In August The Congressional Internet Caucus Advisory Committee in collaboration with the High Tech Law Institute at Santa Clara School of Law hosted the 2nd Annual State of the Net West Conference on Wednesday, August 6th, 2008, in the California Room at the Benson Center of the Santa Clara University School of Law, from 8:30 a.m. to 2:30 p.m. The discussion featured leaders of the Congressional Internet Caucus, including Congresswoman Zoe Lofgren, Congressman Mike Honda, and Congressman Bob Goodlatte. Other participants included West Coast academic scholars, public interest advocates, and industry executives during a series of discussions on current, important technology policy issues. State of the Net West is designed to channel West Coast thought leadership from the academic community and private sector to help inform the technology policy issues being debated in Washington.

The State of the Net West Conference allows for bicoastal networking and dialogue on key policy issues to take place in the heart of Silicon Valley. Participants engaged in lively debates exploring the following panels:

“Will Our Reputations and Privacy Survive the Age of Social Networking?”

• Introduced by Congressman Bob Goodlatte (bio)
• Frank Pasquale, Associate Professor of Law at Seton Hall Law School (bio)
• Lauren Gelman, Executive Director and Lecturer of Law at Stanford Law (bio)

“Can ISP Immunity Survive the Onslaught of Web 2.0″

• General welcoming from Congressman Mike Honda (bio)
• Introduced by Congresswoman Zoe Lofgren (bio)
• Mike Fertik, CEO of Reputation Defender (bio)
• Dan Dougherty, eBay(bio)

“The Movement of Information from the Crowd to the Cloud”

• David Schellhase, Senior VP/General Counsel, salesforce.com Inc.(bio)
• James X. Dempsey, Vice President for Public Policy, Center for Democracy and Technology (bio)
• Matthew Parrella, U.S. Department of Justice (bio)

The Congressional Internet Caucus Advisory Committee hosts the annual “State of the Net Conference” in Washington to frame many of the technology policy debates that Congress grapples with throughout the year. State of the Net has grown into the largest and most influential information technology policy conference in the country to discuss technology trends and the enormous challenges that lawmakers, industry leaders, and citizens must confront and resolve. While the State of the Net Conference has been an unmitigated success at framing the debate in Washington, an infusion of intellectual capital from the West Coast significantly enhances the State of the Net discussions.

This educational briefing was hosted by the Congressional Internet Caucus Advisory Committee (ICAC), part of a 501 (c)(3) charitable organization. The ICAC is a private sector organization comprised of public interest groups, trade associations, non-profits, and corporations.

NOTE:  The text above is from the Internet Education Foundation.

Network Neutrality first surfaced as a reaction to what many activists perceived as aggressive moves by telcos to create a “tiered Internet”. Essentially the movement was a defensive one, a safeguarding of the status quo. Now the concept of Net Neutrality seems to be expanding.

Internet for Everyone bills itself as:

a national initiative of public interest, civic and industry groups that are working to see that the Internet continues to drive U.S. economic growth and prosperity.

Backed by Internet luminaries such as Yochai Benkler, Lawrence Lessig, and Johnathan Zittrain, Internet for Everyone is getting prominent play on the Save the Internet, the flagship site of the Net Neutrality movement.

Internet for Everyone’s core principles are oriented around access:

Every home, business and civic institution in America must have access to a high-speed, world-class communications infrastructure.

It is no secret that America’s broadband infrastructure lags behind those of many of our economic competitors. With Save the Internet tying the growth of advanced broadband access to Net Neutrality, how will telcos respond?

If they’re smart, they’ll respond by delivering faster, more robust access, rather than more whitewash about how great America’s broadband market is, and how wonderful the next (coming soon!) generation of broadband will be.

Image Credit

A cropped version of Suspended bridge by Tanakawho is used under a Creative Commons Attribution-Share Alike 2.0 Generic license.

For years the big telecommunications companies have been desperately trying to avoid becoming commoditized. If they are reduced to acting merely as providers of “dumb pipes” the logic goes, down go profits. So rather than provide truly high-speed Internet access of the sort seen in many other countries, the telcos have attempted to squeeze as much revenue out of customers as possible.

Some of their techniques are novel and clever. Targeted advertising makes sense if you’re a telco. Monitor user activity, deliver targeted ads, and watch the revenue fatten your coffers. If you’re Charter Communications, you try this targeted advertising and make it opt-out rather than opt-in.

Another approach is to throttle the traffic used in particular types of Internet activities, notably P2P filesharing. Of course, you could tell customers you were engaged in this sort of traffic shaping. But Comcast decided such disclosure wasn’t a good idea. Perhaps they thought nobody would figure it out. Customers did find out, and using (duh) the Internet, they spread the word. Now Comcast faces three class action lawsuits that allege deceptive and misleading behavior by the broadband colossus.

Given their track record at disclosure, is it any wonder Net Neutrality advocates don’t trust the telcos to self-regulate? There are those who argue that since the telcos own the pipes, they should be allowed to charge what they will and shape traffic however they like. But as any first year Property student knows, the concept of “ownership” is a sticky wicket. Here’s how one commenter responded to the above-linked ownership argument:

Private property is private property. So no more eminent domain powers for telcos to install fiber through private property, right? If a farmer owns 40 acres in the path of a 1000-mile cable, can he now charge what the market will bear?

Hook me up with a cable that was installed without using eminent domain, and I won’t ask for net neutrality on it.

The establishment of the American telecommunications industry has never been a purely private endeavor. If the telcos want to get the government out of their hair, they need to stop acting as if nobody will find out what they’re doing, and they can no longer pretend that America leads the world in broadband choice, speed, and pricing.

Maybe, just maybe, if the telcos started thinking about providing customers faster, cheaper, more reliable service and more transparent business practices, Congress and those customers wouldn’t mind giving them more latitude.

Image Credits

A cropped version of high wire by hojusuram is used under a Creative Commons Attribution-Share Alike 2.0 license.

According to the Recording Industry Association of America’s David Hughes, DRM (Digital Rights Management) is poised to make a comeback. Despite all evidence to the contrary, Hughes put together a list of “22 different ways to sell music” and figured “20 of them still require DRM.”

Not to be outdone in mapping a route to the future, Fritz Attaway of the Motion Picture Association of America declared, “We need DRM to show our customers the limits of the license they have entered into with us.” Of course! That’s what keeps bringing customers back for more. Show them the limits of your license, and they’ll open their wallets with smiles on their faces.

Read the full story at c|net.

Image credit: Dinosaur Walk by Mykl Roventine. Creative Commons Attribution 2.0 Generic license.

Danny Dover, posting at SEOmoz, relates an interesting story about his decision to post video of a Saturday Night Live skit to YouTube, and the resulting reaction from NBC Universal. The story doesn’t unfold the way you might expect.

NBC Universal was quick to react, sending Danny an email to his Gmail account. The contents of the email were surprising:

Your video is still live because NBC Universal has authorized the use of this content on YouTube. As long as NBC Universal has a claim on your video, they will receive public statistics about your video, such as number of views. Viewers may also see advertising on your video’s page. [You also can't embed the video on other websites.]

This is a fascinating and encouraging development. Rather than struggling as they have for years to hold new technology at bay, NBC Universal seems to finally realize that they can instead work with customers, video sharing sites, and advertisers in new and mutually beneficial ways.

As Danny puts it:

It appears that NBC finally understands the power of online marketing. All I wanted to do was share my favorite content with friends, family and about a half billion of my closest internet acquaintances. The studio executives understand this and finally have matured to the point where they are willing to let me and other internet users promote NBC content.

Huzzah!

[The image is a cropped version of Pirates!, by celebdu, made available under a Creative Commons Attribution 2.0 Generic license at flickr.]

At the end of last week, Microsoft gave Yahoo an ultimatum: Agree to a merger within three weeks, or it’s hostile takeover time for you. Yahoo fired back over the weekend, saying Microsoft’s $44.6B offer was still on the low side. While indicating it was still open to discussion, Yahoo seemed to be relying on poison pill provisions to keep shareholders from forcing the company into a deal with Microsoft.

Yahoo is also offering special stock option deals to key employees, in hopes of fending off a brain drain at the company. Meanwhile, Google’s share of the search market continues to rise. Of course, Microsoft may be trying to gobble up Yahoo just so it can dominate the instant messaging space, but some observers think there are other reasons.

[The image is a cropped version of fighting, by SuperFantastic, made available under a Creative Commons Attribution 2.0 Generic license at flickr.]

Nobody reads EULAs. Ask any Internet user what a EULA is, and they’ll most likely tell you it’s related to bovine anatomy, or they’ll say it’s the thing they click through so they can download the software they want. But lawyers at software companies know what they are, and they get paid to make sure EULAs contain the right language.

So imagine the embarrassment at Apple when the company found out it had been distributing the Windows version of its Safari web browser for a year, under a EULA that stated:

This license allows you to install and use one copy of the Apple software on a single Apple-labeled computer at a time.

Not to be outdone, Adobe stuck its foot in its own EULA by declaring that its new SaaS (Software as a Service) version of Photoshop gave Adobe infinite license to:

…distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display” images uploaded to the service.

It took Apple almost a year to fix the EULA for the Windows version of Safari, even though in the first two days after release there were over a million downloads of the product. Both Apple and Adobe have cleaned up the offending passages, but what does this say about the legal fiction that a reasonable average Internet user will read every line of a EULA? If the lawyers at big software companies can make mistakes of this magnitude in EULAs, should we really expect that end users will pore through the dense EULA language every time they download software?

[The image is a cropped version of Reading Skegs, by Paul Downey, made available under a Creative Commons Attribution 2.0 Generic license at flickr.]

Viacom’s argument was based on a S.D.N.Y. case from 2004, Blanch v. Koons, in which the plaintiff Blanch had not sustained actual damages and was unable to recover statutory damages. In that case Judge Stanton gave Blanch the opportunity to amend the complaint in order to give the plaintiff “a chance to prove malice and raise squarely the question whether punitive damages are available to her.” But this time the judge wasn’t willing to go so far:

If it ever was, that decision is no longer good law. Recent decisions have rejected its holding.

Judge Stanton also pointed out that the plaintiffs here “have the full array of remedies (including statutory willfulness damages) available to them,” thereby negating the very rationale for the Blanch decision.

Finally, he sealed the lid on Viacom’s Blanch Gambit:

It is time to extinguish the ignis fatuus held out by Blanch. Common-law punitive damages cannot be recovered under the Copyright Act.

For those of us who aren’t native Latin speakers, “ignis fatuus” means “will-o’-the-wisp” or “something that misleads or deludes,” according to the American Heritage Dictionary of the English Language, 4th Ed.

Justia has all of the case documents for Viacom v. YouTube as PDFs. This Opinion and Order is document #95.

While Big Media schizophrenia about P2P is nothing new, there does seem to be a change in the wind. The P4P Working Group consists of major Internet access providers like AT&T and Verizon, P2P players like BitTorrent and Pando, and other infrastructure players. So far Big Media seems to be playing wait and see. The MPAA, NBC Universal, and Turner Broadcasting are involved in the working group, but only as “observers.”

It does seem to be fundamental to Big Media DNA that they are incapable of taking the lead. But perhaps they’ll find a way out of the forest with the help of some consensus-minded tech companies.

In warfare the technologies for defense are always being surpassed by those for offense. This race is as old as shield and spear, mail and arrow, fortification and cannon. In the 1930s the French built the Maginot Line, an impressive series of pillboxes, obstacles, and guns, designed to thwart the German Army. The French spent tremendous amounts of money on the Line, and it served as the core of the French defensive plan.

Unfortunately for the French, the Germans had developed an entirely new method of waging mechanized warfare, and in 1940 they sliced over and through the Maginot Line in short order. The French had relied on a static defensive system, which gave the Germans the ability to control the initiative of battle, mass forces in ways the French couldn’t, and bypass the most difficult defenses.

It’s starting to look like the DRM technologies employed by Apple, Microsoft, and others may be like the Maginot Line. Not only are some of the pillboxes being abandoned altogether as music labels ditch DRM, but now there’s a new application that makes stripping DRM easy for even non-geeks to use. The app is was created by a San Francisco startup called doubleTwist, which has VC backing from Index Ventures (who also funded Betfair, last.fm, and Skype). The company has also introduced a companion social networking app called “Twist Me!” that allows users to share the DRM-stripped files with their friends.

Is it my imagination, or is that a flight of Stukas overhead?