis here, wherein he concludes that the Genachowski proposal can’t achieve the desired net neutrality rules and therefore analogizes this effort to Pickett’s Charge.  [Additional props to Quin for comparing the effort to something that turned out to be a huge tactical mistake and that the folks executing Pickett’s Charge were fighting for a cause most of us in the progressive side oppose (the Confederacy).]

For me, this sort of speculation has much more in common with Fantasy Baseball than with an actual historic event — or what is likely to happen. What we’ve got right now is Genachowski outlining his approach in as close to layman’s terms as possible, and FCC General Counsel Austin Schlick providing an only slightly more detailed legal over view. No one can reasonably expect this to contain the level of detail and nuance of the FCC’s upcoming Notice of Inquiry on Title II and whatever forbearance proposal the FCC actually publishes.  So all us policy wonks digging into the minutia of what we think the FCC might say and how that would or wouldn’t accomplish is a lot of fun. It’s also potentially educational in allowing us to explore  possible issues and develop and hone arguments. But using this collective internet chatter to judge the effective of what the real FCC will actually do in reality, and therefore whether the FCC should take action at all, is as foolish as trying to predict the 2010 World Series from how well my fantasy baseball team performs.

Still, being a hardcore policy wonk, I can’t resist the urge to put my Fantasy FCC team against AT&T’s and the others. So I will give my replies to the most common “why the FCC won’t be able to do what it wants based on what Genachowski and Schlick said,” with the following caveats:

1) This is not written with the precision and nuance of a legal brief.

2) Substantive legal and tech comments, either pro or against, are certainly welcome. I just may not get a chance to respond given how busy things are.

3) The FCC still has an enormous capacity to do this wrong and mess things up. So while they could do it right, and I hope they will (I shall certainly do my best to push them) they could also screw up big time.

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Genachowski Hits The Legal Reset Button — “Title II Lite”

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Genachowski has announced his proposed response to the Comcast case. This is precisely the result Comcast and the other carriers feared since the DC Circuit panel signaled at oral argument they would slam the FCC.  In my latest “5 Minutes With Harold Feld,” I give a short (at least, as short as I can) explanation of what this “Third Way” (also referred to as “Title II Lite”) means and what happens next from a process perspective. Some additional analysis, laughing at Wall St. analysts, and reference to a Dilbert from 1992 below . . .

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Public Knowledge IP3 Awards Nominations Open

Every year, my employer Public Knowledge gives the IP3 Awards to recognize individuals or organizations that have tremendous contributions to balance in Intellectual Property, Information Policy, and Internet Protocols (hence “IP3”). To nominate someone, click on this link.  You can see past winner here to see what sort of achievement we’ve honored (and who you think we’ve missed).

Stay tuned . . . .

McDowell and Baker Want To Preempt States on Broadband Reporting? Fat Chance Under Title I.

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Sometime back, I coined the term “Cassandrafreude.”  A compound of “Cassandra” and “schadenfreude,” it means “the bitter pleasure derived from seeing someone else suffer in the way you predicted even though you are getting screwed yourself.”

I am experiencing a healthy dose of Cassandrefreude watching FCC Commissioners McDowell and Baker push the FCC to preempt state data collection of broadband deployment (statements here and here). The matter came up when the FCC issued a Declaratory Ruling findng that nothing in federal statutes or previous FCC orders stops states from collecting their own information about broadband deployment. The ruling expresses no opinion about whether state PUCs have existing authority (given that broadband is a Title I “information service”) or whether or not it would be a good idea for states to collect their own data. But even this specter that someone somewhere might do something carriers don’t like prompted Republicans McDowell and Baker to push for the FCC to preempt state authority to collect information. After all, as we all know, broadband providers are timid creatures and likely to be scared off by the least thing that could conceivably raise their cost of doing business — as the broadband providers themselves constantly remind us.

I’ll zip past the usually irony of Republicans who supposedly venerate federalism and demand record evidence before the FCC contemplates action to protect consumers sounding the alarm bell that unless the FCC rushes to preempt state governments, it will mean the end of broadband investment as we know it. Lets get right to the juicy part that fills me with such unbridled Cassandrafreude.

Under what authority, exactly, would the FCC preempt state collection of broadband data?

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I Testify Tomorrow On Set-Top Boxes

Ever wonder whatever happened to “cable ready” televisions, so that now you have to rent a set-top box from your cable or satellite (or other “MVPD” for those who remember the term from last time)? Wonder why getting your TiVo or XBox or Roku box hooked up to your “CableCard” (whatever that is) is such a pain?

I and a panel of other witnesses will explain all this to the House Energy and Commerce Subcommittee on Communications, Technology and the Internet tomorrow (Thursday, April 29) at 10m a.m. at a hearing on Competitive Availability of Navigation Devices. “Navigation Devices” is the fancy name for set-top boxes that can do things other than switch channels. Almost 15 years ago, Congress directed the FCC as part of the 1996 Telecommunications Act to make rules that would promote competition for “navigation devices” that would make it possible for us consumers to have our choice of fun things to attach to the cable system cheaply and easily. (Law codified at 47 U.S.C. 549)

We at PK pushed for the FCC to take up this issue as part of the National Broadband Plan as part of the general issue of broadband and the next generation of online video competition. To its credit, the FCC admitted that the existing rules have not worked out (as anyone who has tried to find a “cable ready” anything or tried to hook up something that is supposed to be “compatible” with your subscription video service knows). They have kicked off a new proceeding based on our Petition last December to create a “universal gateway” device that would work the way the a phone jack works: plug in the connector and the device connects to the network (more details in this post by PK colleague John Bergmayer.)

I’ll be talking about our proposal and why I think it would not only save people tons of money on monthly rental fees for cable boxes, but would have serious impact on online video, gaming, and content creation generally. Witnesses from various industry sectors will be there to explain what they like and don’t like about the status quo and our proposal. If you are the sort of policy junkie that enjoys watching this (or wonder what I look like hunched over a table reading testimony), you can follow the fun on the Subcommittee homepage via the link they will post in the bottom right-hand corner box.

Stay tuned . . . .