December 2011

Despite the partisan gridlock in Washington, some tech and telecom stakeholders realized big victories in 2011 with the passage of patent reform and the Federal Communications Commission’s overhaul of an $8 billion phone subsidy called the Universal Service Fund. But other key policy priorities remain unresolved entering 2012, and the question is whether Congress will be able to take action in the face of budget politics and the election cycle.

• Spectrum: Work must be done to relocate federal users and possibly broadcasters from choice airwaves, set up auctions and begin work on the board overseeing the new public safety broadband network.
• Cybersecurity: Congress enters 2012 with some momentum behind cybersecurity legislation, but differences between parties and chambers need to be resolved.
• Copyright: Congress quickened efforts in late 2011 to boost the protection of copyright holders online by cracking down on piracy. New bills in the House and Senate command big Hollywood support but alarm Web companies, many of which are fighting regulations that could hold them responsible for copyright infringement on their networks. The Internet players have congressional allies, but the push to protect American-made content is bipartisan.

Five key players to watch: NTIA’s Lawrence Strickling, House Subcommittee on Commerce, Manufacturing and Trade Chairman Mary Bono Mack (R-CA), the Department of Homeland Security’s Mark Weatherford, Cary Sherman of the Recording Industry of Association of America, and Michael Petricone, senior vice president of government affairs at the Consumer Electronics Association.

The Mapping Digital Media project examines the global opportunities and risks created by the transition from traditional to digital media. Covering 60 countries, the project examines how these changes affect the core democratic service that any media system should provide: news about political, economic, and social affairs. The digital transition has created new opportunities for innovative forms of investigative journalism while undermining the economic foundation that has supported traditional producers of investigative and local public accountability journalism. The net effect remains unclear.

In this context, this report calls for policies to promote greater media diversity and protect and promote the public’s voice through the enforcement of open internet rules, the allocation of spectrum to unlicensed and other innovative uses, an expansion of the universal service fund to broadband, and the broadening of entities that can receive it. In order to strengthen commercial media, the newly proposed public interest obligation reporting rules need to be implemented. Increased public and philanthropic funding for both public and community media is needed. In today’s political context, many of these recommendations are a tall order. However, all are necessary if the United States is to develop the diverse media that will support democracy and the information needs of its communities.

[Commentary] The Internet isn’t really a technology. It’s a belief system, a philosophy about the effectiveness of decentralized, bottom-up innovation. And it’s a philosophy that has begun to change how we think about creativity itself.

Almost 20 years ago, I installed on my computer a tiny piece of software called MacPPP, which connected the programs running on it to the Internet. The program immediately transformed my computer from a fancy telex machine to a device running a very early version of the graphical Web. I was working in entertainment at the time, and I remember thinking that this connection was going to change everything. I left to join the first commercial Internet service provider in Japan, PSINet Japan, as its first chief executive. Our first serious challenge, oddly enough, was a battle over an obscure information-sharing computer protocol called X.25. Most of us laboring to build the new Internet preferred the less regulated and simpler Internet Protocol.

Despite garnering a few preliminary injunctions against Samsung outside the US, Apple was not able to convince a US federal court to keep Samsung tablet computers from store shelves.

US District Judge Judy Koh denied Apple's request for a preliminary injunction barring Samsung from selling its "Galaxy" branded tablets and smartphones. While the ruling suggests Apple could eventually prevail after a full trial, the decision allows Samsung to continue to sell its competing Android-based devices unabated while the case slowly works its way through the docket. Apple's US lawsuit against Samsung began in April this year, and ultimately sparked a worldwide rash of 23 lawsuits between the two companies. Apple's main beef is that Samsung's Galaxy S and SII smartphones and Galaxy Tab tablets draw too heavily upon the design of the iPhone and iPad. Apple was able to win some limited preliminary injunctions based on a registered European Community Design right and a handful of functional patent claims. Its US case accused Samsung of violating a litany of US design and utility patents as well as accusing Samsung of violating Apple's trade dress, including unique packaging design and other related trademarks and intellectual property. Unfortunately for Apple, its motion for a preliminary injunction rested on just a handful of the issues at play in the main proceeding. And on those particular points, Judge Koh did not find enough solid evidence or issue at law to satisfy the requirements for a preliminary injunction.

Judge Koh suggested that prior art, in particular the Knight Ridder tablet dreamed of in a promotional video from the '90s, may invalidate some of Apple's design patent claims. However, she also noted that "Samsung appears to have created a design that is likely to deceive an ordinary observer." If Apple is able to convince the court that its design patents are valid, the fact that Samsung is viewed by the court as a copycat could still end up being a thorn in Samsung's side.