Archive | Legal/Regs

SXSW: Tim Wu on Net Neutrality

Tim Wu is talking net neutrality. First has been laying the groundwork….talking about the 2010 legislation that provides for net neutrality.

Now is going back to the 15th century England to make a point about how net neutrality should be considered public infrastructure and therefore should always be publicly available. [Chinese government built the wall, Roman government built the roads, etc.] The English had a different system, where private companies and individuals did things important for all. Roads, ports might be built and run by private parties. English judges noticed that the private parties who owned the infrastructure had enormous power. So they came up with the law of “public callings,” which became known as the common carrier principle. The first case Wu found was related to a blacksmith — judge decreed that a blacksmith could not refuse to serve you. So the principle of net neutrality goes that far back. The second principle related to that was that those owning infrastructure must charge fair prices.

1910—Congress passed a law saying that transmitting information was also common carriage. So, the telephone would be treating like a bridge or a road.

In the 1980s, the FCC decided that computer networks would be allowed to have access to telephone networks. That allowed the development of AOL, CompuServe, etc.

“Compared to classic telecom legislation, the net neutrality rules are very weak.” They do require carriers to let anyone on, but they have no price regulation, no duty of service — your Internet connection doesn’t have to be any good, and it doesn’t fully apply to wireless.

Wu is saying, one way we have to think about net neutrality is, SHOULD we consider it as a common carrier? Is it more like an amusement park — nice to have, but you don’t have to go — or more like the only bridge to an island — an essential service?

Wu is funny here talking about the internet in the 1980s — might have been more like an amusement park…there were weird people there, etc. But now, the internet is an essential service that is an integral part of the economy. It has almost become like electricity, which brings it into that medieval framework — it’s dangerous if you don’t have it. The internet is too important.

Good question from audience: How do you distinguish between the internet and Facebook — it’s easy to imagine that Facebook becomes a “common carrier” whose access is essential to everyone? Wu says, medieval judges might have said that Google or Facebook might become common carriers at some point. But Wu does think there’s a fundamental difference between Facebook/Google and the carriers. Companies carrying the information tend to face very limited competition. They have to invest large sums in physical infrastructure. And the carriers have a tight relationship with the federal government, which grants them some right of ways and licenses.

Another good question: What about common carriers that are also content providers, like AT&T differentiating between U-vers and Netflix content? Wu says that’s censorship. You have an inherent conflict of interest when you’re the carrier and content provider, and you have to have policing to prevent censorship. But we don’t always have that right now.

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Online privacy reminder: You don’t have much

This quick read from the New York Times is a great reminder that your seemingly private online information isn’t all that private. While law enforcement can obtain a search warrant for even your home or business with probable cause [meaning there’s reason to suspect there’s evidence related to a crime], it’s apparently not all that difficult for it to subpoena [different from a search warrant] vast amounts of your online information, like email, social network account information and other online records.

I’m NOT a lawyer, but subpoenas and search warrants both require contact with a judge/judicial authority, to my understanding. But given continued evidence at how these tools are being used by law enforcement in some recent high-profile cases, it seems to me that even information like your search history could be easily obtained and used against you in court.

Just imagine the line of questioning as the D.A. reads out your list of search terms related to WikiLeaks, Al Qaeda and terrorism. Ever go back and look at your search history? If you’re a heavy computer user, out of context, your search history probably makes you sound crazy, dangerous or both. I tend to look up any term or concept I hear about in the news, just to see the other information available on the topic. This is the kind of information — our stream-of-thought — that has been previously unavailable to law enforcement. And in a culture that breeds fear, I don’t want to have to answer for my search terms to a jury. Do you?

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Social media is neutral, but people are angry

I was talking to some folks today about social media, and got a question I didn’t feel like I answered well. It was along the lines of,

How is social media contributing to the downfall of civility in our society today?

My quick answer is: It’s not.

My longer answer is [hopefully better than I phrased it this afternoon]:

Social media is a tool. Period. Social media doesn’t contribute to anger or incivility any more than washing machines do. What social media has done in the past few years is reveal that many of us are angry. Social media has given many people an amplified voice — people who previously only could express their anger at the dinner table or around the water cooler at work.

In addition, the more extensive media saturation in our society [both old and new media] may provide information to people about things they used to not know about — thus allowing them to be angry about things that would have made them mad 30 years ago, had those things been publicly known.

This kind of question makes me nervous….it makes me think that people would like to regulate speech in some way. The First Amendment isn’t just protecting happy speech, or speech that we agree with. I would argue that it most emphatically protects angry and rude speech. Think about the context of our nation’s founding; revolutionaries who lose are just traitors. “We” won, so we wrote the history on the founding of America. And several rights in our Constitution reflect a perspective that values dissent as part of a healthy democracy.

At the very least, I think many people look at social media and reject it as the province of blowhards and reactionaries on both sides of the political aisle. But I look at the cacophony online and think, Thank God. Now we can have a dialogue, because all people now have a platform. The powers that be no longer dictate the entire agenda. We can all be heard.

It’s not pretty to see how angry many people are today….but I assure you, many of them were before. We just didn’t know it.

To me, social media provides such valuable insight into the minds of people who are very different from me. It’s not my job to change their minds; it’s my job to understand them. So I say, thank goodness for the angry people on social media. Thanks for speaking up. Let’s talk.

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Creative Commons licensing makes sharing simple

Creative Commons has been around for several years, but my conversation about copyright law with Summer Huggins last week made me think it’s time for a reminder about this great service.

I grew up on The Cluetrain Manifesto. I can even still make a great argument for why your information wants to be free, but for most folks, that’s not a real business possibility. But many individuals and businesses just automatically mark all their content — words, images, audio, video — with “All Rights Reserved,” the most restrictive copyright notice out there.

For some content, that makes sense. But often, we use the Internet as a distribution channel because we want people to share our content. Often, we’re not even as interested in whether we make money off the sharing; it’s spreading the word that matters.

When that’s the case, you need to use one of the licensing options offered by Creative Commons.

You’ll notice the Creative Commons logo at the bottom of this blog — a “By-Share Alike” license. I allow my work to be re-used on other sites as long as people give me credit with a link back to this site, and as long as they also allow it to be re-used from their site in the same way.

But Creative Commons offers a wide variety of licenses, even if you don’t want to be as liberal with your content as I do. Other options allow you to limit commercial uses or derivative works of your content.

Creative Commons doesn’t manage the distribution of your content — it simply provides a licensing framework that’s becoming well-accepted online. When you’re managing content online, you can certainly choose to do so with the same restrictions that many people expect for printed or recorded content. But take the time to think through your business goals — and when it makes more sense to allow greater usage of your content, try a Creative Commons licensing option to make your life a little easier.

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FTC on “saving” journalism: Disaster waiting to happen

Lest you think your government works for you….

The FTC released a “discussion draft” document [PDF] this week that outlines some of the challenges facing the newspaper industry. It goes through through the motions of evaluating all these challenges as if the FTC’s role is to prop up the news business, and this is the first stab at testing the waters.

Let’s be clear, starting off. The Federal Trade Commission is responsible for promoting trade and preventing anti-competitive trusts. Nowhere that I see does its mission include “saving journalism.”

Indeed, the doctrine of freedom of the press should prevent government from talking about this topic at all. But we’ll get to that.

Jeff Jarvis goes into some nice detail about how stupid the perspective on this project is — the FTC is writing about newspapers, as if newspapers represent journalism. So let’s also be clear that “newspapers,” the “news industry” and “journalism” are not necessarily the same thing. Journalism is primarily [but not completely] what we’re talking about when we talk about “freedom of the press.” We mean the investigating, reporting and dissemination of information to the public by independent and varied voices, outside the official government channel. We mean analysis and opinion about what government and industry and other forces in our society are doing. We mean investigation into practices that seem corrupt or detrimental to the public good.

Nowhere in any of that is it required that the practice of journalism be carried out by major corporations using newsprint. Journalism is platform-agnostic. Information can be — and today is — shared over multiple platforms.

I’m sure that the Gannett and other big news corporations would like for all of us to care about their corporate health, but my interest as a citizen is whether or not I can get information. And I can. And I haven’t taken a daily paper in years.

Now, there’s a side issue here that the FTC doesn’t appear to have the broadest perspective on, but I’ll mention just briefly. Jarvis talks a lot [not just in this post] about the disruptive technology and practices happening today in journalism. He’s positive about the disruption, as am I. But while we often assume that technology created the disruption, with the Internet putting publishing tools in the hands of the masses and therefore disrupting the news industry’s traditional business model, I think the technology opened a window near the door the news industry had been forcing shut.

When the news industry owned the means of news dissemination, it chose what to publish. And it chose what to ignore, cover up or devalue. And it turns out that disruptive technology has revealed that we as a public care about a lot of things that the news industry doesn’t want us to care about. If they’d been doing their job, it would have been a lot harder for the Internet to shake up the news industry the way it did.

But the FTC is not concerned about journalism, whatever it happens to say about that. It is concerned about the commerce of news. And it’s here that I think the FTC really goes off the rails.

Because if the FTC wants to ensure the survival of the news industry, it [of all people!] needs to recognize that competition fosters better competitors — and newspapers sure as hell could have used better competitors. So when we look at the changes happening in journalism today, we should all be excited. The technology that allows anyone to publish is creating a vibrant practice of journalism, some of which is also the foundation of new ways of practicing the news business.

The State of the News
The FTC’s document begins with 18 statements about the “current state of the news,” which cracks me up. Again, they’re talking about the news industry, not journalism. I won’t respond to each but I must bring a few to your attention:

3. They mention the dramatic decline in classified advertising revenues since 2000. Well, duh. We found out there’s a lot easier way to sell our unused treadmills than placing a tweet-length ad in a newspaper. Newspapers aren’t the best vehicle for most classified ads, so they shouldn’t be there anymore.

4. Advertisers don’t have to depend on newspapers to reach their customers anymore.
Well, since 1950 or so, they haven’t depended on newspapers, but it’s true that the Internet removes many more barriers between marketers and customers. This is a good thing. Until the Internet became popular, the owners of the printing press and the TV studios also owned your relationship with your customers. Now you and your customers own that relationship.

There’s also a lot of discussion about declining ad revenues overall and cutting staff, and the resulting change in news coverage. Here’s where the FTC starts thinking about the whole public-good aspect of this. They’re making the false assumption that if major news corporation aren’t employing millions of journalists, then the public isn’t being served with information that we need to support a free society.

Let me just say that I’m being served with plenty of information on a daily basis. More than I can handle. Do I have enough? Probably not. I could use even more hyper-local news than I actually get, honestly. But hyper-local is going to sort itself out and come up with a thousand different revenue models, only some of which may seem akin to our traditional concept of advertising-supported journalism.

I do think we should be concerned about national and international journalism, because these endeavors are expensive. It costs a lot of money to mount an investigative report into the corrupt practices of a federal agency, or to fly all over the world with the president, or to figure out how environmental disasters in the Amazon are affecting both the local population and the rest of the world. That’s worth talking about, how we sustain that kind of journalism. That’s really not discussed in this document, though. [Nor do I think the FTC should discuss it — but as a society we ought to be really talking about that.]

But overall this document is thinking about the daily local newspaper perspective, and it’s awfully shortsighted by doing that.

I’ve got to quote all of their 18th item, because I was just flabbergasted at the hubris:

18. In sum, newspapers have not yet found a new, sustainable business model, and there is reason for concern that such a business model may not emerge. Therefore, it is not too soon to start considering policies that might encourage innovations to help support journalism into the future.

Dear God, if you’re at all concerned about the future of journalism and that doesn’t have you running for your pitchfork, I don’t know what will. The last thing journalism needs is for the government to “support” it. It’s the surest way to kill the practice.

Copyright and Fair Use

The document also spends quite a bit of space talking about copyright issues. The authors do seem to recognize that the news industry really depends on the doctrine of fair use — the legal doctrine that allows the re-use of copyrighted material in certain situations when journalism requires it. I think most of the conversation in this section ranges from pretty absurd to dangerous, though. They talk about the “hot news doctrine” — established in a 1918 court case — under which some state laws still consider facts themselves as protected for a limited time period [a doctrine much-beloved by people like the AP and no doubt Major League Baseball and the Southeastern Conference, both of which have tried a heavy-handed approach to the management of information like answers to the question, “Who’s winning the game?” in the age of disruptive technology]. Federally, facts are not protected by copyright — just the way they are expressed [your actual video, article, etc.].

Some in the news industry dispute the fair use of information by search engines, like Rupert Murdoch pulling News Corp.’s content out of Google.

Here’s the intersection — no, the train wreck — of journalism and the news business. The news business puts a dollar value on information, but journalism wants to disseminate it as broadly as possible. Journalism wants credit, but more than anything, it wants you to know. We don’t live in Utopia, so money is a reality. But any “news” operation that goes around trying to limit access to its content is showing its hand, and [oxymoronically] devaluing its content. Its content is a factor of commerce, not journalism.

I don’t see how there’s a role for government here at all, really, but it’s an interesting discussion.

One problem with copyright law — as essential as it often appears to be to facilitate commerce in the creative industries — is that its consequences are poorly understood by the government and legal entities that create and sustain it. Copyright by definition stifles innovation for a period of time. The music industry has really had trouble wrapping its brain around this, and we’ve all seen the dramatic disruptions that continue to happen there. Laughably, the FTC document actually floats the idea of a music-industry-like copyright bureau to help “sustain” the news industry. Laughable if it weren’t so terrifying.

Because here’s where we get to a basic problem with most of the “solutions” proposed by this discussion: They all involve government certification of “journalism.”

The solutions range from increased postal subsidies to tech subsidies to copyright registries — all of which would be administered and doled out by Uncle Sam. You know what that means, right? Uncle Sam would get to decide who is and who isn’t a journalist. Thus abridging the freedom of the press. Which isn’t allowed. Thank goodness and James Madison.

So I’m hopeful that at best, this is an exercise in wasted time. But it could easily be an exercise in unintended censorship, years of litigation and a muted press.

Save journalism. Tell the FTC to quit overreaching.

Jeff Jarvis puts it nicely: “Get off our lawn.”

P.S. If the FTC would like to do something truly useful, I respectfully suggest it consider the plight of millions of Americans without reliable, affordable access to modern tools of communication, those hobbled by poor investment in local technology infrastructure and hamstrung by technology monopolies that drive up prices and drive down adoption. Fix the rural broadband problem. That would be a real aid to trade nationwide.

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America’s broadband access issue

If you’re reading this right now in America, chances are high you’re on a broadband Internet connection. You’re likely to have a decent amount of disposable income. And, if you’re like me, and you’ve had broadband for more than 10 years, it’s probably difficult for you to imagine how you might navigate the world today without it.

More than 100 million people in America today don’t have broadband. For many, it’s available, but not affordable. For some, especially in rural areas nationwide, it’s not even available yet.

I’m having a hard time figuring out how people who can’t access the Internet can really participate in the modern economy effectively. How they can access an education. Train for any jobs but the most manual of labor. Provide opportunities for their children to learn.

It’s not to say it can’t be done. But I’m so far removed from the pre-Internet world that I can only imagine how difficult it is.

There’s a nationalistic strain in our politics that likes to say America’s the best — whatever the measure. But here’s a place where we were the best, and we’ve rapidly fallen behind.

We’ve got a lot of challenges, particularly when it comes to rural access. Our nation is physically large and physically diverse. But we’ve gotten electricity and telephone service practically everywhere. This must be no different if we plan to remain competitive against nations that don’t have our resources — but that can hope to best us with better communications and technology access.

Here’s a great overview of the broadband situation.

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Paying for stories is a bad business

Apparently this idea still hasn’t gotten all around in the journalism world — but paying for stories is a bad business that doesn’t end well for anyone, except those who walk away with cash in hand.

If Gizmodo hadn’t paid for the lost 4G iPhone, it seems likely we wouldn’t be talking about the criminal investigation now underway. For the same reasons we don’t pay a witness to a crime for testimony, we can more easily trust news stories where no cash changes hands. In today’s world, it’s hard enough to trust journalism….paying for stories complicates things a lot.

Now, I will say this is a weird situation. I suspect some would say it’s analogous to Consumer Reports’ daily business — they purchase all the products they review, in order to remain objective. Yet in this case, with the product in question clearly NOT available on the market, I can’t figure out why Gawker would OK the payment [beyond the desire for the massive publicity it’s gotten….and perhaps that’s enough?]. Though it’s after the fact, it seems ethically similar to paying someone to steal the device, and I think we can all agree that that’s outside the bounds of propriety. Isn’t this just accessory after the fact?

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