The 463: Inside Tech Policy

Let's Go Crazy Over the DMCA

First, watch this video:

Now, ask yourself, did that just make you want to buy music from Prince less? Specifically, the track "Let's Go Crazy?"

That's just one of the peripheral questions afoot in a legal case between a mom who took a video of her kid and innocently posted it on YouTube and Universal Music. And, no, the big label isn't suing the mom. It's the other way around. Yesterday, a judge considered Universal's attempt to get the potentially precedent setting case dismissed.

The EFF is driving the case for Stephanie Lenz and claims that Universal shouldn't have forced YouTube to takedown the video on copyright claims because the use of the Prince track was protected by fair use. EFF says:

"The lawsuit asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video."

Wired's Threat Level blog notes:

Universal did not challenge Stephanie Lenz's assertion that the video was a "fair use" of Prince's song. After being taken down for six weeks, the video went back online last year, having now generated about half a million hits.

The courthouse dispute on Friday centered on a rarely used clause in the DMCA -- originally approved by Congress in 1998 -- allowing victims of meritless takedown notices to seek damages in a bid to deter such notices and breaches of First Amendment speech.

Universal argues that they or other copyright holders are not liable for damages when somebody asserts fair use to reverse a takedown notice.

Regulate YouTube to Save the Australian Idol

Follow along please....

A prominent Australian recognizes that "consumers are demanding more extensive online, video-based entertainment" and that "we are the 'what, when and how we want it' generation."

He then says that require circa-1960s rules that require that 55 per cent of all programs broadcast on free-to-air TV between 6pm and midnight to be Australian are outdated.

The punch-line has to be that he views the TV content content rules as so archaic in a networked world that they should be struck down?

Wrong.

Instead, he is calling for these types of "Made in Australia" rules to be extended to the Internet.

Oh, and I suppose it is relevant that the man making this pronouncement is the head of the Australian public television network -- ABC-TV.

Seems that Kim Dalton believes:

"It is likely that existing regulatory arrangements to deliver local drama, documentaries, comedy, children's, news, current affairs and other programming may have diminishing effects on the market as the existing business models of broadcasters are challenged and the content offered becomes, increasingly, foreign.

"It is time to reassess and reshape the Australian content policy framework.

"By making new connections between the previously distinct fields of communications, media and cultural policy, the Government can address the issue ofensuring Australian content ismade available in the digital environment."

What happened to consumers getting what they want, when they want?

After all, Australian TV viewers consistently watch Desperate Housewives, Lost, CSI and Law & Order more than most any homegrown products. And, the most popular locally produced shows are generally bastardizations of American or European created shows like Australian Idol, the Australian Big Brother and Who Wants to Be a Millionaire.

Nothing wrong with that. But, pretending that you are going to save Australian culture by getting government involved to force people to watch your network's programming on all mediums is a bit, uh, problematic.

Fortunately, the reaction in Australia was not positive.

Today, The Australian ran reactions. Here is one...

John Lindsay, the carrier relations manager for Internode -- one of the country's largest internet service providers -- said the call was hypocritical.

"This used to be the same Australian media industry that refused to make Australian TV available online," Mr Lindsay said. "You can't regulate it. It connects everyone to everyone. Are they really going to stop people watching YouTube and CNN?"

He said attempts to try to restrain or direct people's use of the internet would be met with fierce resistance by consumers.

Disability Access Legislation: Hear No Internet Regulation; See No Internet Regulation?

Captions for 30 Rock to the right of the video above.

I wrote back in September of 2006...

...the movement toward (Internet video) regulation doesn't have to come in big shifts like those proposed overseas. We just mentioned closed captioning regulations for TV shows. Well, closed captioning regulations for Internet video are being fought for already. Advocates want the Telecom Act of 1996 to open up the rules to online video. If this is done, what next?

Well, any minute now, Representative Edward J. Markey (D-MA), chairman of the House Subcommittee on Telecommunications and the Internet, will introduce legislation that will give the FCC enforcement rules on mandating disability access for Internet delivered video. The draft legislation is here (PDF).

The Boston Globe top-lines the bill like this:

....(it) would require major producers of Internet videos to add captions as well as "video description" soundtracks that describe the on-screen action for blind people.

The measure would also force changes in the design of television and telephone equipment to make the devices more accessible to the disabled. The goal, Markey said, is "to ensure that people with disabilities are not left behind as technology changes."

The bill would require TV networks to provide captioning and video description tracks when they stream their shows over the Internet.

Markey is seen as a true friend to the Internet on Capitol Hill, but he also has a deep attachment to disability access technologies. He introduced and championed the legislation that led to closed captioning on televisions in 1990.

Still, friendships aside, some are troubled by the bill and don't think it will stand legal tests. Kevin Goldman at the CommLaw blog says:

While an admirable attempt, the legislation has, in our mind, many flaws. The first is the obvious constitutional question. While broadcaster have traditionally been subject to some regulation due to the “scarcity” and “pervasiveness” of the medium, the Internet has been classified by the United States Supreme Court as the perhaps the freest medium of expression in existence – deserving of even more First Amendment protection than even newspapers. It is hard to conceive of a regulation that mandates speech in this way surviving constitutional scrutiny. Another problem raised by several parties is technical in nature. Again, unlike, broadcast television, there is no single technology by which Internet video is delivered. If a broadcaster finds it is even possible to automatically convert captions from a television program to the Internet stream (not always a guaranteed proposition because many programs are condensed on the Internet, with commercials removed), viewers use different programming formats to receive the stream. Captions prepared for delivery via Internet Explorer may not be readable in Linux. Work to solve this problem and create a single format for captioning is ongoing but still some time away. Finally, there is the further concern that captions would be unreadable on smaller computer screens, let alone iPods, iPhones or other mobile phones to which the law would apply.

On the constitutionality question, I've repeatedly gotten the same response by legal minds when I do my Chicken Little dance on Internet video regulation. I may just be a caveman PR guy, but I also can see the evolution of laws as society and technology does the same. Just yesterday, Microsoft's Steve Ballmer said that *all* media content would be delivered over IP networks in a decade. If that is going to work, I would presume that this dynamic will require pretty significant pervasiveness.

And, as I wrote back in that 2006 post....

....at what point of penetration do you need to get to be broadcast TV-esque? Way back in 2003, more than 60 percent of U.S. households had computers and the more recent OECD report said that the US has 49 million broadband subscribers. Oh, and what about those little computers that people carry in the pockets? That is, phones and soon-to-be a bevy of different mobile devices that merge video capabilities and old-school voice calling? There are 180 million wireless subscribers in our country of 300 million. All we're saying is that those are a lot of video platforms that are a lot easier to access than paid-for cable on a 40-inch screen that's attached to a cable box.

To the original "what's next" question: If the FCC has regulatory authority to impose disability access rules on "broadcast-like" Internet video*, than why not be able to impose advertising rules for videos targeted towards children? How about next-generation v-chips? Or, if the Fairness Doctrine sees the light of day again, would it be extended to the Internet?

If precedent is created on any of the above, how far could Internet video regulation go?

All said, there is a very good chance that, at least for now, the Markey bill is one big kick in the industry's ass to get in gear and create disability access solutions that pre-empt legislation. Indeed, Google, Yahoo!, Microsoft and AOL created the Internet Captioning Forum to "overcome the technical and production challenges of providing captions on large video aggregation Web sites."

Indeed the Web captioning site, Captions.org noted recent progress online earlier this week...

More major network channels are setting up video players on their sites..and the good news is, the players show captions! More and more captioned programming is now available through Fox.com (read the review at Disabled in the Digital Age) and others. Plus there is a new online tv broadcaster, Hulu.com, that makes some captioned programming available....

...This is a good start. Part of me wonders if the networks are rushing to provide at least some captioned programming in hopes of avoiding government requirements to provide captions on the internet? After all, because the law that requires captions on television does not apply to the internet, there is now pushing to get a new, updated law that will apply to the internet.

Putting on my Chicken Little suit again, I would respectfully suggest that my friends at businesses heavily invested in online video not merely view their disability access "self-regulatory" efforts as a hedge against bills like Markey's but also see it as a way to maintain that important firewall between them and the FCC vacuum.

Markey has been proven to call industry's bluff before.

*The draft legislation defines the term ‘video programming’ as meaning programming provided by, or generally considered comparable to programming provided by, a television broadcast station, even if such programming is distributed over the Internet or by some other means.’’

Add Pakistan to the List

YouTube is banned "till further orders"....

The Pakistan Telecommunication Authority (PTA) told the country's 70 Internet service providers Friday that the popular website would be blocked until further notice, the Associated Press reports.

The authority did not specify what the offensive material was, but a PTA official said the ban concerned a movie trailer for an upcoming film by Dutch lawmaker Geert Wilders, who has said he plans to release an anti-Koran movie portraying the religion as fascist and prone to inciting violence against women and homosexuals.

Even better, this move apparently cut off traffic to the video site for a mere two-thirds of the world.

Seemingly, this is not part of Pakistan's recent hire of a US PR firm to "polish its image".

UPDATE: One day later, the ban is lifted.

Johnny Watches "The L Word"; Mommy and Daddy Get a Fine

Adam Thierer at PFF and The Center for Democracy & Technology's Sophia Cope got hold of a two-year-old transcript of a panel discussion at the National Lawyers Convention.

No.... Wait!  Come back.  This is actually interesting.

Included in the debate is a little ditty by FCC Chairman Martin who throws out the idea that parents might be liable for their kids consuming "indecent" material.  How indecent?  The conversation at that point was centered on satellite radio "shock jocks."  And, previously, the parent liability issue is first raised by a "Morality in Media" rep who want to protect kids from HBO and Showtime.

Even if you assume that Martin's comment was made in the spirit of rhetorical legal debate (as I do), the suggestion is still note worthy enough.

Thierer says:

In a free society, public officials should not act in loco parentis when parents have the power to make media decisions on their own. Raising children, and determining what they watch, play, read, listen to, or download, is a quintessential parental responsibility. We should leave it that way and keep the threat of criminal sanctions for poor parental judgment out of the discussion.

And Cope raises the ante...

(Martin) seems to imply that the government should have the authority to regulate content at any cost, regardless of how burdensome the government’s chosen method is on the right to freedom of speech. We should expect more responsible rhetoric from a public leader who has such immense power to affect a fundamental liberty.

Not to pile on here (seems pretty unnecessary), but it's trial balloons like these that make people get apoplectic about seemingly innocuous pieces of legislation that might allow the FCC to tip their toe into Internet content regulation.

Doesn't Anyone Remember the Movie "Heathers"?

The sad story goes like this.

Small Wales town named Bridgend.

Fourteen teen suicides in one year.

Despair. Anger. Reflection. Blame!

Pointed fingers. Right at the Web. "Social Networking Websites."

"it was revealed she used the computer hours before she died"

"Randall's death raised fears that the suicides were related to a desire for the "prestige" that is associated with having a memorial page on the social networking site Bebo."

Call to action! Now!

Conservative MP has a plan.

"A string of teenage suicides has highlighted the urgent need to tighten up internet safety for youngsters"

Self-regulation has failed.

Solution: An Internet Standards Authority -- A "co-regulatory structure" for the internet, bringing together parties including law enforcement agencies, government, charities and parents.

The enforcers?

ISPs. Of Course.

What to censor? Easy. "Harmful content would include content where cultural, taste and decency judgments have to be made."

Moreover. No sites with this: "glorification of violence and terrorism, pornography, cyber-bullying, suicide, internet gambling and anorexia websites"

ISPs would offer two-tiers of content for kids and adults. The "default" would be for kids. Opt-out. Like the Australian plan.

Need a password to read about anorexia.

No happy endings involving Winona Ryder.

YouTube Korea Faces Regulatory Hurdles

Despite the enthusiasm of the Koreans in the video above, The Korea Times has a skeptical piece on YouTube's launch in the Korean market.  Competition in a crowded field of familiar Korean brands is one big issue.  The others are regulatory burdens that would send a million blogs a-blazing if they were implemented in the US...

Censorship is another critical issue that YouTube must solve. The Korean government enforces relatively strict guidelines for sexual, violent, or politically controversial contents on Web sites. So major local portals such as Naver and Daum employ several hundreds of monitors in Korea and in China who check all video and text content and filter inappropriate material 24 hours a day.
 
YouTube's Arsiwala said Wednesday that the firm will do its best to comply with the Korean regulations. But there certainly will be loopholes because of the sheer amount of the videos uploaded onto the site ― Arsiwala says that YouTube sees about 10 hours of videos uploaded every minute.

3Qs with Adam Thierer on the MySpace/AG Child Safety Effort

PFF Senior Fellow Adam Thierer wrote the book on online child protection, so who better to give insight on today's long-awaited MySpace/Attorney General agreement to create protections for kids using the News Corp site.

And, no really, Adam did write the book. (You can download "Parental Controls and Online Child Protection: A Survey of Tools and Methods" here.)

Before we get to the Q&A, here is a brief overview/opinion of the agreement courtesy of NYT's Brad Stone:

Among the dozens of measures MySpace has agreed to take, the social network will let parents submit the e-mail addresses of their children, so the company can prevent anyone from using that address to set up a profile. It will also set the profiles of all 16 and 17-year-olds to private, so only their established online friends can visit their pages - essentially creating a “closed” section for users under age 18.

MySpace also promises to hire a contractor to identify and delete pornographic images on the site. And the company will take charge of an Internet safety technical task force to develop an age and identity verification tools for social networking sites.

Now, to Adam...

Q: Why is today’s AG/MySpace announcement significant? What about this tells you that this will be more substantive than the veritable “blue ribbon committee” that peaks at launch?

The agreement is significant because it represents a sensible step forward in terms of online safety. Indeed, many of the principles in the agreement could form a potential model “code of conduct” that other social networking sites could adopt. That is important because (a) it really could help keep kids safer online; and (b) it will help us avoid the specter of government regulation of the Internet and others forms of digital communication.

The agreement with the AGs is especially notable for what it does not include: age verification mandates. The call for an Internet Safety Technical Task Force to study online safety methods and identity authentication tools is a sensible alternative to the rush to mandate age verification, which some AGs have been advocating vociferously over the past two years.

Hopefully the task force will provide critical examination of the issue and not simply begin with pre-ordained conclusions about the wisdom or effectiveness of online age verification techniques and technologies. At the press conference announcing the agreement, however, Attorneys General Roy Cooper of North Carolina and Richard Blumenthal of Connecticut seemed to imply that that the goal of the task force would be to develop and implement a full-blown age verification system for the Internet. “We are going to find and develop online identity authentication tools,” said AG Cooper. And AG Blumenthal reiterated an argument he made ad nauseum last year that, “if we can put a man on the moon,” then we ought to be able to verify the ages of people before they go online.

But it’s just not that simple. As I argued in a lengthy PFF study last year entitled, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,” there are no silver bullet age verifications solutions. Online authentication is a complicated, multi-faceted technical issue. And, even assuming we could find a way to make it work, there are many other considerations that must be taken into account, such as the burden it might impose of freedom of speech or individual privacy.

The danger, therefore, is that the AGs have a pre-ordained conclusion and that they will either stack the deck on the task force with age verification advocates or pressure the task force to adopt mandatory age verification without thoroughly studying the issue. Again, that would be a serious mistake and it would also likely give rise to legal challenges.

Q: What other companies are critical to making the Internet Safety Technical Task Force successful? And, as far as you know, was their consideration to having them involved prior to this announcement?

If the task force does go forward, it needs to be a balanced panel of experts and include other social networking players, such as Facebook. This shouldn’t just be a MySpace thing.

Q: While this obviously is targeted towards collaborations with state law enforcement, what do you think the DC impact will be of the Internet Safety Technical Task Force?

Some AGs have tried to get the federal government involved in the effort to regulate social networking sites, but so far nothing has come of that. Ironically, if anyone was going to take the lead in terms of social networking regulation, it should be the federal government—not the states—since the Internet is not a local medium or platform. In fact, that’s one of the reasons why the AGs have wisely not pursued any formal legal action against MySpace thus far; they know it would likely be struck down as an unconstitutional burden on what is clearly interstate commerce.

Of course, the last thing I want is more federal Internet meddling and silly bills like the Deleting Online Predators Act (DOPA) that are completely counter-productive. If the feds get involved at all, it should be in terms of education and awareness building about sensible online safety efforts and parental empowerment tools. They should adopt an “educate first” approach to the issue. But I have a sneaking suspicion that, to the extent they do get involved, they will once again take the “regulate first” approach.

China (Finally) Makes Move to Officially Regulate Online Video

This week, many wrote about China's now official stance that will only China will allow only state-run Web sites to broadcast video or radio content.  While the turn of events to does create huge risk to the Chinese national obsession with Paris Hilton (or women who look like her), it shouldn't have surprised anyone.

Why? 

Nearly 18 months ago, we wrote...

The same regulatory body that makes rules for TV and movies is going prevent sites from showing online videos unless the site is government approved....

And, we quoted the WSJ:

China's official Xinhua news agency yesterday reported that the country would "issue new regulations against Web sites which broadcast short films without state permission," citing the State Administration of Radio, Film and Television, or Sarft, as its source....

The Xinhua report said popular Web portals Sina, Sohu and Netease will be "authorized providers of online video programs" under the new regulations, while other sites "face an uncertain fate as the administration will inspect the online video contents they release."

After the recent move, AP considered YouTube's fate in China:

Adhering to the new rules could be daunting for YouTube, where about 10 hours of online video on a wide range of topics are uploaded every minute.

None of YouTube's video-hosting computers are in China, but the government could still block access to the site.

YouTube, owned by Google Inc., hopes the rules won't cut it off from the rapidly growing number of Chinese residents with Internet access, spokesman Ricardo Reyes said.

"We believe that the Chinese government fully recognizes the enormous value of online video and will not enforce the regulations in a way that could deprive the Chinese people of its benefits," Reyes said.

Of course, YouTube deprivation was the order of the hour during last year's Communist Party Congress.

While You Were Out: Australia Makes Plans to Censor the Internet

Ah, those Aussies. It doesn't seem to matter who is in charge. Someone is always trying to block content on the Internet in the Holy Name of The Children. So much so, that Mike Masnick at Techdirt thinks that too much of a fuss is being made about the new-ish plan announced this Monday.

I respectfully disagree. The new Labor government has taken it up a notch or two with their still exceedingly vague plan to create a mandatory ISP filtering regime. The effort, announced by the new Telecommunications Minister Stephen Conroy, would:

(make it) mandatory for all internet service providers to provide clean feeds, or ISP filtering, to houses and schools that are free of pornography and inappropriate material... the scheme will better protect children from pornography and violent websites. (ABC News)

Conroy also dispenses with all the typical niceties that befit a politician and jumps straight to the classic punch-line when discussing "inappropriate material":

"Labor makes no apologies to those that argue that any regulation of the internet is like going down the Chinese road. [and drum roll, please...] If people equate freedom of speech with watching child pornography, then the Rudd-Labor Government is going to disagree."

Aussie TechCrunch writer Duncan Riley responds:

Whilst no one would disagree with the notion that kidde porn is abhorrent, it should be noted that the Australian Government’s censorship regime is going to be much broader than sites that show activities that are already illegal to distribute and watch across the world.

In fact, Conroy defends the measure by saying that the UK and Scandinavia also have "clean feed" ISP filtering efforts. However, as The Australian notes, "in Britain, only between 200 and 1000 child pornography sites have been included on a blacklist."

And, Conroy is talking about potentially millions of general pornography sites (however defined) and other sites that depict violence (ditto). Plus, Australian sensibilities are hardly "European" when it comes to community standards.

Another zinger to this plan is that the government is suggesting that it be opt-out and not opt-in as previously considered by the Conservative government. That means that a citizen would have to actively inform his ISP (which is in coordination with the government) that he or she wants to receive what is deemed "inappropriate material"). Maybe the government will force them to put a sticker on their window to protect the neighborhood children from their laptops.

One Australian professor takes apart the plan in an op-ed in The Age: