Dianne Feinstein wants to ban mp3

Don’t look now, but the Senate re-introduced the PERFORM act, a bill that makes it illegal to record music from the internet and bans the use of mp3 by online music services (!). The consponsors are Senators Feinstein and Biden.
Feinstein complains that “New radio services are allowing users to do more than simply listen to music. What was once a passive listening experience has turned into a forum where users can record, manipulate, collect and create personalized music libraries,” said Sen. Feinstein.
Please tell Senator Feinstein that this is a good thing, not a crime. The EFF has information and a handy action alert. Please sign it, pass it on, and blog it.

TechDirt is right in theory on Net Neutrality

I read TechDirt religiously. I love how they have no patience for spin and bs, and argue with reason, snark, and relentlessness against shortsighted business practices. On Net Neutrality, though, I think they’re being naive.
They’re right in theory. Of course the main issue isn’t net neutrality, it’s excessive market concentration and lack of competition. In recent years, the US government has gone back on the policy to break up Ma Bell, has removed obligations to wholesale their networks, and approved merger after merger. The unsurprising result — the neomonopolist AT&T is bragging that it’s about to exert its power by using its monopoly on the wire to control the market for content and services.
Sure, the right policy is to break up the monopoly again, one way or another. Legally split network from services. Encourage government-supported fiber, wholesaled to allow free-market competition for connectivity and content. But those things aren’t going to happen with today’s Republicans (no Teddy Roosevelts these days), and it would take a pretty serious populist revolution to pry the Democrats back from incumbent industry tool.
Sure, Net Neutrality is second best, but if that’s what we can get while building back policies that favor competition and oppose monopoly, we should take it. Hopefully the TechDirt guys aren’t dissuating techies from calling and writing their Senators to support Net Neutrality, If we don’t get this partial victory now, there will be a smaller and less powerful community to fight for the real win later.

One web day

I went to a “one web day” organizing event yesterday. I have a bit of ambivalence about the theme, and want to explore the emotion.
The internet is a wondrous creation of humanity. The ability to connect across space and remember across time is stunning to contemplate. It is well worth celebrating.
The model of a “day” dedicated to celebrating, raising awareness, and protecting — along the lines of “earth day”– feels like original and unreconstructed hippie-dom. The level of sincerity and optimism is a bit embarrassing, given the waves of cultural disillusion that followed the euphoria. (mind you, the original earth day, be-ins and what not are all before my time).
Unlike the original Earth Day, One Web Day is assertively anti-anti-commercial. The goal is to embrace the commercial providers, big and small, who help bring the internet to people.
The most well-greased way to make a holiday mainstream in US consumer culture is to drive it with consumerism. Mother’s day was invented to sell flowers and cards. Christmas is used to sell most of everything. It is easy to imagine web day promotions on internet access, Flickr memberships, and other addictive subscriptions.
And yet the most powerful marketers — the telco and content oligopolies — are dedicating vast resources and efforts to make the internet a less connected place, with less of the open access, easy of information distribution, and ease of sharing that make the internet what it is.
When I think about One Web Day, it is hard to think about celebrating the internet without thinking about the amount that is at risk. Much of the remix culture rennaissaince is illegal, or under legal threat, because of bad law. While US telcos try to get laws passed to make municipal broadband illegal, European cities, one after the other, are starting fiber-to-the-home initiatives that will get residents first-class broadband while US connectivity falls behind.
And yet, people won’t engaged in protecting something they don’t think to value. Part of the value of One Web Day is sharing the idea and the feeling that the internet is worthy of appreciation. Wanting to protect it comes as a follow-on.
I guess the way to make it work is to get the themes of protection and sharing into enough hands, and take advantage of the commercial momentum to spread the word.

Idiotic terms of service

Vongo is one of a burgeoning number of online video services. When you download their client gizmo, the terms of service (if I’m reading them right) say that you do not have the right to criticize the product.

“You may not use the Starz Marks to imply endorsement of your product or service, or to disparage Starz, Starz

Google and the long-tail lobby

On the Google blog, Senior Policy Council Andrew McLaughlin announces that Google has hired a lobbyist, Alan Davidson of CDT and is setting to work lobbying on behalf of net neutrality and fair use.
It will be great to have Google’s help to break the grip of mass media and monopoly communications over laws that protect their obsolete business models. Today, the US economy is hobbled by the power of incumbent industries to buy the law and protect themselves against disruptive competition. The only way this can change is for businesses that make money from the long tail to invest in buying the law back.
Citizen engagement is helpful — one of the benefits of fair use, community broadband, net neutrality, and other digital rights positions is that we have end users aka voters on our side. But if consumers stand alone against industry, things go hard in DC these days. When a powerful industry is supported by citizens, that’s a winning combination. When a politician hears from an industry lobby supported by citizens in his district, that helps him make the right decision.
Over the last decade, the telecom and content industries have done a better job than the tech industry at protecting their interest in DC. Telecom, cable, and broadcast have been heavily regulated for many decades. This has made these industries very good at lobbying — better at lobbying than innovating. So they use their lobby skills to defeat the innovators.
There’s a lot of money to be made in the long tail, and companies like Google and Intel are helping to protect that interest. Hopefully Google realizes that this won’t be trivially easy and will take a while. The blog post is very cool — it represents a major shift from the secretive world of DC lobbying. Participating in a public conversation can only help getting the word out about the value of the freedom to connect and create.
Google and Intel aren’t always necessarily on the side of public interest — Google’s business model has some privacy risks, and Intel has serious investments in DRM. But their investments in protecting connectivity and peer content help protect digital freedom and the public sphere.

“Why can’t I burn a song, even if it’s in my music”

A few days ago, I disagreed with the argument that Yahoo was more closed that Google because Yahoo hosts commercial content. In a “long tail” world, popular content helps attract users and doesn’t displace peer content.
DRM and license terms are more relevant dimensions of open-ness. So long as the Yahoo Music Help section has a page called Why Can’t I Burn a Song, Even If It’s in My Music?, the jury says “closed”.
At the same time, Yahoo’s MediaRSS has the opportunity to be a disruptive technology, coming from the bottom up to change the market share of DRM.
In the words of Wired News, “Niche content creators syndicate their content with an MRSS feed, which includes metadata about the work. The information goes out to subscribers just like a blogger’s RSS feed and incorporates video and audio… Yahoo! made sure MRSS was open and nonproprietary. Thanks to that hands-off policy, MRSS has caught on: Both Google and AOL encourage content creators to use MRSS to help their search engines identify and index video.
Motivated amateur and mid-list music and video producers can syndicate with RSS. Good search engines will get the word out. When this approach starts collecting money (the way blog ads do), less restrictive distribution terms will start gaining market share.

Grokster and statutory licensing

So, Grokster and Streamcast make money from advertising. It seems like a much better solution than suing them out of business would be a statutory license that took some of the revenue and provided it to artists.
This approach was used with player pianos, and with music played in bars and restaurants, where some of the revenue needs to be shared by law with copyright holders.
Statutory licenses have been proposed before, but one problem was that there wasn’t anything particularly relevant to license. One proposal was to impose a tax on all broadband connections, whether or not the user downloads any copyrighted content.
The beauty of an advertising business model on peer to peer is that it is a logical target for a tax. The ad server could even measure the content that was being downloaded, and use the data to allocate the money proportionately.
Back in the day, when Congress extended statutory licenses to music played in restaurants and bars, were they wiser and more foresighted? Or was there a closer balance between the power of the music industry and the power of the bar and restaurant association?

Brand X and Grokster

There’s one main theme in the Brand X and Grokster Supreme Court Cases yesterday. Incumbent industries own much of US technology policy, and use that power to keep out competition and suppress change.
BrandX, the ruling that exempts cable companies from sharing their lines, is a defense of the FCC policy to offer incumbent carriers relief from competition, in exchange for unsecured promises to build out broadband. The policy is obviously failing — the US is falling behind the rest of the world in broadband access. See Cathy Yang’s Business Week commentary, “Good for Cable, Bad for America” for the case made clearly.
Grokster applies an “inducement standard” to technology products and services that can be used for copyright violations. In practice, according to EFF’s Fred Von Lohmann, this will encourage content industry lawyers to rummage through the memos and emails of technology innovators, looking for any sign that the company intends the product to be used for copyright violation.
The content companies didn’t get exactly what they wanted — the technology itself hasn’t been criminalized. But they got enough to make it riskier to develop new technology, and to push more technology innovation outside the US.
The US will either find a way around the incumbents’ ownership of the law or become a second rate economy. Empires fall.