Archive for June, 2010

Here’s my report:  I am watching more video now that I don’t have a television.  (The Lloyd has gone out of my life.)  It’s the movies – when I find one I want to see, and idly start it, it’s extremely difficult to stop watching.  Discipline will come in time, I’m sure.

I was never much of a news watcher, except in hotel rooms on the other side of the world when I want to hear something that isn’t my own voice, so I don’t miss that – I am so dependent on news text sites already that missing the evening news doesn’t make much of a difference.  And I wasn’t a sports watcher either, so nothing missed there.

The people who will have trouble cutting the cord will be looking for live events – live video-news-analysis hounds, live sports fans, and live entertainment fans.  That’s a substantial segment of the population, and many households will have at least one person who doesn’t want to leave their cable subscription behind for one of these three reasons.

This is an experiment for me, but I don’t think I’ll be going back to pay TV.  My ancient Italian doorman was confused.  “Something wrong with the cable?” he asked.  “No,” I said, “I’m going to try not subscribing, and just have Internet instead.”  He made a big hand gesture, putting his right hand flat way above his head. “It’s expensive?” he asked.  “Yes,” I answered.  He moved his right hand down around his face.  “It’s better?” he asked.  “I don’t know,” I said.

Today the National Broadband Plan gets a significant implementation boost:  spectrum.  It’s going to take a while to get federal agencies to identify and release what they’re not using.  It’s going to take a while to encourage broadcasters to let go of their holdings.  But today marks an important milestone in spectrum policy:  the Administration is setting the goal of having 500 additional MHz of spectrum available over the next ten years for commercial wireless high-speed Internet services, and directing its agencies to work towards getting this done.

Larry Summers, who is announcing the initiative later today, has a good quote about this:

This initiative will catalyze private sector investment, contribute to economic growth, and help to create hundreds of thousands of jobs.  This policy is a win three times over.  It creates prosperity and jobs while at the same time raising revenue for public purposes like public safety and increasing our ability to compete internationally.

This announcement also highlights the importance of high-speed Internet access expansion to economic growth, something the FCC has been talking about for some time.

News today that Judge Stanton (SDNY) has granted YouTube’s motion for summary judgment in Viacom v. YouTube should not be all that surprising.  In the DMCA, the burden of identifying infringing files was clearly placed on the copyright owner in exchange for a commitment by platform providers to take materials down once they received notice.  That was the deal.  If those platform providers wanted to stay like little boats safely inside the harbor of protection from liability, they had to take files down.  But they didn’t have to affirmatively hunt for infringing items.

The protection of that safe harbor, on the other hand, is only available for providers who don’t have actual knowledge of the infringing character of the material AND who aren’t “aware of facts or circumstances from which infringing activity is apparent.”  The pilot of the boat, in other words, can’t have specific knowledge about specific and identifiable infringements.

Viacom had attempted to persuade the court that the protection of the safe harbor can be taken away if the platform has some general awareness that there are infringements.  But Judge Stanton didn’t buy that argument.  As he says, if that were true it would undermine the entire “structure and operation of the DMCA.”  The whole point is that the burden of affirmative policing rests with the copyright owner.  No platform could figure out on its own whether a particular use is infringing or is subject to some license or fair use protection, and it shouldn’t be subject to such a burden based on smoky, generalized awareness of bad behavior.

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

That was the deal.  It’s working – perhaps too well, because counter-notices are rare.  But it’s working, and this court is unwilling to shift the burden back on service providers without Congressional authority.

I heard about a project last week that I wanted to write about here:  The University of Illinois is the grantee for BTOP funds for the construction of multiple fiber rings, serving “143 anchor institutions, including 40 K-12 schools, 17 social service agencies, 14 healthcare facilities, nine youth centers, four public library systems, and two higher education institutions.”

Plus fiber-to-the-home with independent ISPs serving subscribers:

“The project proposes to create a fiber-to-the-home pilot project for 2,500 low-income households to purchase an affordable high-speed Internet service plan from commercial providers. In addition, the project expects to spur affordable broadband Internet access for local consumers, including up to 50,000 households and 3,700 businesses, by enabling local Internet service providers to connect to the project’s open network.”

Urbana-Champaign came up with this proposal – it’s transformative, and it’s a result of local ingenuity rather than top-down mandate.  The University itself won’t be operating the network or serving as a provider of service, and they’re making sure it’s as open, fast, symmetric, and interconnected a facility as possible.  Many lessons will be learned from this project, and I’m looking forward to hearing how things are going.

On the 17th, the FCC will launch a proceeding aimed at gathering views on the future of the regulation of high-speed Internet access services.

But there are some very well-funded actors who are trying to persuade Congress not to let the FCC do its work.

Senator Kerry, with his colleagues Sens. Cantwell, Wyden, and Udall, is sending an important letter today to Sens. Inouye and Cochran. The bottom line:  Don’t use the appropriations process to proclaim telecom policy.

There’s an effort afoot to have Congress cut the FCC’s funding if it … inquires into the regulatory structure for high-speed Internet access.

The banks pulled off a similar maneuver a while ago – have you read “13 Bankers“?  You really should.  In 2001, they foreclosed any possibility of federal regulation of derivatives by the CFTC or SEC, by having their supporters pass the “Commodity Futures Modernization Act.”  According to “13 Bankers”:  “The financial sector had succeeded in sealing off one of its profit-making engines from the possibility of government interference.”

Here’s language from today’s Kerry letter:

We  are  writing  to  oppose  any  effort  to  use the appropriations process to block the Federal Communications Commission (FCC) from using its legal authority to preserve an open Internet, protect consumers, and provide rural residents with access to today’s broadband Internet services.  A U.S. Court of Appeals’ recent decision on the FCC’s authority has created consumer and legal uncertainty. And while the proper authorizing committees have announced efforts to update and clarify the law, it is the agency’s responsibility to ensure it has the proper regulatory structure in place to execute its responsibilities under existing law.  Preempting that process through an appropriations rider would be inappropriate.

Plus:

Seeking public comment on all available approaches is a reasonable and responsible way to move forward and we should give it increased clarity and definition through the legislative process. Congress should not block its consideration.  The Communications Act articulates and gives life to the idea that our communications networks should be open, accessible, ubiquitous, and affordable.  Those values did not die with the invention of the Internet nor did the Commission’s responsibility to act on them.

Sen. Kerry and his colleagues are doing the right thing.  The FCC is beginning a process. It should run its course, with input from everyone.

I know, people younger than I am scoff at the idea that this has taken me so long (Elizabeth Stark, so there!), but I am now just about done with both landline telephones and television.  I dropped the landline last year, when it was just so clear that paying for a phone in New York made no sense for someone who was on leave from teaching in Michigan while working in Washington.  I had kept it for the sound quality and for the idea that it would work when electricity failed, and after a while those reasons weren’t good enough.

But I just want to give a short hymn to the television.

It was bought by my friend and then-flatmate David when he was in conducting school and I was in law school, in October 1986.  It came from Crazy Eddie.  And it was bought so that David and Owen (our third roommate, then in music school) could watch the Mets play in the World Series.  I watched too, totally uninformed but happy for them, and I distinctly remember David wearing a Mets cap (and, I think, a baseball glove – but why?) and yelling when Bill Buckner let the ball roll between his legs in Game 6.  Finally, it’s a Lloyd television.  Who else has a Lloyd?

The Lloyd moved around with me (thanks, David) to Brooklyn, Santa Monica (two different places), Washington (four different places), and Manhattan (two different places).  It’s working great.  I have subscribed to basic cable for about four years now, and I just discovered that I have access to the Food Channel.  The triumph of man over ingredients is completely entertaining.

I’m moving on, though.  TW has a DOCSIS 3.0 offer and I’m going to try it.  The Lloyd’s days may be numbered, unless I can figure out how to hook the laptop up to a 1986 screen.  It stands for something in my life – I think that great year with David and Owen – and I’ll miss it.

As of July 1, 2010, I will rejoin the faculty of Cardozo Law School.  I will also become a Visiting Research Collaborator at Princeton’s Center for Information Technology Policy.  My updated bio is here.

I don’t as a rule blog about where I’m working, but I thought it would be good to let people know about my impending move from Ann Arbor back to New York City.

No mysteries here – Michigan is a wonderful law school, with a first-rate faculty and terrific students, but it is better for me personally to live on the East Coast.  I am very pleased to have the chance to rejoin my Cardozo colleagues.

My current project is a book about the Comcast/NBCU merger.  In the fall, I will teach (1) copyright and (2) the law of surveillance at Cardozo, and I will travel down to Princeton regularly.

Reports from yesterday’s Congressional field hearing on the Comcast/NBCU merger are coming in – from the LA Times (Joe Flint):

“One critic likened cable TV giant Comcast Corp. to a plantation, while another pointed to the BP oil spill disaster as what could happen when companies escape tough regulatory scrutiny. Then an influential congresswoman dropped a bomb by hinting that Comcast had tried to buy her support for one of the biggest media deals in history.”

I’m looking for video of the session, but my connection is now so slow that I can’t get to it.  So, in the absence of a fast connection, here’s a quote from one of the witness statements:

What I have witnessed over the years is a clear pattern concerning responses to the issue of diversity in the Hollywood industry. This pattern is defined by five basic moments connected in a circular chain: 1) periodic circulation of outrageously insensitive and offensive portrayals of minorities (usually black Americans, as other nonwhites were virtually invisible), 2) public outrage and/or pressure, 3) the release of depressing statistics about minority exclusion from or underemployment in the industry, 4) token or symbolic industry diversity initiatives designed to appease critics, and 5) a return to business-as-usual practices, which virtually guaranteed the conservation of a radically insular industry dominated by white males.

Dr. Darnell M. Hunt, Director, Ralph J. Bunche Center for African American Studies, Professor of Sociology, University of California, Los Angeles.

This past weekend I read “The Big Short” (like everyone else), “The Publisher” (still not done, great book), and “Crossroads of Liberalism:  Croly, Weyl, and Lippmann.”

You may not have heard of Croly, Weyl, and Lippmann.  They founded The New Republic, and they had high hopes for Teddy Roosevelt.  In fact, at several different junctures they thought he was the perfect future President as well as the perfect past holder of the office.  They were, in the end, bitterly disappointed in him.  The author of Crossroads, Forcey, strongly suggests that a belief in heros is misplaced when it comes to Presidents.  There are too many compromises that need to be made – perfection is impossible.

It has been just 500 days.  The story told in “The Big Short” is so apocalyptic, so unbelievably, wildly opportunistic, that it should put the 500 days in context for the rest of us – what this President has already had to face is amazing. It’s an extraordinarily difficult job.

Croly started a magazine – so did Henry Luce, the subject of “The Publisher.”  Books about starting epic magazines have great narrative sweep.  Suddenly, the name appears (“The New Republic,” or “Time”) and the reader understands what went into creating a brand that now seems to have been inevitable.  Both of these magazines are slender now, but the stories behind them are well worth remembering.  Will there be a book like these someday about the origins of BoingBoing?

The FCC has announced that it will hold a public forum about the merger on July 13, in Chicago.  Details here.

This is a good move.  It’s time that more people understood this merger.  It will also be good to see the back-and-forth between the staff and the public.