Just the other day, I complained about the fact that New York Federal district court overseeing the Google Books settlement apparently doesn’t plan to webcast the final public hearing that will take place on February 18 in this hugely important case about the future of digital books and copyright. Now I discover that the 11th Circuit Court of Appeals (which covers Florida, Georgia & Alabama) has issued a decision with even more far-reaching applications—allowing prosecutions for online obscenity distribution according to local “community standards” wherever a user might have downloaded the material—without even publishing the landmark decision!
Adam discussed this obscenity/localism issue in detail back in 2004. Eugene Volokh explains the substance of this decision:
United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed — which means the government can try to download the material in the most restrictive community, and prosecute the distributor there.
If left to stand, this decision could essentially amount to a ban on hardcore pornography in the U.S.—with the definition of “obscenity” being left to local puritanical politicians in the country’s most socially traditionalist backwaters, subject only to some general restraint by the courts as to just how far the definition of “obscenity” can be pushed. Volokh continues: Continue reading →
So the proposed Comcast/NBC merger was met with “skepticism” by Washington politicians. Will Comcast charge for content that was once free? Will it ensure that emergency programming gets through? These services and decisions about them are normal offerings that a concerned public expects; a merged entity ignores them at its peril.
The two firms’ CEOs respectively made assurances to lawmakers like 18-term term Chairman Henry Waxman. (Speaking of the lack of choice, this gentleman’s own constituents get to vote for him, but none of the rest of us have any say whatsoever–decade after decade–even though his laws impact us all).
But those assurances about programming aren’t what politicians care about, not really. This proceeding serves to help re-energize the old political campaign against what politicians laughably call “media consolidation.” (Here’s one of my defenses of so-called “media monopoly” in Communications Lawyer so no need to repeat it here now; I’m not an attorney but I play one at a think tank.)
Any antitrust intervention that relieves Comcast/NBC’s competitors of critical market impulses, of the driving need to respond to any potentially new superior service or slate of services, hurts the interests of consumers. These endless proceedings and delays–and before this one, those of Echostar/DirecTV, Sirius/XM and others–all directly harm consumer interests and the communications marketplace. There is too much tolerance of pointless FCC and Congressional interference in today’s media-saturated world, and too much tolerance of media competitors who properly should have no say whatsoever in whether or not a rival’s merger goes forward.
Basically, antitrust is about dismantling what others have created or hope to create, undermining large scale voluntarism and enterprise, and replacing it with even larger scale compulsion or prohibition. The (not “unintended,” as often claimed) result of this is to send the “free” market careening off into a direction it never would have taken, a direction in defiance of shareholder capitalism and market pressures. I wrote about this very problem in a letter in the Wall Street Journal last week.
The emergence of ever-greater competitive alternatives on the media horizon will be damaged by the destruction of wealth entailed in halting a productive merger. The merger, if it goes through, may or may not prove successful for the companies themselves. Regardless, it is precisely the market’s task to respond to this and future deals competitively, not leverage Washington to avoid having to engineer and sweat over such a response. To those rivals that might feel satisfaction at the barriers and future conditions put on this merger if it’s even “approved” (how is that even a term appropriate to free enterprise?): Political disapproval of Comcast/NBC makes it even easier to put others in the crosshairs next time.
Mashable has reported that “The Internet” has made the list of Nobel Peace Prize nominees this year. This prize has already had its fair share of controversial and sometimes even comical nominees and recipients, but this sort of nomination is disappointing in a whole different way—it ignores the fact that individual human beings actually invented the technology that created the Internet.
The sentiment behind this nomination, popularized by Italy’s version of Wired, is understandable. The Internet has had such an effect on the world in such a short amount of time its impossible to calculate the enormity of its effects on science, the arts, or politics. It has generated a mountainous amount of wealth, exposed the barbarism of tyrannical regimes worldwide, and has made more knowledge accessible to more people than ever before.
But people like Tim Berners-Lee or Roberty Taylor should be considered for the prize given their tremendous contributions to Internet technology. Both Berners-Lee or Taylor have already been recognized for their contributions to technological progress—Berners-Lee has an alphabet soup of honor-related suffixes after his name—but awarding the Nobel Prize isn’t just about accolades, it’s also about money. The 2009 prizes were roughly $1.4 million each, which would be a nice sum for a foundation dedicated to the advancement of Internet technologies, like Berners-Lee’s World Wide Web Foundation. When considering this, its clear that awarding the prize to an individual would do a lot more good than if the concept or idea of the Internet received the prize.
Even so, Web 2.0 evangelists, prominent intellectuals, and even 2003 Nobel Peace Prize winner Shirin Ebadi have backed the notion of the prize being awarded to the Internet itself—a new campaign is calling this “A Nobel for Each and Every One of Us.” While the power of the Internet does indeed flow from its uniting “each and every one of us,” the technology that allowed this miracle to exist was invented by people like Berners-Lee and Taylor who dedicated years of their lives to the advancement of human understanding. Even in this era of wise crowds, social networks, and “collective intelligence,” this sort of individual accomplishment should be recognized.
If you’d like to nominate any other person involved in the advancement of Internet technology for the Peace Prize, please drop a name in the comments.
The Federal district court handling the Authors Guild’s suit against Google over Google Books has scheduled a hearing on for February 18, 2010 in New York City (after several postponements). The parties, their supporters and the Department of Justice will all get to speak. Twenty-six outside groups will each get five minutes to speak about the deal—21 against and 5 in favor. (If the numbers seem off-balance, note that France is on the “con” side, and if the statist-stasist-centralist-protectionist French are against something tech-related, how bad an idea could it really be?)
Although the settlement is highly arcane, how this issue is resolved will probably do as much, for better or worse, to shape our digital future in the years to come as any tech policy issue currently under discussion. (I’d say only net neutrality, privacy regulation and media socialization would fall into the same tier of such fork-in-the-road decision-points.)
So of course this profoundly important public hearing is going to be livecasted, right? Unfortunately, I don’t think so. Continue reading →
Ken Ferree, former chief of the FCC’s media bureau and PFF’s recently retired president (now Board member), has penned another devastatingly witty piece slamming the FCC’s recently announced inquiry into “the future of media and information needs of communities in a digital age” as something that,
should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC’s claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.
The problem is that the very act of initiating such an inquiry will chill protected speech; government inquiry into what is and is not working in the area of news, information, and media is itself an affront to the First Amendment. And it is no answer that the Commission has embarked on this journey with beneficent motives, it has no power to derogate from the protections of the First Amendment in the name of what one group of bureaucrats may think are important government interests.
Can there be any doubt but that any category of speakers that are even indirectly regulated by the FCC will be mindful of this new inquiry and will curb the nature of their conduct and communications in light of it? What great potential for mischief the FCC has spawned merely by initiating this little inquiry! Regulation by “raised eyebrow” has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the Commission has taken the concept to a level heretofore unknown – this inquiry is regulation by penetrating leer.
The rest of the piece is well worth reading. But of course, the FCC will continue on their merry way anyway presuming neither their their complete lack of jurisdiction nor the First Amendment prevents them from “merely asking questions”—as with asked open-ended questions about things like cloud computing, online privacy (a slightly different matter) and online content controls that don’t come anywhere near the agency’s jurisdiction. Adam and I will be filing comments on the “Empowering Parents” inquiry questioning this “questioning.”
http://blog.pff.org/archives/2010/02/a_chill_wind_blows.html
I’ve written before about my dislike of “the cloud.”
The term implies that there aren’t specific actors doing specific things with data, which will tend to weaken people’s impression that they have rights and obligations when using or providing cloud services. We’re talking privacy problems.
When “cloud” services fail, the results can be widespread and significant. Think of cloud computing as a sibling of security monoculture.
TechDirt’s indefatigable Mike Masnick reminds us of this with a tweet today about hiccups in Google Calendar that may have prevented him getting on a conference call. He’s written once or twice about the cloud in terms of legal/discovery issues, privacy issues, and business/regulatory hurdles.
Remote computing is not going away, but it’s a fad that should fade over time. I think I hit the right notes in an earlier post where I said:
There will always be a place for remote storage and services—indeed, they will remain an important part of the mix—but I think that everyone should ultimately have their own storage and servers. (Hey, we did it with PCs! Why not?) Our thoroughly distributed computing, storage, and processing infrastructure should be backed up to—well, not the cloud—to specific, identifiable, legally liable and responsible service providers.
Northwestern Law Prof. James Speta has a new paper out that touches on many of the themes that Barbara Esbin, my colleague at The Progress & Freedom Foundation, has been covering in her excellent work explaining why the FCC doesn’t actually have have the vast, essentially unlimited authority over the Internet that it has asserted in its recent effort to enforce its non-binding 2005 net neutrality policy statement and its ongoing net neutrality rulemaking. (See her FCC comments on that issue here and Adam’s thoughts on this here.) Speta’s thesis also seems to parallel the approach taken under PFF’s 2005 Digital Age Communications Act (DACA), which emphasized focusing on on unfair practices and relying on a standard of consumer harm as in antitrust rather than trying to enshrine abstract principles like “neutrality” into law.
Anyway, here’s the abstract for Speta’s paper: Continue reading →
Third on the headlines today on TechMeme (perhaps the leading tech news aggregator) is this headline: “An Apology To Our Readers,” a heart-felt piece from TechCrunch editor Michael Arrington disclosing that a TechCrunch intern had, on at least two occasions, demanded computers from start-ups as compensation for writing favorable blog posts about them on the highly influential site. The intern was immediately suspended and, when the allegation was confirmed, terminated. Arrington made no excuses for Daniel Brusilovsky on account of his age (he’s under 18). You can read Daniel’s response here.
If this incident demonstrates anything, it’s just how essential it is for a site like TechCrunch to, as Arrington promised his readers in closing, “maintain complete transparency with you on how we operate, even when it isn’t such an easy thing to do.” Arrington went so far as to have “deleted all content created by this person on our blogs”—indeed, “every word written by this person on the TechCrunch network,” which presumably includes comments.
One might take from this the lesson that the press, as it evolves from the newspaper model towards something blog-ier but still hard to pin down precisely, can police itself pretty darn well. Alas, the FTC has taken a much dimmer view of the ability of reputational incentives to discipline the influence that might be exerted by “blogola” payments (cash or in-kind) on editorial discretion and journalistic creation. Continue reading →
Over on the Cato@Liberty blog, I’ve written a piece grading the “high-value data sets” agencies released a few weeks ago on Data.gov. (Agencies are supposed to have “/open” sites up by tomorrow.)
The results? Four As, four Bs, seven Cs, eighteen Ds, and eight Fs. Take a look!
Harvard Berkman Center professor Jonathan Zittrain has published another pessimistic, Steve-Jobs-is-Taking-Us-Straight-To-Cyber-Hell editorial building on the gloomy thesis he set forth in his 2008 book, The Future of the Internet and How to Stop It. His latest piece appears in the Financial Times and it’s entitled, “A Fight over Freedom at Apple’s Core. Concerning the recent Apple iPad announcement, Zittrain warns: “Mr Jobs ushered in the personal computer era and now he is trying to usher it out.”
I’m not going to go into yet another lengthy dissertation about what it so misguided about his thesis that cyberspace is becoming more “regulable” and that digital “generativity” is dying because of the rise of devices like the iPhone & iPad, or sites like Facebook. Instead, I will just point you to the many things I’ve written before explaining just how far off the mark Prof. Zittrain is on this point. [See the complete list down below + video of our debate.]
But let me just say this… Ignoring that fact that he is an iPhone user himself — which makes no sense considering that he thinks of Apple as the font of all cyber-evil — he can’t muster any substantive empirical evidence proving that the Net and digital devices are being more “closed, sterile, and tethered,” as he repeatedly claims in his book and editorials. And that’s not surprising because the reality is that the digital world is more open and generative than ever, and even if there are some “closed” devices and systems out there, they are actually quite innovative and not perfectly closed as Zittrain suggests. The spectrum of “open vs. closed” systems and devices is incredible diverse and nothing is perfectly “open” or “closed.” We can have the best of both worlds: many open systems with some partial “walled gardens” here and there (or hybrid systems combining both). Regardless, we are witnessing greater digital “generativity” and innovation with each passing year. Until Zittrain can prove the opposite, his thesis must be considered a failure.
Finally, I want to associate myself with this excellent critique of the Zittrain thesis by Prof. Ed Felten, who points out that Zittrain’s argument doesn’t even work for the iPad, which I would agree is a fairly “closed appliance” in the Zittrainian scheme of the things:
Continue reading →
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