Posts by John Bergmayer

Copyright Week Day 5: Fair Use, An Area of Copyright Law That Has Actually Kept Up with the Times

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It's Copyright Week! From today through Saturday, a number of groups around the Web will be exchanging ideas, information, and actions about how to fix copyright law for the better. Each day will be devoted to a different aspect of copyright law. For more on Copyright Week, see here.

Today's focus is on how copyright law balances the rights of someone who wrote a copyrighted work and someone who bought a copy of it. This post looks at how fair use, while it can be messy, ends up protecting uses that can be hard to predict.


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FilmOn Deserves a Day in Court

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Shutting down controversial services pre-trial does not serve the public interest.


PK just filed a friend of the court brief with the District of Columbia Court of Appeals, arguing that the District Court below should not have granted the broadcaster's request to shut down FilmOn, an Internet video service, prior to trial. We were joined on the brief by our friends at EFF and Engine Advocacy.

Let's get the weird stuff out of the way. PK has filed amicus briefs supporting Aereo, and for a while, FilmOn called itself "Aereokiller"--at least that's what it called its Aereo-like service. For a while it was also using the name "Barry Driller." The man behind FilmOn, Alki David, apparently has some kind beef with Barry Diller, the famous media mogul and Aereo investor. But PK is interested in the legal issues this case raises, not in whatever drama is going on with the names. In particular, we're interested in the standard for preliminary injunctions in copyright cases--more on that below. The Aereo-like service is now called FilmOn Air X, and sometimes just FilmOn X, but to keep things simply I'll just refer to it here as "FilmOn."

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A Little Victory Dance over the Google Books Win

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Google Books decision is much more than a win for Google.


A lot of people have already explained how awesome the Google Books fair use victory is. There's no need to retread that here. But it's worth pointing out how the decision (assuming it survives appeal, which it probably will) could benefit a lot of non-Googles in the future.

The story of the Google Books lawsuit has been going on for years. Its weirdest turn happened a while ago when Public Knowledge, along with many many other nonprofits, academics, libraries, and authors, filed in court to oppose the proposed settlement between Google and the Authors Guild. There were many reasons to oppose the settlement, but the most pertinent is that a settlement would have allowed Google to continue its book-scanning project--which is a good thing!--but that there would be no precedent to allow others, whether other companies, libraries, or nonprofits, to do the same. On top of that, the way the settlement would have been structured, as a bizarre kind of class action settlement between Google and all "authors," would have made it extremely unlikely that any future scanning projects would be able to get the same treatment as Google. This would have competitive implications, because there shouldn't be a legally-enforced monopoly on book search engines. But it would also stunt the development of the law, by preventing a court from issuing just the kind of thoughtful fair use decision that Judge Chin issued last week.

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If You Love Fair Use, Give It A Day Off Once In a While

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Everyone, but especially copyright reformers, should look to more than fair use to protect legitimate uses of copyrighted works. While fair use is a vital doctrine, it should not be, and never has been, the only way to protect users from spurious claims of infringement.


When there is a contested copyright issue, many legal observers--including copyright reformers--immediately jump to a fair use analysis without first considering whether a use is non-infringing for other reasons. As a friend of fair use, I want to give it the day off once in a while. There are other ways that some uses of copyrighted works are non-infringing besides fair use. This is particularly so in the case of sampling in music. 

Fair use, of course, is very important. Judges long ago realized that not every use of a copyrighted work required permission of the copyright owner, even when those uses fell within one of the "exclusive" rights the law gives copyright owners control over. Thus, the common law tradition gave rise to the fair use doctrine, which recognizes that while the rights of copyright owners to control certain uses are broad, they are not unlimited, and cannot be used to limit criticism or commentary, prevent education or transformative uses, and so on. (The test that courts apply is codified in 17 U.S.C. § 107, though the common law is still relevant.) Because of fair use, a user of a copyrighted work might be able to make a reproduction of all or some of it, without permission, even though the law grants copyright holders the right to control reproductions.

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What We Mean When We Say “Things Should Still Work” After the PSTN Transition

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First, Some Background

At the start of blog posts like this it's always a good idea to remind readers what the heck we're talking about. In this case it's the "PSTN" again--the "public switched telecommunications network" that voice calls usually go over (but which is not limited to voice). You know, that thing with the phone numbers.

We're in the middle of a debate in this country about the "transitioning" of the PSTN. That means that a some technologies are being switched over to cool new technologies. Just as electronics replaced electromechanical switches, which replaced human operators, news kinds of networking technology (packet-switched) are replacing older kinds of networking technology (circuit-switched).

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More Reports of Technology Giants Interested in Internet TV Show That the Problem Isn’t Technology

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Technology isn't holding back Internet TV—the structure of the media industry is.


Rumors of Intel's and Apple's interest in launching some kind of online cable service have been circulating for months. Years, even. It's clear that major tech companies have the technology ready, and they've been making phone calls and taking meetings. People talk, reports get written. Now, we can add Google to the mix. As the Wall Street Journal first reported, it's interested in launching some kind of online TV service, too—one that is intended to actually substitute for a traditional pay TV subscription by having current, popular shows from both cable and broadcast channels, and not just supplement it with on-demand access to a back catalog or user-generated content.

So with all these rumors, and all these giant tech companies involved, why haven't we actually seen a service get launched? The technology's ready. Other countries already have online cable TV--Sweden's Magine, a company that outright says "We’re meaning to replace your cable network," is expanding internationally. Why doesn't the US?

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Yet More Media Consolidation is not the Cure to the Problems Caused by Media Consolidation

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The media marketplace is dysfunctional. The way to fix it is not more of the same.


People are buzzing about possible new consolidation in the cable industry. The reason isn't hard to see: in a market that is already very concentrated, only the strong survive. Programming costs keep rising and larger cable companies would have more leverage in negotiations against media giants like Viacom and Disney. As ISPs, larger cable companies would be better able to drive hard bargains with Internet content companies when it comes to interconnection agreements, or operate their own online video services.

But bigger is not better for the public. It would be unfortunate if, in response to problems caused by excessive concentration up and down the media landscape, yet more companies consolidate. This "if you can't beat 'em, join 'em" approach might serve the short-term interests of shareholders but it would not be good for consumers or the market as a whole. Media consolidation inevitably leads to less choice and higher prices for consumers, and fewer outlets for independent and diverse creators.

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“Capable” Is Not Good Enough: A Response to Lowell McAdam on Broadband in the United States

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There has been a spate of editorials recently from various telecommunications industry executives and analysts that try to paint a cheerful picture of the state of US broadband. Today's piece in the New York Times by Verizon head Lowell McAdam is the latest. These pieces generally operate by cherry-picking statistics and using rhetorical tricks to make their point. The op-ed format, of course, is hardly suited to the nuanced analysis that is necessary to understand the state of US broadband, and in particular how it compares to broadband in other advanced industrial economies. As a result, unpacking every claim in it that I have issue with would be a time-consuming enterprise. So instead of going through Mr. McAdam's piece claim-by-claim I'd like to call attention to one argument in particular that I think could lead people to the wrong conclusion.

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ISPs Should Do The Job They Are Hired to Do

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ISPs should make sure their customers have a good experience--even when they're not using the online services that the ISP might prefer.


Since people rely on the Internet for such a wide range of services today, it's important that their Internet connections work well. This means that people should be able to access the broadband services of their choice using the connections they pay for--and those services should be fast, reliable, and low-latency. To some extent, this means that consumer ISPs need to do what it takes to make sure the popular services their customers demand--the reason they subscribe to broadband to begin with--work well.

Let me be more specific. Due to this well-reported story from GigaOM, people have been talking about potential issues with regard to Netflix working well on Verizon's network. People are claiming that Verizon is under-investing in its interconnections with the company that carries Netflix's traffic, which causes Netflix's performance to degrade for some users.

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More Confirmation That Incumbents Restrict Online Video

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New comments by Time Warner Cable CEO back up what we already knew—incumbent companies are holding back video innovation.


It's puzzling to many observers why so many programmers don't make their content more widely available online. It seems like programmers are leaving money on the table. Shows that are available online are talked about more, watched more, and pirated less. Viewers are demanding easier access to shows that is not tethered to their home and does not require a cable subscription, yet the market is not delivering it. Why is this?

There are two big reasons. The giant content companies have a symbiotic relationship with cable. They sell programming exclusively to cable (and satellite) and charge a lot for it. This forces cable companies to raise their bills but, since they're the only source of programming people want, they're able to. There's nowhere to switch to. Only now, as cable bills are reaching unsustainable levels and cable companies are seeing that online video has the technological potential to become a competitor to cable, are some cable companies finally objecting publicly.

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AT&T Will Eventually Do the Minimum Users Expect

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AT&T has clarified that its bad policy of restricting video chat apps is still in place. We've also found out that handset providers need to jump through hoops to avoid being blocked. But AT&T has promised to end these practices by the end of the year.


When I wrote about AT&T's blocking of Google Hangouts over cellular last week I admit I was confused. I didn't understand why AT&T would allow Hangouts on iOS but not Android. It really looked like some kind of oversight, because the Android app, just like the iOS app, was installed from an app store and not "pre-loaded," which is a distinction AT&T has made before. I also wondered if app developers had to somehow work some special magic to make their apps work on AT&T's network.

But, yesterday AT&T put out a statement that clarifies some things while confusing others. First, it really does appear that AT&T defines Hangouts for Android as "pre-loaded." Even though it hasn't actually been pre-loaded on any phones yet, an app by the OS developer appears to count.

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Confusion and Uncertainty as AT&T’s Policies Needlessly Complicate App Development

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The video chat feature of Google's new Hangouts app for Android doesn't work over cellular if you're an AT&T subscriber. Does that sound familiar?


If you've been reading our blog this week, yes it will, because it's another story about AT&T and restictions on the Open Internet. But it should also be familiar for another reason, because at first glance this is the same as what happened with Apple's Facetime video chat app last year—AT&T is deciding what apps its users can use on the data connections they pay for.

It's interesting how arbitrary this is. The iOS version the app has no such restrictions. This shows how odd it is that AT&T continues to maintain that there is some clear distinction between "pre-loaded" and downloaded apps, where it can block one kind but not the other. There is no way to characterize a downloaded Google app for an Apple device as pre-loaded, of course—but based on the statement AT&T has given out in response to questions about this, the company appears to have decided that a Google app for Android counts as "pre-loaded" even when you have to download and install it from an app store. In other words, when it plainly is not pre-loaded. That's wrong, but it's just the start of what's wrong here.

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Aereo, and the Scope of the “Public Performance” Right

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Copyright law doesn't give rightsholders control of the "use" of their works. If it did, trying to use a copyrighted work would be like being trapped in the world of Philip K. Dick's Ubik, where everything, including the door to your apartment, is coin operated. You'd need a license to read a book, a license to listen to music in your car, a license to watch a movie, or a license to receive broadcast signals. We don't live in that phildickian world and you don't need licenses for any of those things because copyright law doesn't confer such broad rights. It allows copyright holders to control just certain uses of their works, as spelled out in 17 U.S.C. § 106:

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Speech Is Important, But Not Everything Important Is Speech

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The First Amendment and the principles of free expression are fundamental to the proper functioning of our society and they are a bedrock of the law. The fact that this sentiment is well-worn to the point of cliche doesn't make it any less true. Speech and other expressive conduct must be protected, even when it's bad speech, and even when the short-term consequences of allowing it seem bad too--because the consequences of having the government decide what kinds of speech are acceptable and what kinds of speech are not are even worse.

But the importance of free expression has unfortunately provided some telecom companies with rhetorical cover in their attempt to avoid all oversight, and with aid and comfort from some in the judiciary, they've attempted to characterize business activities that are not expressive as "speech" and to enlist the Bill of Rights in the battle against consumer interests.

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As Broadcasters “Threaten” to Shut Down, They’re Not Getting the Reaction They Were Looking For

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The fantastically-mustachioed Chase Carey of News Corp. has gotten quite a bit of support in the broadcast community for his "threat" to shut down Fox's over-the-air signals. Fox, CBS, Univision and others have said if they're not able to make antenna-rental services like Aereo illegal, then they'll simply convert to some sort of vaguely-specified "subscription model" where, presumably, rooftop and remote antennas would not be able to pick up their programming.

But I'm not sure that the support and applause directed his way from some circles is quite as welcome. Mike Masnick's reaction was typical of the tech-literate crowds I run in. He writes,

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Unsolicited Advice for Broadcasters in the Wake of the Aereo Decision

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Today's win in the Aereo decision (where PK had filed an amicus brief) has been greeted by predictable moaning from the broadcast industry. "The court has ruled that it is ok to steal copyrighted material and retransmit it without compensation," the National Association of Broadcasters stated, ignoring that what the court said today was precisely that Aereo's service isn't "stealing" anything.

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Retransmission Consent: Yep, Still Broken

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Our country's absolutely ridiculous "retransmission consent" system continues to distort the video marketplace. This is the set of arcane rules that give local broadcasters (and not copyright holders) the right to decide whether cable systems (and IPTV and satellite providers) can carry their programming. A system that should be about connecting creators to viewers instead empowers middlemen who collect money from both sides. It's not that distributors and other kinds of middlemen have no place--far from it. But they should add value, and be compensated accordingly.

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Kirtsaeng Shows Why Trade Negotiators Don’t Always Know What the Law Actually Is

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Something we commonly hear when the United States Trade Representative or others are negotiating "trade" agreements is that, to the extent that these agreements mention other areas of law or policy--such as copyright law--they are "consistent" with it. "Who could object," we are asked, "to simply restating what the law already is?"

The first problem with this is that such agreements don't just restate the law--they can freeze it in place. It is politically more difficult for Congress to pass a law if there's an argument (even a wrong one) that doing so would take us out of "compliance" with a trade agreement. If trade negotiators want to freeze US law in place they should explain that is what they are doing and not frame the issue as a technical one without real consequences.

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If You

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Whether or not you're in Austin for SXSW, click here and sign a petition to show your support for open networks!

Events like South by Southwest can highlight the limitations of wireless Internet access. Put a large number of techies in the same city and as they all try to tweet, share photos, and stay connected they can quickly saturate Internet connections--leading to websites not loading, messages not being sent, and connections dropping.

Engineers have already solved this problem--but there are legal challenges as well as technical challenges. Policymakers in DC have to make sure that FCC rules allow people to take advantage of new wireless technologies that are already being built. They need to set WiFi free.

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Why Is Your Cable Bill So High?

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Share your cable frustrations here. The best stories will be published to this blog on Thursday, March 21!


Why is it that cable bills keep getting higher? While a lot of the blame falls on the cable industry itself, even some large cable companies can find themselves squeezed by high programming costs that they then pass along to consumers.

For years, cable prices have increased at a rate faster than inflation. According to a report released last year by the NPD group, the average cable bill (just video, not including broadband or voice) reached $86 per month. Compared to an $8 per month Netflix subscription, or an Amazon Instant Video subscription that works out to about $7 per month (and includes free shipping on actual physical goods sold by Amazon for a year), that's a lot.

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Courts Should Not Have Itchy Injunction Fingers

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PK has filed amicus briefs in a number of copyright cases recently where the plaintiffs were trying to get a preliminary injunction--that is, to shut down a service they allege infringes copyright, before there has even been a trial. This has been the legal posture of the DISH cases over its Hopper DVR, the Aereo case, and others.

Like a lot of legal issues, This Is Important, but fairly technical. This post will explain some of the legal context before spending a little more time with one of the issues, the concept of "irreparable harm."

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There’s More to Life Than Copyright: On Glee Copying Jonathan Coulton

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Last week sing-songwriter Jonathan Coulton reported that Fox's show Glee was "inspired" by his unique cover of Sir Mix-a-Lot's "Baby Got Back" and plans to use a similar cover of that song on the air. Coulton's take on the song is unique and there doesn't appear to be any doubt that Glee copied him--though it's not clear whether the show actually uses any of his audio, or whether it merely makes a sound-alike version. Check out this left ear/right ear comparison.

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Protecting the Freedom to Compete by Reforming Competition Law

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PK has already blogged about Senator Wyden's speech at CES yesterday, where he outlines an ambitious and pro-competition digital agenda. The speech touches on a number of Internet, copyright, patent, and telecommunications policy ideas. One theme that unites many of them is the need to update the law to match the digital economy. This is as true for broadband policy as it is for copyright.

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ISPs Shouldn’t Block Content. Yes, That Includes Ads.

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The decision by French ISP Free to start blocking ads for its customers by default raises some tricky questions.

PK has argued that ad-blocking is not copyright infringement, and it's not. People should be free to skip past commercials on recorded TV, and even block annoying online ads, without being afraid of being hauled into court. And it should be legal to provide people with the tools they use to skip ads.

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“Common Carriage” and the Open Internet after the DC Circuit’s Data Roaming Decision

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The FCC won a big legal victory today, when the DC Circuit denied a challenge by Verizon to its data roaming order. The data roaming order itself is important, since it updates the Commission's long-standing voice roaming rules to include wireless Internet access services. It allows smaller carriers to offer nationwide service, and it makes it so that all users can travel around the country without losing service or incurring high bills.

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The Future of Video is Not About Convincing Cable Companies to Make Less Money

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There's a seemingly-endless debate online about whether pay TV companies (cable companies and other MVPDs, such as FiOS TV, DISH, etc) are leaving money on the table by sticking with their traditional business models, which many highly digitally-connected people think are obsolete. (Leave aside for the moment the fact that the pay TV companies themselves are constrained in what they can offer consumers by their contracts with content companies.)

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Hopper Decision A Big Win for TV Viewers & TV Technology

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When Fox sued DISH over its commercial-skipping DVR, the Hopper, the two most important issues Public Knowledge identified were (1) Whether users infringed copyright by recording programming and watching it later, without commercials, and (2) Whether DISH infringed copyright by creating and selling a DVR that gave users the ability to skip commercials. If these things were found to be infringing users' rights to watch TV in the manner of their choosing, and technology companies' ability to sell new and improved products, would both be in jeopardy. Thankfully, according to US District Court Judge Dolly Gee, the answer to both of those questions is no.

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Odd Restrictions in New AT&T Locker Service

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There are a few interesting aspects to the new "AT&T Locker" service, a new file storage service for AT&T customers.

First, it is as clear a demonstration as any that "locker" services are a normal Internet service--not something only useful for techies (or pirates). They're just another basic service offered by ISPs, like email. Tech-oriented users will probably avoid using AT&T's file locker (just like they avoid their ISP's email) in favor of more fully-featured and ISP-independent services like Dropbox and SkyDrive. But a service like AT&T's might be able to attract solid user base.

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A Stronger T-Mobile Could Help Keep Verizon and AT&T in Check

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T-Mobile and Metro PCS have announced that they intend to combine into a new company. (It's a really complicated transaction and not quite accurate to say that T-Mobile is going to acquire Metro PCS, or the other way around. But the new company will still be called T-Mobile.) The deal needs to obtain regulatory approval--and Sprint might make things more interesting with a bid for Metro PCS of its own. But just looking at the proposal on its own terms, this is a very different situation from when AT&T tried to buy T-Mobile. That transaction would have gutted nationwide wireless competition. The T-Mobile/Metro PCS deal could improve it.

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Program Access Is an Important Part of Broadband Competition

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The "program access" rules have been around since 1992, and are responsible for what competition we have in the video space. Without them, cable would be even more monopolistic, if you can believe that. They're still important, and it's disheartening to hear that the FCC might phase them out.

These rules say that incumbent cable companies can't withhold the programming they have control over from competitors--if Comcast creates a sports channel, for instance, it has to sell it to DISH and DirecTV. The program access rules thus allow satellite companies, phone companies, and cable "overbuilders" to offer a full line-up of programming and compete in the video space.

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Holding AT&T to Account for Blocking FaceTime on iPhones and iPads

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When AT&T announced that it was going to block FaceTime, Apple's video chat application, we pointed out that this was a violation of the FCC's Open Internet rules, and that AT&T's attempted defenses fell short. We meant it. Today, with our colleagues at Free Press and the New America Foundation's Open Technology Institute, we notified AT&T that, if it doesn't reverse course, we plan to file a formal complaint with the FCC.

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Failing to Understand the Needs of the 21st Century: The TPP’s Inflexible Approach to Internet Trans

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TPP

For comprehensive information about the TPP, please visit tppinfo.org.

Many people use the Internet to better themselves. People use resources available online to teach themselves, or they take part in distance education. Traditional universities and web-native organizations alike are finding new ways to use the Internet for education. But the TPP could harm that, by making it difficult for online educators to transmit some kinds of materials online. For instance, under the TPP, a media studies class might not be able to make archived news footage available to its students over the Internet--even if doing so was a lawful use in a traditional classroom.

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Rumors of Apple Set-Top Box a Reminder of Thwarted Innovation

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The Wall Street Journal has run two recent reports that describe Apple's plan to roll out a cable set-top box. There have been rumors about this for years. Back in 2007, Steve Jobs showed a level of familiarity with obscure cable technology that would suggest that Apple engineers were looking into this kind of product back then. But Jobs was repelled by the janky technology, and instead, Apple introduced a pure streaming device--the AppleTV--that did not interact with cable TV content. But most of the most valuable content is still available only on cable, or on cable first. Lots of people seem to love the AppleTV, but there's a reason why Apple still describes it as a "hobby."

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The Spectrum Gap Keeps Growing

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Recently there have been a number of high-profile spectrum transactions. It is possible to describe them in a way that sounds beneficial. In the Verizon/SpectrumCO transaction, a lot of spectrum that was not being used will be sold to a company that will actually use it. In the AT&T/NextWave transaction a lot of spectrum that is not being used will be sold to a company that will actually use it. In a vacuum it is true that spectrum is better off used than not used, and as a legal matter it's also true that the FCC is generally not allowed to consider alternate buyers when deciding whether to approve a spectrum license transfer.

But this narrow view masks a large problem--a growing "spectrum gap" between Verizon and AT&T and the rest of the wireless industry, that is hobbling competition and harming consumers.

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Google’s New Search Penalty Could Lead to Unintended Consequences

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Google's announcement that it is going to penalize sites that receive a lot of "valid DMCA notices"--that is, accusations of copyright infringement that are structured correctly (if not necessarily legally justified)--raises a lot of questions. Just this week, we've seen how Google's Content ID system has been abused by people claiming rights over content they do not own, and how the system itself has flaws that encourage invalid takedowns. Google needs to work hard to assure the Internet-using public that any new system it adopts does not have these same problems.

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Viacom Cuts Off Everyone to Spite DirecTV

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You may have noticed that some popular programming like the Daily Show is no longer available for free streaming online. A report from Staci D. Kramer and Janko Roettgers at GigaOM details why: Viacom has decided that it doesn't want DirecTV subscribers to see its shows, and the only way it can do this is to block everyone from seeing them. Thus, it has removed the shows from its websites (through they remain on third-party sites like Hulu that have contracts with Viacom).

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Tell TV Networks to Keep Their Hands Out of Your DVR

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The networks' lawsuits against Dish are not just about Dish. If they win, Dish and other services will not be able to offer their customers improved video recorders. But more than that, any time anyone watches recorded TV and skips the commercials they will be copyright infringers.

According to the networks, it's not enough that you pay your cable and satellite subscription fees which end up in the their pockets. It's not enough that you watch commercials on live TV. You have to sit through the commercials on shows you may have recorded days ago as well.

Luckily, the law is not on the networks' side. But as a TV viewer it's still important to make your voice heard. The networks need to know that their paying viewers don't like being called lawbreakers. Sign our letter today to make your voice heard.

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Networks Pull the Trigger on Dish, but They’re Only Hurting Themselves

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Update: If you'd like to give the networks a piece of your mind, sign this letter.


As anticipated in our blog post from the other day, major television networks have sued Dish over its "Hopper" DVR. Hopper records primetime TV and makes it easier to skip commercials on recorded shows.

While Dish is the primary object of the suits, ordinary viewers are also targets. Viewers already skip past commercials on recorded shows and since the invention of the remote control have muted or channel-flipped away from them. But the networks are claiming that if you don't watch commercials, you're breaking the law.

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Words Matter: Aereo, Channels, and Online Competition

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Right now, whether and how the Internet can bring competition to the video marketplace depends in part on arguments about the dictionary. While innovators are out there bringing new products to market, the courts and the FCC are behind the scenes trying to figure out if they should be allowed to stay in business. The answer turns on the meanings of words. In one case, the Southern District Court of New York has to figure out what "public" means. While it's doing this, the FCC will be considering what a "channel" is. These hairsplitting discussions will help shape the future of online television.

Aereo

Copyright holders have the right to control "public performances" of their works. This case hinges on whether Aereo, which I would characterize as a "remote antenna" service, infringes on the public performance right.

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The GPL Does Not Depend on the Copyrightability of APIs

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There's a dangerous meme going around that if Oracle loses its novel copyright claims against Google that suddenly the GPL will become unenforceable. This idea hinges on a misunderstanding about the difference between linking to a code library and merely using an API.

In this post I will attempt to explain in layman's terms why the GPL does not depend on the copyrightability of APIs. For the same reasons, neither does any other free software or open source license.

Programmers usually write code in some human-readable form that is then "compiled" into machine code. The machine code, not the code that programmers actually write, is what a computer actually executes.

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Industry Tells Senate: Internet Video Is “Ready Now”

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Today's Senate hearing on online video was interesting for a few reasons. The most important of these, to me, was that no one questioned whether the Internet was the future of video. It's apparent to most observers by now that it is. Just a few years ago Mark Cuban was saying that online video at scale was economically and technologically impossible. He's still defending his thesis but in the meantime the explosive growth of Netflix, Amazon Prime Video, and so forth has put lie to the claim that the Internet can't support the amount of high-quality video people want to watch.

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The US-Colombia Free Trade Agreement: Policy Laundering in Action

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As we've discussed at length on this blog before, "policy laundering" happens when new policies are enacted in obscure international documents, such as U.N. treaties or bilateral trade agreements, and are not debated in Congress or regulatory agencies in the normal way. This hides the source of policies and provides government officials, elected and appointed, with a convenient excuse for agreeing to what might otherwise be unpopular or controversial provisions.

Sometimes these laundered policies do require Congressional implementation--for example, Title I of the Digital Millennium Copyright Act is called the "WIPO Copyright and Performances and Phonograms Treaties Implementation Act." But when Congress votes on these laws, they're done deals. The United States has already committed itself internationally to pass them which makes it harder for a typical member of Congress to object.

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A Missed Opportunity in Rosetta Stone Decision

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Eons ago (it seems) Rosetta Stone, makers of language learning software, sued Google for various counts of trademark infringement and dilution. The district court ruled heavily in Google's favor and Rosetta Stone appealed. The appeals court just issued its opinion, agreeing with the most important of Rosetta Stone's claims and sending the case back to the district court for further argument. Google still has a chance to prevail in the district court but there's no avoiding that this decision is a pretty big win for Rosetta Stone. But it's not a big win for clarity. After this decision, trademark law is the same as it was before it: a confusing mess of vague multi-part tests that work at cross-purposes both to each other and to the supposed purpose of the law.

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Fixing Television with Tomorrowvision

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Tomorrowvision, a new whitepaper by Public Knowledge, calls for policymakers to fix the outdated rules that are holding back the evolution of TV.

Television: A Land of Contrasts

On the one hand television shows are as good as they've ever been. To name a few, frequent Public Knowledge bête noire (Comcast-)NBCUniversal is airing Parks and Recreation and Community, some of the best TV comedies I've ever seen. Basic cable and public television have hits with AMC's Mad Men and PBS's Downton Abbey. And I never would have thought that Armando Iannucci's smart, absurdist style of comedy would be given a chance in the US but his new show, Veep, premiers on HBO later this month.

At the same time, though, "TV" kind of stinks. Smartphones, tablets, and Internet services have shown us just how intuitive and fun accessing content and communicating can be. But the way most people watch TV hasn't significantly changed since the 1980s. The problem is not TV shows but the TV distribution model.

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SOPA and the Obvious

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We are lucky that copyright issues have not divided along a left/right axis. But even though copyright is not a partisan issue, the copyright wars are a political fight. They are part of the struggle for control over the way people communicate in the 21st Century--the digital public square. Copyright debates have taken on the characteristics, including the bad ones, of more familiar political debates. Zombie lies (in Paul Krugman's words, "one of those misstatements that keeps being debunked, but keeps coming back"), us vs. them thinking, and hyperbolic overstatement are all common. Of course each side in the debates will accuse the other of each of these.

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AT&T’s Plan to Cash in on the App Economy

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AT&T has announced a new scheme that is wholly incompatible with an open Internet and could threaten the vibrant and growing app economy. Its idea is to charge app developers to have the data their apps use exempt from data usage caps, opening up grand new possibilities for double dipping.

App developers have succeeded in bringing value to consumers precisely because the app marketplace has low barriers to entry--a mobile game from EA or productivity app from Apple or Microsoft competes on even terms with software from small companies and one-man shops. AT&T's plan would give an advantage to deep-pocketed app developers and do serious damage to this innovative sector.

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Do the Verizon/Cable Transactions Spell the End of “Facilities-Based” Competition?

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The Verizon/cable deals are a bad deal for consumers and a sad sign of the state of the communications market. But at least they finally expose the state of broadband competition for what it is. In particular the deals illustrate, through the actions of the companies themselves, that mobile wireless is not a "competitor" to wired. They're different products with different uses. This is an obvious point to most but the hope that the broadband market was going to get competitive "real soon now" due to the pending arrival of some kind of wireless competitor or another has driven many of the FCC's policies in the last decade. Unfortunately these policies have had the effect of undermining actually existing competition in the broadband market to pave the way for this prophesied competitor. As it stands the FCC's record in predicting the future is on a par with Harold Camping's.

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Theater Owners Shouldn’t Count on the MPAA to “Protect Jobs”

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Former Senator Chris Dodd has been buttering the popcorn of movie theater owners since becoming Hollywood's chief lobbyist. So it's not surprising to see the National Association of Theatre Owners (NATO) and the MPAA commiserating together over what happened to SOPA. They're united in the delusion that the revolt of Internet users was started and orchestrated by Google--it's more comforting, no doubt, to paint a large corporation as the bad guy, instead of facing up to the reality of a populist revolt against your own greed and overreach.

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Senator Leahy’s Promise to “Fix” PIPA Falls Short

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Senator Leahy put out a statement late yesterday afternoon and we're still not exactly sure what it means--it could be that DNS-blocking provisions will drop out of the Protect IP Act (PIPA, the older brother of the House's infamous SOPA), or it could be that they will still be in the bill with a delayed implementation, subject to some sort of "study." But even if the DNS-blocking provisions are gone for good, it's worth remembering that this bill is still bad for the Internet, bad for users, and bad for the economy. The bill is still bad in the broader sense that it will impose endless obligations on Internet companies and users without disrupting pirates. Pirates, after all, have already developed technology to counteract the worst that the Congress can do.

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The Broadcast Treaty, Copyfraud, & Tech Neutrality

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In the cliché-driven world of policymaking, wonks often repeat that new efforts should be "technology neutral." Like most clichés this is true in a trivial and vague kind of way. Of course different technologies, to the extent they do the same general things, should be treated the same. (And of course to the extent they do different things they should be treated differently.) It's hard to know what "technology neutral" really means except as applied to a specific case.

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AT&T/T-Mobile Merger In Serious Doubt as FCC Chairman Calls for Hearing

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FCC Chairman Genachowski has just announced that the FCC will vote on an order designating the proposed merger between AT&T and T-Mobile for a hearing. This is a significant setback for AT&T--most mergers that reach this stage end up failing. This isn't the last step at the FCC, because the full Commission still needs to vote on the order, and then AT&T can either press its case before an Administrative Law Judge or simply withdraw its application. But's it's an important step and a victory for the public interest.

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When Good Things Come From Bad Cases

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In another blog post I discussed how Public Knowledge and several other groups filed a brief with the Supreme Court, asking it to overturn the FCC's indecency regulations. The case before the Court, FCC v. Fox, has had an interesting procedural history. It presents an opportunity to reflect on how lawyers can see the world differently than normal people. Basically, the FCC won a previous challenge to its indecency rules, and it's a good thing it did, even though those rules are an unconstitutional farce.

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The SunGard Meme

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One of the annoying little memes that's been going around regarding the AT&T/T-Mobile antitrust suit is that Judge Ellen Huvelle, because of her past ruling against the government's antitrust action in US v. SunGard Data Systems, is somehow predisposed to find against the government in antitrust cases generally. This makes as much sense as saying that because the government didn't prove its case against one burglar that all future burglars are going to go free.

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The Importance of Project Gutenberg

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Project Gutenberg is one of the Internet's great resources--the first "digital library," with thousands of public domain ebooks, and created entirely by volunteers. Its founder, Michael Hart, passed away this week, after founding the project--by typing in a copy of the Declaration of Independence--in 1971. In doing this, Hart invented the ebook, and what became Project Gutenberg release #1 is still available online. Hart's passing is a sad occasion but a good time to reflect on the importance of his life's work.

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Wireless Phones Ought to Work Better During Emergencies

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After Tuesday's east coast earthquake, lots of people tried to call their loved ones and couldn't get through. A parent may have wanted to check on his kids or a spouse may have wanted to call home to say that she was all right. Maybe people wanted to just touch base and chat about the unusual event, or maybe they needed to just talk about their possibly-delayed commute home. Or--more seriously--they may have tried to call 911, to report an injury related to the quake or not. But anyone who tried to make a wireless call of any importance found out the hard way that carriers don't design their networks to cope with peak usage.

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App Developers Need Competition, Not Consolidation in the Wireless Industry

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Independent app developers would be harmed by reduced competition in the wireless market. But according to Morgan Reed of the Association for Competitive Technology (ACT), nothing’s going to help independent mobile app developers more than the AT&T/T-Mobile merger--apparently app developers should look forward to the day when the gatekeepers that stand in the way of them and their customers have more power.

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The Spectrum Policy Time Machine

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Since when does setting good spectrum policy require a time machine? Because that’s what the draft House Republican spectrum bill (the “Spectrum Innovation Act of 2011”) does. Look at page 26 of the bill to see what I mean. The bill tries to free up more spectrum for broadband, but it does it in a way that threatens the future of unlicensed spectrum, one of the key things that has made broadband take off.

Millions of people use Wi-Fi every day. It’s one of those ubiquitous technologies that works as a glue holding our proliferating gadgets together. Wireless ISPs use it to connect people to the Internet in places where there might otherwise be poor or no service. Coffee shops and other public places offer it as a basic amenity.

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Why the FCC Should Block the AT&T/T-Mobile Merger: The Director’s Cut

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The FCC must not allow AT&T and T-Mobile to merge. Today, Public Knowledge and the Future of Music Coalition explained to the FCC why this merger, which would eviscerate wireless competition in the US, is a bad idea that should be stopped.

Since the breakup of the Bell System in 1984, the US has relied on competition to keep prices low and protect consumers while encouraging companies to produce a steady stream of new and interesting products. But a lot of companies would rather consolidate than compete, and the communications industry has become much less competitive as merger after merger is approved and a small number of giant companies lock in place their advantages over their competitors.

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Quick Hits on AT&T/T-Mobile

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There’s a lot more to say about the “unthinkable” merger between AT&T and T-Mobile. In the past few days, though, some items have stood out.

* When Cingular bought AT&T Wireless, they were required to divest spectrum as a condition of having the deal approved. T-Mobile bought a lot of it:

The overlapping mobile phone networks that Cingular and AT&T have in large parts of California have raised concerns among Justice Department officials about the combined companies’ market power in the state, according to sources familiar with the discussions. The deal with T-Mobile aims to ease those concerns and is contingent on Cingular closing its deal with AT&T Wireless.

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Google Books Rejection Highlights Need for Orphan Works Reform

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Today Judge Chin released his decision in the Google Books case. This is the biggest development in a while in a saga that has been unfolding since 2004. It’s great the the Judge recognized that Google and the Authors Guild (and the rest of the plaintiffs) were trying to use his court to set public policy, rather than to settle a dispute between parties. Hundreds of authors, academics, librarians, companies, and even foreign governments filed objections to the settlement, and we’re honored that the Judge agreed with us that the agreement, if approved, would give Google monopoly control of orphan works. The public deserves access to these works, but it should come through a change to the law, rather than a private agreement that locks in just one supplier.

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NCTA to FCC: AllVid Might Actually Work, and That’s a Problem

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Usually, routine letters to the FCC from industry players, asking it to take some action or pleading with it not to, don’t get much coverage. But the tech press has picked up on an amazingly overheated letter (PDF link) from the NCTA (cable’s trade association), where it claims that AllVid (which we’ve written about on the blog many times) would turn cable systems into nothing but “wholesalers,” and that allowing users a choice of user interfaces with which to view their content would throw their businesses into disarray.

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The War Against ivi is a Sign of Things to Come

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There’s a perpetual war against new entrants in the communications industry. Right now, there’s a skirmish over ivi, a startup Internet video service that’s daring to claim some of the same statutory rights as old-school cable systems. ivi offers a new kind of service that is, at the same time, quite old. Like cable systems have been doing since the 1940s, ivi retransmits broadcast stations to subscribers who might not be able to tune in any other way. But ivi sends the signals over the Internet. It’s not a service like Hulu or Netflix that offers disaggregated program content, stripped of commercials or with new ones. And it’s not like Youtube or Vimeo—ivi is only viewable by paying subscribers. ivi simply increases the number of potential viewers for a station by boosting its signal, unchanged, over the Internet.

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Senator Cantwell’s Net Neutrality Bill: Clear, Simple, and Effective

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Today, Senator Maria Cantwell (D-Wash.) introduced the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 to the Senate. Senator Al Franken (D-Minn.) cosponsored. The bill is a model of clarity, because it starts from a simple premise: What’s best for consumers, and what will best protect the open and democratic character of the Internet? The bill answers that question, by setting up short, simple, no-loopholes rules of the road that ensure that the companies that control the onramps to the Internet don’t get to extend that control and begin determining the shape of commerce and speech online.

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In Allowing Comcast/NBC Universal Merger, U.S. Government Recognizes the Importance of Online Video

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Yesterday, the U.S. Government officially recognized the competitive potential of online video. This isn’t a reason to cheer the approval of the merger between Comcast and NBCU—as Commissioner Copps recognized, no plausible conditions or commitments could remedy all of the bad effects of the merger. But observers have realized for a while that the merger was a done deal. All that was politically possible was to try to get the best conditions on it as possible. While the specifics of the conditions might not be perfect, the fact that so many of them address the potential of online video to compete with cable is good news.

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Not Unlimited. Unlimitedish.

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There’s been some coverage of MetroPCS’s new mobile plans today—started at $40 per month, they offer “unlimited talk, text, 4G Web browsing.” Engadget is more than a little confused—after all, if the $40 (“Not $40-ish, $40,” per the MetroPCS website) offers “unlimited” web access, what’s the point of paying for the $50 or $60 plan that purports to give you “additional data access”? When most people think of “the web,” they think of all of the content you can access on the web. You can watch Netflix movies on the web or listen to music—and you aren’t charged extra for going to websites that are “unaffiliated.”

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Trademark Law Doesn’t Allow Companies to Silence Competitors

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Trademark law is a consumer protection law, designed to prevent companies from passing off their products as someone else’s. It doesn’t prevent a company from comparing its products to another company's, it doesn’t prevent resellers from accurately pointing out what products they have for sale, and it doesn’t prevent a company from marketing itself to consumers who have expressed an interest in a competitor’s products by, for example, buying advertising that appears when users search for the name of a competitor’s product. Necessarily, it can’t be used to stop search engines like Google, Bing, and Yahoo from engaging in their common practice of selling the keyword advertising space that enables these kinds of uses.

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Zoom Shows How Comcast Abuses Its Market Power to Restrict Competition

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Net neutrality means that consumers have the right to use lawful applications and devices on their broadband connections.  With its secret blocking of BitTorrent, Comcast has shown that it doesn't think much of application freedom. Today, as a complaint by Zoom Telephonics to the FCC spells out, it's clear that Comcast doesn't think very highly of device freedom, either. (Here’s a link to a PDF of the complaint.)

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FCC Patches CableCARD; Doubles Down on AllVid

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It's great to see the FCC issuing orders and moving its agenda forward. The National Broadband Plan called for the Commission to increase video device competition--that is, to create the conditions that allow for third-party devices to as easily interoperate with cable or satellite video as they can with Internet-delivered content. The Commission just took an important step in the right direction by issuing an order designed to fix some of the most egregious consumer issues that have made using CableCARD devices such a challenge. CableCARD is far from an ideal solution (for example, you can't use it with satellite), but with AllVid (the proposed successor) still on the drawing board, it's all we've got for the next few years.

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A Two-Step Plan to Get the First Screen Out of Third Place

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"The third screen" in the trinity of personal multimedia is on your mobile device--the first screen is the TV and the second screen is the PC. But in terms of innovation, the first screen is third. An explosion in mobile innovations has put "the Internet in your pants" (as John Gruber puts it), but most people leave the subscription TV content they pay big bucks for where they find it: in a dingy, rented set-top box. While there has been a ton of innovation designed to bring Internet video to the TV, there are relatively few options if you want to do Neat Stuff with your pay TV content.

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Despite the RIAA/NAB Unholy Alliance to Force FM Radios Into All Cell Phones, Performance Royalties

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There’s an absolutely ridiculous story making the rounds—apparently the NAB and the RIAA have come to an agreement whereby the NAB will support broadcasters paying performance royalties, in exchange for the RIAA supporting a legal requirement that cell phones, mp3 players, and the like have FM receivers built in.

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There’s Only One Internet

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I just read the Google/Verizon blog post, and their proposed legislative framework, and listened in on their joint press call. Here’s our press release. In this post, I’m going to focus on a few of the details. Overall, there’s a lot that’s bad about this proposal, and it shouldn’t form the basis of legislation in Congress or of rules by the FCC.

The biggest problem with the framework is that, while purporting to support “the open Internet,” it draws illogical distinctions on the basis of what technology you use to access the Internet, and between “the public Internet” (Verizon’s mantra on the press call) and “additional online services.”

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Do the Visually Impaired Need Their Own ACTA?

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Last week, the Standing Committee on Copyright and Related Rights (SCCR)—part of the World Intellectual Property Organization (WIPO), a United Nations body, failed to make any progress toward increasing access to copyrighted works by the reading disabled. Though this is bad news, the issue is not over. There’s no reason why laws should prevent people who aren’t being served by the market from helping themselves by creating and sharing accessible works. But getting this message understood by a UN entity that operates by consensus is very hard. To understand why progress on helping the reading disabled has been so elusive, it helps to put WIPO into context—it’s an institution not renowned for speed.

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Make Your Nomination Now for the 2010 IP3 Awards!

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IP3

The 2010 IP3 awards are almost upon us and you can help out by making a nomination. (Actually, you can make as many as you like!) Let us know who you think should be honored for their good work in any or all of the “three IPs”: Intellectual Property, Information Policy, and Internet Protocol. The IP3 awards are our way of paying tribute to the thought leaders who inspired us and our supporters during the past year. Help us out by taking a quick minute to tell us who you think deserves an IP3 award this year.

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IP3 Awards Now Open!

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The 2010 IP3 awards are almost upon us and you can help out by making a nomination. Let us know who you think should be honored for their good work in any or all of the “three IPs”: Intellectual Property, Information Policy, and Internet Protocol. The IP3 awards are our way of paying tribute to the thought leaders who inspired us and our supporters during the past year. Help us out by taking a quick minute to tell us who you think deserves an IP3 award this year.

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Copyright Industry Calls for Censorship in the Name of Stopping Infringement

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Public Knowledge has been attacked for allegedly saying "piracy is free speech" when we point out that hyper-aggresive copyright enforcement can have First Amendment implications. Our usual points relate to how fair use is ignored or entire categories of technologies are threatened in a ham-fisted attempt to curb online infringement.

In most of these enforcement efforts, free speech is collateral damage.

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