three updates

i haven't updated here in a while - been busy with work, mostly, and non-work projects like going through the publication process for a paper. my apologies. the election was kind of a big deal, of course, but by now we've moved on, we have recovered from the champagne hangovers, and we are all thinking about policy and politics for 2009. the Cabinet is being assembled, and other important positions (like the CTO and the Chairman of the FCC) will follow at some indeterminate future point. many future deep thoughts about the possibilities of progress depend on these appointments, and little can be said until then.

if you will indulge my briefly, i submit for your temporary amusement a brief post on a few of the most important things that have happened, in my opinion, in the last few weeks.

1) one high-ranking Senator is planning to introduce a new Net Neutrality bill in January. the Comcast victory was great, don't get me wrong; but the FCC's order is being contested in court, and i prefer to have clear, well-defined statutory provisions, to protect net neutrality with more than the discretion of the FCC's Chairman and Enforcement Bureau.

2) Canada's leaning in a different direction, having chosen not to stop Bell Canada's wholesale p2p throttling. i recognize that this is a very different context than the limited Comcast case, and that the same decision opened a rulemaking process to investigate a more general response to such industry action, but the CRTC had an opportunity to make real progress and to lead the rest of the world in going down a path that, for the United States at least, appears inevitable (not to mention *correct*). i'm not sure i was expecting a different outcome, but i was hopeful, at least.

3) the change.gov team is doing everything the way i would, if i were in charge. embedded YouTube (and other formats) for Presidential addresses. creative commons licensing for content. putting high-profile, experienced academics at the top of the FCC review team. makes me wish i was more of a part of it - though, i'm not sure what else i would suggest they do.

that's all from my world, off the top of my head. apologies if i failed to mention your favorite issue, but, well, get your own blog.

the Freedom Doctrine

the FCC's Commissioner McDowell, already having established himself as the right-wing equivalent of Resident FCC Firebrand Commissioner Copps, has raised the bar a step higher. in his latest escapade, he has suggested that an Obama presidency would lead to a return and expansion of the Fairness Doctrine, and that net neutrality is the first step down this road. let's review, shall we?

the Fairness Doctrine required over-the-air television broadcasters to dedicate a portion of their air time to the presentation of multiple points of view on controversial topics. though a lot of concerns were raised about the constitutionality of such a regulation, the Supreme Court upheld it in Red Lion Broadcasting Co v. FCC, 395 U.S. 367 (1969). but it was abandoned by the FCC anyway, and as McDowell admits, it hasn't been suggested (or, i'm sure, even considered) at the FCC, and no one in their right mind would consider extending it to the blogosphere or any other portion of the internet.

more importantly, though, the Fairness Doctrine has nothing to do with net neutrality. there's a difference between regulation and control, at least when the objective of the regulation is to force the control to be in the hands of the people, not the government or any corporations. with the Fairness Doctrine, the FCC decided to force broadcasters to transmit certain types of content whether their listeners wanted to hear it or not, all in the name of fairness; with net neutrality, the FCC is forcing the cable companies (the equivalent of the broadcasters) to allow users of their services to communicate freely, without any restrictions. it's sort of the antithesis of the Fairness Doctrine - in fact, i suggest we call it the 'Freedom Doctrine'. Commissioner Copps, are you listening?

a beverages post

in the spirit of my short-lived beer blog, this is a post about gourmet beverages. over the last week or so, i had the opportunity to try a few nice things, so, here are some brief reviews.

wine:
the highlight of the last week, unquestionably, was the cakebread, or the 2003 Cakebread Cellars Benchland Select, to be precise. cakebread is known for decent chardonnays and world-class cabernet sauvignons, and the benchland select is no exception. complex flavors, incredibly smooth finish, and a ridiculously long and pleasant aftertaste. it's the sort of wine where the term 'sublime' can be used without it being ridiculous.


last night i opened up a bottle of 2006 veritas claret, brought back from a recent VA winery weekend. the claret is a drinkable virginia red wine, with a touch of the smokiness that characterizes most of the Virginia merlots and cabernet francs, in my experience. the Veritas Claret is a blend of mostly those two grapes. it didn't disappoint, but better wine can be had for a lower price. my Virginia wine weekend as a whole was outstanding, though. i saw a lot of fantastic countryside, and i had some surprisingly good wines. the best wines that i tried, hands down, came from Pollak vineyards. Pollak had the only truly great red wines i tried in Virginia - their merlot tasted like good bordeaux, and their cab franc tasted like a good rioja, with flavors of dark chocolate to die for. their white wines were no less impressive. i used to refuse to drink chardonnays, because i hate the over-oak of California wineries. but Virginia wineries do it the right way, and Pollak, in particular, achieves the perfect balance of vanilla/toffee and pure grape. i would drink their estate chardonnay any time of any day and count myself a happy man.

on my last evening visiting my parents, we opened a moderately priced bottle of barbaresco as well, which was my first opportunity to try the renowned Piedmont varietal. i enjoyed it, but i was not blown away, and my parents were not enthralled by it. perhaps it needed to open up more; i'm not sure. i have a cheap ($20) 2003 barbaresco, from a winery with young vines, that i have been holding on to, and my first experience with the type will encourage me to let my bottle age a little longer before consumption.

beer:
my parents brought back a bottle of dark efes beer from their visit to Turkey; they have not been able to find it in the United States since they returned. it's quite good overall, with great up front flavors of coffee hard candies and of chocolate, though it is a bit rough in the finish. but, a tasty and interesting beer which i will keep my eyes out for in the future.

cocktails:
my roommate made a round of Pimm's Cup cocktails over the weekend. the Pimm's Cup is a combination of an herbal-citrus-gin concoction known as Pimm's No. 1 and other non-alcoholic liquids, in this case Sprite. toss in a slice of a citrus fruit, or even grapes or apple slices or almost any other fruit imaginable, and you have made a very refreshing drink. at my suggestion, we added a few drops of angostura bitters to one of the glasses, which i think enriched a lot of the flavors even more. very tasty stuff.

pessimism in copyright law

bill patry, long time copyright law scholar and blogger, has decided to end his personal blog. his many devoted readers will miss him, but his reasons are fair and hard to argue with. [even had bill not given a reason, i wouldn't have blamed him, but i'm not exactly a role model for blogging dedication.] i sympathize with his pessimism over the state of copyright law, in particular. i went to law school to do technology law and policy, and certainly the foremost area i had in mind to work on was copyright law and its extensions, such as the DMCA. but over the first couple years of law school, including writing a paper about the errors of Grokster and taking a summer internship at the EFF, i started to turn away from it. in part that was because i saw a reasonable wealth of copyright law scholars and activists and a shortage of scholars and activists in the telecommunications side of technology law and policy, and i wanted to move into a less crowded field. but in larger part, the progress and momentum of copyright law and policy discouraged and disappointed me too much.

some are not so pessimistic, such as tim lee. he suggests his youth, but i don't buy that, in part because i think i am a year or more younger than him. i think it's more likely the second reason, that tim isn't a lawyer. i don't like the sound of that because i don't feel that it gives tim enough credit; i think he knows the legal background as well as i do. but the difference could be that, as he says, he isn't afraid of the gap between the letter of the law and its enforcement. i am very afraid of that gap, because it imposes a chilling effect on people, at least at the margins. also, i don't think the gap is as big as tim portrays it. i think that the RIAA and MPAA and others aren't letting their efforts wane at all; i perceive it instead as a gradual picking off of victims at the edges. they are starting with the large format uploaders and the universities

regardless of any possible reasons for our difference of opinion in this matter, i'm with bill - in the negative camp. maybe it's going too far to say that the war has been lost, but that's how i have felt before. lessig tried to overturn the CTEA, and it didn't work; challenges to the DMCA through judicial and legislative branches have similarly failed to achieve significant benefits. for every Lexmark there's at least one Blizzard v. BnetD. we can come back, i think; i just don't see the light yet.

[update: it's like the judges were reading! today's 2nd Circuit decision on Cablevision's DVR is a rare and significant victory for balance in copyright law.]

complete lack of accountability and the IOC

my sister is boycotting the Olympics. her post is great, and to summarize it wouldn't do it justice, so, please read it in the original. i will take one piece out of it to set up this post, though: Amnesty International has demonstrated that the Chinese government has failed to keep its promises of human rights reform, and from the looks of things, it hasn't even tried. the IOC and the rest of the world had hoped for more when allowing China to play host, and this failure threatens to undermine the spirit of the Olympic Games in a major way. now the issue has hit home a little more directly for me: the Washington Post reports that the IOC is allowing the Chinese government to filter Internet access at the games, even though the IOC and Chinese government had specifically pledged to allow unfettered Internet. according to an IOC official, "The pledge of unrestricted access applied only to sites related to the Olympic competitions."

that's bulls*&t. am i surprised? no, not really, just upset. i'm not surprised that the Chinese government isn't allowing unfettered communications. i'm also not surprised, as my sister notes, that the U.S. government isn't taking much of a stand against it. not only are American athletes still competing in the games, but also President Bush will be attending the opening ceremonies in Beijing. whether we like it or not, China has become a serious power in the world and is not to be trifled with. even my periodic short-term attention span hasn't made me forget the impressive and very scary Chinese anti-terrorism exercises that made the rounds of the Internets not long ago. and for some time now China has been an economic power not to be trifled with.

but, war isn't THAT imminent. as the human rights leaders of the world (well, before the Bush administration), we owe it to the rest to set an example. i'm not sure what the right answer is. at a minimum, President Bush should not be attending the opening ceremonies, and it should be deliberate and overt, as a protest against the broken promises of the Chinese government... but good luck getting that to happen. i don't know that i want to deprive our athletes of the opportunity to compete in the games - it only comes along once every four years, after all. maybe that is what it would take to get worldwide attention to the issue, and to get the Chinese government to feel something resembling shame. but would even that be enough, or is it already too late?

freedom isn't free

Rebecca MacKinnon has a great post today in response to a Silicon Valley conference she attended last week. the main observation of her post seems to me to be that Silicon Valley operates as a tenuous "benevolent dictatorship", and remains largely unaware of the massive legal and political regimes that might restrict their innovations and that many in Washington, D.C. spend sleepless nights worrying about. (she also expresses concern about the "benevolent" nature of the dictatorship - more on that later.) and she's absolutely right about the importance of this aspect of technological innovation. with apologies to Team America: World Police: freedom isn't free, it costs folks like you and me. i also agree with her implicit wish that engineers be aware of the fight that goes on in the policy sector, though i wouldn't say that i feel they should assist in it necessarily. they contribute through technological innovation, and others of us contribute in our own ways.

also, at the moment, the fight to preserve openness and innovation in the Internet is going pretty well. the strategy of private sector deployment of Internet access, checked by reasonable government regulation to protect openness and other consumer values, seems to be rolling along. the Commission is poised to put a check on Comcast's activities (see also here), even as Comcast enjoys tremendous growth. 2009 will (hopefully) show us the deployment of open-access wireless services on the 700 mhz spectrum.

we are starting to have a little breathing room, perhaps, so a few people are asking, what next? where do we go from here? Tim Wu has an op-ed in the New York Times today advocating that we pursue alternative sources of bandwidth just as we are pursuing alternative sources of energy. two of his suggestions are municipal wi-fi and buying/owning your own bandwidth (see, e.g., Derek Slater's post on the latter). i'm skeptical of both of these, though they're great ideas and i'm glad that they are part of the conversation. i have more faith in the third approach, encouraging competition among broadband providers. whether through spectrum (as Wu suggests) or scaling back the monopoly-use rights given to cable and fiber service operators, competition in high-speed Internet service provision has a great deal of potential, but we have to be careful with how we do it. rolling out wires is expensive, after all. and establishing reasonable interconnection charges have plagued the FCC's regulation of the phone network for decades (and have caused worse problems in Japan).

Rebecca MacKinnon's post alludes to another possible direction: looking within the Internet, at the application and service providers there. as she implies, many of us trust our current benevolent dictators, particularly Google and Apple. but scare stories are starting to appear - such as Google selectively releasing some versions of the Android SDK, or Apple persisting in holding iPhone developers to its NDA even though this impacts their ability to share information learned in the software development process and thus limits innovation. Richard Bennett has been trying hard to redirect the Net Neutrality debate away from internet service providers and towards Google. i don't know that i'm lying awake at night over Google yet, but, i'm keeping my eye on the blogs at the least.

there's a lot to think about, and a lot of work to do. as to where the 2009 focus will fall? we will have to see.

Blizzard's litigious ways

during my 1L summer (the summer between first and second year of law school), i had the great opportunity and pleasure to be a summer legal intern at the Electronic Frontier Foundation. one of the cases i helped with while i was there was the 8th Circuit Appeal of Davidson v. Universal Associates, better known as Blizzard v. BnetD. the case dealt with a group of amateur software developers who created a rival server to Blizzards -- which they called BnetD -- that allowed them to play the Blizzard game 'World of Warcraft' online, without using the official Blizzard server. their story was that Blizzard's official server was buggy and didn't have some features that they wanted, so they made their own. Blizzard doesn't charge for playing the game on their server, though they get some ad revenue for it, but that wasn't their issue with the developers. unlike Blizzard's official server, the unofficial BnetD server was unable to tell whether a copy of the World of Warcraft game was an official registered copy with a valid CD key, or was an illegal copy of the game. so Blizzard's theory was that the developers had created a server of their own so that they could play (and empower others to play) illegal copies of the games. they brought suit under the DMCA and under contract and copyright law, and they won.

i wrote about this case in one of my papers, a paper about the effects of cognitive framing. the case hinged on the interpretation of a very ambiguous technical term, "interoperability", contained within an ambiguous provision of a complex and largely unlitigated statute. the 8th Circuit's opinion distinguished the one and only relevant precedent, Lexmark v. Static Control Components, on fairly thin reasoning, and ruled (in my opinion, without much in the way of an explanation) that the activities of the developers exceeded the bounds of the DMCA interoperability exception and constituted a copyright violation. i thought the opinion showed signs of undue influence from cognitive framing activity in the briefs, so i wrote the whole thing up as one of my paper's key examples.

apparently Blizzard is active in the courts again - this time, challenging the developer of "WoWglider", a "bot" program that allows users to leave their characters running and continuing to accrue experience and gold even when the user is not at the computer. according to Sherwin Siy over at Public Knowledge, one of the legal theories raised by Blizzard was that the use of the World of Warcraft software in conjunction with the WoWglider program is not a valid use under the license terms for the WoW software, and that in the absence of permission under the license the minimal technical copying activities involved in operating the game constitute copyright infringement. (Ars Technica has a slightly reworded explanation of the same theory.) on motion for summary judgment, the trial court judge agreed with Blizzard in many respects, including Blizzard's copyright liability theory.

i'll leave the detailed analysis to others who are far more qualified, and take up a little bit more of your time to examine the policy issue. what do we, as a society, want to be the outcome of this case? Blizzard has a valid point: the use of the WoWglider software lessens the enjoyment of the system by legitimate game players, by making it harder for them to compete and advance in the game (certainly relatively speaking, but in MMORPGs, that can be an absolute statement as well). but Blizzard has every right to try, through technological means, to shut down the use of bots, or (even better) to try to detect them and identify the human users behind them, and ban them from the system. do they have the right to punish the developer of the software? do we want them to have that kind of control, reaching outside their domain and getting the law on their side? i am extraordinarily uncomfortable with that kind of power. what right do they have to interfere with how others choose to use the open tools of technology which they are given? they have the rights that we give to them through copyright. unfortunately, these rights and the laws that underpin them are being stretched to bizarre and unrecognizable levels to make sure that companies like Blizzard maintain as much control over their products as possible, even when the technology cannot support that control. why? is this in service of some hidden policy goal, one which is incredibly pro-business and anti-openness? is it the product of effective framing and litigation techniques (imposed on judges unfamiliar with the technological concepts at issue) by the well-funded industry lawyers?

i wish we knew. maybe then we could fix it.