From prashant at nalsartech.org Wed May 3 12:30:00 2006 From: prashant at nalsartech.org (Prashant Iyengar) Date: Wed, 03 May 2006 12:30:00 +0530 Subject: [Commons-Law] ISSUE OF PRODUCT PATENTS TO BE BROUGHT DOWN TO 6 MONTHS Message-ID: <20060503123000.30oc61nrmvugwwg0@www.nalsartech.org> ISSUE OF PRODUCT PATENTS TO BE BROUGHT DOWN TO 6 MONTHS Source: The Hindu New Delhi,May 2:Dr Ajay Dua, Secretary, Department of Industrial Policy and Promotion, said that the minimum time limit to issue product patents would be brought down to six months from the present three years and the maximum period to six years from the current 12 years. ``The new rules will be notified within a day or two," he said. While speaking at a meeting organised by industry chamber FICCI, he said the Government would invest Rs 130 crore for modernisation of the patent office and to set up an Intellectual Property Management Institute in Delhi. Security concerns On the US demand for lifting of the FDI caps, Dr Dua said that India's own concerns would have to be examined. He cited the restrictions in the US on what foreigners can own based on security considerations. "Our regulations are also based on similar concerns of protecting domestic employment and national security," he pointed out. Speaking at the meeting, the US Under Secretary of Commerce for International Trade, Mr Franklin L. Lavin, advised India to lower agricultural tariffs, ensure governance that is free of corruption, a transparent and efficient legal system, a vibrant intellectual property rights (IPR) regime and fully open its retail sector to foreign investment. IPR protection Regarding IPR, Mr Lavin said India still does not have in place a TRIPS-consistent data exclusivity regime. "Many perceive an uneven enforcement of India's existing trademark and copyright laws. Indian consumers and businesses deserve the finest IPR protection around. India should be a global leader in pharmaceutical research and development. But until the IPR laws are world-class, research and development will take place elsewhere," he declared. MoA with FAA Mr Lavin further announced the opening of the first-ever Federal Aviation Administration (FAA) office in New Delhi that will enable the US to work with India through a philosophy of managed growth in aviation to ensure the highest level of safety and efficiency. He said, the Indian Government's signing of a Memorandum of Agreement with the FAA will pave the way for the FAA to work more closely with the Ministry of Civil Aviation to provide technical cooperation, which could include a wide range of activities for air traffic control and safety oversight as well as other types of training and assistance. Calls on Kamal Nath Mr Lavin, today also called on the Union Commerce and Industry Minister, Mr Kamal Nath, and discussed bilateral trade and investment possibilities. Both sides underlined the huge untapped potential to increase bilateral trade and investment. It was indicated at the meeting that an Infrastructure Summit for US investors would be organised in Mumbai by the Department of Industrial Policy & Promotion (DIPP) on November 29-30, back-to-back with the India Economic Summit of the World Economic Forum (WEF) and the Confederation of Indian Industry (CII). As a prelude to this, an event is also planned in Washington in June this year in collaboration with the US-India Business Council (USIBC). In a separate meeting with the Commerce Secretary, Mr S.N. Menon, the visiting US dignitary said that he would like to explore a round table on pharmaceuticals and a business mission under the aegis of Commercial Dialogue. © Copyright 2000 - 2006 The Hindu Business Line http://www.nalsartech.org/tikiwiki/tiki-read_article.php?articleId=13861 From karim at sarai.net Wed May 3 11:51:38 2006 From: karim at sarai.net (Aniruddha Shankar) Date: Wed, 03 May 2006 11:51:38 +0530 Subject: [Commons-Law] Nangla: Supreme Court stays demolitions Message-ID: <9F02518E-A8B6-4D84-BD42-56334D12BF25@sarai.net> On the 5th of April the High Court had ordered that the undemolished houses in Nanglamachi be "removed" without waiting for resettlement of the affected persons. During the last month the teachers and staff of the Ankur Society for Alternatives in Education and Cybermohalla practitioners have been working tirelessly to prevent the destruction of the homes that remain in Nangla. They have been collecting and verifying documentation, conducting interviews and have produced a substantial narrative that testifies to the fact that NanglaMachi has been settled for 25 years, and that the inhabitants of Nanglamachi came to Delhi to look for work. Apart from government documentation such as decades old Ration Cards, Below Poverty Line Certificates and Voter ID cards, a clear picture also emerges that Nangla was literally created by these people on top of a toxic fly ash swamp on the banks of the Yamuna decades ago. This narrative has been critical in the framing of a writ petition before the Supreme Court which, after laying out the background and context of the inhabitants of Nangla seeks to stop the impending demolitions. The petition draws on established law flowing from the Constitution, the decisions of the Supreme Court, international laws and covenants, natural justice and, critically, the established scheme of the Delhi State Government on the relocation of settlements such as Nangla that was framed with the approval of the Central Government. This scheme states that those who have established their homes before 31.01.1990 are entitled to an 18 sq.m. plot of land while those who have established their homes between 01.02.1990 and 31.12.1998 are entitled to a plot of 12.5 sq.m. The scheme states that the relocation would be partially financed by the relocatees who will pay a sum of Rs. 7,000/- before being allotted a site. The policy also states that the emphasis will not be on large scale relocations and that relocations will not take place without a specific use being envisaged for the site to be cleared. In my opinion, this is very important, as there is no clear statement from anyone setting out the purpose for which the land that Nangla stands on now will be used. The scheme states that the major emphasis will be on in-situ upgradation of the settlement, through widening of roads and alignment of plots and that the settlements would come under the Environmental Improvement in Urban Areas Scheme which looks at the provision of basic amenities and sanitation. This policy has been affirmed by the Supreme Court which has further stated that the land plots should be situated near adequate transport and other resources. The petition argues that the demolition of Nangla has taken place in complete contravention of these established practices and laws. In my opinion, this is an example of the Court exercising the administrative and executive functions that are the duty and right of the state, part of a larger process whereby the judiciary is "forced" to "step in" to "stem the rot". The petition claims that almost all residents of Nangla are fully covered by the extant scheme of the State government and that the order of removal ignores this fact. In an order granting interim relief to the petitioners, the Supreme Court has stayed the demolitions until the 9th of May, 2006. So a thin ray of hope for the Nanglamachi residents but to sound a note of caution, this is a very pivotal arena which we have now entered. An adverse decision by this court could affect the lives of hundreds of millions of people. Much hangs in the balance. Will keep you all posted. If anyone wants a copy of the order, the petition or the synopsis, please mail me. Aniruddha Shankar From seth.johnson at RealMeasures.dyndns.org Thu May 4 00:07:45 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Wed, 03 May 2006 14:37:45 -0400 Subject: [Commons-Law] EU Community Patent Policy Advancing? Message-ID: <4458F879.29A89512@RealMeasures.dyndns.org> (Many observe that this is a backdoor way to eliminating the present ban on software patents in Europe. -- Seth) > http://www.infoworld.com/article/06/05/03/78036_HNeupatentagreement_1.html?source=NLC-BUS2006-05-03 EU moves ahead on patent agreement Legislation would pave the way for a single patent court for the whole of the union By Paul Meller, IDG News Service May 03, 2006 The European Commission hinted Wednesday that some progress has been made toward forging a European Union patent agreement -- a wish by politicians across the Continent for more than three decades. Gunter Verheugen, vice president of the Commission, told journalists he was "slightly more optimistic" about breaking the deadlock that has thwarted efforts for an agreement. At the beginning of this year the Commission said it was making one final effort to push through legislation that would pave the way for one single patent system, with one litigation procedure involving a single patent court for the whole of the union. The last attempt was made in 2000 but member states squabbled over what languages the E.U. patent should be translated into and there has been gridlock ever since. In October 2000 some countries proposed an interim solution, dubbed the London Agreement, to break the deadlock over languages. The agreement would excuse countries with English, German or French as their official languages from having to translate patents at all. Other countries would have to issue their patents in the local language, plus one of the three official languages of the European Patent Office (EPO). France is the only country to have signed up to the London Agreement so far. Alain Pompidou, president of the EPO, who was attending the press conference with Verheugen, urged politicians to hurry up and ratify the London Agreement. "The London Agreement shows the way for the Community Patent, which we all want to see," Pompidou said. In January the Commission opened a three-month consultation period, seeking views from industry and the worlds of science and academia. The consultation finished at the end of last month and the Commission is examining the written responses it received. It will host a hearing in July to discuss the issues raised in the consultation. Verheugen said no date has been fixed for the ratification of the London Agreement yet. Despite expressing some optimism that it will happen he also warned that some countries in the union are contemplating breaking off from any multinational efforts. "Some countries want to roll back the responsibilities of the European Patent Office to national level," he said, adding that he is "concerned" to hear some countries consider such an idea. "Business needs more Europe in this regard, not less," he said. The EPO receives around 160,000 applications and awards patents to around 60,000 inventions each year. According to Pompidou, around half of the applicants come from outside Europe. Companies based in the U.S. apply for more patents than companies from any other country, followed by Germany, Pompidou said. From seth.johnson at RealMeasures.dyndns.org Thu May 4 06:23:23 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Wed, 03 May 2006 20:53:23 -0400 Subject: [Commons-Law] ArsTechnica: XCasting Treaty Blocks Freedoms Message-ID: <44595083.9FB98C3E@RealMeasures.dyndns.org> > http://arstechnica.com/news.ars/post/20060503-6742.html UN Broadcasting Treaty seen as severely limiting essential freedoms 5/3/2006 4:04:20 PM, by Anders Bylund (anders at arstechnica.com ) A remarkably unacceptable treaty proposal is currently being pushed through the U.N. World Intellectual Property Organization's Standing Committee on Copyright and Related Rights, seemingly concieved by the RIAA and MPAA and backed by traditional old-line media businesses (http://arstechnica.com/news.ars/post/20060222-6237.html). The Broadcasting Treaty, currently undergoing review at a UN convention in Geneva, Switzerland, contains passages that would severely restrict the concepts of fair use (http://arstechnica.com/news.ars/post/20060121-6025.html) and freedom of speech—on a global level. IP Watch has an excellent overview of the issues (http://www.ip-watch.org/weblog/index.php?p=286&res=1024_ff&print=0): The proposed broadcasting treaty would create entirely new global rights for broadcasting companies who have neither created nor own the programming. What's even more alarming is the proposal from the United States that the treaty regulate the Internet transmission of audio and video entertainment. It is dangerous and inappropriate for an unelected international treaty body to undertake the task of creating entirely new rights, which currently exist in no national law, such as webcasting rights and anti-circumvention laws related to broadcasting. A global treaty is not the place for experimentation with new rights, but rather for the harmonization of existing legal norms. WIPO treads on shaky ground by proposing to create new rights that no elected body in the world has yet agreed to. Under the treaty, broadcasters such as cable companies, radio stations, and Webcasting operators would essentially take over the rights to control material broadcast over the Internet (http://observer.guardian.co.uk/business/story/0,6903,1237374,00.html), to the point where the original content creator would have to "beg permission from broadcasting companies in order to make any use of their own performances." If you don't think you should care about a measure like this, consider the effects it could have on freedoms we take for granted today in the US: For example, if US President Bush gave an interview to Fox News, Fox could prevent any subsequent use of that footage including fair use, commentary, or criticism of President Bush - at its sole discretion - under the new anti-circumvention rights created by this treaty. Much of the political humor available on Comedy Central's "The Jon Stewart Show" could become illegal under this treaty. In addition, countries signed to the agreement would have to enforce the implementation of DRM shackles (http://arstechnica.com/news.ars/post/20051227-5852.html) akin to the proposed Broadcast Flag (http://arstechnica.com/news.ars/post/20060303-6310.html), harsh enough that even Intel objects (http://drn.okfn.org/node/118). Because you can never protect your pilfered ownership rights too much, you know. Unsurprisingly, the EFF has voiced its opposition to the proposal (http://www.eff.org/deeplinks/archives/004619.php): As we've noted elsewhere, EFF believes that these new rights will stifle innovation, create a new layer of liability for Internet intermediaries, impair consumers' existing rights, restrict the public's access to knowledge and culture, and change the nature of the Internet as a communication medium. Many of these concerns could be addressed by limiting the scope of the treaty to its intended purpose—signal theft. Unfortunately the new draft doesn't remove any of our concerns, but only deepens them. It's disturbing how often it happens that innocuous or even positive legal drafts get additional and often quite scary addendums tacked on along the way toward final approval. And opposing views seem to have a tendency to be overlooked, ignored, or pushed aside. In this case, a majority of the UN member states have already rejected the Webcasting inclusions, but that hasn't stopped the current draft of the main document from retaining that language. Instead, many of the proposed changes that would lead to lesser broadcaster controls and better protection of basic freedoms have been thrown out or relegated to a separate document (http://arstechnica.com/news.ars/post/20051102-5517.html). "Core" parts of the proposal form the Draft Basic Proposal, while "alternatives" make up the Draft Working Paper, where parties to the treaty are free to opt out of individual clauses. Several countries have complained about their voices not being heard in this process, and after this week's discussions, the draft most likely goes on to receive the official stamp of approval. Is the whole world really that eager to protect the interests of big, established media to the detriment of independent expression? From seth.johnson at RealMeasures.dyndns.org Thu May 4 15:52:22 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 04 May 2006 06:22:22 -0400 Subject: [Commons-Law] VoIP/CALEA: EFF, Others Call for Reversal of FCC CALEA Expansion for VoIP Message-ID: <4459D5DE.4AD04D37@RealMeasures.dyndns.org> > http://www.eff.org/deeplinks/archives/004624.php May 03, 2006 EFF Urges Reversal of FCC's Forcing Internet Services To Be Wiretap-Friendly On May 5, the DC Circuit Court of Appeals will hear oral arguments in a suit brought by EFF and a coalition of public interest, industry, and academic groups challenging the FCC's unjustified expansion of the Communications Assistance for Law Enforcement Act (CALEA) (http://www.eff.org/Privacy/Surveillance/CALEA/). By forcing broadband Internet and interconnected voice over Internet Protocol (VoIP) services to become wiretap-friendly, the FCC ignored CALEA's plain language and threatened privacy, security, and innovation. When Congress controversially passed CALEA in 1994 and gave the FCC powers to mandate backdoors in traditional telephony systems, it expressly exempted "information services" such as the Internet. Yet after a petition from the FBI and other federal law enforcement agencies, the FCC ruled last year that companies like Vonage and private institutions that provide Net access must redesign their networks to facilitate wiretaps. On Wednesday, the FCC announced that these service providers would have to foot the bill -- an estimated $7 billion dollars for the universities alone (http://news.com.com/FCC+approves+Net-wiretapping+taxes/2100-1028_3-6067971.html?tag=nefd.lede). The FCC completely failed to give the law enforcement petitions the "hard look" that the public deserves when massive government surveillance proposals are on the table. While the FCC's unfunded tech mandate will undoubtedly harm the public, the government made no showing that there was any need to extend CALEA to Internet services at all. Indeed, just this past Monday, the Administrative Office of the U.S. Courts issued its annual wiretap report -- which revealed that only 8 court orders for Internet wiretaps were issued in 2005, down from 12 orders in each of the years 2003 and 2004 -- and the report contains no indication that law enforcement had any problems in conducting these electronic surveillances. Petitioners in American Council on Education v. FCC include the American Library Association, the Center for Democracy and Technology, Electronic Privacy Information Center, EDUCAUSE, Pulver.com, and Sun Microsystems. Read the petitioners' opening and reply briefs here (http://www.eff.org/Privacy/Surveillance/CALEA/20060126ace-opening-brief.pdf) (http://www.eff.org/Privacy/Surveillance/CALEA/20060314calea.pdf). Posted by Derek Slater at 04:27 PM | CALEA (http://www.eff.org/deeplinks/archives/cat_calea.php) | Permalink (http://www.eff.org/deeplinks/archives/004624.php) | Technorati (http://www.technorati.com/search/www.eff.org%2Fdeeplinks%2Farchives%2F004624.php) From seth.johnson at RealMeasures.dyndns.org Thu May 4 18:24:25 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 04 May 2006 08:54:25 -0400 Subject: [Commons-Law] Love: WIPO Carves up Internet (and Broadcast Spectrum) Message-ID: <4459F981.A5D492D3@RealMeasures.dyndns.org> -------- Original Message -------- Subject: [Random-bits] WIPO carves up the Internet (and the broadcast spectrum) Date: Thu, 4 May 2006 08:27:05 -0400 From: James Love To: random-bits at lists.essential.org,a2k discuss list > http://www.huffingtonpost.com/james-love/wipo-carves-up-the-intern_b_20336.html WIPO carves up the Internet (and the broadcast spectrum) May 4, 2006 James Love Don't bother reading this unless the words "new intellectual property right" and "the Internet" seem important when put together, because it is a twisted and complicated story. Even the key players are struggling to figure out what is going on. But like a lot of twisted and complicated things, it is important. The World Intellectual Property Organization (WIPO) is a specialized UN agency, headquartered in Geneva, Switzerland. This week it is holding a contentious five-day negotiation on a new Treaty, the purpose of which is to provide a new "protection" for "broadcasting and webcasting organizations." What does this mean? WIPO is debating whether or not to create a new intellectual property right in information that is distributed over television, radio, cable television, or through any wired or wireless computer network, including the Internet. This is something different from copyright. Indeed, it is designed to benefit people who cannot get a copyright, because a work belongs to someone else (the person or group that created it), or because the information is in the public domain. The new right is not a "copyright," but a "broadcaster" or "webcaster" right. It is a bad idea when applied to television or radio, but a disaster if applied to the Internet. In different ways, the US and the EU both think they can use this right to extract money for simply distributing information over the Internet into foreign markets. The right comes at the expense of consumers and copyright owners -- benefiting the distributors of information. It might be called the "middleman right." This has attracted a large group of corporate lobbyists who want to see their clients named as beneficiaries of the treaty. It works like this. If the owner of a broadcasters or webcaster publishes anything, they get an ownership right in the information, equal to the rights of copyright owner, so before you could make a copy, share or reuse the information in any way, you would have to get permissions from both the copyright owner and distributor of the work. This is supposed to "protect" the "caster" for its investments in broadcasting or webcasting. The meetings at WIPO are chaired by a very strong advocate of high levels of intellectual property rights, Jukka Liedes, from Finland. The European Union, the United States Government and several other governments want this new right to last 50 years, beginning each time information is republished. This new right only applies to copies of the works distributed by the "casting" organization, so if you can get a copy from another source, it would not apply, something that would not be a problem if the work was a Hollywood film or music recording widely available elsewhere in DVD or CD formats. But for a number of other works, there just won't be any practical or cost effective way of getting a copy from another source. (Which makes the "casting" right so valuable). Why is this such a big deal, and particularly for the Internet? First, there are lots of important works that are not protected by copyright, including events of high public interest such as presidential speeches, recordings of US Supreme Court debates, recordings of meetings and telephone calls by several US presidents, and some Congressional hearings. And, there are far more works that are technically protected by copyright, but which are in practice freely available, because the owners of the work want to share it widely, or do not choose to enforce restrictions on how a work is reused. Web pages are full of documents, sound recordings and video that are licensed under Creative Commons licenses, or simply passed around informally. Information on the Internet often is republished on many different web sites, each reaching its own communities. This is exploding at an astonishing rate as the costs of making and hosting works falls. Within a short time, anyone will be able to create a webcast from a mobile phone, and create records of meetings of all types, news events, performances, interviews, or any number of other events. Increasingly, people are using these works to create newer works, in documentaries, news reports and commentary, or cultural or technical works that remix or mashup content. Grid Computing and other emerging technologies are creating astonishingly creative and important ways of collaborating. Copyright alone presents huge problems for the distribution of and creation of these new Internet based works. But a new intellectual property right for webcasting will make things even more difficult, at least doubling the permissions one needs. At a minimum it will increase transaction costs. At worst, it will change the culture of sharing information on the Internet, with some exercising as many rent seeking rights as they can acquire. Who is pushing for this new "webcasting" middleman right? It is not the vast majority of bloggers, web page owners and others who are creating and distributing content. It is a tiny handful of big corporate players, including most notably US companies like Yahoo, News Corp (owner of MySpace), Microsoft, Time-Warner/AOL, AT&T, and a handful of large European media companies, including it seems, the BBC. Yahoo and others see themselves as aggregators and distributors of a wide varieties of audio visual works created by others, including music performances and films from all over the world. Under the most aggressive proposals debated this week, the Webcasting right will make Yahoo a part owner in everything they "webcast," and potentially give them the right to claim things like fees from cyber-cafes, community Wifi networks, schools and educational institutions, even when works are in the public domain or are freely licensed under creative commons type licenses, as well as a number of other situations. This comes at the expense of both the copyright owners and consumers. The Broadcast/webcast right, if defined too broadly, as some here want, also allows the broadcaster/webcasters to compete against the copyright owners in downstream commercialization of works, which is another reason why it makes copyright owners unhappy. The US and the EU are split on who should be the beneficiaries of this new right. The EU, lead by copyright chief Tilman Lueder, who formerly worked on competition issues, wants to restrict this new webcasting right to the incumbent broadcasting organizations, like BBC, so that only they would be able to claim the layer of rights, and not new competitors, even though they are both operating on the Internet. The US, led by Library of Congress lawyer Jule Sigall, wants to extend this new right to companies like Yahoo, News Corporation, Microsoft, Time-Warner or AT&T, but not to "bloggers or people who just maintain web pages." Right now the treaty definitions extend to pretty much any legal entity that creates a web page. During discussions with the US delegation, I actually created a webcasting site webcastingexample.blogspot.com, to show how trivial it was to get the 50 years of exclusive rights over copies of Congressional testimonies involving Avian Flu. About eighty-percent of the push for this is coming from the United States, about 19 percent from the European Union, and about 1 percent from other countries. No one who is pushing these treaties can explain why anyone who would get the right actually needs it in the first place, and there is no assessment of how this will impact copyright owners, consumers or creative communities and innovative businesses. WHERE DID THIS COME FROM? The original basis for this right is a 45 year-old treaty called the Rome Convention on the protection of performers, producers of phonograms and broadcasting organizations. The Rome Convention is now signed by 83 countries, but not by more than 100 other countries, including the United States. Every country, including the United States, gives some types of rights to performers (actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works) or producers of sound recordings, but the US and many other countries did not create a special right for broadcasters. The Rome Broadcasting Right is considered the weakest and most controversial component of the Rome Convention. Broadcasters typically rely upon free public spectrum, are hugely profitable, and do not need any additional incentives to broadcast. As Jamie Boyle has pointed out, the US never accepted this right, and we have a huge and highly profitable broadcast sector. (Dito for the cable TV industry). Basically, the Rome Broadcaster right is a 45 year old mistake. But like many other intellectual property treaties, it is extremely difficult to roll back unnecessary or restrictive IP rights. The US based National Association of Broadcasters (NAB) lead by lobbyist Ben Ivins, had pushed for years for WIPO to "update" the 1961 Rome Convention to expand the Broadcaster rights, extend the term (from 20 to 50 years), and add a number of other things. Even though NAB is pushing a European style approach, the USPTO and US Library of Congress has strongly backed a new treaty, extending European legal norms. Because broadcasters worldwide play an important role in shaping public views on politicians, they have extraordinary political power. Yahoo, now led by Terry Stempel, a former Hollywood executive, pushed to include Webcasters in the treaty, with full parity rights of the Broadcasters through the trade association DiMA and a number of private lobbyists. Seth Greenstein, a DC-based lobbyist, said he wrote the key sections of the current treaty that extended the Rome rights to webcasting organizations. Lobbyist Jonathan Band has been downplaying the importance of the treaty to the technology and library communities, despite its close parallels to a new intellectual property right for databases, which he opposes on behalf of other clients. DEBATE OVER SCOPE OF RIGHTS There is a deeply divided debate at WIPO over the scope of rights associated with the Broadcaster or Webcasting organizations. The European Union and some other countries are pushing very strong ROME+ rights in the treaty. A growing fraction on the other side, are pushing for a very thin layer of protection that is really only useful in protecting against piracy of a broadcast/webcast, but does not create an ownership right in the work. At this meeting Jule Sigal of the US Library of Congress has moved toward the signal protection only approach, supported by most NGOs, copyright owners and many developing countries. This was a long overdue and welcome development that has enraged the NAB. It is uncertain how this debate will play out, given the strong position of the European Union to promote its much different approach, and the very difficult problem of lower global treaty norms for intellectual property protection. (See memo below). LITTLE VIABILITY IN US If you don't know about the Treaty, it is because there has not been a single story about it in the New York Times or Wall Street Journal, and I think only two stories in the Washington Post, the most recent of which ran last year, and one in the New York Herald Tribune, which few people in the United States read. The computer trade journals have written very little about it either. The USPTO and Library of Congress have rejected numerous requests to issue formal requests for comment the treaty, and have scheduled no public meetings on the treaty. The US Congress has not held any hearings on the treaty. When the National Academies held a recent 5- hour public event about the meeting, not a single member of the US negotiating team attended. Ironically, it was a webcast of the National Academies event that has created more resistance. Key Intel officials listened to the National Academies event, and decided to oppose it. This has been a wake-up call for many in the technology community. Some big firms are siding with Intel, that the whole treaty poses a number of problems and should be opposed. Others, like AT&T, are trying to ensure they get the new webcasting rights. We have told technology companies, including Yahoo, Myspace, AT&T, Google, and others, that it is short sighted to see this new right as something that will only benefit them as publishers. There is enormous value in sites like Yahoo, Google, Myspace, Blogspot and millions of other large and small web pages, blogs etc, which flourishes because of the relative freedom that exists on the Internet. New regulations, restrictions and costs of sharing of information will shrink this value. In the developing countries, there is strong opposition to the expansion of the Rome broadcaster right to the Internet. They correctly see this as something that will increase transaction costs and prices, harm access to knowledge, and undermine the rights of their own copyright owners in the works distributed over the Internet. A larger and growing number of non-profit groups like CPTech, EFF, Public Knowledge, Consumers International, Consumers Union, (non-US) library groups (like IFLA, eIFL), IP-Justice, TWN, the Open Knowledge Foundation, Union the for Public Domain, and other "A2K" groups are playing a very important role in opposing the treaty. With the exceptions of James Boyle at Duke and Jennifer Urban at USC, US academics have not expressed interest in the treaty so far.... we are hoping that will change. -----Original Message----- From: James Love To: Lee Knife (DIMA), Bradley Silver (TimeWarner), Sarah Deutsch (Verizon), Fritz Attaway (MPAA); Ben Ivins (NAB), Biddle, Brad (Intel); David Fares (NewsCorp), Gwen Hinze (EFF), Jason Pielemeier (Yale ISP), J Mago (NAB), Kevin Rupy (USTelecom), Marily Cade (AT&T), Manon Ress (CPTech), Matt Schruers (CCIA), Peha (IP Justice), Thiru (CPTech), Winston Tabb (IFLA), Sent: Tue May 02, 2006 Subject: Inclusion of webcasting or other services in Treaty I think should offer some comments on the CPTech position on the inclusion of webcasting or other Internet services in the Treaty. 1. If the treaty was only about some theft of service, and did not involve an intellectual property right for transmitting/disseminating/ publishing information, then we would not care much what services are included. But of course, the treaty does contain IP rights, and so we do care, a lot. So do a lot of others, including copyright owners and developing country delegates. 2. There is very little chance that this treaty will be adopted without Rome type rights, or even Rome+ rights, for the following reasons. First, 83 countries have signed the Rome, and many already have in domestic law Rome+ rights, including most countries in Europe, and it would be hard for many of these countries to support something that lowers the global norms on rights substantially. Second, the TRIPS already has some IP protection for broadcasters, particularly for those who use the related rights approach, and you won't change this. Third, NAB and other broadcasters organizations would oppose a treaty that does not have Rome+ rights, since it would make them worse off than the Rome, which they already have. 3. NAB wants Rome+. DIMA want parity with whatever broadcasters get. That leads to an import of Rome type rights into the Internet. If you say you like parity for the Internet, what you are saying in practical terms is that the Internet should have Rome type rights. We are very opposed to this, and for that reason, we are willing to say that parity is a bad idea, and will harm the Internet, and harm copyright owners. I really don't think it is even good for DIMA members, but that's a different issue. 4. In terms of efforts by some to actually expand the definitions of webcating to include more and more services on the Internet, it just makes the whole treaty even worse for those who hate the Rome approach, and it isn't just me you have to consider. Anyone listening to the debate should appreciate how much resistance there is to ANY inclusion of webcasting, let along the even broader definitions that pick up other services. 5. Our position is that the US delegate should defend US norms, which include no protection for webcasting, and no ROME or ROME+ rights. (why not address webcasting issue in USA before demanding a global treaty). One way to do this is to kill this treaty, which the US could easily do, since it is the main demander for it. The SCCR could work on other issues..... like a global norm for minimum limitations and exceptions for persons living with disabilities, libraries, distance education etc, which has already been proposed by Chile, and which would be welcomed by developing countries, and would be consistent with US copyright traditions. It could revisit the webcasting issue later after US law is more mature on this issue, and more is known about the technology. 6. Another possible thing to consider is something that would solve the very real problems facing non-USA sports broadcasters. This we could support, as we have indicated many times. 7. All the talk about piracy in relationship to broadcasting has been mostly for public relations. Piracy is already illegal under lots of different laws, including copyright law. WIPO could work on some best practices models for countries to plug in some of the small gaps in some broadcasting regimes, without even worrying about a treaty on this. And if piracy was a big problem, then NAB and other broadcasters could have a signal theft only treaty in 5 minutes, but they don't really want one. 8. A final note about the Internet. The Internet probably never would have existed had it been regulated like broadcasters, because lobbyists would have fought to control every new idea and technology. I don't think the lack of regulatory parity for the Internet was a bad thing. Jamie --------------------------------- James Love, CPTech / www.cptech.org / mailto:james.love at cptech.org / tel. +1.202.332.2670 / mobile +1.202.361.3040 "If everyone thinks the same: No one thinks." Bill Walton _______________________________________________ Random-bits mailing list Random-bits at lists.essential.org http://lists.essential.org/mailman/listinfo/random-bits From venkyh at gmail.com Fri May 5 10:12:21 2006 From: venkyh at gmail.com (Venkatesh Hariharan) Date: Fri, 5 May 2006 10:12:21 +0530 Subject: [Commons-Law] The U.S. Patent Game: How to Change It Message-ID: <3f400ec0605042142r4ace60ddr983536f9cb3e3930@mail.gmail.com> http://hbswk.hbs.edu/item.jhtml?id=4548&t=finance > Innovators and society are paying too high a price in the current patent > system, says a new book by Adam B. Jaffe and Harvard Business School's Josh > Lerner. A book excerpt and Q&A with Lerner. > > by Ann Cullen > > When lawyers fare better than inventors and entrepreneurs where U.S. > patents are concerned, you know injustice is being done. The current system > makes patents easier to acquire, sure, but renders them less prestigious as > well, and less likely to attract valuable financing. In addition, older > firms that are feeling threatened have learned how to bully younger > upstarts by wielding licenses and patent law like a weapon. It certainly > doesn't encourage the spirit of innovation, does it? From seth.johnson at RealMeasures.dyndns.org Sun May 7 22:27:19 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Sun, 07 May 2006 12:57:19 -0400 Subject: [Commons-Law] Berners-Lee: Neutrality of the Net Message-ID: <445E26EF.75412352@RealMeasures.dyndns.org> > http://dig.csail.mit.edu/breadcrumbs/node/132 Neutrality of the Net Submitted by timbl on Tue, 2006-05-02 15:22. This is an international issue. In some countries it is addressed better than others. (In France, for example, I understand that the layers are separated, and my colleague in Paris attributes getting 24Mb/s net, a phone with free international dialing and digital TV for 30euros/month to the resulting competition.) In the US, there have been threats to the concept, and a wide discussion about what to do. That is why, though I have written and spoken on this many times, I blog about it now. Twenty-seven years ago, the inventors of the Internet[1] designed an architecture[2] which was simple and general. Any computer could send a packet to any other computer. The network did not look inside packets. It is the cleanness of that design, and the strict independence of the layers, which allowed the Internet to grow and be useful. It allowed the hardware and transmission technology supporting the Internet to evolve through a thousandfold increase in speed, yet still run the same applications. It allowed new Internet applications to be introduced and to evolve independently. When, seventeen years ago, I designed the Web, I did not have to ask anyone's permission. [3]. The new application rolled out over the existing Internet without modifying it. I tried then, and many people still work very hard still, to make the Web technology, in turn, a universal, neutral, platform. It must not discriminate against particular hardware, software, underlying network, language, culture, disability, or against particular types of data. Anyone can build a new application on the Web, without asking me, or Vint Cerf, or their ISP, or their cable company, or their operating system provider, or their government, or their hardware vendor. It is of the utmost importance that, if I connect to the Internet, and you connect to the Internet, that we can then run any Internet application we want, without discrimination as to who we are or what we are doing. We pay for connection to the Net as though it were a cloud which magically delivers our packets. We may pay for a higher or a lower quality of service. We may pay for a service which has the characteristics of being good for video, or quality audio. But we each pay to connect to the Net, but no one can pay for exclusive access to me. When I was a child, I was impressed by the fact that the installation fee for a telephone was everywhere the same in the UK, whether you lived in a city or on a mountain, just as the same stamp would get a letter to either place. To actually design legislation which allows creative interconnections between different service providers, but ensures neutrality of the Net as a whole may be a difficult task. It is a very important one. The US should do it now, and, if it turns out to be the only way, be as draconian as to require financial isolation between IP providers and businesses in other layers. The Internet is increasingly becoming the dominant medium binding us. The neutral communications medium is essential to our society. It is the basis of a fair competitive market economy. It is the basis of democracy, by which a community should decide what to do. It is the basis of science, by which humankind should decide what is true. Let us protect the neutrality of the net. 1. Vint Cerf, Bob Kahn and colleagues 2. TCP and IP 3. I did have to ask for port 80 for HTTP From skjha at iitb.ac.in Mon May 8 18:50:52 2006 From: skjha at iitb.ac.in (Shishir K Jha) Date: Mon, 8 May 2006 18:50:52 +0530 (IST) Subject: [Commons-Law] New RIAA/MPAA "Customary Historic Use" Plan Message-ID: <2494.10.127.133.110.1147094452.squirrel@gpo.iitb.ac.in> I am not sure if it has been posted before. Shishir K. Jha -------------------------------------------------------- All, "Ars Technica is reporting that the EFF has dug up plans by the RIAA/MPAA to stifle the consumer electronics market by replacing it's "fair use" policy with something called "Customary Historic Use". This new policy would effectively keep anyone from inventing any new type of media device without the RIAA/MPAA's say-so." and http://arstechnica.com/news.ars/post/20060121-6025.html Regards, -- Jeffrey A. Williams From seth.johnson at RealMeasures.dyndns.org Thu May 4 15:36:22 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 04 May 2006 06:06:22 -0400 Subject: [Commons-Law] Strong Copyright + "DRM" + Weak Net Neutrality = Digital Dystopia? Message-ID: <4459D21E.F85B240A@RealMeasures.dyndns.org> (PDF text attached. -- Seth) -------- Original Message -------- Subject: "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?"Preprint Date: Wed, 03 May 2006 13:46:38 -0500 From: "Charles W. Bailey, Jr." To: ACRL Scholarly Communication T.F. A preprint of my "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper is now available. http://www.digital-scholarship.com/cwb/DigitalDystopia.pdf It will appear in Information Technology and Libraries 25, no. 3 (2006). This quote from the paper's conclusion sums it up: What this paper has said is simply this: three issues--a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality--bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-toted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past. For those who want a longer preview of the paper, here's the introduction: Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers. Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology. It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," and there are many other visions of possible future Internet advances. When did this metamorphosis begin? It depends on who you ask. Let's say the late 1980's, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred. In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital. Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary. High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn't, they hold the copyrights to a significant chunk of our cultural heritage. Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper--and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so. The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works. This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works. A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or object-access levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it. The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn't. One type of content was not blocked (at least by the network) while another wasn't. In recent years, "network neutrality" has come under attack. The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it's outcome will determine what the future of digital culture looks like. -- Best Regards, Charles Charles W. Bailey, Jr., Assistant Dean for Digital Library Planning and Development, University of Houston Libraries E-Mail: cbailey at digital-scholarship.com Publications: http://www.digital-scholarship.com/ (Provides access to DigitalKoans, Open Access Bibliography, Open Access Webliography, Scholarly Electronic Publishing Bibliography, Scholarly Electronic Publishing Weblog, and others) -------------- next part -------------- Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia? By Charles W. Bailey, Jr. Preprint 5/2/06 Introduction Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers. Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology. It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity,"1 and there are many other visions of possible future Internet advances. When did this metamorphosis begin? It depends on who you ask. Let's say the late 1980's, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred. In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital. Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary. High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn't, they hold the copyrights to a significant chunk of our cultural heritage. Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper.and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so. The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works. This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works. A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or objectaccess levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it. The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn't. One type of content was not blocked (at least by the network) while another wasn't. In recent years, "network neutrality" has come under attack. The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it's outcome will determine what the future of digital culture looks like. Stronger Copyright: 1790 vs. 2006 Copyright law is a complex topic. It's not my intention to provide a full copyright primer here. (Indeed, I will assume that the reader understands some copyright basics, such as the notion that facts and ideas are not covered by copyright.) Rather, my aim is to highlight some key factors about how and why U.S. copyright law has evolved and how it relates to the digital problem at hand. Three authors (Lawrence Lessig, Professor of Law at the Stanford Law School; Jessica Litman, Professor of Law at the Wayne State University Law School; and Siva Vaidhyanathan, Assistant Professor in the Department of Culture and Communication at New York University) have done brilliant and extensive work in this area, and the following synopsis is primarily based on their contributions. I heartily recommend that you read the cited works in full. 1. The purpose of copyright: Let's start with the basis of U.S. copyright law, the Constitution's "Progress Clause": "Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."2 Copyright was a bargain: society would grant creators a time-limited ability to control and profit from their works before they fell into the public domain (where works are unprotected) because doing so resulted in "Progress of Science and useful Arts" (a social good). Regarding the Progress Clause, Lessig notes: It does not say Congress has the power to grant "creative property rights." It says that Congress has the power to promote progress. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors.3 However, entertainment and information companies can have a far different view, as illustrated by this quote from Jack Valenti, former president of the Motion Picture Association of America: "Creative property owners must be accorded the same rights and protections resident in all other property owners in the nation."4 2. Types of works covered: When the Copyright Act of 1790 was enacted, it protected published books, maps, and charts written by living U.S. authors as well as unpublished manuscripts by them.5 The Act gave the author the exclusive right to "print, reprint, publish, or vend" these works. Now, copyright protects a wide range of published and unpublished "original works of authorship" that are "fixed in a tangible medium of expression" without regard for "the nationality or domicile of the author," including "1. literary works; 2. musical works, including any accompanying words; 3. dramatic works, including any accompanying music; 4. pantomimes and choreographic works; 5. pictorial, graphic, and sculptural works; 6. motion pictures and other audiovisual works; 7. sound recordings; 8. architectural works."6 3. Rights: In contrast to the limited print publishing rights inherent in the Copyright Act of 1790, current law grants copyright owners the following rights (especially notable is the addition of control over derivative works, such as a play based on a novel or a translation): • To reproduce the work in copies or phonorecords; • To prepare derivative works based upon the work; • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.7 4. Duration: The Copyright Act of 1790 granted authors a term of 14 years, with one renewal if the author was still living (28 years total).8 Now, the situation is much more complex, and, rather than trying to review the details, I'll provide the following example. For a personal author who produced a work on or after 1/1/78, it is covered for the life of the author plus 70 years.9 So, assuming a male author lives on average 74 years, 144 years, which is approximately 116 years longer than in 1790. 5. Registration: Registration was required by the Copyright Act of 1790, but very few eligible works were registered from 1790-1800, which enriched the public domain.10 Now, registration is not required, and no work enriches the public domain until its term is over, even if the author (or the author's descendants) have no interest in the work being under copyright or it is impossible to locate the copyright holder to gain permission to use his or her works (creating so-called "orphan works"). 6. Drafting of legislation: By 1901, copyright law had become fairly esoteric and complex, and drafting new copyright legislation had become increasingly difficult. Consequently, Congress adopted a new strategy: let those whose commercial interests were directly affected by copyright law deliberate and negotiate with each other about copyright law changes, and use the results of this process as the basis of new legislation.11 Over time, this increasingly became a dialog among representatives of entertainment, high-tech, information, and telecommunications companies; other parties, such as library associations; and rights holder groups (e.g., ASCAP). Since these parties often had competing interests, the negotiations were frequently contentious and lengthy, and the resulting laws created a kind of crazy quit of specific exceptions for the deals made during these sessions to the ever expanding control over intellectual works that copyright reform generally engendered. Since the public was not at the table, its highly diverse interests were not directly represented, and, since stakeholder industries lobby Congress and the public doesn't, the public's interests were often not well served. (There were some efforts by special interest groups to represent the public on narrowly focused issues.) 7. Frequency of copyright term legislation: With remarkable constraint, Congress enacted one copyright bill that extended the copyright term in its first hundred years and one in the next 50; however, starting in 1962, it passed 11 bills in the next 40 years.12 Famously, Jack Valenti once proposed that copyright "last forever less one day."13 By continually extending copyright terms in a serial fashion, Congress may grant him his wish. 8. Licenses: In 1790, copyrighted works were sold and owned. Today, many digital works are licensed. Licenses usually fall under state contract law rather than federal copyright law.14 Licensed works are not owned, and the first sale doctrine is not in effect.15 While copyright is the legal foundation of licenses (i.e., works can be licensed because licensors own the copyright to those works), licenses are contracts, and contract provisions trump user-favorable copyright provisions, such as fair use, if the licensor chooses to negate them in a license. 9. Criminal and civil penalties: In 1790, there were civil penalties for copyright infringement (e.g., statutory fines of "50 cents per sheet found in the infringer's possession").16 Now, there are criminal copyright penalties, including felony violations that can result in a maximum of five years of imprisonment and fines as high as $250,000 for first-time offenders; civil statutory fines that can range as high as $150,000 per infringement (if infringement is "willful"), and other penalties.17 Once the copyright implications of digital media and the Internet sunk in, entertainment and information companies were deeply concerned: digital technologies made creating perfect copies effortless, and the Internet provided a free (or low-cost) way to distribute content globally. Congress, primarily spurred on by entertainment companies, passed several laws aimed at curtailing perceived digital "theft" through criminal penalties. Under the 1997 No Electronic Theft (NET) Act, copyright infringers face "up to 3 years in prison and/or $250,000 fines," even for noncommercial infringement.18 Under the 1998 Digital Millennium Copyright Act (DMCA), those who defeat technological mechanisms that control access to copyrighted works (a process called "circumvention") face a maximum of five years in prison and $500,000 in fines.19 10. Effect of copyright on average citizens: In 1790, copyright law had little effect on citizens. The average person was not an author or publisher, private use of copyrighted materials was basically unregulated, the public domain was healthy, and many types of works were not covered by copyright at all. In 2006, virtually every type of work imaginable is under automatic copyright protection for extended periods of time, private use of digital works is increasingly visible and of concern to copyright holders, the public domain is endangered, and ordinary citizens are being prosecuted as "pirates" under draconian statutory and criminal penalties. Regarding this development, Lessig says: For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved the balance of our history.between uses of our culture that were free and uses of our culture that were only upon permission.has been undone. The consequence is that we are less and less a free culture, more and more a permission culture.20 How has copyright changed since the days of the founding fathers? As we have seen, there has been a shift in copyright law (and social perceptions of it) from promoting progress to protecting intellectual property owners "rights," from covering limited types of works to covering virtually all types of works, from granting only basic reproduction and distribution rights to granting a much wider range of rights, from offering a relatively short duration of protection to offering a relatively long (potentially perpetual) one, from requiring registration to providing automatic copyright, from drafting laws in Congress to drafting laws in work groups of interested parties dominated by commercial representatives, from making infrequent extensions of copyright duration to making frequent ones, from selling works to licensing them, from relatively modest civil penalties to severe civil and criminal penalties, and from ignoring ordinary citizens typical use of copyrighted works to branding them as "pirates" and prosecuting them with lawsuits. (Regarding lawsuits filed by the Recording Industry Association of America against four students, Lessig notes: "If you added up the claims, these four lawsuits were asking courts in the United States to award the plaintiffs close to $100 billion.six times the total profit of the film industry in 2001."21) Complicating this situation further is intense consolidation and increased vertical integration in the entertainment, information, telecommunications, and other high-tech industries involved in the Internet. 22 This vertical integration has implications for what can be published and the free flow of information. For example, A company that publishes books and magazines, produces films and television programs, provides Internet access and digital content, and provides cable television services (including broadband Internet access) has different corporate interests than a company that performs a single function, and these interrelated interests may affect not only what information is produced and whether competing information and services are freely available through controlled digital distribution channels, but corporate perceptions of copyright issues as well. One of the ironies of the current copyright situation is this: if creative works are by nature "property" and stealing property is (and has always been) wrong, then some of the very industries that are demanding that this truth be embodied in copyright law have, in the past, been "pirates" themselves, even though certain acts of "piracy" may have been legal (or appeared to be legal) under then existing copyright laws.23 Lessig states: If "piracy" means using the creative property of others without their permission.if "if value, then right" is true.then the history of the content industry is a history of piracy. Every important sector of "big media" today.film, records, radio, and cable TV.was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club.until now.24 Let's take a simple case: cable television. Early cable television companies used broadcast television programs without compensating copyright owners, who branded their actions as "piracy" and filed lawsuits. After two defeats in the Supreme Court, broadcast television companies won a victory (of sorts) in Congress, which took nearly 30 years to resolve the matter: cable television companies would pay, but not what broadcast television companies wanted, rather they would pay fees determined by law.25 Of course, this view of history ("big media" companies as "pirates" in their infancy) is open to dispute. For the moment, let's assume that it is true. Put more gently, some of most important media companies of modern times flourished because of relatively lax copyright control, a relatively rich public domain, and, in some cases, a societal boon that allowed them to pay statutory license fees, which are compulsory for copyright owners, instead of potentially paying much higher fees set by copyright owners or being denied use at all. Today, the very things that fostered media companies growth are under attack by them. The success of those attacks is diminishing the ability of new digital content and service companies to flourish and, in the long run, may diminish even "big media's" ability to continue to thrive as a "permission culture" replaces a permissive culture. Several prominent copyright scholars have suggested copyright reforms to help restore balance to the copyright system. James Boyle, Professor of Law at the Duke University Law School, recommends a twenty-year copyright term with "a broadly defined fair use protection for journalistic, teaching, and parodic uses.provided that those uses were not judged to be in bad faith by a jury applying the 'beyond a reasonable doubt' standard."26 William W. Fisher III, Hale and Dorr Professor of Intellectual Property Law at Harvard University Law School, suggests that "we replace major portions of the copyright and encryption-reinforcement models with. . . a governmentally administered reward system" that would put in place new taxes and compensate registered copyright owners of music or films with "a share of the tax revenues proportional to the relative popularity of his or her creation" and would "eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings."27 Lawrence Lessig recommends that copyright law be guided the following general principles: (1) short copyright terms; (2) a simple binary system of protected/not protected works without complex exceptions; (3) mandatory renewal, and (4) a "prospective" orientation that forbids retrospective term extensions. 28 (Previously, Lessig had proposed a 75-year term contingent on five-year renewals). He suggests reinstating the copyright registration requirement using a flexible system similar to that used for domain name registrations. He favors works having copyright marks, and, if they are not present, he would permit their free use until copyright owners voice their opposition to this use (uses of the work made prior to this point would still be permitted). Jessica Litman wants a copyright law "that is short, simple, and fair" in which we "stop defining copyright in terms of reproduction" and recast copyright as "an exclusive right of commercial exploitation."29 Litman would eliminate industryspecific copyright law exceptions, but grant the public "a right to engage in copying or other uses incidental to a licensed or legally privileged use"; the "right to cite" (even infringing works); and "an affirmative right to gain access to, extract, use, and reuse the ideas, facts, information, and other public domain material embodied in protected works" (including a restricted circumvention right).30 Things change in over 200 plus years, and the law must change with them. Since the late 19th century, copyright law has been especially impacted by new technologies. The question is this: has copyright law struck the right balance between encouraging progress through granting creators specific rights and fostering a strong public domain that also nourishes creative endeavor? If that balance has been lost, how can it be restored? Or, is society simply no longer striving to maintain that balance because intellectual works are indeed property, property must be protected for commerce to prosper, and the concept of balance is outmoded and it no longer reflects societal values? DRM: Locked-Up Content and Fine-Grained Control Noted attorney Michael Godwin defines Digital Rights Management (DRM) as "a collective name for technologies that prevent you from using a copyrighted digital work beyond the degree to which the copyright owner (or a publisher who may not actually hold a copyright) wishes to allow you to use it."31 Like copyright, DRM systems are complex, with many variations. There are two key technologies: (1) Digital marking (i.e., digital fingerprints that uniquely identify a work based on its characteristics, simple labels that attach rights information to content, and watermarks that typically hide information that can used to identify a work), and (2) encryption (i.e., scrambled digital content that requires a digital key to decipher it).32 Specialized hardware can be used to restrict access as well, often in conjunction with digital marking and encryption. My intent is not to provide a technical tutorial, but to overview the basic DRM concept and to discuss its implications. What is of interest here is not how system ABC works in contrast to system XYZ, but what DRM allows copyright owners to do and the issues related to DRM. To do so, let's use an analogy, understanding that real DRM systems can work in other ways as well (e.g., digital watermarks can be used to track illegal use of images on the Internet without those images being otherwise protected). For the moment, let's imagine that the content a user wishes to access is in an unbreakable, encrypted digital safe. The user cannot see inside the safe. By entering the correct digital combination, certain content becomes visible (or audible or both) in the safe. That content can then be utilized in specific ways (and only those ways), including, if permitted, leaving the safe. If a public domain work is put in the safe, access to it is restricted regardless of its copyright status. Bill Rosenblatt, Bill Trippe, and Stephen Mooney provide a very useful conceptual model of DRM rights in their landmark DRM book, which I will summarize here.33 There are three types of content rights: (1) render rights, (2) transport rights, and (3) derivative works rights. Render rights allow authorized users to view, play, and/or print protected content. Transport rights allow authorized users to copy, move, and/or loan content (the user retains the content if it is copied and gets it back when a loan is over, but does not keep a copy if it is moved). Derivative works rights allow authorized users to extract pieces of content, edit the content in place, and embed content by extracting some of it and using it in other works. Each one of these individual rights has three attributes: (1) consideration, (2) extents, and (3) types of users. Access to content is provided for something of value to the publisher (e.g., money or personal information): the consideration. Content can then be used to some extent (e.g., for a certain amount of time or a certain number of times). What rights and attributes users have is determined by their user types. For example, an academic user, in consideration of a specified license payment by his or her library, can view a DRM-protected scholarly article.but not copy, move, loan, extract, edit, or embed it.for a week, after which it is inaccessible. We can extend this hypothetical example by imagining that the library could pay higher license fees to gain more rights to the journal in question, and the library (or the user) could dynamically purchase additional article-specific rights enhancements as needed though micropayments. This example is extreme; however, it illustrates the fine-grained, high-level of control that publishers could potentially have over content by using DRM technology. Godwin suggests that DRM may inhibit a variety of legitimate uses of DRMprotected information, such as access to public domain works (or other works that would allow liberal use), preservation of works by libraries, creation of new derivative works, conduct of historical research, exercise of fair use rights, and instructional use.34 The ability of blind (or otherwise disabled) users to employ assistive technologies may also be prevented by DRM technology.35 DRM also raises a variety of privacy concerns.36 Fair use is an especially thorny problem. Rosenblatt, Trippe, and Mooney state: Fair use is an "I'll know it when I see it" proposition, meaning that it can't be proscriptively defined. . . . Just as there is no such thing as a "black box" that determines whether broadcast material is or isn't indecent, there is no such thing as a "black box" that can determine whether a given use of content qualifies as fair use or not. Anything that can't be proscriptively defined can't be represented in a computer system.37 No need to panic about scholarly journals, yet. Your scholarly journal publisher or other third-party supplier is unlikely to present you with such detailed options tomorrow. But, you may already be licensing other digital content that is DRM-protected, such as digital music or e-books that require a hardware e-book reader. As the recent Sony BMG "rootkit" episode illustrated, creating effective, secure DRM systems can be challenging, even for large corporations.38 Again, the reasons for this are complex. In very simple terms, it boils down to this: assuming that the content can be protected up to the point it is placed in a DRM system, the DRM system has the best chance of working if all possible devices that can process its protected content either directly support its protection technology, recognize its restrictions and enforce them through another means, or refuse access.39 Anything less creates "holes" in the protective DRM shell, such as the well-known "analog hole" (e.g., when DRM-protected digital content is converted to analog form to be played, it can then be re-recorded using digital equipment without DRM protection).40 In other words, ideally, every server, network router, PC and PC component, operating system, and relevant electronic device (e.g., CD player, DVD player, audio recording device, and video recording device) would work with the DRM system as outlined previously or would not allow access to the content at all. Clearly, this ideal end-state for DRM may well never be realized, especially given the troublesome backward-compatibility equipment problem.41 However, this does not mean that the entertainment, information, and high-technology companies won't try to make whatever piecemeal progress that they can in this area.42 The Trusted Computing Group is an important multiple-industry security organization, whose standards work could have a strong impact on the future of DRM. Robert A. Gehring notes: But a DRM system is almost useless, that is from a content owner's perspective, until it is deployed broadly. Putting together cheap TC components with a market-dominating operating system "enriched" with DRM functionality is the most economic way to provide the majority of users with "copyright boxes."43 Seth Schoen argues computer owners should be empowered to override certain features of "trusted computing architecture" to address issues with "anticompetitive and anti-consumer behavior" and other problems.44 DRM could potentially be legislatively mandated. There is a closely related legal precedent, the Audio Home Recording Act, which requires that digital audiotape equipment include special hardware to prevent serial copying.45 There is currently a bill before Congress that would require use of a "broadcast flag" (a digital marker) for digital broadcast and satellite radio receivers.46 Last year, a similar FCC regulation for broadcast digital television was struck down by a federal appeals court, and, consequently, the current bill explicitly empowers the FCC to "enforce 'prohibitions against unauthorized copying and redistribution.'"47 Another bill would plug the analog-to-digital video "analog hole" by putting "strict legal controls on any video analog to digital (A/D) convertors."48 Whether these bills become law of not, efforts to mandate DRM are unlikely to end. The Digital Millennium Copyright Act strongly supports DRM by prohibiting both the circumvention of technological mechanisms that control access to copyrighted works (with some minor exceptions) and the "manufacture of any device, composition of any program, or offering of any service" to do so.49 What would the world be like if all newly published (or released) commercially created information was in digital form, protected by DRM? What would it be like if all old works in print and analog formats were only reissued in digital form, protected by DRM? What would it be like if all hardware that could process that digital information had to support the information's DRM scheme or block any access to it because this was mandated by law? What would it be like if all operating systems had direct or indirect built-in support for DRM? Would "Progress of Science and useful Arts" be promoted or squashed? Weaker Net Neutrality Lessig identifiers three important characteristics of the Internet that have fostered innovation: (1) edge architecture: software applications run on servers connected to the network, rather than on the network itself, which ensures that the network itself does not have to be modified for new or updated applications to run; (2) no application optimization: a relative simple, but effective, protocol is utilized (Internet Protocol) that is indifferent to what software applications run on top of it, again insulating the network from application changes; and (3) neutral platform: the network does not prefer certain data packets or deny certain packets access.50 Lessig's conceptual model is very useful when thinking about Net neutrality, a topic of growing concern. EDUCAUSE's definition of Net neutrality aptly captures these concerns: "Net neutrality" is the term used to describe the concept of keeping the Internet open to all lawful content, information, applications, and equipment. There is increasing concern that the owners of the local broadband connections (usually either the cable or telephone company) may block or discriminate against certain Internet users or applications in order to give an advantage to their own services. While the owners of the local network have a legitimate right to manage traffic on their network to prevent congestion, viruses, and so forth, network owners should not be able to block or degrade traffic based on the identity of the user or the type of application solely to favor their interests.51 For some time, there have been fears that Net neutrality was endangered as the Internet became increasingly commercialized, a greater percentage of home Internet users migrated to broadband connections not regulated by common carrier laws, and telecommunications mergers (and vertical integration) accelerated. Now, some of these fears appear to be being realized, albeit with resistance by the Internet community. For example, AOL has indicated that it will implement a two-tier e-mail system for companies, nonprofits, and others who send mass mailings: those who pay bypass spam filters, those who don't pay don't.52 Critics fear that under a twotier system free e-mail services will deteriorate. Facing fierce criticism from the DearAOL.com Coalition and many others, AOL has relented somewhat on the nonprofit issue by offering special treatment for "qualified" nonprofits. A second example is that an analysis of Verizon's FCC filings reveals that "more than 80% of Verizon's current capacity is earmarked for carrying its service, while all other traffic jostles in the remainder."53 Content-oriented Net companies are worried: Leading Net companies say that Verizon's actions could keep some rivals off the road. As consumers try to search Google, buy books on Amazon.com, or watch videos on Yahoo!, they'll all be trying to squeeze into the leftover lanes on Verizon's network. . . . "The Bells have designed a broadband system that squeezes out the public Internet in favor of services or content they want to provide," says Paul Misener, vicepresident for global policy at Amazon.com.54 A third example is a comment by William L. Smith, BellSouth 's chief technology officer, who "told reporters and analysts that an Internet service provider such as his firm should be able, for example, to charge Yahoo Inc. for the opportunity to have its search site load faster than that of Google Inc.," but qualified this assertion by indicating that "a pay-for-performance marketplace should be allowed to develop on top of a baseline service level that all content providers would enjoy."55 About four months later, AT&T announced that it would acquire BellSouth, after which it "will be the local carrier in 22 states covering more than half of the American population."56 Finally, in a white paper for Public Knowledge, John Windhausen, Jr. states: This concern is not just theoretical -- broadband network providers are taking advantage of their unregulated status. Cable operators have barred consumers from using their cable modems for virtual private networks and home networking and blocked streaming video applications. Telephone and wireless companies have blocked Internet telephone (VoIP -- Voice over the Internet Protocol) traffic outright in order to protect their own telephone service revenues.57 These and similar examples are harbingers of troubled days ahead for Net neutrality. The canary in the Net neutrality mine isn't dead yet, but it's getting very nervous. The bottom line? Noted open access advocate Peter Suber analyzes the situation as follows: But now cable and telecom companies want to discriminate, charge premium prices for premium service, and give second-rate service to everyone else. If we relax the principle of net neutrality, then ISPs could, if they wanted, limit the software and hardware you could connect to the net. They could charge you more if you send or receive more than a set number of emails. They could block emails containing certain keywords or emails from people or organizations they disliked, and block traffic to or from competitor web sites. They could make filtered service the default and force users to pay extra for the wide open internet. If you tried to shop at a store that hasn't paid them a kickback, they could steer you to a store that has. . . . If companies like AT&T and Verizon have their way, there will be two tiers of internet service: fast and expensive and slow and cheap (or cheaper). We unwealthy users -- students, scholars, universities, and small publishers -- wouldn't be forced offline, just forced into the slow lane. Because the fast lane would reserve a chunk of bandwidth for the wealthy, the peons would crowd together in what remained, reducing service below current levels. New services starting in the slow lane wouldn't have a fighting chance against entrenched players in the fast lane. Think about eBay in 1995, Google in 1999, or Skype in 2002 without the level playing field provided by network neutrality. Or think about any OA journal or repository today.58 Is Net neutrality a quaint anachronism of the Internet's distant academic/research roots that we would be better off without? Would new Internet companies and noncommercial services prosper better is it was gone, spurring on new waves of innovation? Would telecommunications companies (who may be part of larger conglomerates), free to charge for tiered-services, offer us exciting new service offerings and better, more reliable service? Defending the Internet Revolution Sixties icon Bob Dylan's line "Then you better start swimmin' or you'll sink like a stone" couldn't be more apt for those concerned with the issues outlined in this paper. Here's a brief overview of some of the strategies being used to defend the freewheeling Internet revolution. 1. Darknet: J. D. Lasica says: "For the most part, the Darknet is simply the underground Internet. But there are many darknets: the millions of users trading files in the shady regions of Usenet and Internet Relay Chat; students who send songs and TV shows to each other using instant messaging services from AOL, Yahoo, and Microsoft; city streets and college campuses where people copy, burn, and share physical media like CDs; and the new breed of encrypted dark networks like Freenet. . ." 59 We may think of the Darknet as simply fostering illegal file swapping by ordinary citizens, but the Darknet strategy can also be used to escape government Internet censorship, as is the case with Freenet use in China.60 2. Legislative and Legal Action: There have been attempts to pass laws to amend or reverse copyright and other laws resulting from the counter- Internet-revolution, which have been met by swift, powerful, and generally effective opposition from entertainment companies and other parties affected by these proposed measures. The moral of this story is that these large corporations can afford to pay lobbyists, make campaign contributions, and otherwise exert significant influence over lawmakers, while, by and large, advocates for the other side do not have the same clout. The battle in the courts has been more of a mixed bag; however, there have been some notable defeats for reform advocates, especially in the copyright arena (e.g., Eldred v. Ashcroft), where most of the action has been. 3. Market Forces: When commercial choices can be made, users can vote with their pocketbooks about some Internet changes. But, if monopoly forces are in play, such as having a single option for broadband access, the only other choice may be no service. However, as the open access movement (described later) has demonstrated, a concerted effort by highly motivated individuals and nonprofit organizations can establish viable new alternatives to commercial services that can change the rules of the game in some cases. Companies can also explore radical new business models that may appear paradoxical to pre-Internet-era thinking, but make perfect sense in the new digital reality. In the long run, the winners of the digital content wars may be those who aren't afraid of going down the Internet rabbit hole. 4. Creative Commons: Copyright is a two-edged sword: it can be used as the legal basis of licenses (and DRM) to restrict and control digital information or it can be used as the legal basis of licenses to permit liberal use of digital information. For example, the Creative Commons Attribution License requires that the work is attributed to the author; however, the work can be used for any commercial or noncommercial purpose without permission, including creating derivative works.61 By using one of the six major Creative Commons Licenses, authors can retain copyright, but significantly enrich society's collective cultural repository with works that can be freely shared for noncommercial purposes and, in some cases, used for commercial purposes and/or to easily build new derivative creative works. There are a variety of other licenses, such as the GNU Free Documentation License, that can be used for similar purposes.62 5. Open Access: Scholars create certain types of information, such as journal articles without expecting to be paid to do so, and it is in their best interests for these works to be widely read, especially by specialists in their fields.63 By putting e-prints (electronic preprints or postprints) of articles on personal home pages or in various types of digital archives (e.g., institutional repositories) in full compliance with copyright law and, if needed, in compliance with publisher policies, scholars can provide free global access to these works with minimal effort and at no cost (or little cost) to themselves. Further, a new generation of free e-journals are being published on the Internet that are being funded by a variety of business models, such as advertising, author fees, library membership fees, and supplemental products. These "open access" strategies make digital scholarly information freely available to users across the globe, regardless of their personal affluence or the affluence of their affiliated institutions. Impact On Libraries This paper's analysis of copyright, DRM, and network neutrality trends holds no good news for libraries. Copyright With the reach of copyright law constantly encompassing new types of materials and the duration of copyright terms ever lengthening, the public domain's growth is increasingly contingent copyright holders explicitly placing their works in it. Needless to say, the public domain is a primary source of materials that can be digitized without having to face a complex, potentially expensive, and sometimes hopeless permission clearance process. This process can be especially daunting for media works (such as films and video), even for the use of very short segments of these works. J. D. Lasica recounts his effort to get permission to use short music and film segments in a personal video: five out of seven music companies declined; six out of seven movie studios declined, and the one that agreed had serious reservations.64 The replies to his inquiry, for those companies that bothered to reply at all, are well worth reading. For U.S. libraries without the resources to deal with complicated copyrightrelated issues, the digitization clock stops at 1922, the last year we can be sure that a work is in the public domain without checking its copyright status and getting permission if it is under copyright.65 What can we look forward to? Lessig says: "Thus, in the twenty years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term."66 (The Sonny Bono Term Extension Act was passed in 1998.) Digital preservation is another area of concern in a legal environment where most information is automatically copyrighted, copyright terms are lengthy (or endless), and information is increasingly licensed. Simply put, a library can't digitally preserve what it doesn't own, unless the work is in the public domain, the work's license permits it, or the work's copyright owner grants permission to do so. Or can it? After all, the Internet Archive doesn't ask permission ahead of time before preserving the entire Internet, although it responds to requests to restrict information. And that's why the Internet Archive is currently being sued by Healthcare Advocates Inc., who says that it: "is just like a big vacuum cleaner, sucking up information and making it available."67 If it is not settled out of court, this will be an interesting case for more digitally adventurous libraries to watch. As the cost of the hardware and software needed to effectively do so continues to drop, faculty, students, and other library users will increasingly want to repurpose content, digitizing conventional print and media materials, remixing digital ones, and/or creating new digital materials from both. With the "information commons" movement, academic libraries are increasingly providing users with the hardware and software tools to do so. Given that the wording of the U.S. Copyright Act Section 108 (f) (1) is vague enough that it could be interpreted include these tools when they are used for information reproduction, is the old "copyright disclaimer on the photocopier" solution enough in the new digital environment? Or, in light the unprecedented transformational power of these tools to create new digital works and their widespread use both within libraries and on campus, do academic libraries bear heavier responsibilities regarding copyright compliance, permission-seeking, and education? Similar issues arise when faculty want to place self-created digital works that incorporate copyrighted materials in electronic reserves systems or institutional repositories. End-user contributions to "Library 2.0" systems that incorporate copyrighted materials may also raise copyright concerns. DRM As libraries realize that they cannot afford dual formats, their new journal and index holdings are increasingly solely digital. Libraries are also licensing a growing variety of "born digital" information. The complexities of dealing with license restrictions for these commercial digital products are well understood, but imagine if DRM was layered on top of license restrictions. As we have discussed, DRM will allow content producers and distributors to slice, dice, and monetize access to digital information in ways that were previously impossible. What may be every publisher/vendor's dream, may be every library's nightmare. Aside from a potential surge of publisher/vendor-specific access licensing options and fees, libraries may also have to contend with publisher/vendor-specific DRM technical solutions, which may depend on particular hardware/software platforms, be incompatible with each other, decrease computer reliability and security, eliminate fair or otherwise legal use of DRM-protected information, raise user privacy issues, restrict digital preservation to bitstream preservation (if allowed by license), make it difficult to assess whether to license DRM-protected materials, increase the difficulty of providing unified access to information from different publishers and vendors, multiply user support headaches, and necessitate increased staffing. DRM makes solving many of these problems both legally and technically impossible. For example, under the DMCA, libraries have the right to circumvent the DRM for a work in order to evaluate whether they want to purchase it, however, they cannot do so without the software tools to crack the work's DRM protection. But, the distribution of those tools is illegal under the DMCA, and local development of such tools is likely to be prohibitively complex and expensive.68 Fostering Alternatives to Restrictive Copyright and DRM Given the uphill battle in the courts and legislatures, Creative Commons licenses (or similar licenses) and open access are particularly promising strategies to deal with copyright and DRM issues. Copyright laws do not need to change for these strategies to be effective. It is not just a question of libraries helping to support open access by paying for institutional memberships to open access journals, building and maintaining institutional repositories, supporting open access mandates, encouraging faculty to edit and publish open access journals, educating faculty about copyright and open access issues, and encouraging them to utilize Creative Commons (or similar) licenses. To truly create change, libraries need to "walk the talk" and either let the public domain materials they digitize remain in the public domain or put them under Creative Commons (or similar licenses), and, when they create original digital content, put it under Creative Commons (or similar) licenses. As the open access movement has shown, using Creative Commons licenses doesn't rule out revenue generation (if that is an appropriate goal), but it does require facilitating strategies, such as advertising and offering fee-based add-on products and services. Net Neutrality There are many unknowns surrounding the issue of Net neutrality, but what is clear is that it is under assault. It is also clear that Internet services are more likely to require more, not less, bandwidth in the future as digital media and other high-bandwidth applications become more commonplace, complex, and interwoven into a larger number of Internet systems. One would imagine that if a corporation such as Google had to pay for a highspeed digital lane, it would want it to reach as many consumers as possible. So, it may well be that libraries' Google access would be unaffected or possibly improved by a two-tier (or multiple-tier) Internet "speed-lane" service model. Would the same be true for library-oriented publishers and vendors? That may depend on their size and relative affluence. If so, the ability of smaller publishers and vendors to offer innovative bandwidth-intensive products and services may be curtailed. Unless they are affluent, libraries may also find that they are confined to slower Internet "speed lanes" when they act as information providers. For libraries engaged in digital library, electronic publishing, and institutional repository projects, this may be problematic, especially as they increasingly add more digital media, large-data-set, or other bandwidth-intensive applications. It's important to keep in mind that Net neutrality impacts are tied to where the chokepoints are, with the most serious potential impacts being at chokepoints that affect large numbers of users, such as local ISPs that are part of large corporations, national/international backbone networks, and major Internet information services (e.g.,Yahoo!). It is also important to realize that the problem may be partitioned to particular network segments. For example, on-campus network users may not experience any speed issues associated with the delivery of bandwidth-intensive information from local library servers because that network segment is under university control, but remote users, including affiliated home users, may experience throttled down performance beyond what would normally be expected due to "speed-lane" enforcement by backbone providers or local ISPs controlled by large corporations. Likewise, users at two universities connected by a special research network may experience no issues related to accessing the other university's bandwidth-intensive library applications from on-campus computers because the backbone provider is under a contractual obligation to deliver specific network performance levels. Although we have been using the example of "speed lanes" in our examination of potential Net neutrality impacts on libraries, the problem is more complex than this, because network services, such as peer-to-peer networking protocols, can be completely blocked, digital information can be blocked or filtered, and other types of fine-grained network control can be exerted. Conclusion This paper has deliberately presented one side of the story. It should not be construed as saying that copyright law should be abolished or violated, that DRM can serve no useful purpose (if it is possible to fix certain critical deficiencies and if it is properly employed), or that no one has to foot the bill for content creation/marketing/distribution and ever-more-bandwidth-hungry Internet applications. Nor should it be construed to say that the other side of the story, the side most likely told by spokespersons of the entertainment, information, and telecommunications industries, has no validity and doesn't deserve to be heard. However, that side of the story is having no problem being heard, especially in the halls of Congress. The side of the story presented in this paper isn't as widely heard, at least, not yet. Nor does it intend to imply that entertainment, information, telecommunications, and other corporate executives lack a social conscience, are fully unified in their views, or are unconcerned with the societal implications of their positions. However, by focusing on short-term issues, they may not fully realize the potentially negative long-term impact that their positions may have on their own enterprises. Nor has this paper presented all of the issues that threaten the Internet, such as assaults on privacy, increasingly determined (and malicious hacking), state and other censorship, and the seemingly insolvable problem of overlaying national laws on a global digital medium. What this paper has said is simply this: three issues -- a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality -- bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-touted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past. Notes 1. Gary Flake, "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," http://castingwords.com/transcripts/O3/5073.html. 2. Lawrence Lessig, Free Culture: The Nature and Future of Creativity (New York, Penguin Books, 2005), 130, http://www.free-culture.cc/. 3. Ibid, 131. 4. Ibid, 117-118. 5. William F. Patry, Copyright Law and Practice (Washington, DC: Bureau of National Affairs, 2000), http://digital-law-online.info/patry/. 6. U.S. Copyright Office, Copyright Basics (Washington, DC: U.S. Copyright Office, 2000), http://www.copyright.gov/circs/circ1.html. 7. Ibid. 8. Lessig, Free Culture: The Nature and Future of Creativity, 133. 9. Barbara M. Waxer and Marsha Baum, Internet Surf and Turf Revealed: The Essential Guide to Copyright, Fair Use, and Finding Media (Boston: Thompson Course Technology, 2006), 17. 10. Patry, Copyright Law and Practice; and Lessig, Free Culture: The Nature and Future of Creativity, 133. 11. Jessica Litman, Digital Copyright (Amherst: Prometheus Books, 2001), 35-63. 12. Lessig, Free Culture: The Nature and Future of Creativity, 134. 13. Ibid, 326. 14. Association of American Universities, the Association of Research Libraries, the Association of American University Presses, and the Association of American Publishers, Campus Copyright Rights & Responsibilities: A Basic Guide to Policy Considerations (Association of American Universities, the Association of Research Libraries, the Association of American University Presses, and the Association of American Publishers, 2006), 8, http://www.arl.org/info/frn/copy/CampusCopyright05.pdf. 15. George H. Pike, "The Delicate Dance of Database Licenses, Copyright, and Fair Use," Computers in Libraries 22, no. 5 (2002): 14, http://infotoday.com/cilmag/may02/pike.htm. 16. Patry, Copyright Law and Practice. 17. Computer Crime and Intellectual Property Section Criminal Division, U.S. Department of Justice, "Prosecuting Intellectual Property Crimes Manual," http://www.cybercrime.gov/ipmanual.htm; and U.S. Copyright Office, Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code (Washington, DC: U.S. Copyright Office, 2003), http://www.copyright.gov/title17/circ92.pdf. 18. Recording Industry Association of America, "Copyright Laws," http://www.riaa.com/issues/copyright/laws.asp. 19. Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, 2nd ed. (Chicago: American Library Association, 2006), 94. 20. Lessig, Free Culture: The Nature and Future of Creativity, 8. 21. Ibid, 51. 22. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Vintage Books, 2002), 165-166, 176. 23. Lessig, Free Culture: The Nature and Future of Creativity, 53-61. 24. Ibid, 53. 25. Ibid, 59-61. 26. James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society (Cambridge: Harvard University Press, 1996), 172. 27. William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford, CA: Stanford University Press 2004), 202. 28. Lessig, Free Culture: The Nature and Future of Creativity, 289-293. 29. Litman, Digital Copyright, 179-180. 30. Ibid, 181-184. 31. Michael Godwin, Digital Rights Management: A Guide for Librarians (Washington, DC: Office for Information Technology Policy, American Library Association, 2006), 1, http://www.ala.org/ala/washoff/WOissues/copyrightb/digitalrights/DRMfin al.pdf. 32. Ibid, 10-18. 33. Bill Rosenblatt, Bill Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology (New York: M&T Books, 2002), 61-64. 34. Godwin, Digital Rights Management: A Guide for Librarians, 2. 35. David Mann, "Digital Rights Management and People with Sight Loss," INDICARE Monitor 2, no. 11 (2006), http://www.indicare.org/tikiprint_ article.php?articleId=170. 36. Julie E. Cohen, "DRM and Privacy," Communications of the ACM 46, no. 4 (2003), 46-49. 37. Rosenblatt, Trippe, and Mooney, Digital Rights Management: Business and Technology, 45. 38. J. Alex Halderman and Edward W. Felten, "Lessons from the Sony CD DRM Episode," 14 February 2006, http://itpolicy.princeton.edu/pub/sonydrmext. pdf. 39. Godwin, Digital Rights Management: A Guide for Librarians, 18-36. 40. Wikipedia, "Analog Hole," http://en.wikipedia.org/wiki/Analog_hole. 41. Godwin, Digital Rights Management: A Guide for Librarians, 18-20. 42. Ibid, 36. 43. Robert A. Gehring, "Trusted Computing for Digital Rights Management," INDICARE Monitor 2, no. 12 (2006), http://www.indicare.org/tikiread_ article.php?articleId=179. 44. Seth Schoen, " Trusted Computing: Promise and Risk," http://www.eff.org/Infrastructure/trusted_computing/20031001_tc.php. 45. Pamela Samuelson, "DRM {and, or, vs.} the Law," Communications of the ACM 46, no. 4 (2003), 43-44. 46. Declan McCullagh, "Congress Raises Broadcast Flag for Audio," CNET News.com, 2 March 2006, http://news.com.com/Congress+raises+broadcast+flag+for+audio/2100- 1028_3-6045225.html. 47. Ibid. 48. Danny O'Brien, "A Lump of Coal for Consumers: Analog Hole Bill Introduced," EFF DeepLinks, 16 December 2005, http://www.eff.org/deeplinks/archives/004261.php. 49. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York: New York University Press, 2001), 174-175. 50. Lessig, The Future of Ideas: The Fate of the Commons in a Connected World, 36-37. 51. EDUCAUSE, "Net Neutrality," http://www.educause.edu/content.asp?PAGE_ID=645&PARENT_ID=807&bhc p=1. 52. Electronic Frontier Foundation, "DearAOL.com Coalition Grows from 50 Organizations to 500 In One Week," 7 March 2006, http://www.eff.org/news/archives/2006_03.php - 004461. 53. Catherine Yang, "Is Verizon a Network Hog?," BusinessWeek, 13 February 2006, 58, http://www.businessweek.com/technology/content/feb2006/tc20060202_0618 09.htm. 54. Ibid. 55. Jonathan Krim, "Executive Wants to Charge for Web Speed," Washington Post, 1 December 2005, D05, http://www.washingtonpost.com/wpdyn/ content/article/2005/11/30/AR2005113002109.html. 56. Harold Furchtgott-Roth, "AT&T, or Another Telecom Takeover," The New York Sun, 7 March 2006, http://www.nysun.com/article/28695. (See also: http://www.furchtgott-roth.com/news.php?id=87.) 57. John Windhausen, Jr., Good Fences Make Bad Broadband: Preserving an Open Internet through Net Neutrality (Washington, DC: Public Knowledge, 2006), http://www.publicknowledge.org/content/papers/pk-net-neutrality-whitep- 20060206. 58. Peter Suber, "Three Gathering Storms That Could Cause Collateral Damage for Open Access," SPARC Open Access Newsletter, no. 95 (2006), http://www.earlham.edu/~peters/fos/newsletter/03-02-06.htm - collateral. 59. J. D. Lasica, Darknet: Hollywood's War Against the Digital Generation (New York: John Wiley & Sons, 2005), 45. 60. John Borland, "Freenet Keeps File-Trading Flame Burning," CNET News.com, 28 October 2002, http://news.com.com/2100-1023-963459.html. 61. Creative Commons, "Attribution 2.5," http://creativecommons.org/licenses/by/2.5/. 62. Lawrence Liang, "A Guide To Open Content Licences," http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide. 63. Peter Suber, "Open Access Overview: Focusing on Open Access to Peer- Reviewed Research Articles and Their Preprints," http://www.earlham.edu/~peters/fos/overview.htm; and Charles W. Bailey, Jr., "Open Access and Libraries," in Mark Jacobs, ed., Electronic Resources Librarians: The Human Element of the Digital Information Age (Binghamton, NY: Haworth Press, 2006), forthcoming, http://www.digitalscholarship.com/cwb/OALibraries.pdf. 64. Lasica, Darknet: Hollywood's War Against the Digital Generation, 72-73. 65. Waxer and Baum, Internet Surf and Turf Revealed: The Essential Guide to Copyright, Fair Use, and Finding Media, 17. 66. Lessig, Free Culture: The Nature and Future of Creativity, 134-35. 67. Joe Mandak, " Internet Archive's Value, Legality Debated in Copyright Suit," Mercury News, 31 March 2006, http://www.mercurynews.com/mld/mercurynews/news/local/states/california/northern_california/14234638.htm. 68. Arnold P. Lutzker, Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community (Washington, DC: ALA Washington Office, 1999), http://www.ala.org/ala/washoff/WOissues/copyrightb/dmca/dmcaprimer.pdf. The Chamberlain Group, Inc. v. Skylink Technologies, Inc. decision offers some hope that authorized users of DRM-protected works could legally circumvent DRM for lawful purposes if they had the means to do so (see: Crews, Copyright Law for Librarians And Educators: Creative Strategies And Practical Solutions, 96-97). Copyright © 2006 by Charles W. Bailey, Jr. This work is licensed under the Creative Commons Attribution-NonCommercial 2.5 License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/2.5/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA. This paper will appear in Information Technology and Libraries 25, no. 3 (2006). From seth.johnson at RealMeasures.dyndns.org Tue May 9 08:27:36 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Mon, 08 May 2006 22:57:36 -0400 Subject: [Commons-Law] MIT Tech Review: Webcasting Gets a Reprieve Message-ID: <44600520.7B51801@RealMeasures.dyndns.org> > http://www.technologyreview.com/read_article.aspx?id=16783 Webcasting Gets a Reprieve International treaty provisions that would prevent the retransmission of media over the Web have been dropped -- for now. By Wade Roush Monday, May 08, 2006 If proposed rules preventing the digital retransmission of TV, radio, or cable broadcasts are adopted as part of an international treaty on broadcasting, it could have repercussions throughout the nascent world of Web broadcasting. For instance, it might become illegal for musicians to offer recordings of their performances on their own websites, or for bloggers to post video and audio files -- even if the content is in the public domain. But last week countries opposed to these provisions -- which would have given broadcasters and cable TV companies broad new rights to control information on the Internet -- managed to strip them from the treaty, at least temporarily. During a five-day meeting in Geneva of the U.N. World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights, an unlikely coalition of delegates from developing nations and technology organizations such as Intel and the U.S. Telecom Association voiced strong objections to treaty provisions covering webcasting and "simulcasting" over broadcast or cable networks and computer networks. By the end of the meeting, on May 5, the committee, which had intended to finish a draft treaty that could be agreed upon by the WIPO General Assembly in 2007, decided to send the assembly only the less controversial sections of the treaty. Debate over the Internet provisions was deferred until this fall. "The good news is that webcasting is out of the treaty," says Robin Gross, executive director of IP Justice, a civil liberties organization based in San Francisco, which sent a representative to the meeting. "But it's a little too soon to celebrate," he adds, since one article still in the main draft of the treaty gives broadcasters the exclusive right to authorize retransmission of their broadcasts by any means, including over computer networks. Disparagement of the proposed webcasting rules has been rife since a previous meeting of the WIPO committee last November, when delegates from the United States proposed extending the draft treaty's protections for traditional broadcasts to cover material delivered over the Internet. According to Gross and other observers, the "WIPO Treaty on the Protection of Broadcasting Organizations," as the document is called, was originally conceived to strengthen legal safeguards against signal theft -- the interception and sharing of satellite, cable, or over-the-air broadcasts. But as work on the draft treaty progressed, proposed rules giving the original broadcasters of a program the sole power to authorize such rebroadcasts via traditional means grew to include Internet transmission. "We saw the big broadcasters getting very interested in this treaty and adding a whole new slew of rights," Gross says, as well as inserting new proposals via a sympathetic U.S. delegation to the WIPO committee. The proposed webcasting rules would give broadcasting organizations a new kind of property right over audio and video transmissions. Once a film, TV show, or song had been broadcast, the draft proposals gave the broadcaster control over access to that content for as long as 50 years. In Geneva last week, representatives from Brazil, Iran, Thailand, India, Chile, Colombia, Peru, Argentina, Bangladesh, and Ghana, as well as other nations, expressed anger about the provisions, and questioned why the language from the November meeting remained in the draft treat -- despite the objections of many WIPO members. "There cannot be any rights [in the treaty] overlaying the rights of the content owners," stated one delegate from India, according to a transcript of the meeting prepared by the Electronic Frontier Foundation (EFF). "India opposes the inclusion of webcasting in any fashion...the focus should be empowering broadcast organizations to prevent piracy of signals." Allied with the dissenting nations were several U.S. technology organizations, including chipmaker Intel. Jeff Lawrence, director of digital home and content policy at Intel, and Brad Biddle, a senior attorney in Intel's Systems Technology Lab, released a statement in advance of the meeting expressing the company's opposition to the treaty. "Proponents have not demonstrated that the benefits of creating new exclusive rights outweigh the burdens that these new rights impose," they said. The problem, from Intel's point of view, is that the proposed webcasting restrictions could limit the ways consumers can manipulate and experience digital media in their homes -- and therefore depress the market for new entertainment-oriented computing systems. "The treaty could give broadcasting organizations the right to control uses of content within the home -- uses that are legitimate and non-infringing under copyright law," wrote Lawrence and Biddle. "For example, makers of digital video recorders could be required to obtain licenses and agree to limitations imposed by broadcasters in order to enable 'time shifting' of broadcast content." In the end, the U.N. committee members voted to remove the webcasting language from the main treaty draft, and instead placed it into a new proposal to be discussed at a separate meeting. The U.S. delegation was "not happy about the outcome," according to Gwen Hinze, a staff attorney for the EFF who blogged about the conference from Geneva. The delegation "said it was concerned with the 'missed opportunity' to provide protection" for webcasts by traditional broadcasters, he wrote. "[Now] we wait to see the new draft proposal [due in August]." The mission of the World Intellectual Property Organization, one of 16 specialized agencies of the United Nations, is primarily to harmonize copyright and patent laws around the world. It oversees 23 international treaties on intellectual property rights enacted since 1883, and periodically drafts new treaties to keep up with changing markets and communications technologies. Its last major treaties, the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty, both adopted in 1996, forced signatories to amend their own copyright laws to deal with the rise of digital piracy, for example, by outlawing attempts to foil digital encryption schemes and other anti-copying technologies. In the United States, these treaties led directly to the enactment of the Digital Millennium Copyright Act of 1998, which has been criticized by freedom-of-information advocates for stifling fair and legal uses of copyrighted content. "WIPO is a tool by which old media industries try to suppress the new developments that threaten their control," says Tim O'Reilly, CEO of technology publisher O'Reilly Media, one of 20 technology companies to endorse an EFF briefing paper opposing the webcasting provisions last November. "While the Net is not without its problems, it's still in the formative stages, and I'd sure hate to see it put under all the same regimes as old media," says O'Reilly. "After all, the new activity on the net arose specifically because of the opportunity to route around some of those restrictions." From shveta at sarai.net Tue May 9 22:34:01 2006 From: shveta at sarai.net (Shveta) Date: Tue, 09 May 2006 22:34:01 +0530 Subject: [Commons-Law] Nangla/SC Proceedings/Notes/9th May 2006 Message-ID: <4460CB81.60905@sarai.net> Dear All, Today, on May 09, 2006, Hon'ble Justice Ruma Pal and Justice Markhande Katju of the Supreme Court, set a time of three weeks for the demolition of the remainder of Nangla Maanchi. The half an hour hearing was held in Court Number 02 (as item number 16) of the Supreme Court, Barakhamba Road, Delhi, from 11:00 AM to 11:30 AM. The hon'ble bench stated that relocation of all the [remaining] inhabitants of Nangla was "not possible" before the demolition. It stated that all it could grant Nangla Maanchi was a time of three weeks, before demolition, "full stop". The hon'ble bench stated that the power house, whose land had been 'encroached' by the inhabitants of Nangla had given "some date for construction", and that there has to be "balance" - that the land has "uses that cannot be denied", and that the more settlements are removed, the "more they come". On the question of the timeline for this construction, the hon'ble bench stated that whatever the case may be, "occupation of land without legal authority cannot be allowed. Even people whose lands have legal rights have been relocated" for projects. In response to a request on deliberation on the question of cut-off dates for eligibility for relocation, the hon'ble bench stated, "from what was a few tenemants" it has grown to "thousands", and "each tenemant had a family". They have been "growing and growing", that it was becoming difficult to "deal with the problem". It also stated, during the court proceedings, that if public land is occupied, it will "have to be vacated", that the right to shelter did not mean that "everyone be given shelter". On the question of Ghewda being without any infrastructure or facilities (where the inhabitants of Nangla Maanchi will be temporarily relocated), the hon'ble bench stated that in Bawana, a resettlement colony, people had sold off their plots of land. On the question of the difficulty of being on the streets in this intense heat, the hon'ble bench stated that it is "never comfortable to live out", that there will always be intense heat, or cold, or rainfall in the city. The hon'ble bench suggested that people need not come to Delhi, unless they can afford to live in the city. Present at the hearing from Ankur/Cybermohalla: Sharmila Bhagat (Ankur) Shabana (Ankur) Avantika (Ankur) Shveta Sarda (Sarai/Cybermohalla) Note-taking by Shveta Sarda From seth.johnson at RealMeasures.dyndns.org Wed May 10 01:58:20 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Tue, 09 May 2006 16:28:20 -0400 Subject: [Commons-Law] Berninger: Even Bells Need Net Neutrality Message-ID: <4460FB64.33ED9E91@RealMeasures.dyndns.org> > http://gigaom.com/2006/05/09/why-even-bells-need-net-neutrality/ Why Even Bells Need Net Neutrality Posted in Wired By Daniel Berninger, VP, Senior Analyst, Tier1 Research, dan at tier1research.com Definition: Net Neutrality - Internet access without discrimination by use or user except as required for network management purposes. The FCC's decision to relieve AT&T and Verizon of net neutrality requirements in August 2005 definitively broke the chain of events the companies use to assert right-of-way privileges. The Bells claim privileges based on over 100 years of practice that may or may not coincide with the intent and limits of the original deals, but the resulting laws explicitly require a public purpose in exchange for the right-of-way concessions. The obligations established on a state by state basis sometimes include build-out requirements or other compensation, but they all specify that access to state right-of-way at largely no cost or limit requires common carrier status (aka net neutrality.) The loss of common carrier status invalidates the contracts. The Bell companies have no access to state right-of-way for deployment of private, closed, non-neutral, non-common carrier network deployments. There may exist many unfulfilled obligations in the century old details of these arrangements, but there exists no doubt right-of-way access requires common carrier status. Maryland represents a typical case. The terms of right-of-way obtained by the Chesapeake and Potomac Telephone Company (now a unit of Verizon) after its founding in 1883 persist in the Maryland Code section covering public utility companies. Title 1-101 defines a telephone company as "a public service company that owns telephone lines to receive or transmit telephone communications." The same section defines a public service company as a "common carrier" company. Title 8-103 "Construction of lines and fixtures" defines the right-of-way available to the public service telephone company. The authority of Maryland to regulate telephone companies shows up in the Maryland Constitution Article 12 titled "Public Works" noting among other things that "the Directors of all said Public Works guard the public interest, and prevent the establishment of tolls which shall discriminate against the interest of the citizens or products of this State." Another interpretation to the plain language requiring a public purpose for right-of-way concessions does not exist. Does anyone believe government should grant public assets to private entities for private purposes? The loss of net neutrality changes the terms under which the Bells enjoy access to right-of-way. The non-neutral private network deployments associated with the Bell company broadband offers look like the non-common carrier networks of the cable companies. Cable companies do not enjoy the same no cost access to right-of-way and pay franchise fees that typically equal 5% of gross revenues or $30 billion over the last ten years. The assertion that property rights convey an ability to leverage any business model regarding the Internet seems ironic given the telephone companies own less than 2% of the property where they deploy infrastructure. The real estate Verizon owns directly represents less than 3% of the value claimed for equipment and infrastructure. The exposure to litigation for private use of public right-of-ways already exists. Verizon deployed FiOS as a entirely non-common carrier private network. Scrutiny of right-of-way arrangements could change the balance of power in the battle between the Bells and municipal wireless projects. Ed Whitacre and Ivan Seidenberg might regret their push to remove government oversight. The regulatory sphere offers cozy warmth compared the to risks that await their plans to extract increasing private returns from public assets and government granted monopoly. Regulation has proven a potent defense from antitrust litigation while still allowing price increases, industry consolidation, and the use of the risk free returns from local telephone monopoly to subsidize expansion in new markets like wireless and broadband. The tariffed rate doctrine has long protected the Bells from pricing litigation. Verizon does not report R&D as a separate expense on income statements like Intel, Microsoft, or Google, because lobbying and litigation rather than technology dominates spending. The Bells want Congress to believe ignoring net neutrality requirements will incent investment in broadband networks, but their idea of return on investment means monopoly rents. The Bells only invest in more monoply which usually means buying each other. The track record shows steadily lower spending on networks to increase free cash flow for acquisitions. The $140 billion SBC spent acquiring Ameritech