Archive for May, 2005

The TVWatch launch was last week, and it went extremely well – lots of press coverage.

TV Watch released a national poll which shows that the public clearly prefers parental responsibility to government control.  By a staggering eight to one ratio, respondents believe that “more parental involvement” is a better solution to keeping kids from seeing adult content than “increase [d] government control.” 

I am very proud to be associated with TVWatch.  Jeff Jarvis has shown us that a few people armed with fax machines can get the FCC to fine programs (hugely) for minor infractions of outdated rules.  This is a completely irrational state of affairs that deeply threatens free speech.  No Amendment is more embattled than the First these days.  The disease of indecency attacks is likely to spread unless we do something.  Go, TVWatch!

I remember coming back with Mr. Cutler from some mysterious Washington meeting.  It was lunchtime on a sunny day in the fall, and he was supposed to address the entering associate class in the boardroom.   We were walking along the front of the M street building – he was carrying a soft, supple (and thin) leather case, and I was lugging a big briefcase filled with binders and notepads and other paraphernalia.  I said something mild about the new associates, and he gave me his gimlet glance and said, gravel-voiced, “Are there any stars [in the associate class]?”  I don't remember what I said in return.

There are thousands of people who knew Lloyd Cutler far better than I did, and their stories are far more legitimate.  Mine are all about glancing interactions towards the end of his life.

The most sustained memories I have of him come from a week five years ago this summer.  Because someone more famous had suddenly become unavailable, he invited me to give a talk on The Future of the Internet in a castle in Salzburg.  This was a session of the Salzburg Seminar.  Mr. Cutler (I called him Lloyd to his face, but it took an effort) was in his element.  He gravely invited me for a pre-Seminar drink next to the lake, and it was immediately clear that this meeting was actually for fun — there was very little planning to be done, and we just admired the castle (the Schloss Leopoldskron, used for exteriors in the Sound of Music) in the sunshine.  He took us and the other faculty members to the opera twice (Tristan, with seats in the second row, and Cosi Fan Tutte) and to dinner at the Goldener Hirsch, and we had formal meetings in the gorgeous castle rooms.  Music meant a great deal to him.  His favorite opera was Don Giovanni. 

He gave the same piece of advice to many people:  “Never have lunch with another lawyer.”  He did not, let us say, possess the common touch, although he could certainly be charming when he wanted to be.  He never, ever, missed the forest for the trees — he saw straight to the pragmatic heart of every issue.  He was a great lawyer.

Mitchell Waldrop's “The Dream Machine” and John Markoff's “What the Dormouse Said” are both enormously exciting books about the origins of personal computing.  Both describe in loving detail the lives of people who believed in the transformative power of interactive human-driven electronic environments.  (And Markoff unforgettably connects countercultural mid-Peninsula 1960s life to to the development of graphical interfaces.)

We need to do some succession planning — or maybe just some succession PR.  The people described by Waldrop and Markoff were fearless and open to suggestion; they had enormous imaginations; and they didn't care what anyone thought about what they were doing.  Now people talk about the internet as either (1) utterly predictable and boring, or (2) full of danger and darkness.  Both of these rather smug approaches to electronic interaction lack imagination.  And they point towards a constrained electronic future.

This isn't a plea to return to the past.  Instead, it's a reminder that sometimes it's a good idea to just do things.  Go ahead – today – and build something useful and imaginative.  People will write about you later. 

Today's broadcast flag ruling [pdf] from the DC Circuit has significant implications for the future of internet regulation in this country.  As I've argued (plug for law review article — why not download the article?), and as the court today found, the Federal Communications Commission does not have power to make rules about products and services that don't fall under its existing statutory authority over telecommunications companies, broadcasters, and cable companies.

The specific context for the flag ruling is the Commission's assertion of dominion over devices that are capable of receiving digital television signals — a broad range of consumer electronics devices and PCs. The Commission adopted a rule back in late 2003 that would have required all of these devices, and the devices that interoperate with them, to recognize a marking scheme aimed at protecting particular content from widespread transmission over the internet.  The FCC felt it had to do this in order to “fulfill its responsibility of implementing the transition to digital television.”

The DC Circuit (in a unanimous opinion) found that the Commission didn't have power from Congress to make rules about what devices do with content once that content has been received.  It also said that the court didn't need to defer to the FCC's statements about its jurisdiction because this delegation from Congress had not occurred.

The court reasoned that Congress has given the FCC power over entities engaged in “communication by wire or radio.”  Making consumer electronics devices and computers recognize a particular marking scheme after they've received an electronic transmission (but when they aren't “communicating” in any way) is beyond those powers.

Although the DC Circuit didn't have to reach this question, my view is that when the FCC starts making rules about a VoIP application that doesn't terminate calls using a traditional telephone number, or an email application, or PCs, or anything else it hasn't traditionally made rules about, it will be acting beyond the powers given it by Congress.  This means we will have to have a sustained national conversation about the scope of the FCC's authority over the internet before the Commission can act.

From what I've been hearing, it's going to take several years for any rewrite of the Communications Act to happen.  In the meantime, today's opinion signals that the FCC should act with self-restraint.

There was a small flurry of messages today among cyberprofs about how students see the internet today.  The consensus seems to be that it's harder for young people to understand John Perry Barlow's Declaration or the notion that spam is a big problem.  But virtual property issues are all the rage.  Online access is just like electricity to this generation.

Internet exceptionalism makes sense to me, but not because of the “we can't be regulated” argument.  Electronic interaction augments what humans are particularly good at — associating, talking, remembering, getting things done — and makes visible what is often invisible offline.  It's a revelatory medium.  Ten years from now, we'll see this more clearly.  I don't think it's right to be curmudgeonly about the internet now (“harumph, no big deal, just a speeded up telephone network”), and I'll bet that our successors will understand much better than we do what impact it has had on life.

In Pattern Recognition, an absorbing William Gibson novel, the protagonist believes that when she travels a long distance it takes a while for her soul to catch up.  Jet lag, for her, is just a matter of the soul wandering above the Atlantic in the slipstream.

I spent the day (a long day) in DC watching seven panels of people (including one that had me on it) prognosticate about the future of communications.  I'm back in NY, but my soul is somewhere in Philadelphia, confused. 

Today focused on the same old deep conflict, but now I think I understand it better.  There are at least two sides to it.

First, the people who are used to owning and controlling networks see the internet as just another network.  They're used to networks competing, and they're looking forward to lumping “value propositions” and “user experiences” together for their subscribers.  They're investing hugely in their proprietary networks.  They're not used to “networks of networks.”  There are only two actors in this category:  Comcast/TW and SBC/Verizon.  A duopoly.  Through the good graces of this duopoly, Americans are able to get online.

Second, the people who are used to interactive computing as a way of life can't imagine that anyone will show up and constrain their access.  Impossible to contemplate.  So impossible, in fact, that many large companies whose business plans depend on access to the internet don't put a lot of energy into the policy game in Washington. 

Both sides assume that their respective worldviews are indisputably accurate.  The cable/telco world is squabbling over the applicability of cable franchise rules to telcos.  The online world is squabbling over content issues and the liability of intermediaries.  Both worlds are closed, acronym-ridden, clubby places. 

It's time to get the access question straight, and it won't be easy — particularly given the lobbying muscle of the incumbents.  I'll start to work when my soul gets in from Philadelphia.  It's been quite a day. 

There's a story from France quickly making the rounds:  A French court has said copy protection applied to DVDs is illegal, both for “privacy” (?) reasons and for consumer protection (inadequate disclosure) reasons.

The US content industry often cites the success of DVDs as evidence that consumers don't expect to make their own copies of this format — and don't seem to care that they can't.  The DVD closed-circle, chain-of-licenses story is told over and over again in this country.  “See?” the industry says, “People just want to be entertained.”

But in France, Germany, and Spain (three reasonable countries), people do apparently expect to be able to make private copies of things they take home with them — and the law supports this understanding.  If this decision takes hold (and I can only imagine the resources being devoted right now to make sure that it is deep-sixed and tagged as downright un-European by some more captive law-making body), and is joined with some other European precedents on the consumer-unfriendliness of DRM, it might just cause a little wrinkle of change. 

But I have to say I'm not sanguine about this.  I'm sure there are treaties being whipped up that will enshrine DRM as a human right (“consumers require choices of content; such choices can only be made available if adequate legal controls are in place; private copying is in derogation of the Rights of Man” — something like that), and those French people wanting to make copies for maman will be sent meekly back to the store to buy again. 

It really is war out there.  I just moderated a panel at the NY Bar Assn on P2P. 

RIAA:  Copyright law is about control.  Other Guys: Copyright law is about encouraging innovation.

RIAA:  Copyright infringement is immoral and is destroying small songwriters.  Other Guys:  The content industries should embrace online business models.

I had to be a very active moderator, so I couldn't take notes.  All I could do was write words in the margin of my pages — words like “democracy,” and “respect,” and “infringement machine.”  I didn't have to actually yell at any point, but it was close.

Yikes.

The audience had a lot of questions too.  The questions seemed to be coming from people who weren't very sympathetic to the record labels.  But, again, I couldn't take notes — I was too busy keeping the panelists from jumping down the questioners' throats.

I can report that before things got really rhetorical Don Verrilli clearly said that he's proposing a Sony test that's narrower than the Aimster proportionality test (he'd protect a “business that is substantially unrelated to infringement”).  He's also very sure that there is a great deal of evidence in the record about Grokster's bad behavior — planning their business based on infringement, that kind of thing.

Adam Eisgrau responded to Verrilli on both these points, saying that Don's test would cast a pall on innovation, and that all of this “evidence” was under seal.  Adam also pointed to the DiMA brief [pdf] and asked whether the RIAA would agree to the very reasonable test proposed there (they did not respond).  Sonia Katyal made some very strong points about the risks to creativity posed by a fee-for-transaction approach to content, and the dangers of getting rid of fair use.

After the final bell, we all retired to our various corners and then went out into the rainy night.

So it turns out that Jane Jacobs was Le Corbusier's girlfriend, and he was brilliant but didn't pay enough attention to her, so when Robert Moses wanted to enshrine Le Corbusier's principles in a highway cutting across lower Manhattan unhappy Jane gathered a group of activists and brought Moses down.  There was a trial that was decided by a feat of physical strength, with Moses and Jacobs having a tug-of-war with Le Corbusier's body — Moses's team shouting “Get things done!” and Jacobs's team yelling “Emergence theory!”

It's a musical (sort of) about urban planning (“single use zoning!”), with a lot of smoke effects and some earnest dialogue.  Jane Jacobs yells about the human need for sidewalks and neighborhoods (and organically-growing cities), and Robert Moses shouts about the purity and rightness of clean, wide highways (and a master plan).

We're not quite ready for a musical about the internet, but soon, soon – we just need a few more songs.  

Retinal light receptors are unevenly distributed.  In the center of the retina (the fovea), there are mostly cone photoreceptors.  Cones are used mostly for color vision, and don't pick up on dim light.  (This is why you can't see the colors of things in a dim room.)  Rods (for black and white light) are highly concentrated in our peripheral vision, and are very sensitive to dim light.

So you can see dim stars in your peripheral vision that you wouldn't be able to see if you were staring right at them.

The eponymous conference is next Wednesday.