The 463: Inside Tech Policy

Tech Lobbying Successes are Boring

As a nice bookend to our Lerach/TechNet birth post yesterday, Washington Post top lobbying columnist Jeffrey Birnbaum writes today about how the tech industry is doing well so far in their battle for patent reform legislation.

I say this not only because of the direct line between the vision of getting the industry better organized in 1997 and the ability to succeed on an important issue in 2007, but also to point out the dichotomy in environments at either ends of the last ten years.

From 1997-1999, Silicon Valley engaging with DC was sexy and fascinating. We could get big stories in national papers and regular features in Bay Area papers about what CEO was meeting with which politician and who was giving to who. We held well-attended media roundtables with visiting congress folk seemingly on a monthly basis to just talk about the big issues of the day. There were magazine stories and a BOOK about the consultants serving as liaisons between the two worlds.

The WHOLE point of this was to create a situation where the Valley could be successful in fighting or passing legislation favorable to it, innovation and consumers. And, to be successful means being well-coordinated among trade groups. It means that TechNet would employ a smart political giving strategy; and, it means that a very complex issue could be broken down and made relevant to policymakers and their staffs.

The purpose was never to stay sexy for sexy's sake. It was to do the work necessary to win -- even if that means getting your fingernails dirty.

And, now, here we are and success is pretty boring. (Much like Mark Cuban's take on the "boring" Internet).

Only a handful of souls in Silicon Valley will read Birnbaum's column and learn how the techies are currently beating a well-funded, experienced and savvy opponent. Most in the Valley will have little idea how hard people are working on patent reform and what it might mean for their company and bottom line. And, some reporters will ignore how the industry has been laser-focused and well-coordinated on this issue and equate the lack of glitz for a lack of action.

But, this is okay. This is how it should be. Boring successes should be normal.

Everyone Needs an Enemy

The Red Sox have the Yankees.

The Bush Administration has Osama Bin Laden.

And, the tech industry used to have securities lawyer Bill Lerach.

An enemy motivates, creates action and resolve. This is exactly what Lerach did in the mid-1990s when he sued nearly every tech company in flimsy, but costly, shareholder lawsuits. The reaction by the industry was to get organized and not let any "Lerach" catch them unprepared in the future. Thus, TechNet was born and industry got normalized to the ways of government affairs and political actions.

Lerach recently pleaded guilty for participating in a long-assumed scheme that payed kickbacks to lead plaintiffs in class-action lawsuits. This lead to a retrospective on the trial lawyer's impact by Bill Ainsworth at the San Diego Union-Tribune that includes a few quotes from yours truly...

(Lerach's) most important legacy as a political player may be that he spurred his enemies in the high-tech industry to become a political powerhouse in their own right...

...as a result, technology companies have transformed national politics into a more friendly environment for their agenda of increasing visas for skilled foreign workers, opposing Internet taxes and overhauling education. Their early backing of Democrats gave the party a new source of campaign cash and something that had seemed largely the province of Republicans: business support.

This made me wonder. Who or what is the closest thing we have to a Lerach today? For better or for worse, no one seems to be even in his league.

They Fax Paper, Don't They?

In writing a white paper for a client, I came across a couple paragraphs that perfectly explain why no one should have ever expected the music industry (writ large) to turn on a dime and immediately deal effectively with the sudden shift of digital distribution....

...it would be nice if the music publishing industry would invest in some database software, web interfaces, email and Adobe Acrobat. Most deals are done with fax machines and, to tell you the truth, it's like working with stone axes and bear skins. I just obtained the rights to a very popular song for a client from the largest publisher in the world. The deal was done with paper faxes and the form was annotated in magic marker so you could read it after it had be sent back and forth six times. This would actually be funny if it weren't true.

It would also be nice if the metadata associated with files on the major download sites had rights-holder information, as opposed to useless phrases like, "Copyright 1997 Warner Bros. Music." Go ahead, call the Warner Bros. switchboard and ask for the person in charge of public performance rights for that particular song. If you're lucky, you will get someone on the phone who will tell you that you have to call the publisher to make a public performance deal, who is ... umm ... errr ... who? But I'm giving credit where it's not due. There's no way that you get that far with a call to the main switchboard of any major recorded music company.

The author of the above August piece is Shelly Palmer. He is the President of the National Academy of Television Arts & Sciences. He's not exactly a babe in the woods trying to blindly navigate entertainment industries. (The subject of his post was a mini-tutorial on the rights needed for music in videos.)

The truth is that as much as we don't like it or think it's an antiquated notion, complete and total generational shifts may still take a generation. And, a generation is commonly considered lasting 30 years.

After all, if you time stamp today's environment where self-defeating rules are enacted that could limit the promotion of music online; there are fights over whether an artist can send out a disc for free with a newspaper; music creates impediments for TV shows to rebroadcast online; and, industry marketers craving the attention from the same people who industry lawyers want to sue is common, it seems to me that one-third in to a complete overhaul is completely reasonable.

Once we get rid of those fax machines and actually have a database of every track made with associated rights holders attached in the meta-data, we'll be halfway there. Only five years to go...

Bay Area to Brussels

First, apologies for the slow posting in recent weeks. One, 463 has been quite busy. B, I just got finished with a move. Phew.

I did want to make the rare move of asking the community who glances at this blog for a favor.

463 is expanding in both San Francisco/Silicon Valley (where I work) and into Brussels. If you have any ideas people who would be a good fit for us, let me know. My email is here and for those of you on Facebook, you can find me here.

In the Bay Area, we are looking for a strong, experienced (8 years plus) person who has a corporate communications technology background and has a more than curious interest in public affairs. In Brussels, we are looking to serve our clients with a senior-level individual who can provide an ear-to-the-ground, media relations, and, where appropriate, public affairs/lobbying support. We assume that this person will also collaborate and partner with other firms.

Thanks, in advance, for any suggestions.

New Broadband Policy Blog

Straight out of the Internet Innovation Alliance: The "Broadband Hub".

Their first post says today:

"IA's new blog, Broadband Hub, we'll keep you informed about the debate over Internet funding and our efforts to secure more investment to ensure continued swift access to the Internet. This is not a matter of making fast connections faster, but of guaranteeing that future innovation is not hampered by traffic jams."

Looking forward to more. The IIA has some impressive tech policy leaders involved.

Hat tip to Tech Daily.

9/11 and the First Amendment

One of my favorite moments from the recent PFF Aspen Summit was hearing from Harvard Professor and noted First Amendment expert Lawrence Tribe.  PFF posted the transcript of his keynote today.  This was well timed.  Read the full speech by downloading the PDF here.  And, read his conclusion below...

The broad lesson of this discussion of television violence is the centrality of the First Amendment's opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.

So it is essentially a cultural problem. It's a problem of persuading politicians and the public that the vital principles of freedom of speech do not lose their vitality, do not lose their centrality to who we are as a nation, who we are as a people, simply because we live in a scary, brave new world.

Sixteen years ago now—and it's sort of scary for me to realize it was that long ago because it feels like it was a few months ago—in a keynote address that I gave to the Electronic Frontier Foundation entitled “The Constitution in Cyberspace,” I proposed a set of axioms about the interaction of freedom of speech and privacy with new technology that I think still holds. One of those axioms was this: The Constitution's norms need to be so understood that they are invariant under merely technological transformations.

As a kind of thought experiment I proposed a possible constitutional amendment that would read as follows: "The Constitution's protections for the freedoms of speech, press, religion, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivations of life, liberty, and property without due process of law shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled.”

But the truth is: We don't really need that amendment. We need to remember that this is what the Constitution already means. And an important thing that the proposed amendment omitted was that all of these constitutional protections should be construed as fully applicable without regard to the fears that modernity thrusts upon us.

It was about seven decades ago that Franklin Roosevelt famously said, "The only thing we have to fear is fear itself." I think a similar point needs to be emphasized today. We need to focus not on all of the scary things that could befall us or our children or our grandchildren unless we give up our freedom to an all powerful government. We need instead to focus on all of the hopeful things that we can accomplish if we put our minds and our energies to the task of empowering individuals and families to protect themselves and pursue their own dreams for a better life.

That's why the information technology sector that you represent is so exhilarating, because of what it promises, what it can do, the way it can transform the world. Sure, there are things that might be scary about it but you've got a selling job to do. You've got to convince the people with the power to make your lives difficult and the First Amendment costly that it is really worth preserving what makes this nation special.

Flickr photo credit

DOJ Chases the Ghost of Net Neutrality

Out of the blue, the DOJ's antitrust division made a (near two-month late) filing today with the FCC that warned the body of possible harms of net neutrality regulation.

I'll let Cynthia's Brumfield's IP Democracy pick it up from here:

... the Justice Department issued a press release to announce the ex parte filing, which just seems…a little weird, given the nature of the filing. It feels almost like a PR move, or a public political positioning, and is not in keeping with the kind of dry, legalistic press releases DOJ usually issues (“Fujicolor Processing Pleads Guilty to Environmental Crime,” “Missouri Federal Court Permanently Bars Woman From Tax Return Preparation,” “Landmark Settlement Aims to Clean Up Raw Sewage Discharges in Allegheny County”).

So, the DOJ is arguably playing politics, not unsurprising in Washington, but not the usual behavior of the normally staid Antitrust Division of the Justice Department. The document, too, doesn’t read like the usual antitrust analysis. There is little dispassionate weighing of the arguments or rigorous analysis of the facts (a lot of facts are presented regarding how the Internet is flourishing without net neutrality but no real weighing of the arguments and data).

Personally, I think the Justice Department has historically been a model bureaucracy for how it approaches the seriousness of its charter, so I will give them a pass on the tone of the release. But, the timing? Oy. It's so odd that it, in fact, makes the case that the DOJ wasn't "playing politics" because no sane politician would so randomly jump in on an issue so 2006.

In fact, just yesterday, Roy Mark at eWeek wrote in a piece headlined: "Whatever Happened to Net Neutrality?"...

A year ago, network neutrality was roiling Capitol Hill. From Congress to the Federal Communications Commission to the Federal Trade Commission, there wasn't a hotter—or more controversial—tech issue. Today, net neutrality barely raises a yawn among lawmakers....

And, your 463 quote of the day in the same piece:

"They're waiting to fight another day. I don't see signs of it coming back. There's no political will," said Tom Galvin, a partner at Washington's 463 Communications.

Display Me the Money

As if you didn't have enough from me on these pages or Jim Hock here. Now, you have our "other" partner Tom Galvin spouting off in eWeek. He waxes about whether the Democratic Congress will follow through on the promises that they made eight months ago and put some real dollars into a pro-tech agenda....

Fresh off authorizing a 10-year investment of $33.6 billion in critical competitiveness areas, with patent reform on the fast track and little opposition to extending an expiring ban on Internet connection taxes, lawmakers seem to be thinking of technology this year as a priority—rather than an afterthought—on a crowded federal agenda....

....authorizing investments is an easy business, an abstract nod to the deep pockets of Silicon Valley. Appropriating those funds for next year and the next nine years is a much trickier and riskier enterprise. That bruising battle is still to come when the budget committees begin to hammer out just how much of the authorizations in Public Law 110-69, the America Competes Act, will actually be spent.

"If they don't follow up with the money, it's just talk," said Tom Galvin, a partner at Washington's 463 Communications, which counts among its clients Sun Microsystems, Cisco Systems and Technet, the politically savvy CEO network. "There's going to be a push for Congress to put its money where its mouth is."

Tom is also "circumspect" on patent reform:

"There are still a lot of divisions within various industries. I don't see it happening without a major breakthrough compromise. Otherwise, they're just playing kick the can."