USTR 301 Comments: Crashing the IP Mafia's Party

Time for another little instructional video, aka “5 Minutes With Harold Feld.” Here, I talk about the US Trade Representative’s “Special 301” Process. This is where the US Trade Representative (USTR) makes a “naughty list” for countries which, in the words of the statute: “deny adequate and effective protection of intellectual property rights” or “deny fair and equitable market access to United States persons that rely upon intellectual property protection.” (You can find last year’s list here.)

But while Congress intended this to be about protecting U.S. interests from wholesale piracy — you know, the warehouses with the industrial copying machines that crank out 10,000 counterfeit DVDs and hour and such what — the usual suspects have hijacked this to ratchet up intellectual property law in other countries. That includes trying to outlaw in other countries things that are not only legal here, but critical to our electronics industry and online services (not to mention free speech and civic expression). For example, because “space shifting” is a perfectly legal fair use, SlingMedia can sell a product that lets me watch shows I pay for through my broadband connection. Because we don’t hold “providers of interactive services” liable for copyright infringement if they follow the Digital Millennium Copyright Act notice and takedown provisions, Youtube can have an open video service that’s easy to use and easy for people to upload content.

Eliminate these provisions and we don’t just lose access to foreign markets for these goods and services. We potentially expose U.S.-based providers to foreign liability. Needless to say, Hollywood and the music industry are deeply concerned about how mucking around with other countries and pressuring them to change copyright law hurts other businesses — let alone the impact on civil liberties. But while it is not the job of these industries, and their associated trade organizations, to care about others, it is the job of the USTR to care about all U.S. goods and services, not just the entertainment industry.

You can read more about this issue from my Public Knowledge colleague Rashmi Rangnath here, including her exciting day testifying before USTR staff here. Rashmi is too polite to say as bluntly as I will that USTR staff give every sign of having been so thoroughly indoctrinated by the entertainment industry that they don’t even remember what their actual job is anymore. So we will need to whack them up the side of the head with a pretty big Clue Hammer a few times to get this process heading back in the right direction.

Stay tuned . . . .

Markey To Leave Telecom Subcommittee

As related in Doris Kearn Goodwin’s Team of Rivals, a friend remarked to Lincoln just before the election of 1864 that the only way Lincoln would lose would be if Grant won the war and then ran for President himself. To this Lincoln replied that he felt rather like a man who preferred not to die, but if he had to die, then he knew what he wanted to die of.

That rather conveys my feeling on the word that Rep. Ed Markey (D-MA) will give up his post as Chair of the Telecom Subcommittee to take over the Energy Subcommittee. Throughout his tenure on the Telecom Subcommittee, Ed Markey has time and again proven himself a true friend of real people over special interests and fought vigorously and effectively to make sure that legislation worked for the benefit of all. Sophisticated on complex matters of technology and economics, Markey combined these throughout his tenure with a brilliant sense of political tactics.

OTOH, for the same reason, I can’t very well object to Markey moving to the vital area of energy. With an Administration and Congress now primed to act, it is more imperative than ever for someone who can see through the pretty power points and hand waving to shepherd through legislation that will genuinely promote renewable energy and energy independence rather than simply line the pockets of the usual suspects.

I am comforted by the fact that his likely replacement, Rep. Rick Boucher, has also proven himself a strong proponent of open networks, fair use, and using policy to promote vigorous competition. With Waxman as Committee Chair and Boucher as Telecom Subcomittee Chair, I am very hopeful for the future of telecom legislation and FCC oversight for the 111th Congress.

Stay tuned . . . .

Yo Google! Your Lawyers Are So Stupid, They Copy AT&T!

I had an unfortunate head desk moment this morning on reading that Google Ads (such as the ones to the right on your screen) reserves the right to pull their service if you engage in “any action or practice that reflects poorly on Google or otherwise disparages or devalues Google’s reputation or goodwill.” This looks suspiciously like the terms of service my fellow travelers on net neutrality slagged AT&T for using.

In both cases, I expect that the intent is not to yank people who say nasty things about the parent company, but to reserve the right to yank the service when someone does something revolting. “Look, NAMBLA uses Google Ads, Google supports pederasts.” or “Look, the worlds worst spammers have AT&T connections, they support spam.” By why can’t my lawyer colleagues just say so, instead of writing something so broad that it covers even general criticism? Yes, “tarnish” is one of those words of art that all us legal folks understand has a very specific meaning. But it doesn’t do a damn bit of good when folks who are trying to understand the terms of service are not lawyers, which — outside of DC — covers most of the user population.

I have no doubt that the usual suspects will be out baying for blood and denunciations like the staff of the Clinton and Obama campaigns after a rival campaign staffer sneezes funny. So even though I did not give a rat’s patootie on the AT&T terms of service (being a lawyer and understanding what it meant), I shall now both condemn Google for being so stupid and test their policy by making several derogatory comments about GoogleAds.

[Begin OUTRAGEOUS accent]
Hey, GoogleAds! I fart in your general direction! I wave my very naughty bits at you! You are so lame, you copy terms of service from AT&T!

Now change your TOS to something sensible or I shall taunt you some more.
[end OUTRAGEOUS accent]

Did the ads on the screen disappear? No. Good. Can we consider this settled and actually get back to real policy?

Keep this up and I shall need to make a major speech about “Terms of Service In America” and invite us all together for some major healing.

Stay tuned . . . .

Martin Gets the Ball Rolling On “Blocking” Investigation: What Does It Mean And What Happens Next?

As always, I am impressed with the ability of so many people to hate whatever Kevin Martin does, and for so many different reasons! At CES, Martin announced that the FCC would investigate allegations of blocking content and determine whether they violated the FCC’s four broadband principles. Comcast pledged to cooperate in any investigation (although, unsurprisingly, Comcast representatives — along with supposed object of Martin’s affection AT&T and other big telcos and cablecos — said at CES they would restructure or eliminate FCC altogether).

As I said in my PK blog post, while details remain unclear, I am “cautiously optimistic” that this will be a good thing. But it did not take long for the folks in the “Martin is a bastard 24/7 crwd” to express themselves. DSL reports doubted this would go anywhere, while the “why ya gotta hate on cable” crowd at Techdirt opined that Martin would never investigate if it were a telco rather than a cable co.

So we flash forward to yesterday, when new developments began to percolate out of the FCC. Of significance:

1) The FCC issued a public notice asking for comment on our Petition for Declaratory Ruling that Comcast’s “network management practice” of messing with BitTorrent uploads violated the FCC’s “Broadband Policy Statement,” which includes a principle that network operators may not block or degrade content or applications. In a separate public notice (but as part of the same proceeding), the FCC also seeks comment on the Vuze Petition for Rulemaking on how broadband access providers handle and shape IP traffic generally. (Copy of Vuze Petition here, copy of our Petition here).

2) Separately, the FCC issued a separate public notice seeking comment on a Petition filed by Public Knowledge and the usual suspects asking the FCC to declare that wireless carriers cannot deny short codes or block text messaging. This goes after Verizon’s high profile “oopsie” of denying a request by NARAL for a short code. Although, as we pointed out in the Petition, the more likely and pernicious problem is with plain old anticompetitive blocking, such as denying a short code to VOIP provider and denying applications to major banks offering competing services.

3) Comcast confirmed that the FCC has lanched a formal inquiry into whether it violated the FCC’s broadband policy statement. Comcast reiterated that it will fully cooperate with the FCC, and expects any investigation to show that Comcast did not block content and has engaged in legitimate network management practices.

Not bad for a commitment made a week ago. But what does it mean and where will it go from here? Analysis below . . . .

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A little Parable on Orphan Works Reform

As Congress winds down, it faces the usual barrage of last minute bills — including requests from the usual suspects in the IP Mafia to expand yet again the value of their copyright holdings (you can read bout the latest push in the lame duck session at Public Knowledge or the new public interest/industry coalition website Digital Freedom). But one piece of legislation deserves to pass, the Orphan Works Act of 2006. This legislation seeks to address the problem of works where one cannot determine who holds the rights.

How does this happen? In 1976, we moved from a regime where we required someone to register a work with the Copyright Office to get protection to one where where everything rendered in fixed form is protected. So if you fnd a work, you must assume it is still under copyright. Even if you can find a record of the rights holder at the copyright office or elsewhere, you may no longer be able to find the current holder of the right because that person has died or moved on without a forwarding address. And since copyright has been continuously extended, the work remains protected and therefore unusable.

So after much prodding, the Copyright Office recomended to Congress to pass a bill that allows someone to do a due dilligence search for the rights holder and set up an escrow account to put some of the profits from republishing the work if the rights holder shows up. This bill is resisted by some trade groups. You can read a good statement about the bill by Public Knowledge’s Gigi Sohn here.

In any event, the subject came up on a local science fiction list I’m on. A fellow by the name of Keith Lynch wrote an excellent little piece illustrating the value of the Orphan Works Act, which I reprint below with permission.

Stay tuned . . .

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ALERT ON Tomorrow's Mark Up of Internet Bill (COPE)

Most folks reading this will have heard about the Communications Opportunity and Enhancements Act of 2006, aka COPE. I shall blog more thoroughly on this presently. For now, I want to focus on a narrow issue that may get lost in the shuffle: the efforts of Rep. Steve Buyer (R-IN) to accomplish for his telco masters what AT&T could not accomplish in his home state — killing muni broadband.

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