Tim Wu, a brilliant scholar who combines an understanding of law, technology and economics to his writing, has written an incredibly important paper on wireless networks for the New America Wireless Future Program. You can download it here.

But Tim has done more than write a brilliant paper about why we need network attachment rules and network neutrality rules for wireless networks. He has — by accident or design — put his finger on the critical issue of public policy of our time. Do we regulate to increase public welfare, or do we only regulate to cure “market failure”?

What the paper is about, why it's important, and what the opposition to it tells about the state of public policy these days, below....

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The good folks at Saveaccess.org are trying to push members of the House Commerce Committee to press Martin on his order preempting local franchising authorities. You can read about Saveaccess.org's campaign here.

Public access is one of these very useful things that people take for granted, until its gone. I may not want to watch my local city council or local educational programming that often. But when I want it, I really appreciate it being there. Nothing on cable can replace PEG for local programming or “local C-Span” like coverage. We need to push hard to save it.

Stay tuned . . .

According to this story, FCC Chairman Kevin Martin told the Senate he has circulated a Notice of Proposed Rulemaking to classify broadband via wireless as an “information service.”

This might at first seem no big deal. After all, in the wake of the Brand X decision, the FCC has moved to declare broadband an “information service” for DSL and cable and, more recently, for broadband over power lines (BPL). So, while I may not be happy with using regulatory classifications to achieve back-door deregulation, what makes wireless services different?

The answer has to do with the peculiar way the Communiations Act works, and the physical reality that use of the electromagnetic spectrum really is different than laying a fiber line. True, “technological neutrality” is one of the great regulatory shibboleths these days, even if it does to reality what Yiphtach (Jeptha) did to the people of Ephriam. But the law and reality do matter sometimes. Like here.

I must give fair warning that the analysis below hinges on what will appear to non-lawyers an incredibly bizzare and artificial distinction with no apparent difference in immediate outcome. But among lawyers, this is like mistaking a Satmar Chassid for a Hesder bachur.

Some analysis below.
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Back in the summer the Federal Trade Commission (FTC) decided to get in on the Network Neutrality game. As I observed at the time, I'm skeptical the network neutrality will get a fair shake under FTC Chairman Majoris.

But, like the gambler who comes to the crooked poker den because “it's the only game in town,” you gotta show up to play even if you think the odds are stacked. So I and a number of other public interest folks and sympathetic academics will face off against a less-than-level playing field at the FTC's Broadband Task Force's Competition Policy Workshop on February 13 & 14.

Why I consider this playing field “less than level,” and why we will still kick butt, below . . .
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As regular readers know, I have no shame or restraint. So I am going to make a pitch for nomination for this University of Michigan Tech Writing Award. From the website:

Taking a cue from the open-source movement, we're asking readers to nominate their favorite tech-oriented articles, essays, and blog posts from 2006. The competition is open to any and every technology topic--biotech, information technology, gadgetry, tech policy, Silicon Valley, and software engineering are all fair game. But the ideal candidates will:

* be engagingly written for a mass audience;
* be no longer than 5,000 words;
* have been published between January and December, 2006.

The guest editor for The Best of Technology Writing 2007 will be Steven Levy. It will be published in fall 2007 by digitalculturebooks, a new imprint of the University of Michigan Press and Library, and available in print and online.

THE DEADLINE FOR NOMINATIONS IS FEBRUARY 11, 2007.

You can fill out the nominating form here. A list of my personal faves on technology (not including straight media policy) from 2006 below . . .
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Something I should have been clearer on but wasn't. The Audio Home Recording Act, by its terms of course, applies to audio recording not video recording a la Tivo.

My concern for PVRs and DVRs is one of extension. It is an unfortunate tendency in the law for bad law in one area to bleed over into other areas. The bad trademark law around domain names had impacts into trademark law and fair use generally, before the pendulum started to turn.

So while a decision about the applicability of AHRA to the “XM +MP3” service generally, I worry that the emphasis on subscription service v. free service and the nature of the functionalities does. It does not seem to me much of a leap to apply the analysis used in this case to cases applying the Sony standard, as interpreted in MGM v. Grokster.

But, on reflection, that was not at all obvious in my post, which appeared to say that AHRA applied to video recording services. Sorry for any confusion.

Stay tuned . . . .

[Update: I'm aware the Audio Home Recording Act does not apply to video recordings. See my more detailed update here]

It's an old cliche in Lawland that “hard cases make bad law.” To which I will now add: “and when you throw in clueless judges, the mix becomes positively toxic.”

Case in point, the recent decision by Judge Deborah Batts to deny XM Radio's motion to dismiss a lawsuit by the RIAA for copyright violation. This case turns on the rather difficult interplay between the sections of the Copyright Act that provide a license for satellite radio, the immunity granted to equipment manufacturers under the 1992 Audio Home Recording Act, and the nature of the service offered by XM. It doesn't help that, at the “motion to dismiss” phase, we gave the complainant (here the RIAA) the benefit of every doubt. To win, XM Radio would need to persuade Judge Batts that there is no set of provable facts under which the RIAA has a case.

Contrary to some of my colleagues (such as the eloquent and brilliant Art Brodsky in this post on the Public Knowledge website), I don't think this was a slam dunk for XM. I actually think there is a complicated legal question here that needs to go forward for further analysis. That's why I'm hiding over here on Sausage Factory for this one (if you check the Technorati rating for PK v. that for TotSF — you'll understand what I mean by “hiding”).

Unfortunately, the language of Judge Batts opinion has — IMO — really, really, really bollixed things up badly. It calls to mind the awful results driven analysis in Jews for Jesus v. Brodsky when judges didn't know squat about the internet and domain names, but sure knew they didn't like these evil “cybersquatters” and boy were they gonna show 'em a lesson! The devil with the actual law or understanding the technology — we got us a heapin' gavel of JUSTICE to whack you're ass!

Batts opinion reads rather the same way J4J did. She doesn't understand the technology and doesn't feel any need to do so. All that matters is that someone seems to be making money that she thinks should go to the music mafia instead, and by God is she gonna get 'em! So she fixes on the wrong details and creates potential havoc for the likes of Tivo or anyone else making a PVR integrated into a receiver that picks up a subscription video or audio service.

The real issue in the RIAA v. XM case, and where Batts goes horribly, tragically, gut-churningly wrong, below....
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O.K., it is probably a bad idea to make fun of people for doing stuff you want them to do. So when the FCC released a leased access complaint on January 29, I should probably have just applauded for joy. But given that it took three years to resolve a complaint when the cable company in question never even filed a reply to the complaint, I think a little mention of what is wrong with the current leased access rules, and the Commission's enforcement of same, is needed.

And I will pause to put in a genuinely good word for the New Media Chief Monica Shah Desai for getting this cranked out relatively quickly after she got there. Keep crackin' that whip!

But the decision also highlights everything I've been complaning about in the current leased access system so that even the people who want to make it work are having a heck of a time and why we need the leased access rulemaking that Martin promised Adelstein back in July.

Some analysis below . . . .
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