About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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Category Archives

July 11, 2005

July 06, 2005

July 04, 2005

WikiHow Responds to Criticism - Goes Creative Commons

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Posted by Ernest Miller

A month ago, I was the recipient of a pitch for WikiHow, a "a collaborative writing project to build the world's largest how-to manual" based on the Wikipedia model. I blasted them because they had maintained the restrictive copyright licensing policies of eHow (WikiHow - Thanks, But No Thanks). However, they have now entirely switched over to a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License. Much, much better. Right now they have prevented commercial use for fear of spammers horking the content to manipulate Google. Eventually, perhaps, this restriction can be modified.

Ross Mayfield has much more about this switch in licensing (WikiHow to Open Content).

I have to applaud them for discussing such a switch with their community and moving so quickly. Good job guys!

Comments (0) + TrackBacks (0) | Category: Open Access

July 03, 2005

June 27, 2005

Court Overturns Ninth Cir., Upholds FCC Ruling in Brand X Case

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Posted by Ernest Miller

via SCOTUS Blog:

In a 6-3 ruling, the Court decided that cable operators offering high-speed Internet access have no legal duty to open their service to customers of all Internet service providers.

In the cable case, the Court upheld the decision of the Federal Communications Commission that broadband cable moden companires arfe exempt from mandatory common-carfrier regulation. That, Thomas wrote, is a lawful interpretation of the Communications Act, and thus is due deference.

Will update when the decision is available.

Public Knowledge is first out of the gate with a statement from their president, Gigi Sohn:

The Court's decision today raises the question of whether Congress, in tackling its next revision of the Telecommunications Act, should act to ensure that communications, content, and applications are allowed to pass freely over the Internet's broadband pipes. We believe Congress should do so, because "net neutrality" is a worthy goal that not only will promote free speech and creativity on the Internet, but also will benefit those who provide broadband connectivity by making that connectivity more valuable.

Comments (0) + TrackBacks (0) | Category: Open Access | Telecomm

Where I'll Be Reading About Grokster and Brand X

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Posted by Ernest Miller

Where I'll be reading about the decision:

This post will be updated ...

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Open Access | Telecomm

June 24, 2005

Grokster + Brand X = Issues of Openness? It's All About the Distribution, Baby!

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Posted by Ernest Miller

Prof. Michael Madison points to the debate over Brand X that is starting on Picker MobBlog (MobBlawg LiftOff). [Btw, Picker calls his site MobBlog. I like Madison's MobBlawg better.] Michael agrees with one of the MobBlawggers that Brand X may ultimately be a more important decision than Grokster. Furthermore, Michael points to a Dec 2004 post of his that looks at the conceptual connections between the two: they both are means of regulating communication (On Grokster and Brand X). Abso-posi-lutely! It's all about the distribution man! It's freedom of the press, it's telecomm, it's copyright. It's Network Law. It's All About the Distribution, Stupid. It's Freedom of the Press, Stupid. We're going to need analytic tools that work similarly in all these areas of law and treat them as one whole system of regulating communication.

Anyway, for a very nice discussion of how to frame some of these issues, see Randy Picker's post, Framing Openness and the response from Phil Weiser here: Making Sense of Openness.

In response to, or perhaps, just going off on my own tangent I would like to bring in the traditional concept of common carriage as part of the openness conversation, as that is yet another way we've framed openness issues in the past.

For example, Picker makes an interesting comment:

I am comfortably in the camp of those who believe that an author should have some rights associated with her work and indeed don’t believe that even most of the copyright left favor eliminating all of the attributes associated with copyright.
Well, airlines are common carriers. But advocating common carriage for airlines doesn't necessarily mean that one wants to completely socialize airlines. I see the copyfight similarly.

Weiser notes:

Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.
Heck, yes. But I'll note in reply that in the case of common carriage, we apply it despite the fact that there are many alternatives. There may be many airlines servicing a particular airport, some even duplicating routes, but we still regulate them as common carriers. Furthermore, airlines have competition from trains and buses. One might say "there are alternative platforms" for airlines, so why regulate them as common carriers? Yet, we do. Interesting, that.

Just some random thoughts on a beautiful Friday afternoon.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm

June 23, 2005

June 21, 2005

Die Cellphone. Die! Die! Die!

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Posted by Ernest Miller

Paul Resnikoff of Digital Music News muses about the future of the iPod in a world where cellular phones have increasing music carrying capabilities (Resnikoff's Parting Shot: The Future of the iPod). He doesn't think the iPod has much to worry about it, yet.

This is a variation of a question that is always asked. Will mobile gaming devices be swamped by cellphone/game consoles? Will digital cameras be made irrelevant by cellphones/cameras? Will MP3 players be made irrelevant by cellphone/MP3 players? No. No. And No.

Why not ask instead, will the cellphone be able to survive domination by combination game console/phones? Will cameraphones be made irrelevant by cameras with phone capability? Will MP3 players that let you call out destroy the market for phones with MP3 capability?

Cellphones aren't going to go away, but they're only a tool for communication. There is nothing particularly special about them that makes them the only form factor for communication. At base, they're a commodity device. Why are cellphone manufacturers so darn busy creating things to do with a cellphone other than communicate? Because, otherwise, there isn't much to distinguish the darn things.

My life doesn't revolve around my cellphone. My life is about the other things I do. I want to have a digital camera that takes good pictures, a game console that is designed to play cool games, and an MP3 player designed to handle thousands of songs, playlists and podcasts. And, oh yeah, I want connectivity. I don't want a "cellphone."

Stop pretending to sell me cellphones. Honestly, the cellphone companies aren't really selling cellphones. That is just the sales pitch. The cellphone companies are essentially selling commodity connectivity and trying hard to hide that fact with fancy cellphone capabilities.

Data is data. Sell me connectivity and let me pick my own darn devices to take advantage of it.

That's right, I said "devices." I'm paying for the connectivity, so why should it matter how many devices I can use to take advantage of that connectivity? Sometimes I want to take my camera to the park. Sometimes I want to take my game console when I anticipate a wait at the doctor's. And I want to take my MP3 player for the workday commute.

Used to be that you could only get your landline phone from AT&T. They decided what equipment you could use on their network. We got rid of this foolish requirement and the internet was able to bloom.

Why do we continue to tolerate similar foolishness for cellular?

Comments (1) + TrackBacks (0) | Category: Open Access | Telecomm | Tools

June 20, 2005

June 16, 2005

June 13, 2005

June 09, 2005

Die Network. Die! Die! Die!

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Posted by Ernest Miller

Last week I wrote a story about the death of the channel (Die Channel. Die! Die! Die!). Of course, if the channel dies, the whole concept of the network begins to make a lot less sense. They'll certainly have to change.

Well, it turns out that back in April, Deloitte published a report predicting the death of the broadcast network (Television Networks in the 21st Century).

Read the press release: Television Networks Threatened with Extinction: Change or Die, Says Deloitte Report
Read the 16-page report: Television Networks in the 21st Century [PDF]

As markets fragment, control shifts from suppliers to buyers - or in this case, from broadcast networks to viewers or consumers. That shift raises serious questions about the continued viability of the broadcast network business model.

Today, major television networks (public and private) and their affiliates still cling to a premium as the only media outlets with true mass-market reach. But as fragmentation continues, even the most optimistic advertisers have come to realize that no single channel can truly reach the masses. The mass-market is being re-defined.

Good read, though I don't think their recommendations are quite radical enough.

More recently, like yesterday, Broadcasting and Cable reported on a recent panel discussion about the future of television in which several senior executives participated and predicted the death of one or more networks in the next five years (NBC, Touchstone Chiefs: Some Broadcast Nets Won't Survive). On the other hand, "'Frankly, network television is here to stay,' said Magna Global Worldwide Chairman and CEO Bill Cella." TV Squad responded (Networks Better Get Ready for a Change):

If it’s true, as Bill Cella says in this article, that network television as a business model is here to stay, it’s only because those with vested interests in it’s survival will call in as many favors as they have to in order to guarantee it. I think that yes, in five years the network landscape will look much as it does now minus perhaps one major player. But after that it’s anyone’s guess.
That's about right, I think.

via Smart Mobs

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Open Access

June 07, 2005

Open Access Law Project Launches

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Posted by Ernest Miller

Copyfight reports on the launch of the Open Access Law Program, which intends to do for legal scholarship what Science Commons has done for scientific publications (Science Commons Promotes Open Access to Legal Scholarship).

The first and only author (so far) to sign the pledge is Larry Lessig. On the other hand, as of this writing, there are 21 journals that have signed up: Open Access Law: Adopting Journals.

The basic concept is a good idea and open access to legal information is something I've argued for years (I still think it is a scandal that the government hasn't digitized and made all court cases available online in a standard format). Beyond primary sources, law journals would be ideal, and I've tried (and failed) to convince some very prominent ones to adopt some sort of open model. Looks like this model is having more success.

However, this is only the first step. Even for the law journals that adopt this pledge, much more needs to be done.

A couple of last questions: why not simply have the journals that do sign publish the works directly, if the authors have similarly signed, into an Open Access Repository at the end of the limited exclusive license, rather than leave it up to the authors? And why no call on OAL Journals to proselytize Creative Commons to its authors?

Comments (0) + TrackBacks (0) | Category: Open Access

June 03, 2005

Mossberg: Cellphone Companies Are New Soviet Ministries

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Posted by Ernest Miller

Walter Mossberg slams the closed networks of the cellphone carriers (Wireless Carriers' Veto Over How Phones Work Hampers Innovation).

I call these cellphone companies the new Soviet ministries, because they are reminiscent of the Communist bureaucracies in Russia that stood athwart the free market for decades. Like the real Soviet ministries, these technology middlemen too often believe they can decide better than the market what goods consumers need.
Amen brother!

He also notes that cellphone carriers seem to be resisting making deals with music downloading services until they get their cut:

More recently, unidentified cellphone carriers are reported to have balked at allowing customers to buy a new phone, jointly designed by Motorola and Apple Computer, that would let users synchronize and play back music from Apple's iTunes computer program. One possible reason: They want to sell music themselves.

At last month's D: All Things Digital technology conference, which I co-produce for The Wall Street Journal, Apple CEO Steve Jobs said he was wary of producing an Apple cellphone because, instead of selling it directly to the public, he would have to offer it through what he called the "four orifices" -- the four big U.S. cellphone carriers.

Won't that be great? Music DRM will be used to determine which cellphone carrier we can choose. Already spent a lot of money on iTunes? Guess you won't be switching to Verizon anytime soon, that is, if you want to listen to the music you've licensed. (Just a theoretical example)

Mossberg also punches quite the hole in the arguments cellphone companies use on behalf of their closed network ways:

Cellphone carriers say one reason they keep tight control over what phones run on their networks is to protect the networks from harm and assure service quality for their subscribers.

But we've heard that before, and it wasn't true then. Until the 1970s, when the government forced open the market, the old AT&T phone monopoly refused to let consumers buy phones and plug them into their home phone lines. You could only rent phones, and they had to be models made by an AT&T subsidiary. AT&T said the restriction protected the quality of the wired phone network. But, lo and behold, when the ban was lifted the phone network was just fine, even though consumers were plugging in millions of less expensive, more innovative phones.

If they could have, I'm sure that the companies involved would have said the same thing about the internet. Yes, the internet faces many problems because of its open nature (spam, viruses), but one problem that it hasn't faced is lack of innovention, strong censorship and stagnation.


Comments (0) + TrackBacks (0) | Category: Open Access

Die Channel. Die! Die! Die!

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Posted by Ernest Miller

MediaPost (reg. req.) runs an essay on how we seem to be reaching the saturation point for the number of cable channels, and it is falling far short of the mythical 500 channels we were promised (We May Have Reached the End of the 500-Channel Universe, 395 Channels Short). But why?

Noting that the average American cable TV viewer now has 105 channels available, Merrill Lynch research analyst Jessica Reif Cohen notes they actually watch only "16 to 18" of them. That suggests, she says, that "we may have reached a point of saturation with regard to start-up cable networks."
Imagine that, we only watch about 16 to 18 channels.

What that tells me is that the whole "channel" concept is an incredibly inefficient content delivery mechanism. The search costs are far too high, for one thing. It is too much trouble to search beyond a relatively small number of channels. People stick with the few channels they know are likely to have something that interests them and not spend too much time looking through the many other options.

It sort of reminds me of "bookmarks," which was a primitive means for navigating the World Wide Web back in the day. One would bookmark favorite webpages, then check them periodically to see if there were something new and interesting. Of course, doing so was quite time-consuming and often frustrating as one couldn't be sure when there would be an update. Consequently, most would only check about 16 - 18 channels webpages regularly. Thank goodness we now have RSS, which has vastly increased the number of webpages one can check on a daily basis.

Furthermore, having to structure activity around specific broadcast times is rather inconvenient. Indeed, I imagine in the future that people will think it absurd that there were schedules for the transmission of pre-recorded entertainment and people had to conform to these broadcast schedules, instead of the other way around. Yet, because we currently have to, we are further limited in our choices to what is available during a rather limited segment of time. Yes, I know there is TiVo, but that still ties us to certain broadcast times, which unfortunately often conflict with the broadcast of other shows one might be interested in.

This whole scheduling thing has also resulted in some artificial time slots for content. Everything comes in 30-min or 1-hour packages. This doesn't really make any organic sense, but was well-suited to reducing some of the content delivery problems of the "channel" concept. What this means is that these shows are most likely wasting people's time. There might be 30 minutes of good content, but most likely there is a lesser amount of good content and the rest is just filler to meet the alloted and artificial time constraints (30-Minute Television Shows to be a Thing of the Past).


And what the heck is up with organizing things simply because there is one company selling the advertising? What the heck does Fear Factor have in common with Law & Order, other than the fact that NBC sells the national advertising for both?

Clearly, the "channel" concept as delivery mechanism is a failure. There is only one solution: The Channel Must Die!

Comments (5) + TrackBacks (0) | Category: Broadcatching/Podcasting | Open Access

June 01, 2005

May 31, 2005

May 30, 2005

May 24, 2005

Building the Bottom Up from the Top Down

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Posted by Ernest Miller

Prof. Michael Froomkin has published the introduction and final section of the conference draft of "Building the Bottom Up from the Top Down," a paper that he'll be giving at a seminar in Paris this weekend. As the title implies, Froomkin is looking at what top-down orgainzations, particularly governments, can do in order to stimulate bottom-up self-organization:

The government's role should be facilitative yet entirely content-neutral. Even ostensibly non-political rules such as one that limited subsidies to non-political activities should be avoided. Human time and energy is limited. thus, even if one could craft a program that had no class-based discrimination, any rule subsidizing gardening but not community organizing would inevitably cause a shift of time and energy away from politics towards the subsidized activities. If, as Habermas persuasively argues, public engagement is already too weak then it makes no sense to discriminate against it.

Thus, the state's ideal role is primarily in creating a climate in which groups can form, and resources that they can use to organize themselves, govern themselves, and achieve their aims. Given the speed at which communities such as Slashdot (with more than half a million members) and the so-called blogisphere are forming, much may be achievable without much in the way of direct state intervention. There are, nonetheless, some areas where government action would be helpful and appropriate.

Froomkin seeks comments here: Building the Bottom Up from the Top Down.

Read the whole thing.

Comments (0) + TrackBacks (0) | Category: Culture | Freedom of Expression | Internet | Network Law | Open Access

May 15, 2005

May 12, 2005

July 19, 2004

On Walden, Continued

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Posted by Ernest Miller

Last week, I wrote about the difficulties Eric Eldred faced when trying to give away copies of Henry David Thoreau's Walden at Walden Pond on the 150th anniversary of the publishing of the classic (On Walden). Today, the Boston Globe has put Eldred's story on the front page of their Metro section (Fighting to be free):

Denise Morrissey, the park supervisor who told Eldred he had to leave, said her agency discourages competition from outsiders who could take away business from the two concessions that pay for a spot on the reservation: an ice cream truck and the gift shop run by the Thoreau Society.

"If you're going to give away books for free," she said, "it might take away business" from the shop.

Comments (0) + TrackBacks (0) | Category: Open Access

July 12, 2004

On Walden

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Posted by Ernest Miller

Books are the treasured wealth of the world and the fit inheritance of generations and nations. Books, the oldest and the best, stand naturally and rightfully on the shelves of every cottage. They have no cause of their own to plead, but while they enlighten and sustain the reader his common sense will not refuse them. - Henry David Thoreau, Walden
On July 8th, Eric Eldred and the Internet Bookmobile went to Walden Pond to help celebrate the 150th anniversary of the publication of Thoreau's Walden (Free Walden). The reception wasn't at all what one might expect:
After an hour of having readers print and take away free copies of "Walden," I was asked by the Walden Pond Reservation police to pack up and leave and threatened with arrest. I left.

The park supervisor (Denise Morrissey, 978-369-3254) told me I could not pass out free literature without a permit. And she would not give me a permit because, as she explained, the state park gets money from a concession by the Thoreau Society, which operates a store that sells "Walden"--and I was competing with them by giving away free copies.

I cannot say how sad and disappointed this makes me nor can I imagine the response Thoreau would have had to this expression of the general police power. This is beyond any irony.

On the other hand, the Internet Bookmobile contines to do great work. I've said it before and I'll say it again. I think every school and library ought to have this publishing technology and access to thousands of great and important books freely available (Book Publishing in Every School and Library).

Of course, one of the wonderful things about the current moment is that we now have a growing number of really good books that are not out of copyright, but are copyleft. Not only can the Internet Bookmobile print Walden, but you can get a copy of such Creative Commons-licensed works as Lessig's Free Culture (though Eldred tells me it takes awhile to print the whole thing - he's given away chapters), Cory Doctorow's Down and Out in the Magic Kingdom, and coming (very) soon, Dan Gillmor's We the Media.

via Boing Boing

Comments (0) + TrackBacks (0) | Category: Copyright | Open Access

July 06, 2004

The Debate Over Free Information 100 Years Ago

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Posted by Ernest Miller

One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today:

“The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”

“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”

“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”

“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”

“The final (election) tally: 466 against the library, 982 for the library.”

via LISNews

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Oddities | Open Access

March 15, 2004

RSS, BitTorrent and Broadcatching for Courts

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Posted by Ernest Miller

The Shifted Librarian, an RSS maven if ever there was one, has a short post on the use of broadcatching for library archives (RSS Feeds for Internet Archive Collections). This reminded me of a concept that I worked on several years ago ... a distributed database of legal information, decisions, journals, etc.

The basic idea was that every law library in the country would have locally stashed copies of every court decision. Court decisions would have been published into a network of massively redundant distributed databases with nodes at every law library. The system was actually a bit complex (but cool, using Jini and stuff). The Shifted Librarian's post reminded me of this concept and I thought, "why not use broadcatching to send full decisions (or articles) to everyone who wanted copies of court decisions (or law journals)?"

RSS is already used by some of the smarter courts to keep lawyers, clerks and assorted legal professionals current on court decisions, rules changes and related matters. The highly innovative Rory Perry, Clerk of the Supreme Court of Appeals of West Virginia, was the first to recognize this potential and has been providing RSS feeds for his court since May 2002 (Syndication and Weblogs: Publish and Distribute Your Court Information to the Web).

The feeds that Rory provides are great, but they don't include the full decisions - only summaries. You could use RSS enclosures, but providing full decisions to hundreds or thousands of recipients might tax bandwidth. BitTorrent to the rescue, of course. Why shouldn't every law library, law firm or other interested party broadcatch copies of every court decision published?

Of course, this only solves the problem of distribution. For law to truly be free, you'll need open standards for court decisions and nearly complete databases among other things, but this could be a major step forward. The potential uses for this technology continue to grow.

For more information on Broadcatching, see also:
BitTorrent + RSS = The New Broadcast
Broadcatching - Not Broadcasting
Broadcatching - The Early Days
RSS + BitTorrent Announcement Soon?
BitTorrent, RSS and Broadcatching, Catching On
First Broadcatching App Available! (And Related News)
Broadcatching Roundup

Comments (3) + TrackBacks (0) | Category: Broadcatching/Podcasting | Open Access | RSS

March 09, 2004

Telecomm Regulation Encourages Media Consolidation

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Posted by Ernest Miller

The Street has an article on what is becoming an increasingly common occurence: disputes between content creators and cable/satellite distributors that result in loss of signal for consumers (EchoStar Tiff Tarnishes Content's Crown). In this case, content provider Viacom (home of CBS, Comedy Central, MTV, Nickelodeon and others) is facing off with satellite distributor EchoStar. The issue isn't so much about price apparently, as about whether EchoStar will be forced to carry Viacom's less popular channels in order to distribute Viacom's more popular channels.

The balance of power in this case is probably with Viacom, according to analysts. Viacom has enough power through its collection of popular channels that it can essentially force EchoStar to take the unpopular channels, otherwise Viacom will withhold the popular channels and viewers will be upset with EchoStar.

The logic of this situation for content creators is to merge, merge and merge, so that they have similar negotiating power with regard to distributors. The logic of this situation for distributors is to buy content creators so that they have the power over other content creators. In other words, both sides are put under pressure to achieve more media consolidation.

One way out of this vicious circle is to structure telecomm regulation so that distributors such as cable companies, satellite and broadcast are regulated as common carriers. Viacom would not be able to force unpopular channels on the distributor, rather, bandwidth would be allocated based on neutral, transparent rules. This would certainly decrease the content creators' incentives to consolidate and remove the distributor's incentives entirely.

The problem isn't an irrational desire for consolidation, the problem is a regulatory scheme that encourages consolidation.

via Techdirt

Comments (10) + TrackBacks (0) | Category: Open Access | Telecomm

Information Cannot Be 0wn3d

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Posted by Ernest Miller

John Palfrey uses his blog to summarize what sounds like an extremely interesting lecture by a visiting scholar to the Berkman Center (Prof. Jean Nicolas Druey: "Information Cannot be Owned"). The post is somewhat unclear, but it seems to be an attack on the "property" concept of information and that what is important is not regulations of the substance of the communication, but rather, regulation of the channel of communication.

Hmmm ... I would definitely like to know more. Seems very similar to what I've been saying for a few years now, such as:

It's Freedom of the Press, Stupid
It's All About the Distribution, Stupid

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Freedom of Expression | Open Access

February 27, 2004

What Part of the First Amendment Don't You Understand?

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Posted by Ernest Miller

I'm talking to you, FCC Commissioner Kevin J. Martin.

According to a Reuters wirestory posted on Infoshop, Martin wants the FCC to consider regulating indecency on satellite and cable (FCC's Martin ponders indecency on pay TV, radio).

Let me think about that ... um, no.

"Cable companies need some way to empower parents and families to have more choice," Martin said. "I think that it has the potential to be a problem when they are receiving things they object to and have to pay for that."

It's called stop paying for cable, Martin. It's called a lockbox, Martin. Its called the First Amendment, Martin.

What a maroon.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Open Access | Telecomm

February 11, 2004

The Inefficiencies of Broadcast Television

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Posted by Ernest Miller

C|Net News reports that Major League Baseball is having difficulty getting a premium for internet "broadcast" rights (MLB throws high heat at Web portals). I put the term "broadcast" in quotes, because the internet doesn't really support broadcast. As Dana Blankenhorn writes on Corante blog Moore's Lore, MLB wrongly expects the internet to recapitulate television broadcast (Prove It).

The problem for MLB is not simply that broadband adoption rates aren't great and streaming video is pretty weak, but that the internet reduces (though it has not yet eliminated) distribution bottlenecks. Under today's regime, each of the television networks is a government telecomm regulations created portal. Because there is such a limited number of these television portals, they receive more traffic than they would in a more open distribution system. Consequently, the networks are willing to pay MLB more than they would otherwise be willing to pay under an efficient, open system.

On the internet there are portals, of course, but there are many fewer limitations on distribution. Thus, there aren't "networks" and most attempts to create them have pretty much failed. Remember Sure, MSN and AOL still have network-like elements, but as tools that help people aggregrate their preferred content (such as RSS) develop, the idea of a network of content determined from the top down begins to look a bit silly. MLB will be able to charge for their content (how much I'm not sure), but they won't be able to get subsidies from a top down network. If MLB is smart they will work on ways to ease the aggregation of their content with other content their audience will like.

However, I'm not really all that interested in how the MLB can thrive on the internet. What strikes me in this story is how inefficient broadcast television is. The lesson here is not that MLB doesn't get it. The lesson is that we have massive ineffiencies in our telecommunication regulation policies when it comes to broadcast television. The strange (though not unexpected) thing is, the FCC seems blind to them. In a recent speech, FCC Chairman Michael Powell came out strongly against regulating the internet and protecting the open nature of the network (Preserving Internet Freedom: Guiding Principles for the Industry [PDF]).

There is much to praise in these principles. Too bad there is no mention of applying them to broadcast television.

Here are some of the principles:

  • Freedom to Access Content - Not if you are trying to get that content on broadcast, cable or satellite. I'm not talking about a right to free content, but open access. My local cable company doesn't carry G4TV and I can't get it. I can get, but not the broadcast version. Why does the broadcaster/cable/satellite company get to make this choice? Why not let consumers (i.e., the market) determine more directly what is available than allow the existing gatekeepers to make the choice?
  • Freedom to Use Applications - Two words: Broadcast flag. Rather than allow the development of all sorts of new applications to take advantage of the existing network (such as TiVo), the FCC would rather give the broadcasters effective veto power over developing new technologies. The economic growth, uncertainty of "killer" apps and technological development are arguments for letting creativity run riot on the internet. Why is this not applicable to broadcast?
  • Freedom to Attach Personal Devices - Two words again: Broadcast flag. Creativity must be stifled in order that broadcast will thrive, apparently.

The broadband providers argue that without the ability to control access as well as determine what applications and personal devices may be used, they will be unable to make sufficient profit to continue rolling out broadband. Indeed, they won't roll it out. However, these arguments are bogus, and Powell is right to reject them. Of course, these are the same arguments used by the broadcasting industry with regard to HDTV. There, apparently, these arguments make sense. Of course, it would have been nice to call the bluff of the existing broadcast networks. If they didn't want to use the HDTV frequencies (afeard o' piracy), the FCC should have offered to transfer the frequencies to someone who would use them without forcing additional ineffiencies on the market.

It is great the Powell wants to preserve freedom on the internet. Too bad he is not consistent when it comes to broadcast television.

Comments (3) | Category: Broadcast Flag | Internet | Open Access

February 05, 2004

Time for a Public Project Ocean

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Posted by Ernest Miller

I missed this news earlier in the week, but it is extremely interesting. According to LISNews, which cites a couple of New York Times articles, Google and Stanford have embarked on "Project Ocean" which will digitize all of Stanford's library collections from before 1923, thus avoiding copyright but catching many of the great books (Project Ocean: Stanford University And Google). Great news! What an incredible resource! This will really begin to change how we interact with information. Unfortunately, also according to the NY Times (reg. req.), (The Coming Search Wars): "The project could add millions of digitized books that would be available exclusively via Google." [emphasis added]

Now, Google has every right to maintain its database of digitized books as an exclusive. However, how much does mechanical scanning really cost, especially as divided over the myriad institutions of higher learning/public libraries in the US? Why can't they coordinate an allocation from their budgets to create a truly public domain of millions of digital books? Google is great, but let other search engines (and the public) have a shot at the data.

Comments (2) | Category: Open Access

January 16, 2004

Why Not Run Your Own Game Server?

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Posted by Ernest Miller

Terra Nova has an interesting little article on so-called "rogue servers" that host MMORPGs (Free Rogue Server Achieves Significant Population). Most, if not all (any P2P MMORPGs out there?), MMORPG are based on the client/server model, where each user has a client that talks to a centralized server. The client programs are either sold for a one-time fee or given away. The business model is based on charging subscriptions for the client programs to have access to the server. The issue of rouge servers arises when hackers reverse-engineer or obtain by other means the server software and begin running their own servers.

From a free speech and copyright overreach point of view there are serious legal and policy issues in any attempt to thwart many of these "rogue servers." See, EFF's work on the Blizzard v. BNETD case for some details on some of them.

The discussion on Terra Nova is quite interesting and there is the suggestion of franchising the running of servers. But why not go farther? Compete with these rogue servers by creating server subscriptions. That is, you can have a client and subscribe to the main server farms, or you can run your own server (for you and your friends/clan, perhaps). As a server manager, you subscribe to a service that keeps your server up-to-date with patches and new content (which you use to keep your friends happy).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games | Open Access | Open Standards

December 01, 2003

C|Net News Speaks Out Against Open Access

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Posted by Ernest Miller

C|Net News has published an unsigned commentary lamenting the lack of encryption defaults on WiFi gear (A fate worse than lack of access). According to the opinon piece, the Wi-Fi Alliance does not request WiFi manufacturers to turn on Wired Equivalent Privacy (WEP) as a default.

Of course, consumers can easily enable WEP if they so desire (it has been part of the basic instructions for every WAP I've set up). But C|Net is concerned that consumers aren't using WEP because, "Consumers may disregard the risk [of not using WEP] for two reasons: They don't value the resources or data on their network, and WEP is not completely effective against break-ins." Well, number two is certainly a consideration. If I was worried about security, I wouldn't use WEP, I would stick with a physical LAN. However, there is a third option ... not that people don't value their resources, but rather that they do find them so valuable that they would want to share them with others. I value my data and resources, but I also am willing to share those resources through means that require little effort on my part.

C|Net has an answer for those who like to share: bad people might take advantage:

What consumers may not be considering is that open access leaves their networks vulnerable to hijackers who may want to launch an anonymous virus from their broadband connection or download child pornography.

If the virus is anonymous, what does it matter where it is launched from, as long as it can be launched? There is plenty of child porn to be had without going through the trouble of using WAPs. But to the extent that WAPs are useful for downloading child porn, WEP will be a mere inconvenience. In other words, you can make access impossible for the vast majority of good citizens in order to inconvenience technically sophisticated hackers and similar bad actors.

I'm not sure why C|Net is against open access, but the arguments leave much to be desired.

Comments (2) + TrackBacks (0) | Category: Open Access | WiFi

November 20, 2003

It's All About the Distribution, Stupid

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Posted by Ernest Miller

O'Reilly Network writer Andy Oram, inspired by Dave Winer's piece on candidates taking stands on internet regulation, makes a plea for a global approach towards information law (Time for a data transmission summit). I couldn't agree more with Oram that we should view many of the issues involved with regard to cyberlaw as an interconnected whole. It is interesting that Oram frames this issue as one of "data transmission." This echoes my viewpoint. As I am wont to say, "It's all about the distribution."

For example, when we discuss copyright reform, it is almost always in the context of existing telecommunications regulation. However, what if existing telecom regulations are part of the copyright problem? If, for example, there is a near monopoly on the primary means of music distribution, such as radio, won't that seriously distort the market that copyright is supposed to create?

Really, isn't telecom about the distribution of information (subject to the First Amendment, as I note here: It's Freedom of the Press, Stupid). Isn't copyright really about how copyrighted information is distributed? An argument that I make here: Taking the Copy Out of Copyright [PDF].

Of course, I'm completely onboard with a summit dealing with issues of "data transmission" taken from a broad point of view. However, I'm not sure if a summit is a good idea right now, since there isn't really a consensus yet that all these elements are actually related and what the nature of that relationship is. My concepts may be wrong, but I am convinced that there is a relationship among these issues. Perhaps the nature of that relationship is what a summit should address.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Internet | Open Access | Telecomm

November 06, 2003

W3C Working Draft on Anti-Robot Tests

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Posted by Ernest Miller

The World Wide Web Consortium (W3C) has been one of the leaders in ensuring the web is accessible to everyone despite disability (Web Accessability Initiative). Now, C|Net News reports that the W3C is concerned about access for the visually impaired being hindered by so-called "robot tests" (W3C criticizes antirobot tests). These tests, which are frequently used by websites for registration purposes, require a visual verfication of text and numerals obscured in an image so that a computer cannot decipher the text, but a human (with our awesome text processing capabilities) can. If you've recently signed up for a Hotmail account or for eBay or something, you've run into one of these tests. The tests have been fairly successful at preventing spammers and other bad actors from accessing protected services. Problem is, the visually impaired are also prevented from accessing these services.

This is a tough problem and I sympathize with both sides. The W3C has put forth a working draft in an attempt to develop some solutions (Inaccessibility of Visually-Oriented Anti-Robot Tests: Problems and Alternatives).

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October 27, 2003

FCC to Regulate Whole Internet?

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Posted by Ernest Miller

I wrote about this earlier today (FCC to Regulate Routers - Critics of Broadcast Flag Get Mainstream Press) but it bears emphasis and should be very worrisome if true, as Ed Felten notes on Freedom to Tinker (Broadcast Flag Confusion). There is a downright scary quote in today's New York Times' (reg. req.) article on the Broadcast Flag (Critics Press Case on TV Piracy Rules):

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

Felten is right when he says,

Somebody is really confused here about how the Internet works. Maybe it's the reporter, or maybe it's the FCC source, or maybe (God forbid) both.

If this statement bears any connection to reality, it's cause for serious worry. I can't think of any way of translating the statement into a technically coherent form that doesn't involve the FCC redesigning the basic workings of the Internet.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Access

Alternate Reality Visions of the Computing Future from Microsoft

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Posted by Ernest Miller

The New York Times (reg. req.) has a confusing report on the competing visions for the future of computing from Microsoft and IBM (Two Companies at Odds Over the Internet's Future). Not surprisingly, Microsoft denigrates IBM's vision:

"I.B.M. is talking about taking all the things we do now and outsourcing it," Mr. Gates said last week in an interview. "The utility model suggests that it is not about empowerment."

And Microsoft is about empowerment? Mr. Gates must be using a different dictionary then I do. Well, actually, Mr. Gates can afford to have the dictionary changed or at least he acts as if he can. Speaking of outsourcing ... what exactly do you call it when you buy your software on a subscription basis (the model Microsoft is trying to move the market towards)? If I don't actually own my software, but only have access so long as I pay the Microsoft tax subscription fee, isn't that outsourcing my software solution?

Microsoft executives compare the first stage of the Internet to the mainframe era, with the Web server computer the equivalent of the mainframe and the browser as the equivalent of the simple, "dumb" terminal of the mainframe days. The personal computer, they say, brought an explosion of creativity and opportunity as millions of people began using computers and programming themselves. Some were professionals, they note, but many others were ordinary people using the simple programming tools in a spreadsheet, for example, to simulate and test new ideas for a business.

Microsoft praising the "explosion of creativity and opportunity as millions of people began using computers and programming themselves?" Has the world gone mad? Did I somehow slip into the same parallel dimension where Spock has a goatee? Is Microsoft actually encouraging PC empowerment at the expense of centralized, chokepointed systems such as a privately owned monopolized operating system?

The next stage of computing, employing the Web services software standards, will do the same thing for the Internet, Microsoft executives say. "The Internet will be programmable," Microsoft's chief technical officer, Craig Mundie, said. "And there's no reason why the bulk of humanity won't be able to apply the tools we're talking about to this new world."

Ummm, isn't Microsoft's vision that the only tools you can use will be Microsoft's tools? Well, perhaps not the only tools, just the preferred tools:

But, of course, the Microsoft message is that the preferred technology for building and experiencing the next generation of the Internet is Windows.

Ah, turns out I am still in the right dimension.

Comments (0) + TrackBacks (0) | Category: Open Access | Open Source | Open Standards

October 25, 2003

GAO - Capitalism Good for Cable Companies

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Posted by Ernest Miller

The Washington Post publishes an article on a recent General Accounting Office report on competition in the cable industry (GAO Suggests Competition Good for Cable). The report can be found here (Telecommunications: Issues Related to Competition and Subscriber Rates in the Cable Television Industry [PDF]). Read the highlights [PDF].

The report found, unsurprisingly, that where there is a choice of two cable companies (only 2% of markets) consumers benefit with cable prices approximately 15% lower than those markets without competition. Where direct broadcast satellite providers can provide local channels cable companies respond by offering better service. Also, unsurprisingly, networks with a cable affiliation are more likely to be available than those networks without a cable affiliation.

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October 24, 2003

The Birth of SAMBA

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Posted by Ernest Miller

ZDNet Australia has a great story on the birth of SAMBA, which is one of the most important programs to bridge the open source and closed source worlds (Special report: The birth of Samba). Fascinating stuff if you are interested in open source.

via Open Mind

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Your Friendly Neighborhood Electric IP Company

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Posted by Ernest Miller

Jeff Pulver provides a short update on the progress of broadband power line communications (PCL) (Current Technologies: Wi-Fi Coming soon to a Telephone Pole Near You). The news is that there has been progress in developing the technology that will permit broadband access via powerlines. Instead of connecting to the internet via DSL and your phone company or via the same cable that brings you the Sopranos, you'll get broadband via your powerlines. This would be a great way of producing additional competition for connectivity. I hope Jeff is right in his optimism.

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October 23, 2003

Free WiFi Makes Good Business Sense

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Posted by Ernest Miller

Computer World has a great article on the many uses companies are putting free 802.11b access to (Free hot spots pay dividends). Guerilla marketing, conventional marketing, keeping customers around longer, saving money on ethernet installation, are all uses of free wifi. Favorite quote:

"What is the ROI on a bathroom?" asked Shaich, pointing out that the day of pay restrooms in restaurants has long since passed.

Comments (1) + TrackBacks (0) | Category: Open Access | WiFi

October 22, 2003

Georgia (Telephones) On My Mind

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Posted by Ernest Miller

So far this week I've had a number of posts on various issues regarding VoIP regulation. Well, the news about this industry continues to move at an extraordinary pace. C|Net News is reporting that Georgia residents no longer have to pay for a telephone line if they only want DSL (Internet phones peachy in Georgia?). Usually, when you get DSL you have to pay for a phone line whether you want one or not. Now, presumably, many of those who get DSL and would be happy to get rid of their traditional phone service will be able to switch to VoIP entirely and save significantly on the phone bill. For many who haven't gotten broadband yet, this might be the incentive they need. Very cool. The decision from the Georgia Public Service Commission does not seem to be available on the internet yet, but I'll be looking.

Comments (0) + TrackBacks (0) | Category: Open Access | Telecomm

October 21, 2003

Rep. DeGette Doesn't Get It

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Posted by Ernest Miller

Rep. Diana DeGette (D - CO), has penned an anti-open access commentary in C|Net News (The irony of 'network neutrality'). Her main complaint? Regulating access and regulating content and functionality are pretty much the same thing, they're both regulation and regulation is bad. Thus, we shouldn't regulate access. I had to double check that she was actually a Democrat. The commentary reads like talking points for a cable lobbyist. She even attacks the "stupid network" argument:

By effectively handcuffing broadband operators and restricting their rights to forge innovative relationships with other applications and content providers, the Microsoft crew is, in fact, seeking to dumb-down the heart of the network in order to strengthen the power of its own members.

I don't know about you, but I think that dumbing-down the heart of the network is a feature, not a bug.

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October 20, 2003

Future of Digital TV Threatened By More Than Broadcast Flag

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Posted by Ernest Miller

The Broadcast Flag issue is incredibly important, see, among many others Copyfight (What's the Deal?). Then let your Reps, Senators and the FCC Commissioners know how you feel, either through EFF or

However, the Broadcast Flag isn't the only issue that puts the future of unrestricted digital television in doubt. Case in point, the New York Times (reg. req.) reports on what may be the coming death of stand alone personal media recorders, such as TiVo (Can Cable Fast-Forward Past TiVo?). A couple of quotes to consider:

"This really is the last stand for the stand-alone boxes; this is a dying product," Aditya Kishore, an analyst for the Yankee Group, a technology consulting research firm in Boston, said in a telephone interview. "This is the last Christmas for the stand-alone TiVo box, or any stand-alone DVR box. By next year, the DVR functionality will be widely available in a wide range of other devices, including the set-top boxes."
"We believe that over time, DVR technology is going to be the standard," said Mark W. Jackson, an EchoStar senior vice president. "Everyone is going to have it. It's just a question of when - and who they get it from, of course."

I certainly hope that the Yankee Group analyst is wrong, because otherwise the question asked by Mr. Jackson becomes much more important. What the NY Times is reporting is that the cable and satellite companies are bundling personal media recorder capabilities with their services and this will eliminate the market for independent devices. The problem with this is that it also gives the cable and satellite companies control over the function of such devices. Skipping commercials, recording anything you want, and networking the device with other devices will almost certainly be restricted. Sounds an awful lot like the broadcast flag.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Access | Telecomm

October 18, 2003

Telecomm Regulation Madness and Vonage

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Posted by Ernest Miller

Berkman Center Senior Fellow Andrew McLaughlin has a new blog and one of his first posts is an interesting look at the recent Vonage v. Minnesota Public Utilities Commission [PDF] decision (Judge Davis Gets It: The Internet is Not a Telephone). I think that Andrew and I actually agree quite a bit, but merely differ as to emphasis.

While I sympathize with the outcome (who thinks that the Minnesota Public Utilities Commission should be regulating VoIP?), I don't find the reasoning of the decision particularly compelling and I don't think the decision inherently important. The problem isn't the judge's, but the entire regulatory scheme. The judge is simply making due with a confusing morass of regulation built through decades of industry-driven lobbying. His decision is important only to the extent that it highlights some of the internal contradictions of existing regulation; it doesn't provide a compelling alternative or solution (though that isn't the judge's job).

...continue reading.

Comments (1) + TrackBacks (0) | Category: Open Access | Telecomm