ICANN Wednesday
After all the joy of last night and the emotion of this morning (Cairo time) watching such a wonderful speech, it is hard to re-focus on ICANN.
So let’s ease into it with a reflection on white spaces - here’s Harold Feld’s live-blogging of the FCC meeting yesterday. News release here. The big development is permission for unlicensed use of the white spaces, subject to a number of conditions (low power-levels, use of beacons and geolocation databases, protection of wireless mics). The Commission will also explore *higher* power uses of the white spaces in rural areas, where there could be real opportunities to provide workable wireless high-speed internet access.
It’s exciting, and I wish I weren’t feeling upside-down and slightly queasy in a basement half a world away so that I could do proper justice to the news.
Which brings us to ICANN. Today was a long series of meetings and workshops. I was active in one at the end of the day about the release of single-letter second-level domains (x.coop, m.mobi). To cut to the chase, I’d be interested in seeing much more standardized processes for registries who want to offer new services. This has been an ongoing quagmire for ICANN. We had quagmire 1 for the existing registries, and I’m hoping ICANN can avoid a quagmire 2 for the new ones.
But the big news today is, of course, the election at home. I really wish I could have been there. Sen. Obama’s speech was Lincolnesque, full of grave consciousness, and deeply felt. We pin too many hopes on our Presidents-elect, we Americans, but it is good to feel hopeful.
ICANN Tuesday
Here’s the challenge: try to stay awake for election night half a world away. Not easy.
So, why not talk about a current ICANN issue. This one is about the process of making changes in the contract to be signed by new gTLD operators.
Here’s the text that’s proposed on the ICANN site:
Section 7.1 Evolution of Terms and Specifications. During the term of this Agreement, certain provisions of the Agreement and the specifications incorporated into this Agreement may be amended, modified, supplemented or updated in accordance with changing standards, policies and requirements pursuant to the process set forth in this Article 7.
Section 7.2 Notice of Changes. ICANN will publicly post on its web site for no less than thirty (30) days notice of any proposed changes, modifications or amendments to this form of registry agreement. Following such public notice period during which ICANN will consider input from affected Registry Operators, Registry Operator will be provided notice of the final terms of any changes, modifications or amendments to the terms of this Agreement, and/or the requirements, specifications, or processes incorporated into this Agreement at least ninety (90) days prior to the effectiveness thereof by the posting of a notice of effectiveness on ICANN’s web site. Any such proposed changes, modifications or amendments may be disapproved within sixty (60) days from the date of notice of effectiveness of the change by either (i) two-thirds in number of the registry operators subject to the change or (ii) a two-thirds vote by the council of the ICANN Generic Names Supporting Organization (GNSO) pursuant to the GNSO’s procedures (as the same may be modified from time to time) followed with respect to the
review and consideration of new Consensus Polices. In the event that such modification or amendment is disapproved pursuant to the process set forth herein, the ICANN Board shall have thirty (30) days to override such disapproval if it can show that the modification or amendment is justified by a substantial and compelling need related to the security or stability of the Internet or the Domain Name System.
In a public meeting with current ICANN gTLD registries today, they made clear that this is a major change to the basic deal that underlies the entire ICANN gTLD structure.
This is an interesting moment in ICANN’s history. At the moment, private parties to these agreements (registries and ICANN) sign up to a basic “consensus policy” regime. Under this regime, the registry agrees in advance to be bound by changes to its contract that are within a prescribed scope of issues (the “picket fence”) as long as the right process is followed in creating these changes (the “consensus policy process”). This is a remarkable idea. It’s a leap of faith for the private registry, but the operator’s risk is constrained by the boundary around the list of topics on which consensus policies can be made. It’s a way for ICANN to have flexibility in imposing those few global requirements that are necessary. (If there are emergencies, ICANN has the power to impose temporary changes without first going through the consensus policy process.)
ICANN recently has wanted to make a lot of changes to its standard Registrar Accreditation Agreement. It found that it was was constrained by an even earlier version of the consensus policy process idea, and has found this frustrating. So it wants the flexibility to make changes without going through a policy process, and it’s (initially) saying that although those changes can be overridden in some ways they will automatically become effective if they are *not* overridden.
Big change. The board may discuss this on Friday, and public comments are being sought on the proposed contract. Write to gtld-transition@icann.org - you’ll receive a confirmation email with a link to the comment submission form.
ICANN Monday
There are lots of “Europeans For Obama” buttons here at ICANN’s meeting in Cairo. We’re in a gigantic, visually disorienting hotel.
Some of the issues are disorienting too. There are at least five that are central this week:
- new gTLDs - a big draft RFP is out. Two more comment periods to go. I’m hoping the board will discuss some key elements on Friday. Geographic names — should objectors have to object to them, or should applicants have to present evidence of governmental support? Contention — are auctions really a good idea? Morality and public order - just what standards should arbitrators considering objections on these grounds look at? Draft contracts - what should registries have to agree to as a condition of running a TLD?
- a “fast track” for IDNs (non-ASCII domains, using international scripts) associated with the ISO-3166 list. Again, some things for the board to discuss. Agreements, fees, contention with new gTLDs (could be some confusion there), timing, scope (will multiple scripts per country be permitted?). This is a difficult one. How do you know something is a ccTLD? Potential answer: most of the time, when it’s on the ISO-3166 list. But that’s not the answer this process will produce.
- GNSO improvements. Always.
- Board review. Take a look at this very interesting independent review report. It’s clear from the report that there isn’t a shared understanding of the function of the board. We can all agree that the chair is doing a fine job - beyond that, it’s murky. What to do?
- and this sleeper: the work of the President’s Strategy Committee.
More tomorrow.
Transit
I’m on my way to ICANN’s 33rd meeting, this time in Cairo. I’ll write from there on Monday.
Palo Alto fiber
So this is really interesting: three businesses putting up $30 million to build out the Palo Alto fiber network. They’ll operate it on a wholesale basis, collecting revenue for their coordination work, and they’ll get discounted use of it themselves. The city doesn’t have to pay for any of this service, and in 25 years Palo Alto can buy the network for a dollar. It’ll use standard equipment, so there will be lots of choices of vendors. Not to mention instant access to 100 Mbps connectivity.
And here’s what a city official has to say about this open-access network:
‘There’s a vision that you’re entering into the real 21st century with this kind of capacity,” said Joe Saccio, Palo Alto’s deputy director for administrative services. ‘It’s an economic tool and, hopefully, it can create new kinds of jobs and allow new applications and new software for consumers.’
That’s right: economic development is the reason. Story is here.
(HT: Frank Coluccio)
Google settlement: Changing Defaults
Back in 2004, Google felt quite strongly that its “Book Search” project was a fair use of copyrighted material. It kept pointing out that it wasn’t displaying complete copies of books covered by copyright. Instead, it scanned the material and then displayed snippets from these books in response to queries.
I was persuaded by this argument. It seemed to me that the making of the first copy - the copy needed to generate the snippets - was a necessary step to providing a card catalog, in essence. An incidental copy. The snippets themselves, I thought, were fair because they weren’t supplanting the marketplace for the book. There was no existing marketplace for “licensing-the-copying-of-books-for-use-by-search-engines” at the time that Google started its project. It seemed to me as if the publishers who sued (and perhaps not the authors being published) wanted to be sure to participate in Google’s profits in a way that went far beyond what copyright law would require.
Yesterday’s settlement agreement is remarkable in many ways. It’s a proposed settlement of a civil, private lawsuit, but the agreement feels public. It affects an entire industry, not just the parties concerned. It sets up a new kind of special-purpose collective rights association (h.t. James Grimmelmann), like ASCAP or BMI. Instead of Google acting to create access to a great library of books, it seems to point to the creation of a tremendous bookstore. Perhaps that’s the same thing, but it’s worth thinking about the changed default settings that this arrangement creates.
Here’s a simple default-change: In the original project, Google was scanning in-copyright and in-print books. Although it wasn’t displaying them in full, it was displaying snippets - a few sentences surrounding the sought word.
Now, if I understand the agreement correctly, the default will be that a search triggering a response from an in-copyright, in-print book will lead to bibliographic material. Nothing else will be shown *unless* the publisher affirmatively requests that the book be part of the displayed material. If that happens it will be easy for us to buy the book, we’ll get to see much more of it online than only snippets, and 2/3 of whatever money Google makes from the entire experience will go to the new collective rights organization (the Registry).
That may be all to the good, but it’s a substantial change, and it may affect arguments that other online players want to make about the legality of their content-related activities.
On the other hand, a very positive additional outcome from the settlement is that participating libraries will be able to use complete digital copies of the scanned books. And Google points out that the deal will bring millions of books to light online. Addition on 10/30: Google notes that the default settings are now *better* for in-copyright, *out of print* books, which make up 75% of books - you’ll be able to see 20% of the pages of these books for free, or buy electronic access to the entire book. In general, it is Google’s view that this settlement produces far more public benefit than a victory as to the fair use argument ever could have.
The bottom line: In 2004, Google thought it was shaping its conduct according to the law. But Google’s lawyers also have to shape the working situation in which Google operates. That working situation, from 2004 until yesterday, has involved great bitterness coming from publishers who could otherwise be Google’s allies. The pure legal principle of the fair use argument, weighed against that bitterness and the possibility of a win-win deal, had to defer.
Nov. 4
We have this election next week - but there’s also a big FCC meeting. (Plus the FCC v. Fox argument.)
On the agenda at the FCC: two big wireless mergers, a hugely-complicated set of changes to universal service and intercarrier compensation, and an order in the white spaces proceeding.
All of these things interrelate. Will the Commission confirm in the context of the mergers that its Internet Policy Statement also applies to wireless high-speed internet access (remember the Skype petition)? Will universal service become all about high-speed internet access, with its own openness requirements? Will intercarrier compensation be structured in such a way as to undermine the prospects of those wireless carriers who are trying to merge? Will unlicensed use of the white spaces be allowed - which may provide ways for rural high-speed internet access to be provided without having to rely on existing carriers?
Lots of political deals to be made, probably lots of drafting going on right now - all in the waning days of this administration.
Three things
1. Let’s not forget Sen. Stevens today - the famous video.
2. Great talk by Brian Reich today, with lots of examples of everything-changing. He’s optimistic - if you’ve got great information, great experiences, or great stuff to offer, you’ll be fine, even in these challenging times. But you’d better be using all kinds of technology to reach people. (The population of people in the room who are Twitter users was remarkably small, and almost no one at the talk has a blog. What’s up with that?)
3. White spaces wrangling continues - MSN makes its point, David Reed posts a public message about how things actually work, Michael Calabrese points to the elephant in the room, and the editor of TVNewsday fights back.
White spaces - timing
Last week’s emergency petition by the broadcasters to delay the FCC’s Nov. 4 vote is just part of the white spaces atmosphere right now. Ars Technica reports that the mud is really flying - the broadcasters are accusing proponents of white space use of wanting to kill off television.
It’s a familiar argument - “If you do Y, broadcast television as we know it will be destroyed.” (See Joel Brinkley, Defining Vision.)
Now the broadcasters have made a supplemental filing arguing in favor of drastically reduced power levels for white space devices. They’re saying that using these devices in channels adjacent to existing broadcast channels will “create[ ] the potential for interference to viewers’ DTV sets throughout 77% of a station’s service area.” Their proposal is for far lower power limits, no sole reliance on spectrum sensing (databases of uses would have to be checked - “geolocation”), and for setting aside special channels for wireless mics.
Is the “potential” for interference enough, should it be enough, to stop the FCC from opening up the white spaces to portable unlicensed uses at the power levels it has suggested so far? Harold Feld says no, and asserts that the entire effort is a shameless attempt to run out the clock at the FCC, forcing the entire issue into the lap of the new administration.
It has been six years since the FCC started studying this issue. It does seem as if the matter could be resolved now. We know the FCC’s own engineers have concluded that “spectrum sensing in combination with geo-location and database access techniques can be used to authorize equipment today under appropriate technical standards and that issues regarding future development and approval of any additional devices, including devices relying on sensing alone, can be addressed.” In other words, the prototypes worked well enough for the Commission to go ahead in creating certification standards for actual devices.
The question now is whether the Commission will delay its scheduled Nov. 4 vote. I think it would be a mistake to do so, but I also think that the “broadcast television as we know it” argument has weight with Congress. On the other hand, Sen. Kerry wants the Commission to go ahead, and he’s been a principled and helpful voice on this subject for a long time.
It’s a torrent, a tsunami of lobbying - a river of contestable interference data - a blizzard of references to earlier tens of thousands of filings, a hurricane of imprecations flung from side to side. Lots of disruptive pre-election weather. Rough sledding for all concerned.
Poll watchers needed in Michigan
The Obama campaign is looking for law students and other people to volunteer as poll watchers on election day in Michigan. They need lots of people. Anyone interested needs to attend a two-hour training session. Sign up at my.barackobama.com/milaw.
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While you’re signing up, here’s Gov. Sarah Palin talking to pianist Jeremy Denk about the Hammerklavier sonata.