Archive for November, 2004

Waaaay back in July 2004, ICANN's budget was set at $15 million.  I suggested that we not focus on the number (which represented a doubling over the prior year) but instead make sure that future budgets were (a) very closely tied to ICANN's mission and (b) scrutinized by watchdog groups with the resources to do something about overreaching.

I even suggested that ICANN wasn't interested in expanding its scope of activities.

Boy, was I wrong.

If you look at the recently-released ICANN Request for Proposals for .net (pdf file here), you'll see something remarkable on p.11:

[A]pplicants should assume that the following fees will be payable: (i) an annual fee to ICANN of US$132,000 for the first year, increasing by no more than 15% each year thereafter and (ii) registry-level transaction fees totaling non-refundable amounts of US$0.75 for each annual increment of an initial domain name registration and US$0.75 for each annual increment of a domain name re-registration registered by a registrar. . .

If this “transaction fee” of .75 per name becomes the model for future ICANN contracts, ICANN must be planning to have enormous resources at its disposal.  There are about 40 million names registered in the gTLD domains (.com, .net, .biz etc.  — this category doesn't include the country code top level domains).

40 million times .75 is $30 million.  If something happens (a transfer, a renewal) to each one of these names once every three years, that's $10 million additional dollars every year.  Plus all the .75 fees coming in for each year of every new registration — could be another $10 million a year.  That's a lot of money.  

These contracts are essentially non-negotiable — indeed, ICANN states in the .net RFP that the assumption of these registry-level fees is “an absolute criterion.”  Does ICANN have authority in its MOU with the Department of Commerce to require particular transaction-payments of registries?  Perhaps this is part of ICANN's strategic plan, which should be coming out tomorrow.  People will be looking for limiting principles in that plan. 

Given the .net fee structure, it may be that ICANN's ambitions are loftier than I thought they were.

ICANN has initiated arbitration (before the ICC's International Court of Arbitration) against VeriSign under the .net Registry Agreement, seeking declaratory judgments that many things VeriSign has done or attempted to do over the years (Sitefinder, ConsoliDate, IDN, WLS, and stemming the abusive actions of shell registrars when they destructively query the registry for secondary market purposes) violate that agreement. 

ICANN has asked the California state court hearing VeriSign's lawsuit to stay its proceedings in favor of this arbitration, because the two matters concern many of the same questions.  (The .com agreement says that both parties have to agree to arbitration, but the .net agreement allows either party to initiate arbitration without the agreement of the other.)

This is a religious war, but there's a contract at the heart of it.  What's at issue here is ICANN's belief that a registry is a public trust, and not a business. 

VeriSign signed a contract with ICANN that gives ICANN very narrow approval power (price and fit with specifications) over new services that are “provided as an integral part of the operation of the Registry TLD.”  VeriSign's view is that these recently launched (or attempted-to-be-launched) services are not “integral” to its function of adding information to the zone file.  ICANN has never liked this contract, and appears to want to convert its contractual relationship with VeriSign into something much more like the relationship the FCC has with common carriers. 

VeriSign, for its part, has acted abruptly on more than one occasion (Sitefinder is the example that comes to mind) and is probably tired of having to ask for permission even for services that ARE ”registry services” — ICANN has read its approval scope more broadly than the contract may indicate, and it currently takes years for the process to roll to completion.

The .net registry is also now being competed for by other registry operators, and ICANN plainly would like to hand it to someone other than VeriSign:

ICANN has the right to terminate the .net agreement, in accordance with paragraph 5.4.5 of the agreement, if the arbitration panel finds that VeriSign has certain obligations under the .net agreement and VeriSign subsequently or concurrently violates those obligations. In addition, ICANN has the right to take VeriSign's conduct, as alleged herein, into account in connection with the future appointment of operators for new and/or existing TLDs.

So, once again, we're back in the swamp — this time with ICANN on the offensive.  The California court will decide on December 7 whether to hold on to the case before it or defer to the international arbitration proceeding.

The FCC has filed a remarkable brief in the broadcast flag challenge pending before the DC Circuit.  (Public Knowledge is leading the plaintiffs in this matter.)

Some background:  Back in November 2003, the FCC issued an order (the broadcast flag rule) saying that all devices capable of receiving a digital TV signal (or storing DTV files) would have to comply by July 2005 with a set of technical mandates. 

The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content encrypt that content and protect it against unauthorized onward distribution.

In order to make this happen, the FCC has established a new and extraordinarily broadregulatory regime that mandates the use of “authorized” content protection technologies by virtually every consumer electronics product and computer product — including digital television sets, digital cable set-top boxes, direct broadcast satellite receivers, personal video recorders (PVRs), DVD recorders, D-VHS recorders, and computers with tuner cards.

In the context of both the flag rule and the IP-enabled services proceeding that was the subject of Bellhead/Nethead earlier this fall, the FCC has said that it has “ancillary” jurisdiction to act.  Translation:  “Congress hasn't said that we DON'T have the power to do this, so we're going to go ahead on the assumption that we do.” 

The FCC's brief, filed in response to PK's challenge to FCC's jurisdiction in the flag matter, is breathtaking.  FCC's position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus “associated with the overall circuit of messages sent and received” via all interstate radio and wire communication.  That's quite a claim.

FCC believes that it has simply been restraining itself up until now.  Since 1934 (or 1927, depending on how you count), FCC has had power over all equipment used in connection with radio and wire transmissions.  When the need arises, it can exercise its authority — including its authority over PCs, PVRs, and any new gizmo that has something to do with a communication of some sort.

As the FCC said in the November 2003 order,

“[E]ven though this may be the first time the Commission exercises its ancillary jurisdiction over equipment manufacturers in this manner, the nation now stands at a juncture where such exercise of authority is necessary.”  In other words, the FCC is willing to do whatever it takes to make the DTV transition happens; it believes the flag is necessary to this transition, and not having explicit jurisdiction to act isn't enough of a reason not to act.

FCC can't deny that every single time it has made a rule affecting consumer electronics devices it has had explicit authority from Congress to do so.  But its brief argues that none of these statutes “demonstrate[] a congressional understanding that the FCC lacks general rulemaking authority over television receiving equipment.”  (“Congress didn't tell us we couldn't act.”)

The thing is, this rule doesn't merely affect TV receiving equipment.  It affects everything that RECEIVES digital files from TV receiving equipment as well — every device inside any home network.  It affects the open-platform PC.  It's a sweeping rule.  And now FCC's jurisdiction to enact this rule is being argued in sweeping terms.

Why should we care about all of this?  We should care because if the FCC has the power to act on anything that has something to do with communication, we have only the FCC's self-restraint to rely on when it comes to all internet communications.  We should care because we want open platforms and open communications to continue.  We should care because the future of the internet is at stake — the FCC will use its “ancillary jurisdiction” to impose “social policies” on any services that use the internet protocol, and will point to its broadcast flag action as support for its jurisdictional claims.

I'm wondering if the White House knows what is going on at the FCC.

It looks as if other people (maybe many other people) are working on personalized/social network search applications.  Over at Smart Mobs, Paul Hartzon has a post today about NeuroGrid.  You become a node and start informing a network with better metadata about documents.

W3C's work on a “resource description framework” (RDF) browser is, meanwhile, sparking some negative Slashdot commentary today.  Sample:  “A network of random connections of semantic concepts embodied as URIs is just not a friendly form of data for humans to manipulate directly, and I don't think it ever will be.”  But some people are more positive: 

Browsing metadata is the next frontier in the evolution of the web. Some of the other RDF browsers popping up include Gnowsis [gnowsis.org], MIT Haystack [mit.edu], and Fenfire [nongnu.org].

Get out there and find some metadata.  Meta is bettah.  I like this recent post heading:  “I'll have a Low-Fat, Soy, Social, Local Search Latte, Please.” 

Someone who went to law school in the early 1970s and now works as a licensing lawyer said to me today that he had had to beg his dean to provide some kind of IP course — and all he got from his efforts was a one-term survey covering patent, trademark, and copyright, taught by a guy who used to run a movie projector and so was deemed to be the most likely to know about that kind of stuff.

No longer.  Intellectual property is hot, hot, hot.  IP law is swallowing up whole domains that used to be innocent of the rhetoric of property. 

Three stories for today:

1.  MSN has issued a Royalty-Free Protocol License Agreement that, as far as I can tell, requires that any application communicating with any MSN operating system has to license from MSN (for free) the right to use standard communication protocols — to the extent MSN owns any rights in those protocols.  MSN isn't saying in this license agreement precisely what rights it claims to own.  But it is listing all kinds of protocols, including ftp and TCP/IP, as things that need to be licensed. 

Larry Blunk has written to the IETF expressing concern that this move by MSN “inject[s] a significant amount of unwarranted uncertainty and doubt regarding non-Microsoft implementations of these protocols.” 

The agreement is non-negotiable.  

2.  Amicus briefs are flying in the Grokster case.  The betting is that the Court will take the case — it will be hard for the clerks to ignore such an interesting set of issues.  EFF's brief is here [pdf]; PFF's brief is here [pdf]; and TFF is expected to file soon.

3.  Speaking of EFF, they're looking for amicus briefs to be filed by December 22, 2004 in the Blizzard v. Internet Gateway case in the 8th Circuit.  The district court decision [pdf] in that case upholds a very broad license agreement forbidding any kind of reverse engineering or fair use; key issues before the appellate court will be preemption and the scope of the 1201(f) exception in the DMCA for reverse engineering. 

And if you understood that last paragraph you are living evidence of the salience of IP law.

Clay Shirky has posted a wise and straightforward piece about small things software designers could do to target and support group users of software.

Providing ways to aggregate information about the state of the group mind – ranking/filtering/applauding — as well as ways to allow roles within groups to be filled by shifting members of the group, allows social complexity to emerge from simple technology.

It's all about metainformational depth, tags, and flows.  If designers make it easy for users to apply tags to information, either manually or automatically (I LIKE this post; I LEAN in this direction; this guy is posting TOO MUCH), those tags can be aggregated to produce patterns that reveal the group as an entity with an interesting life of its own.

Clay suggests thinking about simple changes to existing software that would allow groups to flourish through the feedback familiar to us in complex adaptive systems.  He uses Craigslist and Slashdot as examples of gently-mutated software services that provide enormous value.  

If only search was group-directed, or at least group-oriented.  We must be at a very early stage of search engines — right now, we fling ourselves into a list, and emerge exhausted.  Maybe some members of a group could be tagged as expert searchers.  Maybe groups could compete for the affection of new group members through the power and precision of their searches.  I'm not so interested in searching my own desktop, but I am fascinated by searching the desktops of the Bertrand Russells or Isaiah Berlins or William Jameses of today.  And I want to be able to find today what I found yesterday and tagged for later reading — or that a group I'm interested in tagged for later reading.

Right now.      

And leave a message before 5pm tomorrow, Friday, telling him/her NOT to sign off on an amicus brief supporting cert. in Grokster.

Here's the list of phone numbers.

What's happened is that AGs are politely circulating a brief supporting a grant of cert. — probably very few of them know what the larger issues are, and probably most of them believe that Grokster is a bad guy who should be punished.

All you have to say is:  “This is not an issue you should get involved in.  What's really going on here is that the studio plaintiffs are trying to overturn Sony.  Overturning Sony would have serious and damaging implications for the high-technology industry in our country — an industry that contributes enormously to our national economy.  Don't sign on.”

I'm in DC for the law professor recruiting conference.  The interviews are about to start, and I'll disappear for a few days.  So far, being here has been a blur of visits — never enough time to talk.  And a lot of prognosticating about the effects (if any) of the election on tech policy.

The MPAA announced today that they'll be suing individual uploaders of pre-release films.  Some reactions:

1.  Current copyright law is broad, strong, and can be used as an effective tool by content creators.  No need to write new copyright laws reaching manufacturers and service providers.

2.  If in fact the MPAA is going after uploading of pre-releases, they should try to stop the bleeding at its source — it must be that critics and reviewers and studio sources are leaking this content. 

3.  Why aren't better, legal downloading sites available for the consumers that would like to access this content and are willing to pay a reasonable amount to do so?

4.  It's likely that these suits will have a positive, dampening effect on uploading.  That's appropriate.  I'm not against litigation.  But I don't think litigation is a substitute for better business models.   

On today's NYT Op-Ed page, Paul Krugman and David Brooks both had columns in which they said the Times wouldn't let them endorse a candidate.  But they made sure to hint strongly as to their preferred choices.

In contrast to those columns, it was refreshing to have a swarm of blogger statements filling the center of the page.  The Times: “The Op-Ed page asked bloggers from all points on the political spectrum to say what they thought was the most important event or moment of the campaign that, we hope, comes to an end today.”  And the bloggers went ahead and said what they wanted to. Wonkette did a particularly good job:

I was all set to vote for George Bush even after finding out that he wouldn't let me marry Mary Cheney if I wanted to. . . . But in the end, with the fate of the free world at stake and all, I've got to go with the guy who would admit that sending thousands of American soldiers and Iraqi civilians to their deaths to protect us from imaginary weapons was, in fact, a mistake.

So the bloggers had an endorsing voice, but the columnists didn't.

[sweeping segue...modulation]  I get very excited about the possibilities of technology in the classroom, and online ways of teaching.  But it's becoming clear to me that humans offered the ability to just talk to one another would prefer to do that.  Sure, the lecture to a large room is a dead form, but people like the compactness and richly informational nature of talking and listening in a quiet room filled with lots of other humans.

We had a particularly vivid example of this predilection this past weekend, when one of the State of Play panelists decided to speak through an online avatar.  So the panelist busily typed away, and another person in the audience read the avatar's words out loud into a microphone.  This seemed completely unnecessary and irritating.  The panelist was there!  She was in the room!  She should have been talking to us!  But, instead, we were stuck with a static avatar not saying very much (not even twirling) with a halting voiceover slowly saying what the avatar puppeteer had typed.

Online talk is best when it's necessary in some sense.  Because there's a classroom, and a classtime, and a regular session for chatter, we'd rather show up to class together than pretend to be deeply engaged in an online thread about the same sorts of subjects we're discussing in class.  It just doesn't seem efficient/necessary/satisfying to move part of the class online.  If we moved all of the class online, that might work — particularly if we gave a lot of credit and recognition for what happened online.

Same with the bloggers on the Op-Ed page today.  Blogging works because it's the only way people can have a voice that is found by their peers without an enormous, expensive, authoritative structure supporting it.  it's necessary.  I bet a blogger who had lots of other more traditional ways to reach the public (an authoritative platform of another kind) would not be as interesting a blogger.  And might even forget to blog.

So:  it's a tradeoff.  Necessity has produced new forms of journalism online, and will soon produce new forms of online legal education.  In the meantime, the traditional ways of doing things are not going away.

But those poor traditional columnists aren't getting to endorse candidates.  It's a shame.  They should try blogging.

Many of you have voted already.  I'm going to PS 41 in the morning to vote.  Someone IMd me this afternoon, saying “I can't concentrate.”  It's the election; tonight, three people said to me that they were worried about constitutional crises of various kinds tomorrow.

Whatever happens, the internet has had a huge effect on this election — and I predict that we'll have a peaceful, civil day tomorrow, in part because of our ability to watch facts roll out online, in a river of commentary and adjustments and fierce blogging.  As John Schwartz so eloquently said in the Times yesterday:

Despite the fractious modern-day discourse, the nation's founders would have surely loved the debate fueled by the Internet. The pamphleteers of their day could be nettlesome and scurrilous, but the founders wrote the First Amendment with the faith that good ideas generally win out in the marketplace of ideas. . . .

The fact that today's marketplace of ideas has vendors that pass off shoddy goods should come as no surprise . . .  But Internauts didn't abandon eBay, which calls itself the “perfect market,” or other online shops. Instead, they approach those marketplaces with a healthy dose of skepticism.

Given time, we all might become savvy consumers in the marketplace of ideas as well.

I like the “internaut” coinage, and I'm particularly happy that we have a beautiful view of a thriving marketplace of ideas.  Online.

We'll be fine.