October 2010

With only a few hours before the World Series was to begin on Fox, Cablevision said that it had put a new offer on the negotiating table to end its dispute with News Corporation over retransmission fees. But News Corporation, which owns Fox, rejected the offer and said it was "yet another in a long line of publicity stunts," making it more likely that the first game of the World Series would be blacked out in Cablevision's 3 million homes in the New York metropolitan area.

Cablevision and Fox have not held serious negotiations since the middle of last week. In a statement, Cablevision had said that "we agree to pay the rate Fox charges Time Warner Cable for carriage of WNYW-Fox 5 New York and WTXF-Fox 29 Philadelphia for a period of one year. This is higher than the rate we pay any other New York broadcast station." Fox said Cablevision's proposal was "incomplete" and "not acceptable" adding:

"Cablevision is seeking a discounted 'package rate' without buying the entire package. We have told Cablevision all along we are willing to negotiate a deal -- based on an entire suite of channels -- under the terms we have reached with Time Warner Cable and other providers, or a stand alone agreement for WNYW FOX5, WTXF FOX29 and WWOR My9. Cablevision's offer -- sent to the press just as it was provided to us -- is yet another in a long line of publicity stunts."

By offering to match the Time Warner Cable rate, at least temporarily, Cablevision went a long way toward addressing Fox's claim that it cannot lower its asking price for its stations due to a most-favored-nation clause in its contract with Time Warner Cable. Essentially, if Fox lowered its price for Cablevision, it would also have to lower its already-agreed-upon price with Time Warner Cable, which is a much bigger distributor. By rebuffing Cablevision's offer, Fox was putting the ball back in its opponents' court.

[Commentary] It's not at all difficult to look at all that went on over the last couple of weeks and wonder if the Open Internet was only a grand dream that never existed, or was a phenomenon that appeared all too briefly and then was gone. Either way, there are more losers than winners.

Once, the online world (which encompasses the pre-Internet days) was, to use the expression, an "electronic frontier." Congress did what it could to protect the nascent environment, recognizing the great values it could bring. It ruled out taxes on Internet access. It created a safe harbor to protect online providers (in the pre-Internet days) from liability for material that rankles those subject to the rancorous online world. The complaints go back to the start of such protection, continue even through today, including those voiced by New York hotel operators critiqued by customers. The online world seemed almost as a DMZ from the regular business world, even as the Internet ecosystem was built by, and populated by, millions of web sites from those created by big companies and individual people. They combined to create something new and fresh, for a while at least.

That was then. Now, policymakers make noise about how important the Internet is, but do little to protect and preserve the environment, which allowed the unique properties of openness and creativity to flourish. Now, for some, the Internet world is simply a collection of more properties to be used as leverage in down-and-dirty business transactions. As usual, consumer desires, even if not legal rights, are getting left in the virtual dust.

Major studios, cable and technology companies on Wednesday announced the launch of an Entertainment Identifier Registry (EIDR) to track movies, TV shows and other assets much the way books are coded.

Likening it to the International Standard Book Numbers (ISBNs) system used to identify books, executives involved in the initiative said the registry was developed to make it easier for businesses to search, track and report revenue of an asset, cutting costs and streamlining operations. The registry is expected to be available to members in early 2011. The initiative is backed by a broad group of industry players like Comcast, Walt Disney Viacom Inc's Paramount Pictures, Sony Corp, and others, while talks with other parties are ongoing.

A federal judge today an injunction against a new Massachusetts law that tried to apply its "matter harmful to minors" law to the Internet.

Because it's difficult to ascertain someone's age on the 'Net, that attempt turned out to be far too broad. The fuss began back in February, when the state supreme court ruled that the "matter" which could harm minors did not legally include electronic transmissions. The result: overturning a conviction of a man who engaged in lurid instant messaging chats with someone who he believed to be 13 (in reality, "she" was the police, who arrested the man when he tried to meet the "girl"). Alarmed at the prospect of sexual predators texting away to minors, the state legislature acted quickly -- perhaps too quickly. In April, the "harmful to minors" law received a brief update -- not more than a couple of paragraphs -- but they had profound implications for free expression. The new law extended "harmful to minors" to the Internet. In addition to smutty books, films, pamphlets, pictures, plays, dances, and even statues (!), Massachusetts decided that the "matter" which might harm minors would now include: "electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system."