Slashdot Mirror

Indeed, the sheer audacity of the industry giants behaviour has increased over the years and is becoming more and more visible.

Oh come on, there's nothing audacious about calling YouTube a criminal enterprise that intentionally uses consumers and children as human shields to deter the enforcement of federal rights and drive law-abiding competitors out of the market by using mass piracy as 'start up capital for their product, nothing at all.

I couldn't find any exceptions to the Massachusetts law, but I did find a blog post that described another case like it. A man operating a video camera at a political protest in 2006 was ordered by the police to stop recording, but he simply hid the camera in his coat and continued to record. He was arrested, ordered to pay a $500 fine, and sentenced to six months probation.

http://www.citmedialaw.org/blog/2007/massachusetts-wiretapping-law-strikes-again

So even though there's no exception, I would guess that the man described in the original article will receive a similar sentence. The post I linked to above also mentions a case in which a woman posted a video on the Internet that was obtained in a similar manner. The police department ordered her to take it down or face prosecution; she resisted, citing the first amendment, and the court ruled in her favor, since she did not actually make the video that she was posting. So creating the recording is a crime, but, assuming you didn't create it, you can share it with whomever you want.

I also discovered that the defense counsel for Joel Tennenbaum, who was sued by the RIAA and whose case has appeared on Slashdot before, used the wiretapping law as part of their defense:

http://blog.pff.org/archives/2009/07/print/005584.html

Oh, and this website that purports to list dumb laws that have been passed in the US and around the world. I don't know how accurate it is, but it's good for a laugh.

http://www.dumblaws.com/laws/united-states/massachusetts

Net-neutrality is Gov regulation of Speech
It is as simple as that. The government is regulating what an ISP can and cannot say.

Net-neutrality, while it sounds great, is an attempt by the government to impose government regulation on the Internet and therefore take away the 1st Amendment on the Internet. Just look at the censorship ideas floated by European governments and the UN. Look at the way the Fairness Doctrine was used in this country.

It's a brilliant tactic by the Left. Why exert all your energy attempting to reimpose "fairness" mandates on broadcasters alone when you can capture them, and much more, by regulating the entire Internet? After all, in a world of media convergence and abundance, bright lines dividing distinct media sectors or their products have vanished. Everything from TV shows to text messages run on multiple networks, making the old, broadcast-oriented Fairness Doctrine a less effective means of reestablishing a liberal media monopoly. So the liberals got smart and came up with the perfect solution: use net neutrality as a backdoor way to reimpose the Fairness Doctrine on the entire media marketplace.

That liberals would support such a Fairness Doctrine for the Internet is no surprise--they have long favored government regulation of media and communications markets.

When government censors, it does so in a sweeping and coercive fashion, prohibiting the public, at least in theory, from seeing or hearing what it disapproves of and punishing those who evade the restrictions with fines, penalties, or even jail time. Not so for Verizon or any other private carrier, which have no power to censor sweepingly or coercively. A world of difference exists between a private company's exercising editorial discretion to transmit--or not transmit--certain messages or types of content and government efforts to censor.

Harvard law professor Laurence Tribe made this point eloquently at a recent Progress & Freedom Foundation event. In his view, those who would impose net-neutrality regulations on First Amendment grounds fail to appreciate "the fundamental right of editorial discretion. For the government to tell that entity that it cannot exercise that right in a certain way, that it must allow the projection of what it doesn't want to include, is a violation of its First Amendment rights." The principle that Tribe articulated would apply equally to the New York Times's editors if they decided, say, not to run an advertisement from the Ku Klux Klan. That's why it's particularly puzzling that the Times ended its editorial about the Verizon incident by arguing that "freedom of speech must be guaranteed, right now, in a digital world just as it has been protected in a world of paper and ink." Does the editorialist believe, then, that government should regulate what ads the Times may run in its own pages?

This twisted theory of the First Amendment cannot support net-neutrality regulation. The First Amendment was intended to protect us from tyrannical, coercive government power, not the silly mistakes of private companies. And a new Fairness Doctrine for the Internet would have the same chilling effect on the vibrant exchange of ideas--especially conservative ones--that the old Fairness Doctrine for broadcast TV and radio did.

utopia.

I see one big problem with TFA. It talks about how Utah taxpayers subsidized Utopia yet it does not acknowledge the billions of taxpayer dollars government already gave to the telcos and cablecos to buildout a broadband infrastructure the companies never built. Question, would you also like airlines to build and pay for their own airports as well? Here's an appropriate quote from Paul Morris, Utopia's executive director:

"It would be absurd for each airline to build its own airport," he says. "But that's just what we've been doing for telecommunications. Qwest has its set of wires in the ground, and Comcast"--the dominant cable provider in the region--"has its own. We think it makes sense for a city or a region to build the airport, have someone operate it, and let as many airlines provide service as want to."

Yeah, that sounds like a veritable utopia.

Regulating prices may seem like a good idea at first glance - but forcing the telcos to let competitors share access reduces investment in upgrading facilities that need modernization.

This op-ed in the Washington Times today does a great job explaining why regulating special access would be a bad idea. http://washingtontimes.com/article/20071011/COMMENTARY/110110009/1012

The Progress & Freedom Foundation recently published an empirical examination finding a positive correlation between flexible pricing and incumbent investment. The report reaffirms what economics tells us: lower profit potential in a market segment means less investment. Somebody has to be willing to throw down some serious cash to increase the bandwidth of central office. But incumbents tend to divert resources to more lucrative ventures if CLECs can reap the benefits without taking any of the risk. Sure, CLECs have to pay wholesale prices plus rate of return, but there's no risk in that proposition-except for the incumbent. Phone companies allocate the most resources to areas where the FCC does not regulate prices.

There is real competition in the market for high-speed internet access. Business cable, DSL, satellite internet, 3G, fixed wireless, and now 4G/Wi-Max all compete with T1 lines for workplace connectivity. These aren't perfect substitutes yet, but they keep getting better as DOCSIS 3.0 starts to be implemented and wireless broadband gets faster and cheaper. The upcoming 700mhz auction will mean even more growth in this area.

The FCC is making the same mistake the FTC made with the XM-Sirius merger, or the Staples-Office Depot merger. Just because the market for a specific product may have 1 supplier doesn't mean its a monopoly-as long as substitutes exist, there will be price competition.

Phone service isn't a natural monopoly anymore. The duplicative cost of having multiple carriers is tiny nowadays compared to the massive welfare gains from competition. And if phone service really is a natural monopoly, why does the FCC need to insulate telcos from competition? Shouldn't the market gravitate towards 1 supplier without government intervention? In 1934, under political pressure from AT&T, the FCC began its disastrous policy of enforcing monopolies on telephone service. Ma Bell successfully lobbied Congress to entrench its monopoly status because upstarts were doing such a good job competing, so profit margins weren't as large as AT&T had become used to. Imagine a world where people had real choice for TV, phone, and internet. Franchising and universal service would have to be eliminated; but in this day and age if people want to live in rural areas, why should the rest of us have to suffer?

He is not right technically or practically:

Here is the definition of a legal right:

In modern English and European systems of jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society.

Under this legally accepted definition the description of fair use is in fact clearly a legal right as it entitles certain parties to do something.

I emailed Ross directly and below is his reply:

Thank you for writing. I find it interesting you're citing US Code and aren't familiar with "affirmative defense." It sounds like you need to speak with a copyright attorney, but you can start by reading our FAQ on fair use at http://www.copyrightalliance.org/copyrightsandyou/ fairusefaqs

I'm glad you wrote because your confusion makes my point for me. As you yourself point out, fair use is a limitation on an otherwise exclusive right. Congress, empowered by the Progress Clause of the US Constitution, in 1790 granted limited monopoly rights to creators. Nearly 200 years later, a fair use section was added to copyright law, that puts limits on those rights.

Imagine I own a farm and you like to fish downstream from my farm. I have property rights over my farm, but the government imposes limits on my exclusive rights. For example, I can't leach hazardous biochemical waste produced on my farm into the stream. That's good for you and the fish that you caught, but you have no "rights" related to my farm. I have limitations on my rights that benefit you and everyone else who wishes to use that stream.

The confusion you've shown here over the use of the word "right" shows exactly why it would be dangerous to use copyright warnings to explain fair use. Whole courses in law school are taught on this; it is not summed up by citing a portion of the US Code, nor is it summed up in my op-ed. It is far more complicated than that.

You might also want to read:

"What's 'Fair'? Why those Concerned About Copyright Fair Use Need to Say What They Mean," U. of Utah Professor Lee Hollaar, Institute for Policy Innovation, April 11, 2007 at http://www.ipi.org/ipi/IPIPublications.nsf/4e3087e 6ce3d8be6862567d8006fd628/33230e94b3b08de8862572c0 0053aa5e?OpenDocument

"Stepping on the Toes of Giants: What Not to Think About Copyright," Solveig Singleton, Progress & Freedom Foundation, May 2007 at http://pff.org/issues-pubs/ps/2007/ps3.6warmfuzzyt hinking.html

"Mountains Out of Molehills: How Believing the Worst Makes Technologists Ineffective, And What They Can Do About It," Lee Hollaar, Institute for Policy Innovation, April 26, 2007 at http://www.ipi.org/ipi/IPIPublications.nsf/f726f49 98ba46f86862567d80074727a/3b640346db49973d862572cd 00598873?OpenDocument

"Artists and Culture: Empowering the Former to Foster the Latter," Patrick Ross, Progress & Freedom Foundation, May 2006 at http://www.pff.org/issues-pubs/pops/pop13.6artistc ulture.pdf

He is not right technically or practically:

Here is the definition of a legal right:

In modern English and European systems of jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society.

Under this legally accepted definition the description of fair use is in fact clearly a legal right as it entitles certain parties to do something.

I emailed Ross directly and below is his reply:

Thank you for writing. I find it interesting you're citing US Code and aren't familiar with "affirmative defense." It sounds like you need to speak with a copyright attorney, but you can start by reading our FAQ on fair use at http://www.copyrightalliance.org/copyrightsandyou/ fairusefaqs

I'm glad you wrote because your confusion makes my point for me. As you yourself point out, fair use is a limitation on an otherwise exclusive right. Congress, empowered by the Progress Clause of the US Constitution, in 1790 granted limited monopoly rights to creators. Nearly 200 years later, a fair use section was added to copyright law, that puts limits on those rights.

Imagine I own a farm and you like to fish downstream from my farm. I have property rights over my farm, but the government imposes limits on my exclusive rights. For example, I can't leach hazardous biochemical waste produced on my farm into the stream. That's good for you and the fish that you caught, but you have no "rights" related to my farm. I have limitations on my rights that benefit you and everyone else who wishes to use that stream.

The confusion you've shown here over the use of the word "right" shows exactly why it would be dangerous to use copyright warnings to explain fair use. Whole courses in law school are taught on this; it is not summed up by citing a portion of the US Code, nor is it summed up in my op-ed. It is far more complicated than that.

You might also want to read:

"What's 'Fair'? Why those Concerned About Copyright Fair Use Need to Say What They Mean," U. of Utah Professor Lee Hollaar, Institute for Policy Innovation, April 11, 2007 at http://www.ipi.org/ipi/IPIPublications.nsf/4e3087e 6ce3d8be6862567d8006fd628/33230e94b3b08de8862572c0 0053aa5e?OpenDocument

"Stepping on the Toes of Giants: What Not to Think About Copyright," Solveig Singleton, Progress & Freedom Foundation, May 2007 at http://pff.org/issues-pubs/ps/2007/ps3.6warmfuzzyt hinking.html

"Mountains Out of Molehills: How Believing the Worst Makes Technologists Ineffective, And What They Can Do About It," Lee Hollaar, Institute for Policy Innovation, April 26, 2007 at http://www.ipi.org/ipi/IPIPublications.nsf/f726f49 98ba46f86862567d80074727a/3b640346db49973d862572cd 00598873?OpenDocument

"Artists and Culture: Empowering the Former to Foster the Latter," Patrick Ross, Progress & Freedom Foundation, May 2006 at http://www.pff.org/issues-pubs/pops/pop13.6artistc ulture.pdf

That's not entirely true. The industry has lobbied the crap out of a number of Republicans. Jeb Bush is in a video game. George Allen and Rick Santorum have partnered with the ESRB to promote education instead of legislation. The conservative Progress and Freedom Foundation is against the censorship of games and have testified before Congress in support of the industry. Even Dubya, in all his theocratic zealotry, has said that government shouldn't be involved in what parents let their kids play (can't find the source there). And then of course there's the fact the fundamentalists are making their own violent games now. There's plenty more examples where these came from.

Now, this isn't to say they're all on "our side" (or that anyone should myopically vote for them on this one issue), but statistically speaking, this issue belongs to the Democrats. Nearly every piece of anti-game legislation in the last two years at the state level has been penned by Democrats; and Clinton, Lieberman, and (to a lesser degree) Bayh are leading the charge at the Federal level. For what it's worth, this is actually one area where most Republicans are still true to their claimed desire for less government. 'Tis probably too little, too late, but, err, yea.

Most of the rest of the world follows the "loser pays" principle, which helps to discourage questionable litigation. Apparently the American bar doesn't like the idea, though.

For more info see this paper (PDF) Patents and Loser Pays: Why Not? by Solveig Singleton for the Progress and Freedom Foundation.

So, the problem with Network neutrality is that it opens up the DSL and Cable providers up to competition for their other service, and that'a a big disincentive for them to roll it out.

So how is this handled in other countries? Do any other countries require network neutrality on the part of circuit providers (i.e., providers of raw pipes to the customer) or ISPs (who could be the same entity as the raw pipe provider, or could be somebody buying raw pipe capacity)? If so, how has that affected the rollout of broadband services?

Googling for

crtc "network neutrality"

found this Toronto Star piece by Michael Geist, which argues in favor of Canada adopting a policy requiring network neutrality (and says that one telco, Telus, brieftly blocked access by its customers to a Web site set up by a union with which it was having a dispute), so I presume there was, at least at that time, no regulatory requirement for network neutrality in Canada.

Googling for

europe "network neutrality"

found other pieces by Michael Geist, which indicate that some European carriers are blocking VoIP traffic, so I assume there's no regulatory requirement for network neutrality in the countries in which they're doing that.

On the other hand, Googling for

france "network neutrality"

found a piece by Lawrence Lessig arguing that France and Japan offer better high-speed broadband than is available in the US (which might even be true in areas of comparable housing density) and required "strict unbundling", which Lessig describes as even more stringent than network neutrality.

However, it also found this blog item on the Progress and Freedom Foundation site, citing arguments before congress that a key point, at least in the case of France, was that "France operated in a monopoly environment".

So a quick Google found no obvious single conclusion about this issue. I'd be curious to see what people who aren't strong advocates of either position have to say about the raw(er) data.

If you haven't seen these organizations before, read the Reg or SourceWatch

When content producers know that they can experiment with various protection approaches, they're more comfortable entering the online market. Also, investors are more inclined to fund such efforts. Imagine a world of unlimited digital content, packaged with a range of TPM at varying prices. In that world, consumers can purchase exactly the amount of use they need and not pay for more.

Progress and Freedom Foundation... just exactly whose freedom and progress are they working on in this "think tank"?

I think the problem is that boucher and Patrick Ross look at "innovation" in different lights. Ross seems more interested in market innovation; people figuring out new ways to charge/lease us the same old stuff where as I believe boucher is trying to protect technological innovation. (an no I don't consider creating new fangled "improved" DRM a technological improvement)

*shrug* fair use is important. the e-book example could go the totally other way. It's hard to photocopy and e-book (I'm kidding, I assume you can print, if the DRM allows it...)

e.

- Clear Channel

- MGM

- Sony Music Entertainment

- Time Warner

- VIACOM

- Vivendi

Patrick Ross is nothing but a whore turning tricks for his pimps.

Patrick Ross == VP The Progress & Freedom Foundation == www.pff.org

http://www.pff.org/about/supporters.html

Indeed. Their site is here; let's have a quick look at how they describe themselves, shall we? Translation in italics.

"The Progress & Freedom Foundation is a market-oriented [corporate-centric] think tank that studies the digital revolution and its implications for public policy. Its mission is to educate [lobby] policymakers, opinion leaders and the public about issues associated with technological change, based on a philosophy of limited government [Don't legislate against us, only for us], free markets [Ditto] and individual sovereignty [Don't let consumer rights groups interfere with us making money].

PFF's research combines academic analysis [paid-for studies] with a practical understanding of how public policy is actually made [yet more lobbying]. Its senior fellows and other scholars are leading experts in their fields, with distinguished careers in government [ex-government officials turned lobbyists], business [corporate mouthpieces], academia [assistant lecturers desparate for grant money] and public policy [our pet politicians]. Its research is substantive, scholarly and unbiased [Liar! Liar! Pants on fire!]. At the same time [yes, we really were lying in the previous sentence], PFF is focused on having an impact on public policy.

PFF's underlying philosophy combines an appreciation for the positive impacts of technology with a classically conservative view of the proper role of government [See previous comment about not interfering with us making money]. We believe that the technological change embodied in the digital revolution has created tremendous opportunities for enhanced individual liberty [See previous comment about those goddamn consumer rights groups], as well as wealth creation [for us] and higher living standards [for us]. Those opportunities can only be realized if governments resist the temptation to regulate [DMCA? What's that? Extension of copyright? Never heard of it] , tax [us] and control [us]. Government has important roles to play in society [like helping us], including protecting [our] property rights and individual liberties [hahahaha], but its tendency is to reach beyond its legitimate functions in ways that harm [help] consumers, burden citizens [with all this messy legal stuff they really don't need to know about, right? By the way, Mr. Senator, how many callgirls will you be needing tonight?] and slow progress [of the growth of our bank balances]."

I think the anti-software-patent movement has somehow failed to analyze the problem properly, and the MEPs are confused. While there are some real differences between the field of software and most other fields, these differences do not make it obvious that software patents is wrong.

The matter with the software field is that patents do more harm in this field, but they do largely the same kind of harm as in other fields. The arguments the movement has put forward have failed to convince the MEPs and have sent them reaching for some kind of compromise or Salomonic solution. All the thousands of explanations of why software patents is a bad idea end up being very confusing, because they normally leave the MEPs wondering why those arguments apply only to software and not to other fields.

We pretend that software is absolutely different, but all we can show are fairly relative differences.

The first true problem is that American courts have invented a test of non-obviousness that is very convenient for the courts and the patent offices. Convenient in the sense that you can determine objectively if that test has been met. Unfortunately the test does not test non-obviousness at all. In reallity it only tests a certain form of non-novelty.

The test consists in requiring the combination of two known principles to be "suggested" or "motivated" in some prior art text, before deeming this combination to be "obvious". If no such prior art text can be found, that combination is deemed "non-obvious". In this way almost everything is "non-obvious".

This obviousness test has not been tried in the Supreme Court yet, some twenty years after its introduction. However, there is a case, KSR International v. Teleflex, that may become such a trial in a relatively near future, if the Supreme Court decides to look at it.

Of course, in the name of harmonization, the European patent offices tend to adopt similar criteria; 260 million Americans cannot be wrong for twenty years.

We should formulate this problem clearly. I guess this will convince the MEPs much more easily. For some formulations and arguments, just have a look at http://www.pff.org/issues-pubs/other/ksramicus.pdf . Then we should work out some rather strong formulations of what it means to test for obviousness.

After that the rest is a lot easier. Suppose a method of desalination of seawater required you to add a certain acid three times in half-hour intervals. Suppose this method is patentable according to all the usual considerations. Does that mean that whoever patents it, patents the number three? No. Everyone agrees to that. The number three is not by itself patented. What if you use a computer to help you count to three? Is the process no longer patentable? What ought to be patened is the chemical process. Wether you use a computer to assist you in carrying out the steps is irrelevant. Only the steps themselves are relevant.

In the case of the computer-controlled breaking mechanism, the computer seems to be an essential part, because of its speed. If you were to read the velocity of the wheel's rotation on a digital display, calculate by hand the difference from the previous reading in order to determine if the wheels are about to block, you would probably relax the breaking force a little bit too late. However, the inventors of the automatic breaking system did not invent the computer. The advent of the computer made a large number of obvious applications possible, that had not been possible previously. To realize that, is not a patentable invention, it is something obvious.

Only if the process of the break regulation has a truly novel and non-obvious step, it should be patentable irrespective of whether the invention is computer-implemented. In this way, almost all the fuzz about computer-implemented inv

As it turns out, in the mid 20's radio was in the state that Dunifer is advocating, i.e. pure chaos. You had grocery stores putting up transmitters and advertising without licensing, or auto-dealers, or whoever could afford the hardware. A true free-for-all.

Ah, but the history-written-by-the-winners omits the fact that a non-regulatory solution to this had already evolved by the 30's. Dealing with diputes like these, the courts hammered out a common-law-like homesteading principle. In essence, first person to use & "improve" (by building a transmitter on a hill, for example) a portion of spectrum could claim a property right over it. Subsequent people who transmit on top of an already claimed frequency could be sued for damages analogous to tresspass.

Instead of building on and codifying all this "market" knowlege embodied in the case law, the Communications Act threw it all out and replaced it with a centrally planned beauracracy. This stuck in the craw of the Iron Lady & her ilk ever since. (Forgive her wrath, she never lived to see the Great Spectrum Auctions of 1996.) The FCC's best sucesses (cell phones, Wi-Fi) come when the agency hews close to a frequency-as-property approach.

Of course, many of these "free radio" types aren't particularly interested in respecting others' property-like rights either. They want people to listen to their message, regardless of how interesting or credible it is.