Wetmachine

Unsurprisingly, Commissioner McDowell’s dissent to starting an inquiry into the FCC’s broadband authority contained a reference to the new “Broadband Internet Technology Advisory Group” (BITAG). For those who missed the press release, BITAG consist of engineers from a variety of broadband industry segments chaired by Dale Hatfield at University of Colorado at Boulder. Given that BITAG has a bunch of smart folks — especially Dale, who is one of the smartest and nicest guys in this field — and a reasonable cross-industry representation, it may actually come up with some interesting stuff (hence the cautious endorsement from my employer here). Predictably, however, a chorus of Libertarian True Believers, and the “government-can-do-no-right (but hurry up with my subsidy check!)” crowd argue that this represents “industry self-regulation” and that FCC should therefore hold off on doing anything for the foreseeable future. Despite explicit statements from some participants that this does not in any way, shape, or form replace the need for FCC oversight, it does not surprise me to see McDowell again championing the idea that private sector regulation through BITAG and similar institutions provides a better way to protect consumers and encourage innovation and investment than actual, enforceable rules.

I snidely tweeted at the time “One ICANN Mtg will cure McDowell of his love of self-regulation.” For those not familiar with the Internet Corporation for Assigned Names and Numbers (ICANN), it formed back in 1998 when the Clinton Commerce Department avowedly wanted to “privatize” management of the domain while simultaneously making sure their buddies in the trademark lobby got protected. ICANN, now debates such “technical” matters as the appropriate level of cross-ownership for new generic Top Level Domains (gTLDs), has a sprawling bureaucracy, a budget of more than $60 million (US), and generally makes the FCC look like greased lightning when it comes to actually getting stuff done.

ICANN provides a lot of good lessons for the BITAG in what to avoid and a caution about trying to make technical standard setting the equivalent of regulation . . . .
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Last night I received an email from Jeremy at Viacom:

“Hi Harold.  A good deal of your post about “Flickr” was incorrect.  In the interest of being as informative as possible to your readers, you should check out: http://twitter.com/jonathancoulton/statuses/15804884261″

As always, what I love about copyright flaks is their commitment to courtesy. How could I resist such a charming invitation? Following the link, I found this Tweet from Jonathan Coulton:

“Oops – turns out I gave iFilm permission to post flickr in 06 before they were Spike.com. Viacom does not owe me $37. Sorry Viacom!”

Which rather underscores the point I was making. In this world where all variety of rights are traded back and forth, even the artist can’t always tell for sure if his/her rights are violated. Nor, as I pointed out, are Coulton and Viacom alone in being confused over who owns what. The last few days saw the New York Times demand Apple pull the Pulse iPad newsreader for violating rules about how it makes its RSS feed, then allow it to return a day later.

Under the standard for “graduated response” demanded by content companies like Viacom, and being pushed in such agreements as the Anti-Counterfeiting Trade Agreement (ACTA) the mere accusation of IP infringement can get your internet access cut. Nor do these proposals fron the content industry generally provide for any sort of challenge process. So if we were applying “graduated response” to Viacom, they’d still have “one strike” against them despite being ultimately vindicated by the creator himself. Had the initial story triggered a copyright filter, Viacom would have lost revenue from lost sales with no opportunity for recourse.

Which brings me back to where I started yesterday — knowing who holds the rights to what these days and figuring out what rights you have is damn complicated; even huge companies and the creators of content sometimes have trouble keeping track.  Jonathan Coulton honestly can’t tell at first glance that a company is using rights from a predecesor in interest, and Steve Jobs — despite his iron grip on Apple’s App Store — can’t gaurantee that an RSS feed aggregator meets all the licensing terms for every feed. But people expect an ordinary person downloading a video clip or some guy trying to create some new technology or business can figure it out? Or worse, they expect some magic copyright filter can figure it out?

It’s a little much to expect Viacom, or the rest of the copyright maximalist crowd, to learn from this that “false positives” occur and that for those wrongly accused (even if ultimately vindicated) a system of “guilty until proven innocent” is outrageously unfair (and potentially devestating if you aren’t Viacom or Apple). Heck, judging from the tone of the email I got alerting me to Coulton’s tweet, it’s probably too much to expect them to learn a touch of humility about copyright and enforcement. But I do hope that the Policy Mandarins here in the Forbiden City of Washington, who buy into the simple storyline that copyright is easy so what could be the harm with adopting filtering or 3 Strikes, will start to have some second thoughts.

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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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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