Related to this rulemaking, here’s a fascinating take from the Copyright Office and Library of Congress on how they analyzed the evidence in the record and resolved competing fair use and policy claims relating to the new DMCA circumvention exceptions: http://www.copyright.gov/1201/2010/RM-2008-8.pdf. (Side note: The notice will be entered into the federal register tomorrow, and I hope that it will be up on the new federalregister.gov site as well, in an easier-to-read format!)

The notice, which is really worth reading in full, addresses (or at least hints at) the following questions, among many others:

Why is it that only college students/professors, and not K-12 students/teachers, are permitted to circumvent CSS to access DVD content? Why is this exception targeted chiefly towards criticism and commentary, given that a variety of other activities such as news reporting, teaching, scholarship, and research have typically been understood to be within the domain of fair use? (page 3)

Why is it permissible under fair use to jailbreak an iPhone in order to add applications to it, and why are Apple’s and NTIA’s arguments against fair use unpersuasive? (pages 4-5)

Why is it permissible for both non-profit entities and (some) commercial users to use software or firmware to retrofit old phones to connect to wireless telecom networks, and why is NTIA wrong in its argument that this exception should be limited to non-profit entities? (pages 6-7)

Why is a DMCA exception necessary to support research into security vulnerabilities of PC games, but not digital books, music, and movies? (pages 7-8)

When does a person gain the right to use self-help to circumvent an “obsolete” dongle (based either in a printer or USB port) that controls access to software? (page 9)

What proposed exceptions did the Register of Copyrights and the Librarian of Congress both decide to reject, and why? (pages 9-13)

How has copyright law failed to protect the interests of blind and print-disabled people in the digital age? Why has the Librarian of Congress rejected the arguments of the Register of Copyrights that the American Federation for the Blind failed to clear all the procedural hurdles necessary to justify a DMCA exception for read-aloud and text-rendering software circumventions? (page 14)

Overall, quite an interesting read—perhaps all the more so because it comes from a set of sources that occupy an often-overlooked place in the interpretation of copyright law.

Amazon 1-Click Patent: more likely to survive after today's ruling in Bilski?

The Supreme Court today issued its long-anticipated opinion in the Bilski patent case, regarding a rejected application for patent protection over a method for hedging against the risk of price changes in the energy market. Hot off the presses: http://www.supremecourt.gov/opinions/09pdf/08-964.pdf.

And at first glance, this complex mix of opinions seems rather inconclusive. Basically, Justice Kennedy’s majority opinion—which was joined by Alito, Thomas, and Roberts in full, and Scalia in part—affirmed that the specific business method at issue in Bilski was not patentable. But Kennedy rejected any categorical rule saying that business methods in general could not be patentable processes. This conclusion was reached through a somewhat confusing attempt to read out a plain-language definition of “process” based on the different uses of this term in the Patent Act, and then a rejection of the Bilski patent on the separate grounds that it was too abstract to be patentable.

In contrast, Justice Stevens’ much longer concurrence would create a categorical prohibition on business method patents: “Methods of doing business are not, in themselves, covered by the [Patent Act].” Stevens suggests that both the USPTO respondent and the Kennedy majority failed to develop a successful overarching definition of the word “process,” despite their attempts to reconcile the various appearances of the word in the Patent Act. Stevens argues that the Patent Act simply has too “many moving parts” to be amenable to the government’s attempt to define “process” solely by how it is used in one section of the Act. On the other hand, Stevens rejects the majority’s attempt to derive an expansive plain-text understanding of the word “process.” He argues that “posit[ing] that the word ‘process’ must be understood in light of its ‘ordinary, contemporary, common meaning’ . . . is a deeply flawed approach to a statute that relies on complex terms of art developed against a particular historical background.” As a result, Stevens spends much of the rest of his concurrence reviewing the history of patent law, which he concludes “yields a much more straightforward answer to this case.”

Finally, a short concurrence by Breyer and Scalia (Part II) seems, theoretically at least, to hedge towards Justice Stevens’ idea of creating categorical conceptions of “certain things [that] are free for all to use.” It looks as if Scalia was the likely swing vote in this case, but wasn’t fully satisfied with either Kennedy’s or Stevens’ opinion. This concurrence pushes more heavily on the “machine or transformation” test downplayed by the majority opinion, and emphasizes both “the restrictive effect of the limited patent monopoly” and the costs of patents on “the public’s access to the basic tools of scientific and technological work.”

It’s similarly notable that Kennedy (in the majority opinion) succinctly describes an essential tension in the innovation incentives that patent law tries to foster: “The Information Age . . . puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.”

Still, for all the theoretical work being done in this set of opinions, it’s hard to state with clarity what rule ultimately emerges from these general principles and dicta, and what the continued relevance of the “machine or transformation” test might be. For instance, in the sentence after his description of patent law’s “great challenge,” Justice Kennedy notes that the Court in Bilski has not actually addressed this policy question: “Nothing in this opinion should be read to take a position on where that balance ought to be struck.” As a result, I’m initially tempted to agree with some others that this is an instance of the Court punting on a set of difficult questions in an area where the clear judicial articulation of a rule might have been helpful to innovators, lower courts, and the legislative process. In the absence of a categorical rule, we will instead continue to rely on case-by-case patentability determinations regarding the scope of property rights in business methods, software, diagnostic tools, and other applications which downstream innovators hope to build upon and transform.

In some ways, Justice Kennedy’s reluctance to determine whether “software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals” should receive patent protection mirrors Justice Souter’s admonition in Denver Area that “we should be shy about saying the final word today about what will be accepted as reasonable tomorrow.” But it’s harder to maintain this position of judicial minimalism in a situation where the continuance of the status quo can so limit the scope of what can be built and transformed today, and thus also limit the scope of what has a chance to become accepted as “reasonable” tomorrow.

If you read the fair use statute, you might think that the copyright law’s framers shared this intuition:

“[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; …”

Perhaps those who access and transform copyrighted materials in the course of educating themselves—and in the course of educating others—are engaged in use that is fundamentally and categorically fair? Even if you don’t interpret the first sentence above to set forth a definitive list of fair use activities, it’s clear that Congress sought to carve out a strong exemption from liability for educational uses of copyrighted works. Based on the fair use statute, it looks as if the question of whether a use occurs in the context of teaching, scholarship, research, or education should be a threshold question, rather than merely one single factor in a broader inquiry. Indeed, Congress later affirmed in Section 110 that the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” is not infringement.

So, then, what’s the worry for glee clubs? Or for that matter, what’s the worry for students who design a wiki around an in-copyright novel; edit that wiki by adding passages from the novel, images from film adaptations of the novel, and excerpts from critical reviews; display their work at an achievement fair; offer the wiki to a teacher who proceeds to share the project with future students studying the work in question; and make the wiki available as an open educational resource to students in other locations?

In brief, the worry has less to do with the text of copyright law, which seems to carve a wide swath of fair educational use, and more to do with the ambiguous ways in which this law has been interpreted. Judges sometimes evaluate fair use claims in complex and unpredictable ways, and lawyers are able to inject ambiguity into categories like “educational purposes” & “face-to-face teaching activities.” As a result, almost every point along the chain of technological and individual actions described above is at least capable of being classified as an infringement of copyright, and thus capable of triggering a fine of up to $150,000 for each instance of infringement.

Let’s be optimistic and assume that there’s a 1% chance of a judge finding willful infringement and assessing the full damage award in each instance: that still represents $1500 worth of risk for each action. Is a school likely to assume this kind of liability? Or is the possibility, however remote, of a crippling damages award going to serve as a fairly strong deterrent for any student or educator considering bringing cultural artifacts or experiences into the learning environment?

Many student projects already require the use and integration of copyrighted content, not to mention the frequent back-and-forth distribution of the projects and software containing this content, both for purposes of collaboration and student evaluation. The formalization of a clear and broad fair use interpretation for the classroom context would dispel the institutional fear and uncertainty surrounding these actions, and would free students and teachers to spend more time exploring, understanding, and recontextualizing materials within a newly opened-up educational public domain. It would be faithful to the statutory text of the Copyright Act. And it would permit us, once again, to conceive of fair use “not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.”

There are two other main browser makers: Microsoft and Apple. Apple has not yet formally responded to Google’s VP8/WebM announcement, but it’s likely that their eventual response will be a complicated one, considering that Apple has structured much of its video ecosystem around the competing (and relatively proprietary) H.264 format, but also currently features a YouTube application on a number of its mobile devices.

Microsoft, on the other hand, appears to be both tacitly embracing and hedging against WebM. The Internet Explorer project manager writes that “when it comes to HTML5, we’re all in.” But Microsoft also notes that “some web groups have cited concerns about patent issues with similar codecs and the costs that may be associated with shipping codecs not covered by patent licenses.” And even if a successful patent lawsuit against WebM is less likely than one against Ogg, Microsoft seems unwilling, at least for now, to give the same default & native support to WebM/VP8 that it gives to H264. Thus “IE9 will support playback of H.264 video as well as VP8 video when the user has installed a VP8 codec on Windows.” In other words, the burden is on the user, not the browser maker, to install the WebM codec. Easy for users to do on desktops, perhaps (if the user has install privileges), but not so easy on mobile devices!

In general, this Ars Technica article (+ comments) spins out numerous different ways in which these patent questions might play out. Perhaps the lack of initial straightforward support from other browser makers shouldn’t be surprising, since most companies aren’t exactly willing to do awesome things first and hope the patent/copyright questions will eventually fall into place. But it will certainly be interesting to see what alliances are ultimately struck; whether the adoption of a free and open video standard will significantly shift the landscape of web video; and whether in the future we’ll have more, or fewer, points of transaction/control between video makers and users.

Back in December, when the national broadband plan was still being developed, some of us at the Information Society Project submitted a filing (pdf) to the FCC on the topic of copyright and education. In our filing, we suggested that increased broadband access would transform how education takes place both inside and outside the traditional school environment. We advocated for the creation of a broadly accessible repository of creative works that could be used in the course of education without fear of copyright infringement liability, and we suggested broadening the definition of what activities fall within “the course of education” for purposes of this repository and for the TEACH Act.

On Tuesday of last week, when the FCC released its national broadband plan, I was happy to see a significant amount of space devoted to education. Additionally, the Director of Education for the broadband plan noted that “the work of the team at the Information Society Project at Yale was a critical piece of input for us while developing the plan, on issues of copyright and digital education.” We are proud to have played a role in the development of these national broadband strategies.

Here’s what the National Broadband Plan says on the topic of education and copyright:

New broadband-enabled solutions are transforming how teachers and students use content and media. But copyright law must keep pace as new technologies and media are developed. In part due to a lack of clarity regarding what uses of copyrighted works are permissible, current doctrine may have the effect of limiting beneficial uses of copyrighted material for educational purposes, particularly with respect to digital content and online learning. In addition, it is often difficult to identify rights holders and obtain necessary permissions. As a result, new works and great works alike may be inaccessible to teachers and students. … [List of examples of inaccessible works.] … Penalties for copyright infringement can be substantial, but the boundaries between permissible and impermissible uses of copyrighted works in educational contexts—particularly with respect to digital content and online learning—are not always clear. That produces a chilling effect on teachers, schools, and school districts, which limits the use of cultural works for educational purposes.

Increasing voluntary digital content contributions to education from all sectors can help advance online learning and provide new, more relevant information to students at virtually no cost to content providers. Congress should consider ways for educators to interact with their students using new educational content contributed by the public in the following ways:

Procedurally, some might be wondering why these policy suggestions on education and copyright are relevant to a national broadband strategy. Why shouldn’t the FCC just rely on an “if we build it, they will come” strategy, and let application and content-providers take care of the provision of these higher broadband-related goods?

Well, I’d argue that it’s impossible to assess strategies for increasing broadband growth and penetration without at the same time considering the purposes and the implications of increased broadband access. For instance, a straightforward comparison of the significant costs of increasing rural broadband access with the marginal benefits of connecting a few more communities—without considering the national purposes of education, job growth, security, and health care access—might yield the conclusion that expanding rural broadband access really isn’t worth the investment. But in a country where nearly one hundred million people currently lack broadband access at home, and where there are strong correlations between lack of internet access and lack of economic opportunity, a true consideration of the costs and benefits of Internet access must take these otherwise foregone social and economic opportunities into account.

Perhaps the more fundamental point in weaving these discussions of education into the broadband plan is found in the realization that as faster Internet access comes to schools and communities, a wider array of rich media content and Internet-driven educational applications will come to these schools and communities as well. What does this mean in practice? Rather than having a few centralized rightsholders (textbook publishing companies, content distribution companies with school contracts and licenses, classroom software makers, etc) determine what content will be part of a school’s curriculum, we will likely begin to see schools, teachers, and students making more of these curricular decisions for themselves. Both in the formal classroom context and in the informal extracurricular context, educators and students will increasingly be able to search through the wealth of available applications and content on the Internet and make a choice as to which information is most appropriate to a given assignment or lesson plan.

As the FCC puts it, in a broadband-equipped world,

This examination of information flow fits within an ambitious broadband plan focused on spectrum reallocation, investment in public infrastructure, and more broadly, treating the Internet as *the* crucial communications medium, separate from the one-way medium of broadcasting. But the development of new, interconnected, broadband-dependent education platforms based on improved information flow may be forestalled if the legal status of students’ and educators’ ability to craft, share, transform, and distribute complex creative works remains as unclear as it currently is.

II. Licensing Diversity?

Of course, different people have different ideas about how best to clarify the legal status of educational use and creation of copyrighted works. Timothy Vollmer from Creative Commons objects to the FCC’s suggestion of a new copyright notice that would “allow copyright owners to authorize certain educational uses while reserving their other rights.” See http://creativecommons.org/weblog/entry/21260. Vollmer argues that under the plan’s implementation of a notice whereby rightsholders could authorize free educational use of their content, it will be “difficult to determine what will qualify as ‘educational’ content and use,” and various interoperability problems will arise:

Certainly, Creative Commons has a great deal of experience in designing interoperable licenses, and has made a number of decisions in the past to phase out developing nations and sampling licenses (available here: http://creativecommons.org/retiredlicenses) which represented a more particularized and domain-specific approach to copyright. Indeed, as Vollmer points out, Creative Commons in 2003 considered a proposal to develop an education-only license but ultimately chose not to implement that license.

Yet I’m inclined to defend the rough structure of the FCC’s plan on several grounds. First, a diversity of licensing approaches may not be mechanically desirable, but it is surely inevitable. We have to recognize that a single licensing paradigm granting broad, non-domain-specific use and reuse rights might not make sense in all contexts, particularly in a space where the users themselves (students, educators, etc) might wish to ensure that their creative works do not leak outside the domain of education.

Second, many creators and institutional copyright holders might want to make materials available to students and educators, and the FCC’s recommendation might convince them to share their works with this narrower audience whereas a comparatively more open licensing framework might dissuade them from sharing at all. Perhaps rather than starting from the premise that creative works should be shared only if they can be shared perfectly and universally, we should accept the idea of multiple licensing frameworks that enable maximum content availability in each context—and then work to build a broader system that can cope with this license diversity and make differently licensed works interoperable. This is a necessarily iterative process, but it recognizes the multiplicity of motivations that different creators have for sharing their works, and it takes pragmatic account of the likelihood that a significant number of educational publishers will flip their inventories from closed to open if they can have reasonable assurance that their works will be made freely available only within the context of education. In this respect, the educational right of use notice is analogous to Creative Commons’ non-commercial licenses.

Third, in order to maximize access to the educational content repository created by the educational use notice, the FCC and Congress can employ a hallmark-based approach regarding what constitutes “the course of learning,” and not simply use the indicia associated with formal educational activities as the dispositive criteria for delimiting the educational from the non-educational. The FCC takes an important step in the direction of promoting interactive broadband-based learning where it suggests that Congress update the TEACH Act “to better allow educators and students to use content for educational purposes in distance and online learning environments without prejudicing the other rights of copyright holders.” Perhaps this approach would permit those building online tutorials, educational wiki-style entries, instructional videos, interactive educational software and games, and other online or distance learning materials to draw upon works from the educational repository.

In any case, while the educational use notice might be an important mechanism for clearly identifying freely usable works and thus relieving educators and students of the great uncertainty currently surrounding reuse of copyrighted works, it clearly would not prejudice these same users’ ability to assert fair use or other education-related copyright exceptions with respect to works that did not carry the notice. Similarly, if educational publishers, museums, authors, and other content-holders saw fit to grant even broader use and reuse rights than contained within the educational use notice, they would be free to employ a relevant Creative Commons license to express that intent. The point is that the FCC’s proposed educational use notice will not, in all likelihood, cause any harm to the educational content ecosystem, and in fact may be a quite positive—and strongly iterative and pragmatic—step in the road towards a high-bandwidth educational world where there are few legal barriers to the broad use and development of creative works and applications.

Many commentators have focused on the Broadband Plan’s 100-squared initiative, which states that by 2020, “[a]t least 100 million U.S. homes should have affordable access to actual download speeds of at least 100 megabits per second.” The plan outlines three primary mechanisms for achieving this core goal. First, the plan recommends that the government “should make more spectrum available for existing and new wireless broadband providers in order to foster additional wireless-wireline competition at higher speed tiers.” Specifically, the plan states that the FCC “should make 500 megahertz newly available for broadband use within the next 10 years, of which 300 megahertz between 225 MHz and 3.7 GHz should be made newly available for mobile use within five years,” and 120 megahertz of which should be “reallocate[d] … from the broadcast television (TV) bands.” Second, to ensure that both consumers and administrative agencies have sufficient access to data on broadband quality and competition, the FCC’s broadband plan advocates for the collection of “more detailed and accurate data on actual availability, penetration, prices, churn and bundles offered by broadband service providers to consumers and businesses.” Finally, the plan develops numerous recommendations for the modernization of broadband infrastructure, including a suggestion that federal financing of highway and bridge projects should be “contingent on states and localities allowing joint deployment of conduits by qualified parties” and that Congress “should consider enacting ‘dig once’ legislation applying to all future federally funded projects along rights-of-way.” To fund rural access to broadband services, the plan proposes reforming the $9 billion Universal Service Fund through a transition in focus “from yesterday’s analog technologies to tomorrow’s digital infrastructure.”

Yochai Benkler and others have criticized the plan for not focusing sufficiently on how the government might employ more specific pro-competitive interventions such as open access rules in order to achieve these goals, and for setting speed goals that are too low. While acknowledging the importance of these criticisms and the centrality of the question of how to promote faster and more reliable broadband access, I would like to use this post to focus on a few other of the plan’s hundreds of recommendations.

First, besides spectrum allocation and data collection, the plan makes use of a variety of corollary mechanisms for increasing competition and innovation in the broadband ecosystem. To promote the development of a robust market in set-top devices for accessing video and broadband, the Plan seeks to initiate a proceeding requiring broadcasters to install in subscribers’ homes a simple gateway device whose “sole function should be to bridge the proprietary or unique elements of the Multichannel Video Programming Distributors network (e.g., conditional access, tuning and reception functions) to widely used and accessible, open networking and communications standards.” Standardizing consumer access devices in this manner may be crucial to ensuring that users can transport subscription content and applications across all of the many devices they use to access the Internet, and in guarding against the rise of network-particular devices and a balkanized or splintered broadband ecosystem. The implementation of open standards and protocols also helps address the public choice problem at the heart of broadband video access by ensuring that it’s not just a small number of existing device makers and network providers who can articulate a stake in the future of the interface between television and the Internet.

Second, the plan also explores demand-side barriers to greater broadband adoption. For instance, to ensure that people have the skills to use broadband services, the Plan suggests the launch of “a National Digital Literacy Program that creates a Digital Literacy Corps, increases the capacity of digital literacy partners and creates an Online Digital Literacy Portal.” And the plan admirably develops detailed plans for maximizing the ability of persons with disabilities to take part in the broadband ecosystem.

This exploration of demand-side barriers is related to the final of the Plan’s three major sections, which (in response to the request made by Congress in the American Recovery and Reinvestment Act of 2009) seeks to explore how the implementation of broadband access will affect the development of and access to health care, education, energy and the environment, economic opportunity, government performance, civic engagement, and public safety services. It’s these “national purposes”—and particularly on the question of how broadband relates to education—that I’d like to explore in a second post.

Law.gov is an attempt to create a distributed registry and repository of primary legal materials. Carl is participating in a number of workshops this winter and spring at law schools, NGOs, courts, and governmental agencies; his goal is to figure out what the main obstacles and objections will be in promoting broad legal access through a repository such as law.gov.

At our NYLS panel, Helen, who has written a great new book called Privacy in Context, wondered how public legal materials changed when they were taken out of dusty physical court archives and released online. She illustrated the privacy problems with a story about a county clerk in Ohio who put all of his town’s legal records online, including criminal and divorce records, and encountered a fair amount of pushback in response from townsfolk who were worried about the resulting potential intrusion into their lives from snooping neighbors and curious officials. Helen raised the question whether placing legal information on the Internet merely revealed the potential privacy problems that up until now have been practically obscured through physical access restrictions, or whether the online move fundamentally transforms public information and leads to a whole new set of privacy concerns.

During my talk, I mentioned my sympathy to the stronger (latter) notion of Helen’s that information leads a very different life once it’s released online. danah boyd, for one, has carefully catalogued and beautifully narrated the numerous advantages and problems of the persistence, searchability, replicability, and aggregation of online information. And it’s very much an open question as to where the norms will come from that will resolve these privacy and reputational problems—particularly as traditional information fiduciaries and duties of professional confidentiality are replaced by more mechanistic data-aggregation and distribution services. But while I would definitely want any release of governmental information to take account of the unique characteristics of online information—both from the perspective of the agencies/courts releasing the legal datasets and from the perspective of the decentralized third parties building apps, interfaces, data-harvesting tools, and search engines on top of that information—I wouldn’t necessarily want to let this become an argument against releasing onto the open Internet legal information-sets that Lexis and Westlaw have *already* digitized and made available to anyone who can pay for access. Beyond the limits on downstream innovation that would be implied by limiting the organization of legal information and the accumulation of legal data to a couple of existing providers, such a strong imbalance of access to the fundamental raw materials and organizational tools of legal communication should be troubling to any society that considers itself a nation of laws. It seems inevitable that coming up with the “rough consensus and running code” around which different levels and branches of the government can congregate (and interface with users) will require broadening the conversation beyond archivists and private legal information providers to include attorneys, judges, legislators, agency regulators, computer scientists, and other non-administrative users of laws. This is, I think, exactly what the law.gov movement is trying to accomplish.

My other contributions to the conversation at NYLS were mainly along the lines of figuring out (a) what was unique about legal materials as opposed to other kinds of archived works and (b) how to design archives and interventions that accounted for the unique linguistic economies of legal works. That is, how best can one develop metadata and standards that identify the hierarchical and jurisdictional interoperability (or lack thereof) of caselaw, statutes, and regulations? I also brought up a variety of distinctions between transparency and access, direct vs. indirect court functions, and public vs. private archivists, and examined how our evaluations of these distinctions would affect efforts at broadening access to law. I’ve put up my slides for anyone who is interested, and am glad to talk with anyone who’s interested in continuing these conversations.

Thanks to the Yale ISP and to NYLS for convening this fascinating set of initial discussions.

• Free Press (comment)
• Center for Democracy & Technology (comment)
• Electronic Frontier Foundation (comment)
  • argues that the FCC lacks any statutory foundation for its rulemaking and seeks to distinguish reasonable network management from efforts to block copyright infringement.
• Public Knowledge, New America Foundation, Media Access Project, Consumers Union, & Center for Media Justice (comment)
• Future of Privacy Forum (comment)

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• Verizon & Verizon Wireless (comment)
• AT&T (comment)
  • argues that conversion of broadband networks into “dumb pipes” is inconsistent with history of Internet engineering and in fact would render Internet less neutral.
• Time Warner Cable (comment)
• Telefónica, S.A. Spain (comment)
• Comcast (comment)
• Sprint-Nextel (comment)
• Verizon + Google joint submission (comment)

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• Google (comment)
• Skype (comment)
• Vonage (comment)
• Open Internet Coalition (comment)

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• Global Crossing (comment)
• Fiber-to-the-Home Council (comment)
  • seeks to define “reasonable network management” from perspective of several wireline network engineers.
• Cisco (comment)
  • advocates for cautious case-by-case approach to adjudication, consistent with Comcast adjudication based on Internet Policy Statement, rather than codification of bright-line rules which might not be adaptable to changing business/technology environment.

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• RIAA (comment)
• MPAA (comment)
• Independent Film & Television Alliance (comment)
• Online Game Developers (meeting)
• Sony (comment)

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• U.S. Chamber of Commerce (comment)
• Communication Workers of America (comment)
• Christian Coalition (statement)

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• Timothy Lee (comment)
• Barbara Esbin (comment)
• Tim Wu (comment)
  • contextualizes net neutrality by examining historical regulatory perspective towards “close cooperation between America’s most powerful firms and its most powerful information and transportation networks.”

But in the meantime, check out this great summary and analysis of our November conference, “Journalism & The New Media Ecology: Who will pay the messengers?”

Three undergraduates in ISP fellow Elizabeth Stark’s course on Intro to Law & Technology—Jakob Dorof, Sam Duboff, and Max Cutler—compiled notes, analysis, slides, and twitter archives of the conference’s eight panels, as well as descriptions of possible journalism models. Very useful archive.

Linda Greenhouse observes that the Harvard Crimson created an endowment to subsidize students who otherwise would have had to do work-study at other parts of the university. Describes the benefits and burdens of life on the web. LG could not be doing what she’s doing now re the Supreme Court without the Internet (e.g., new Guantanamo posts on SCOTUSblog, How Appealing). In the past, there was only the information that journalists chose to write about, but now, through websites and blogs, you can get a nearly real-time idea of what’s happening from court to court, in terms of orders, transcripts, and conversations among people with similar interests. But there are also burdens. (1) Quick turnaround time for reporting precludes having a few hours to think about the opinions that have just been handed down. Have moved from a contemplative posture to posture that more closely resembles coverage of a football game. (2) A second challenge is how to add value: if anyone in the world can read the opinion/briefs/arguments at same time you can, you have to do more than simply duplicate those. Hard to justify paying for something that is free. But websites can create model where you can *read* everything for free and to participate in the conversation, you have to pay something.

David Carr calls it a worthwhile thought exercise to think about what US public understandings of the Supreme Court would be like without the past 30 years of Linda’s work. He will attempt to make sure that his presentation does not “suck.” Where I am as a reporter, things are very murky, and you realize you’re in a barrel about to go over a waterfall. You examine the barrel’s efficacy and preparedness for after the fall; the barrel we’re in is not fine. There’s an air of uniqueness at NYTimes newsroom, but the mood is still one of dread, excitement, and fatigue; people are happy to have a job. File and face-plant paradigm: do a story, video, facebook/tweet about it, try to get into every platform as fast as you can. But you end up being at an event and not experiencing it at all. I love what I do but I don’t want my reporting to be thin and stupid; there’s an explosion of pixels in content, editorial, and advertising, and there’s *so much content*. I can’t make a living doing $20/story rates. A person like me is the result of a legacy business model; Craigslist shot off the back-end of the media biz (classified = 40%); regional monopolies gradually eroded by insurgent technologies. I am overpaid in the current paradigm; this is an artificial construct, as explained by Clay Shirky earlier. Advertisers pay for scarce assets and adjacency, but on the web there’s no scarcity, and adjacency is much broader. In Ken Auletta’s book about Google, search advertising is explained to old media rep, who responds, “you are fucking with the magic.” Other than lining pockets of shareholders, the legacy models produced great journalism; it’s not just expensive to execute journalism, it’s also expensive to defend (e.g., prison innocence articles). All these wonderful hybrid citizen models have to understand: after you write a good story, “you better put a nut cap on and you better hire a damn good lawyer!” I’m a believer in citizens and collaboration, but you have to be ready to defend your work as well. Kraft, Bank of America, etc all produce workarounds to what media does. Holds up laptop: this contains far more resources (if you assume the cloud) than any other newsroom I ever walked into. It makes me so much more powerful than I ever was when entering the business. 17M+ users is a huge audience that we’ve never had, and a very powerful tool in the hands of a journalist. I do 1 minute podcasts from my basement every morning. The problem, though, is that space is infinite and you need to fill it. Both my toolbox and my heart is full. We have been developing a common dialogue over production of news; the web allows you to listen so much better; I have targeted RSS feeds, when something is important, it finds me. I like what I do, and I want to develop new business models; but I don’t want to put on a sandwich board that says “will write for food.”

Marcia Chambers: like LG, I was fellow at Yale, and many of our fellow graduates are out in the field. I made leap, however, from print to web, with creation of Branford Eagle. A lot of the conversations I had were related to political transformation in local politics; I called New Haven Independent and Paul Bass, and I started writing without any clue as to how to write online. Published story called “Dark Side,” that began coverage of what was happening in Branford town politics. People began writing to me and asking me to keep up the good work; I began bringing tape recorder to meetings so as to ensure there was context; many people *didn’t* like this, as seen in story “Enemy of the Press.” One thing I’ve learned is how different the web is; esp w/r/t linking, e.g., property tax article. Annie Le case was fascinating for revealing separate forces in law as pertaining to print (libel) and web (more of a wild west regime). Two separate versions, due to different legal issues. The local press did well because they are repeat players in a case that occurred in our community; we kept breaking stories left and right *because we were here*. In 3 years since Eagle founded, a lot of local stories, and quick comments from audience. People no longer wait for the news. Stories about feral cats in Branford.

Bill Mitchell: as speaker #38, I feel obligation to return to Dean Post’s framework. “Routinized circulation of texts” required as democratic core of what journalism represents in democracy. In 1993, I was working at San Jose Mercury News–we had a paywall in partnership with AOL, for $9.95 for the first 5 hours, and $3.95 for subsequent hours. Didn’t work very well–was owned by Knight Ridder back then. In the undergraduate dorm where I live, I find that 3 of 450 students have newspaper subscriptions. Any debate whether transition has taken old becomes academic, when you look at how people are consuming news. Dean Post’s idea, in context of what’s happening in Detroit & Ann Arbor–news orgs are disrupting old routines of circulating fundamental texts and starting new ones. Penny Abernathy made point that job #1 for news orgs is to shed legacy costs, but these costs must be shed as part of strategy for migrating readers from old to new platforms. It’s harder than just asking people to move, b/c we ask them to change routines that they really care about. Detroit cut back from 7-day/wk to 3-day deliveries. Other option is to read papers & e-editions online. But in Detroit, people are losing not just newspaper habit but also the *news habit*. This interim period is messy: Detroit needs public-service journalism, and we need to wrestle with these consequences. Ann Arbor experiment is even broader: newspaper shut down entirely; quick shedding of legacy costs in move to annarbor.com. Old newsroom had 66 reporters/editors; new had 28, paid less than they were in print newsroom. However, they are thinking more about reader’s experience of the news; newsroom no longer set up as fortress, instead first floor is now set up as a coffeehouse where readers can interact with journalists face to face. So question remains: what kind of routines will replace the old routines, and how we’re going to pay for it.

Ari Paul: works for Chief (Leader) newspaper covering public sector workers in New York City. Reflecting on conference as someone just at beginning of career, I thought about how 40 years ago I would be perceived as a sort of public sector worker, but now I am perceived more like an actor, or a full-time activist, or a starving artist. One thing not often brought up at this conference, and sometimes avoided, was how news orgs are going to act as employers. W/r/t collective bargaining, compliance with labor law, etc. Yesterday president of CNN commented how many people are willing to do journalism without needing money–this has created wage deflation. In my job as a labor columnist, no one is getting paid for working in my area. The lesson we should take from this is that we should focus less on how to cheaply extract labor in creating revenue streams, and more on how to create real careers for people starting out in their 20s. We need to keep people past their 20s so that they commit to making a new media model.

QUESTIONS FOR PANEL:

Emily Bazelon: one thing we’ve been talking about is authority, how people know about authority, linking/ranking/etc. This is a function of personality: it puts pressure on journalists to be out there with Twitter and fan-feeds and be less anonymous. Is it OK if journalists are becoming more like actors, or is this a perversion of the role in some way?

Linda: The Times used to have a policy that seriously disfavored people appearing on Sunday morning talk shows, etc. Now it’s completely the opposite. During Bush v. Gore, the Times PR people kept feeding me media requests; I finally demanded a raise, which in those days you could still get. Other side: if people are supposed to be personalities, the old constraints–you’re not supposed to have a thought in your head about the event you’re covering–are diminished. When I said Bush admin had created legal black hole in Guantanamo (at private event), was reprimanded by NY Times, but this seems outdated now.

David: In the course of spreading versions of yourself around, no one would have any interest if my last name wasn’t NY Times.

Emily: can’t you take your own brand past the Times, now?

David: that’s not an experiment I would run now. An editor recently called me up and said they didn’t like how I was addressing issue on Twitter, and I said, “that’s not really yours, it’s mine.” My objective has always been to fit in, not to stick out.. but my objective has become more to stick out, recently. Although some of the most important people at the Times, you’ve never heard of and never will.

Marcia: I don’t do much Twitter. If people are really interested in what you’re writing, they’ll read it. It’s all about what you’re covering. I do have Branford Eagle community TV show, where I interview public officials from town and talk about column events.

Ari: it’s more peculiar for me because I’m in niche media market where I’m one of the few people willing to listen to union leaders.

Bill: current NY Times public editor went so far as to make contribution to story funded by outside group. Values changing.

Edwin Baker (from audience): what do you think generally about the conversations at the conference? There have been a number, which fit into different boxes. One kind of conversation is how to have an economically viable business model, a second kind is how to have a media that serves society, a third kind is what’s likely to fall out of all this. In the second conversation, two divisions: Yochai Benkler’s works previous to Wealth of Networks, including works on copyright, show how certain copyright laws favor different sizes of actors & discourses: commodified vs. non-commodified. Some debates are whether we want more or less commodified; other debates are how we can make either of those discourses more ideal.

Bill: a tax break that would reimburse news organizations for # of reporters, might perpetuate journalism as it’s always been done, and not produce the kind of journalism society really needs. We need some pressure to respond to what people are asking for.

Linda: some of the new ways of delivering information are resources, and others are distractions for people trying to do journalism. E.g., PR push, overflowing inbox with requests to quote law firm partners and write about certain cases. Towards end of my time in daily journalism, it was like swimming through molasses to get through the day of a major case. This environment requires different skill-sets of attentiveness–knowing what to ignore; knowing not to go on Google Blog Search to see what someone’s saying about you.

David: as a media reporter, this is extremely exciting time. For 10 years, kept hearing sky was falling, but nothing happened; but now, a grand piano is hurtling towards our heads. Gawker, Pro Publica & NY Times, etc — these are new models and collaborations; we’re in a more-than-theoretical state, and the work is underway. Legacy media is going to have more trouble walking back to a state where they can make a living; there’s going to be more new media forms built on the business. If it’s going to be good, it can’t just be done for the love of it, because you’re going to work your ass off over and over.

Marcia: I’m on the cutting edge; we’re very dependent on gifts, donations, etc. We never know if we’re going to be funded. But I believe that the people of Branford really want and need what I give them; we haven’t given up old-fashioned reporting skills, we rely very little on the Internet. It’s a great new day for journalism. We need a new financial model to get us there.

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Thanks for reading!