Tales of the Sausage Factory – Page 82

Great Paper on NN Out of University of Florida

Harold March 12, 2007 March 12, 2007Series of Tubes, Tales of the Sausage Factory

I’m back from a vacation in Israel to discover an amazing economic analysis of network neutrality posted by my good buddies at Consumers Union on hearusnow.org. Written by University of Florida Economists Hsing Cheng, Subhajoyti Bhandyopadhya and Hong Guo, Net Neutrality: A Policy Perspective applies game theory to the network neutrality debate. They conclude that abandoning network neutrality would create a disincentive for broadband network providers to build fatter pipes.

If this analysis seems familiar, it’s because I wrote something similar (but without the fancy math) about a year ago. As always, I get warm fuzzies whenever economists confirm my Econ 101 “gut check.”

Of course, these guys being real economists (as opposed to undergrad posseurs like yours truly) have a bit more to say on the subject and use lots of fancy math that I will not try to reproduce. But I offer some brief plain language explanation (including what I think are the brilliant points in the analysis) below….

Tim Wu Writes Incredibly Important Paper on Wireless Networks

Harold February 19, 2007 July 3, 2012Spectrum, Tales of the Sausage Factory

Tim Wu, a brilliant scholar who combines an understanding of law, technology and economics to his writing, has written an incredibly important paper on wireless networks for the New America Wireless Future Program. You can download it here.

But Tim has done more than write a brilliant paper about why we need network attachment rules and network neutrality rules for wireless networks. He has � by accident or design � put his finger on the critical issue of public policy of our time. Do we regulate to increase public welfare, or do we only regulate to cure �market failure�?

What the paper is about, why it’s important, and what the opposition to it tells about the state of public policy these days, below….

Raising the Profile on Franchising and Public Access Cable

Harold February 12, 2007 February 12, 2007General, Tales of the Sausage Factory

The good folks at Saveaccess.org are trying to push members of the House Commerce Committee to press Martin on his order preempting local franchising authorities. You can read about Saveaccess.org’s campaign here.

Public access is one of these very useful things that people take for granted, until its gone. I may not want to watch my local city council or local educational programming that often. But when I want it, I really appreciate it being there. Nothing on cable can replace PEG for local programming or “local C-Span” like coverage. We need to push hard to save it.

Stay tuned . . .

Wireless Broadband As Information Service: Brand X Is Not Enough

Harold February 7, 2007 February 7, 2007Series of Tubes, Tales of the Sausage Factory

According to this story, FCC Chairman Kevin Martin told the Senate he has circulated a Notice of Proposed Rulemaking to classify broadband via wireless as an “information service.”

This might at first seem no big deal. After all, in the wake of the Brand X decision, the FCC has moved to declare broadband an “information service” for DSL and cable and, more recently, for broadband over power lines (BPL). So, while I may not be happy with using regulatory classifications to achieve back-door deregulation, what makes wireless services different?

The answer has to do with the peculiar way the Communiations Act works, and the physical reality that use of the electromagnetic spectrum really is different than laying a fiber line. True, “technological neutrality” is one of the great regulatory shibboleths these days, even if it does to reality what Yiphtach (Jeptha) did to the people of Ephriam. But the law and reality do matter sometimes. Like here.

I must give fair warning that the analysis below hinges on what will appear to non-lawyers an incredibly bizzare and artificial distinction with no apparent difference in immediate outcome. But among lawyers, this is like mistaking a Satmar Chassid for a Hesder bachur.

Some analysis below.

Watch Me and My Public Interest Buddies Beat the Odds At FTC Network Neutrality Smackdown!

Harold February 7, 2007 February 7, 2007Life In The Sausage Factory, Tales of the Sausage Factory

Back in the summer the Federal Trade Commission (FTC) decided to get in on the Network Neutrality game. As I observed at the time, I’m skeptical the network neutrality will get a fair shake under FTC Chairman Majoris.

But, like the gambler who comes to the crooked poker den because “it’s the only game in town,” you gotta show up to play even if you think the odds are stacked. So I and a number of other public interest folks and sympathetic academics will face off against a less-than-level playing field at the FTC’s Broadband Task Force’s Competition Policy Workshop on February 13 & 14.

Why I consider this playing field “less than level,” and why we will still kick butt, below . . .

Utterly shameless self promotion

Harold February 5, 2007 February 5, 2007General, Tales of the Sausage Factory

As regular readers know, I have no shame or restraint. So I am going to make a pitch for nomination for this University of Michigan Tech Writing Award. From the website:

Taking a cue from the open-source movement, we’re asking readers to nominate their favorite tech-oriented articles, essays, and blog posts from 2006. The competition is open to any and every technology topic–biotech, information technology, gadgetry, tech policy, Silicon Valley, and software engineering are all fair game. But the ideal candidates will:

* be engagingly written for a mass audience;
* be no longer than 5,000 words;
* have been published between January and December, 2006.

The guest editor for The Best of Technology Writing 2007 will be Steven Levy. It will be published in fall 2007 by digitalculturebooks, a new imprint of the University of Michigan Press and Library, and available in print and online.

THE DEADLINE FOR NOMINATIONS IS FEBRUARY 11, 2007.

You can fill out the nominating form here. A list of my personal faves on technology (not including straight media policy) from 2006 below . . .

Update to last night's post on RIAA v. XM

Harold February 5, 2007 February 5, 2007General, Tales of the Sausage Factory

Something I should have been clearer on but wasn’t. The Audio Home Recording Act, by its terms of course, applies to audio recording not video recording a la Tivo.

My concern for PVRs and DVRs is one of extension. It is an unfortunate tendency in the law for bad law in one area to bleed over into other areas. The bad trademark law around domain names had impacts into trademark law and fair use generally, before the pendulum started to turn.

So while a decision about the applicability of AHRA to the “XM +MP3” service generally, I worry that the emphasis on subscription service v. free service and the nature of the functionalities does. It does not seem to me much of a leap to apply the analysis used in this case to cases applying the Sony standard, as interpreted in MGM v. Grokster.

But, on reflection, that was not at all obvious in my post, which appeared to say that AHRA applied to video recording services. Sorry for any confusion.

Stay tuned . . . .

RIAA v. XM — Hard Cases and Clueless Judges Make for a Dangerous Mix

Harold February 4, 2007 February 4, 2007Fighting the IP Mafia, Tales of the Sausage Factory

[Update: I’m aware the Audio Home Recording Act does not apply to video recordings. See my more detailed update here]

It’s an old cliche in Lawland that “hard cases make bad law.” To which I will now add: “and when you throw in clueless judges, the mix becomes positively toxic.”

Case in point, the recent decision by Judge Deborah Batts to deny XM Radio’s motion to dismiss a lawsuit by the RIAA for copyright violation. This case turns on the rather difficult interplay between the sections of the Copyright Act that provide a license for satellite radio, the immunity granted to equipment manufacturers under the 1992 Audio Home Recording Act, and the nature of the service offered by XM. It doesn’t help that, at the “motion to dismiss” phase, we gave the complainant (here the RIAA) the benefit of every doubt. To win, XM Radio would need to persuade Judge Batts that there is no set of provable facts under which the RIAA has a case.

Contrary to some of my colleagues (such as the eloquent and brilliant Art Brodsky in this post on the Public Knowledge website), I don’t think this was a slam dunk for XM. I actually think there is a complicated legal question here that needs to go forward for further analysis. That’s why I’m hiding over here on Sausage Factory for this one (if you check the Technorati rating for PK v. that for TotSF — you’ll understand what I mean by “hiding”).

Unfortunately, the language of Judge Batts opinion has — IMO — really, really, really bollixed things up badly. It calls to mind the awful results driven analysis in Jews for Jesus v. Brodsky when judges didn’t know squat about the internet and domain names, but sure knew they didn’t like these evil “cybersquatters” and boy were they gonna show ’em a lesson! The devil with the actual law or understanding the technology — we got us a heapin’ gavel of JUSTICE to whack you’re ass!

Batts opinion reads rather the same way J4J did. She doesn’t understand the technology and doesn’t feel any need to do so. All that matters is that someone seems to be making money that she thinks should go to the music mafia instead, and by God is she gonna get ’em! So she fixes on the wrong details and creates potential havoc for the likes of Tivo or anyone else making a PVR integrated into a receiver that picks up a subscription video or audio service.

The real issue in the RIAA v. XM case, and where Batts goes horribly, tragically, gut-churningly wrong, below….

FCC Staff resolves leased access complaint after only 3 years! Go team!

Harold February 4, 2007 February 4, 2007Cable, Tales of the Sausage Factory

O.K., it is probably a bad idea to make fun of people for doing stuff you want them to do. So when the FCC released a leased access complaint on January 29, I should probably have just applauded for joy. But given that it took three years to resolve a complaint when the cable company in question never even filed a reply to the complaint, I think a little mention of what is wrong with the current leased access rules, and the Commission’s enforcement of same, is needed.

And I will pause to put in a genuinely good word for the New Media Chief Monica Shah Desai for getting this cranked out relatively quickly after she got there. Keep crackin’ that whip!

But the decision also highlights everything I’ve been complaning about in the current leased access system so that even the people who want to make it work are having a heck of a time and why we need the leased access rulemaking that Martin promised Adelstein back in July.

Some analysis below . . . .

Telcos Find Link Between Google, Net Neutrality, and Al Qeda

Harold January 29, 2007 January 29, 2007Series of Tubes, Tales of the Sausage Factory

As others have chronicled, the people who brought you “Net Neutrality Is In Its Last Throes” and “Deregulated Telecoms Will Be Greeted As Liberators” have now launched a new campaign based on the highly successful tools of this administration and the conservative noise machine generally. This is perhaps unsurprising given the paucity of arguments the anti-net neutrality folks have at this point.

The fear of Google is attractive. Any huge entity attracts concern, and rightly so. I’m pleased that Google has “don’t be evil” as a credo, and that by and large it has done a good job sticking to that. But they are a large corporation like any other, and if they become convinced that something contrary to the public interest is in their best financial interest, I know which way to bet. For this reason, you find a number of perfectly reasonable folks, such as industry observer Robert Cringley (whose push for local ownership of infrastructure hardly makes him a telco or cable enthusiast) is now worried that Google has accumulated a sufficient mass of resources to take over the internet the same way Microsoft took over the desk top.

Please note that this has nothing to do with network neutrality. In fact, if Google really did have an evil plan to leverage its network assets and services to dminate the internet, thelast they would want would be network neutrality. Network neutrality means treating everyone equal, so if Google became the uber-Tier 1 carrier — what Cringley alleges is Google’s ultimate plan — the last thing Google would want would be a requirement to carry everyone’s traffic equally. It would be like Microsoft fighting to keep its monopoly by making the GNU GPL mandatory for all desktop operating systems.

But, as the current Administration has discovered, we don’t need logic. We just need a big old cloud of anxiety and the power of repetition. If you fear Iran and its nuclear ambitions, you must support a surge in Iraq , because Iran supports U.S. withdrawal from Iraq, and Iran has nuclear ambitions. If you fear Google invading your privacy or dominating net applications, you must fear network neutrality, because Google supports network neutrality and they’re big and scary. Network neutrality is a plot by Google to take over the internet, because Google wants to take over the internet and they like network neutrality. And did we mention they’re big and scary? Biiiiiiiiiiiiiiiigggggggg and scaaaaarrrrrrryyyyy!!!! And they like network neutrality. So Network neutrality is scary and bad, like Google, but without the “I’m feeling lucky!” button.

Mind you, you can find plenty of examples of this kind of logic in the mainstream media. You can see this amazing (as always) clip of Stephen Colbert demonstrating how the mainstream media uses this technique on Barack Obama. In a world where the mainstream media apparently believes that voters will make their decision on whether his middle name is Hossein or whether his “business casual look” is too much like Iranian President and fashion plate Mahmoud Ahmadinejad, we can expect the cable cos and telcos to push the link between Google, net neutrality, and Al Qeda

I’ve been at Media Access Project snce 1999. Long enough to remember when America Online and the telcos supported not just network neutrality, but “open access” (letting ISP resell broadband capacity). A fair number of folks accused open access supporters of being AOL shills or tools of the telcos. But after AOL merged with Time Warner, and Michael “deregulate them all and God will know his own” Powell took over the FCC, the companies that had backed open access switched sides. But the public interest community, including MAP, kept fighting the same fight (which has now morphed into the ‘net neutrality’ fight) long after the industry folks switched sides or dropped out.

As I have said many times before, citizen movements must stay citizen driven. Corporations will act in their best interest. They will spend money if they think it will help them earn more money. But that’s as far as they go.

You can’t get a million people or more in this overworked, busy 24/7 world to fight for something — in the face of a continued barrage of advertising, push-polling and the pervasive corrosive cynicism that you can never hope to win in our corrupt political system against the corporate powers that be — unless they believe in it. And you can’t get people to believe in it — especially in the face of the barrage of misinformation — unless there is really something to it. Especially when we are talking about a geeky technical policy issue that no one outside Washington ever heard of a year ago.

So yeah, Google supports network neutrality, and for their own reasons. But chosing to support or not support a cause because Google does is about as stupid as deciding whether or not to vote for Obama because both he and Ahmadinejad hate ties.

For the record, I hate ties too, and I support network neutrality. Just like Obama supports network neutrality. So I guess I must have links to Ahmadinejad. Hopefully, this will not scare away too many readers. But for those unafraid of the frightenng link between network neutrality, me, Barack Obama, and Ahmadinejad,

Stay tuned . . . .