News Archive: July 2010
7/30/10 - Fair Use (Partially) Trumps DMCA [link to this story]
Good news on the intellectual property front this week.
First, the Library of Congress conducted its triennial review of intellectual property law and its effect on the sincere sharing of information. This week, the LoC announced some new exemptions in several areas that bode well for fair use. They fall into four basic categories:
1. Films and DVDs may have their digital encryption broken for educational use, including, but not limited to, classroom-viewing and excerption in the furtherance of academic work.
2. Wireless phone customers are free to "jailbreak" their phones - allowing them to un-tether themselves from the tenuousness of one network to work with others. This provision also allows smart-phone users to develop, download, and execute applications which may or may not be permitted by the phone's manufacturer or specific cellular network.
3. Copy encryption may be broken on video games if the purpose is to; 1) recover lost accessibility (i.e., you lose the manual but bought the disc, and can't get a new manual) and 2) examine such encryption for security flaws. This is becoming a big deal as the "virtual worlds" of gaming (such as World of Warcraft and Second Life) expand radically.
4. Copyright protection of e-books may be circumvented when a device fails to display the book properly or, as in the case of #3 above, access to the book is lost although ownership is not in question.
Following on this good news, the Fifth Circuit Court of Appeals ruled that in no uncertain terms, circumventing copy-controls is justifiable under the paradigm of fair use. In essence, "the bottom line here appears to be that if a consumer breaks through the [digital rights management] on some software, what they do after that is the crucial determinant of whether they've run afoul of the DMCA."
These are significant chinks in the draconian power of the Digital Millennium Copyright Act (DMCA). The DMCA made it effectively illegal to circumvent any encryption/anti-copy mechanism, regardless of the utility, morality, and legality of the situation. The idea was to make new technologies opaque, so consumers must rely on the proprietary "knowledge" of the corporate innovator to subsist.
In two instances now - and within less than a week of each other - two federal acts have weakened the scope and scale of the DMCA's chilling effects. It's probably best that Congress nor the FCC needed to be involved.
Most of the press has been over the "liberation" of cell phones, and some companies (like Apple) pledge that if you try to free your iPhone, you'll void your warranty. But let's see just how fast terms of service change in the face of user-led innovation.
7/25/10 - Miscellaneous News of Note [link to this story]
A crash-course in the dramaturgy of media studies has the mind fully occupied at the moment, but not quite busy enough to do other stuff quasi-related to this site:
Pirate Radio: Radio Survivor's Paul Riismandel did a follow-up on the notion that pirate broadcasters (do not) go to jail. Only two states - Florida and New Jersey - have criminalized unlicensed broadcasting on their own, as they are hotbeds of activity, and their state broadcasters' associations are tired of the ineffectualness of the FCC.
After several years of having anti-pirate laws on the books, Paul can find no evidence of anybody being prosecuted in New Jersey; while there have been arrests of pirate ops in Florida, there are no records of convictions.
Intellectual Property: Skidmark Bob had me on PoP dEFECT Radio recently, where we hashed over "Operation In Our Sites," a federal campaign to crack down on counterfeit commerce and intellectual property theft. The campaign's first target was nine video-sharing sites, whose domains and assets have been seized, along with the execution of a few residential search warrants.
Short version: this has an historical parallel to the attack on music file-sharing in the early part of the decade. It's surprising that coverage of the campaign has been so sparse, but these nine video-sharing sites happen to have been the tallest trees in this particular forest, and as such the most likely to get cut down first. It certainly doesn't portend the end of file-sharing, though.
7/17/10 - LPFM Bill Stalled in Senate [link to this story]
An unknown number of Republican Senators have placed a hold on the Local Community Radio Act.
For those not up on the intricacies of our corrupt political system, Senators have the privilege of placing an indefinite pause on action of any legislation they deem to be "detrimental" to their constituents. Oftentimes, Senate holds are used as favors to well-moneyed constituents or as bargaining chips.
The former is what is more likely here: a restoration of the FCC's LPFM service back to its rules as originally conceived in 2000 is not something that, at this point in our media-policy history, has much horse-trading value; incumbent broadcasters (and their trade representatives on Capitol Hill) still have much more clout than the rest of us, and it's showing.
What's worse, the Senatorial holds are reportedly taking place hot-potato style: one Senator places a hold on the Local Community Radio Act, is pleaded with to remove it, and then another Senator steps in with their own hold-motion. This can go on for as long as each Senator is willing to accept the political backlash.
So, even though the LCRA has been officially endorsed by the full House of Representatives and a Senate Committee, there's slim hope that the bill will make it to a full vote on the Senate floor, and to President Obama's desk by the end of the year - all because a handful of Senators are deciding to exercise this particular power in a most undemocratic fashion.
This, of course, means that the entire legislative process to restore LPFM will be reset with the coming of the next Congress (after the November elections). Each time, the process inches a step further along; perhaps the 10th time will be the charm.
This also explains why the FCC has not yet gone ahead and opened up another LPFM license-filing window, even for the as-yet un-created LP-10 stations. With the draconian interference protection rules imposed upon LPFM stations (ironically, by Congressional fiat nearly 10 years ago), there's really no place to put new stations, which would make it a fruitless exercise.
LPFM station owners and advocates are aware of this chicanery, and are working on it, but as always it's an uphill fight. The problem is that telecom policy in D.C. is all about the Internet these days, and issues involving a "mature" medium like FM radio broadcasting are just not on the legislative-policymaking radar. If this is a passing phase or permanent sentiment remains to be seen.
7/11/10 - "Unfortunately People Go to Jail Now" - Not [link to this story]
It's always a little sad when a pirate radio station throws in the towel, either from implosion, disorganization or, more likely, a little fear placed into the stations' operators by the Federal Communications Commission.
Unfortunately, FCCFREE RADIO in San Francisco is now on the list of casualties, after field agents paid the station's proprietor, John Miller, a visit. According to reaction from Radio Survivor, Miller opines "that times really have changed for pirate radio, saying, 'Unfortunately people go to jail now.'"
Mythbusting time: The FCC cannot arrest people and send them to jail. FCC field agents are government inspectors, not licensed law enforcement officials. In fact, when they do have to call in "the law," it's typically either Federal Marshals (see Freak Radio Santa Cruz) or the local po-po (see San Francisco Liberation Radio).
In both cases, the "arrest warrant" was for the equipment conducting the unlicensed broadcasting, not for actual people. And when the FCC does go after individual people, it does so typically by seeking a monetary forfeiture; sending folks to prison for pirate radio is messy, arduous, and not typically worth the effort. Even then, such fines are a bitch to collect.
If the Federales really have it out for you (see Stephen Dunifer/Free Radio Berkeley, Free Radio Austin, and Human Rights Radio - Springfield), they might have a federal prosecutor take you to court for an injunction to prohibit you from broadcasting again.
And even then, the feds have to catch you in the act (people break their injunctions regularly - Mbanna Kantako's still on the air nearly 25 years after being threatened with all kinds of state-sponsored terror). Boulder Free Radio's original founder parted ways with the station after an FCC grilling, but he's avoided any crime and the station's gear lives on under new management.
In summary, in the entire history of unlicensed broadcasting in the United States, only a handful people have been ever criminally charged, and fewer still have actually served any time - less people than it takes to count on a single hand.
The issue, as always, boils down to acceptable relative risk - if you understand and know the boundaries of the law, you can discern that risk better. Publicity is one thing that can sink a station, and in the case of FCCFREE Radio, I think that's all that's happened here.
7/3/10 - Sending All the Wrong Signals [link to this story]
Perhaps it really is "thanks for the memories" when it comes to the issue of network neutrality. In the wake of a federal court decision in May striking down the FCC's authority to impose neutrality principles on broadband service providers, a well-organized and -funded corporate and astroturf campaign seems to have turned political momentum on the issue around - away from re-implementing the principle as a point of law.
Last month, members of Congress held two closed-door meetings with representatives of the broadband services industries about whether or not to re-write the Telecommunications Act of 1996. A major point of discussion was the principle of network neutrality, and what to do with it.
Corporate representation wholly outweighed public interest at these meetings; of those who bought the good seats at the table, they've collectively spent some $19.7 million on lobbying expenses in the first quarter of this year alone.
Over at the FCC, the same thing is going on.
Now, a lack of transparency is certainly nothing new in the world of policymaking. In fact, thanks in large part to the work of the media reform movement over the last decade or so, issues relating to media policy are better-understood by the public now than ever before in our history.
However, these recent moves seem straight out of the playbook of George W. Bush and Mikey Powell than Barack ("change we can believe in") Obama and Julius Genachowski, what with the FCC's supposed outreach to the public and all, especially on all things broadband.
But you know sh*t's bad when even the real insiders are pissed at the lack of transparency right now on the issue of net neutrality. None other than the esteemed law firm of Fletcher, Heald, & Hildreth, an entity with big ties to big telecom and big media, is calling shenanigans on the recent activity. Actually, they're calling it "a betrayal":
Normally, I read folks like these so I can keep up on what "the other side" is up to. Now, even "the other side" is outraged. The fact that it's all backed up by plenty of prior coverage, portends real danger ahead for the notion of an open, democratic Internet.
I remember the halcyon days when "media reform" was poised to go "on the offensive." When something like this happens, it makes me wonder if they're even still on the field.