Policy Blog

If you haven’t heard yet, a beta of Adobe’s Flash Player Version 10 is available for download. It offers a host of new features, but one has implications that blow the others out of the water: built-in peer-to-peer. That’s right, all the tools necessary to build a p2p client will be built into the Flash plug-in.

Fear, Uncertainty, and Doubt is spread by those who would rather see the orphan works legislation fail. This is our third Myths and Facts report on orphan works.

Before today’s Myth and Fact, I wanted to let you know we have a new Orphan Works Overview page to give those new to the issue an 30,000 foot view, and we also have a page that lists out the Myths and Facts we’ve collected so far. On to today’s Myth and Fact…

MYTH: Unavailability of statutory damages means that owners cannot get compensated.

It’s a shame the Federal government is trying to take the round-about route in establishing a new network for first responders. Then the Federal Communications Commission (FCC) wouldn’t be forced into the tortuous square peg-round hole exercise it’s going through now to figure out how to get private industry to pay for an emergency-quality broadband network to be only sporadically used for emergencies.

Some of the FCC Commissioners seem to feel that way also. As Commissioner Robert McDowell said last week when the FCC asked for a new round of ideas to try to fix the failed D-block auction, public safety isn’t using half of the 97 MHz it has now due to a lack of funds and lack of coordination. The current squabbling on the D-Block auction is over only 10 MHz, albeit a desirable 10 MHz in the 700 MHz band that will be used by TV broadcasters until next February.

Since §230 of the Communications Decency Act (CDA) was passed in 1996, online service providers (OSPs) and website operators have rested easy under the comfort of blanket immunity. Under the CDA, OSPs couldn’t be held liable for tortious content posted by others, but the CDA’s immunity wasn’t a free pass for copyright infringement or other intellectual property based claims. The CDA specifically stated that it was not designed to preempt intellectual property claims. However, in recent weeks, the scope of the CDA’s immunity and way in which the intellectual property exception should be interpreted has been called into question. Two recent cases—Fair Housing Council of San Fernando v. Roommate.com and Jane Doe v. FriendFinder Network Inc. have interpreted the CDA in ways that might have repercussions.

It seems that Charter, an Internet service provider (ISP) based in St. Louis, Missouri, is having a bit of trouble keeping its customers happy. Last year, Charter came in dead last in PC World’s rankings of "The Best and Worst ISPs," which was based on a survey of over 6,400 readers. Meanwhile, BroadbandReports currently rates Charter as 22nd out of 25 listed cable Internet providers, in accordance with user reviews submitted to the site. Based on these two facts alone, we can safely conclude that there are a lot of unsatisfied Charter customers out there. So, what is the company doing to remedy this situation? They’ve decided to offer their users "enhanced" service, free of charge.

This morning the Senate Judiciary Committee marked up their version of the orphan works bill, S. 2319, The Shawn Bentley Orphan Works Act of 2008. I live twittered the markup, but in the off chance you weren’t following my tweets, the markup was fairly uneventful.

The line was quite long for a markup. The usual characters (read: those who probably had line-standers) were at the front of the line nearest the entrance to the Judiciary Committee Hearing room. That didn’t include us. The room filled up so we were directed to the overflow room to watch the happenings on closed-circuit tv.

In The Deal of the Century, the 1987 classic account by Steve Coll of the breakup of the Bell System, one of the Bell local operating company presidents (pre-breakup) is furious about MCI’s attempts to build microwave private lines for companies. Here he is, arguing to the AT&T chairman that MCI has to be stopped:

There are large amounts of revenues that are vulnerable, which we can preserve if we choke off now. I think you have to hit the nails on the head.

The AT&T Chairman, John deButts, eventually follows his advice - and when MCI comes to AT&T asking for interconnection agreements in major cities so that it can sell private line services, AT&T delays, avoids, and then directly challenges MCI. Coll says deButts “call[ed] for nothing less than a public anointment of Ma Bell’s right to exercise its monopoly in the national interest” in this speech:

House Judiciary Committee Chairman John Conyers, Jr., (D-MI) and Internet stalwart Rep. Zoe Lofgren (D-CA), have added another element to the debate about how to ensure a free and open Internet.

Last week, they introduced legislation H.R. 5994, the “Internet Freedom and Nondiscrimination Act of 2008.” This bill provides a nice complement to HR 5353, the “Internet Freedom Preservation Act of 2008,” introduced by House Telecom Subcommittee Chairman Ed Markey (D-MA) and Rep. Chip Pickering (R-MS).

Following the lead taken in Alex’s blog post yesterday, I’m going to address some FUD which is making the rounds about text messaging and spam. This weekend, the New York Times ran an article talking about cell phone spam. Spam – or rather, the threat of spam – is a key argument used by the carriers who oppose our petition asking the FCC to clarify that carriers may not discriminate in providing text messaging services. But don’t be fooled – the FUD thrown around in this article is irrelevant to the issues raised in the petition.

There’s a lot of Fear, Uncertainty, and Doubt (FUD) being spread by some who are opposed to orphan works legislation. This is our second Myths and Facts report about orphan works:

MYTH: The bills would take away copyright protection from every work a visual artist ever created!

FACT: The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.

If you haven’t seen our previous FUD reports, check them out here.