September 2013

Review Committee: FirstNet is Operating Transparently

The First Responder Network Authority (FirstNet), the organization overseeing the development of the interoperable broadband emergency communications network being funded with proceeds from broadcaster spectrum auctions, has been conducting its business in an open and transparent manner and did not withhold records from board members or produce a plan without vetting it with the board or public safety stakeholders.

That was the conclusion of a special committee reviewing allegations leveled by board member sheriff Paul Fitzgerald back in April. Fitzgerald, in a resolution, raised concerns in an April 23 board meeting about whether FirstNet was giving board members equal access to records and whether its network plan was being developed without input from all board members and Public Safety Advisory Board members. The resolution was tabled by a special committee which was formed to investigate the concerns.

Don’t wait for Congress to fix fair use, says judge in Google Books case

The federal judge in the long-running case between Google and the Authors Guild made clear that no one should hold their breath waiting for Washington to decide if the search giant’s scanning of 20 million library books amounts to a “fair use” under copyright law.

“Does anything get done in Congress these days?” mused US circuit judge Denny Chin, rejecting a call by authors’ lawyers to hold off on deciding the fair use question. He added that Congress has already proven incapable of solving the problem of “orphan works” books. This means that Judge Chin is likely to make an up-or-down decision soon on whether Google’s scanning was legal under “fair use” — a four-part test that looks at factors like the purpose of the copying and its effect on the original market. Judge Chin must now decide whether to bite his tongue and declare that Google’s scanning was a form of fair use — and accept what amounts to a “no harm done” theory from Google — or else say it was not fair use, in which case Google will almost certainly appeal the matter back to his colleagues.

BlackBerry Going Private in $4.7 Billion Deal

BlackBerry has found a buyer for its much-diminished business. The foundering smartphone pioneer agreed to be acquired by a consortium led by Fairfax Financial Holdings, which will take it private in a deal worth about $4.7 billion. Under the terms of the deal, the consortium — whose other members were not disclosed — will pay $9 per share for all outstanding shares of BlackBerry not held by Fairfax, which currently owns a 10 percent stake in the company.

For Small Papers, Digital now Indispensable

One clear message emerged from the Local Media Association's fall conference in St. Louis: digital is the way forward for the nation's community papers. If ideas like digital agency services and metered paywalls were met with skepticism just a couple of years ago among this group, they have moved into the industry's mainstream thinking now. Legacy terminology itself has begun eroding. Even the word "circulation" is dropping out of circulation among its managers, replaced now with a more multiplatform "audience development" moniker. So if big city dailies such as The New York Times, The Wall Street Journal and The Washington Post represent the digital catwalk among newspapers, the distance between them and the suburban mall of these smaller market papers has definitely shortened.

FCC Seeks Nominations for Six Board Member Positions on the Universal Service Administrative Company Board of Directors

The Federal Communications Commission’s Wireline Competition Bureau seeks nominations for the following board member positions on the Board of Directors of the Universal Service Administrative Company (USAC):

representative for incumbent local exchange carriers (other than Bell Operating Companies) with annual operating revenues in excess of $40 million (position currently held by D. Michael Anderson),
representative for state telecommunication regulators (position currently held by Anne C. Boyle),
representative for interexchange carriers with more than $3 billion in annual operating revenues (position currently held by Rex Knowles),
representative for information service providers (position currently held by David P. McClure),
representative for rural health care providers that are eligible to receive discounts (position currently held by Jay H. Sanders, MD),
representative for schools that are eligible to receive discounts (position currently held by Phyllis Simon).

The terms of the above board members are scheduled to expire on December 31, 2013. All nominations must be filed by October 23, 2013.

Are you a gigabit thinker? Google Fiber and US Ignite want to know

The US Ignite broadband effort and Google Fiber are launching a competition for people who think they have the next gigabit application. GigaOm is requesting submissions of ideas for the equivalent of e-mail for the 21st century for gigabit connections.

Phone companies remain silent over legality of NSA data collection

America's top telecommunications companies are refusing to say whether they accept that the bulk collection of their customers' phone records by the National Security Agency is lawful.

The phone companies are continuing to guard their silence over the controversial gathering of metadata by the NSA, despite the increasingly open approach by those at the center of the bulk surveillance program. The secretive foreign intelligence surveillance (FISA) court declassified its legal reasoning for approving the NSA telephone metadata program periodically over the past six years. The Guardian asked five of the top US telecoms firms whether their lack of resistance to the collection of their phone records was indeed an implicit acceptance of its legality. The Guardian also asked how the phone companies could justify to their own customers the decision not to challenge the court orders, in stark contrast to some internet companies such as Yahoo, which have contested the legality of NSA collection of their customers' data. The phone companies were asked by the Guardian to make clear whether they felt their compliance with FISA court orders relating to NSA data collection was voluntary, or whether they felt pressured by any party into conceding without legal protest. The companies' decision not to comment on any aspect of the NSA dragnet puts them in an increasingly peculiar position. By withholding their internal views from the public, they are setting themselves apart from equivalent internet firms that are taking a more bullish stance, and are shrouding themselves in more secrecy than even the FISA court, one of the most tight-lipped institutions in the country.

What is Going on With Usage Restrictions on Media from Congress and the White House?

[Commentary] Believe it or not, copyright law actually has a specific section addressing the Federal Government’s ability to get a copyright. The section is pretty straightforward: the Federal Government does not get copyright on the works that it produces. “Copyright protection under this title [which pertains to copyright] is not available for any work of the United States Government.”

These works do not pass go nor do they collect $200 – they automatically enter the public domain the moment they are created, freely available for anyone to do whatever they want with them. And yet strangely there are parts of the US government that do not seem to understand that. United States Government Work "licenses" still appear on White House Flickr photos. With no underlying copyright to license, that license is meaningless – although it may stop someone who has not read section 105 from making use of video in the public domain. But the licenses are not alone. They are joined by a prominent alert: “The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.” The White House is not explicitly claiming copyright on these photos (the license makes that clear), but this type of scary quasi-legal language gets awful close to flirting with a bit of light copyfraud. All of them leave the public under the false impression that they need some sort of permission in order to make use of these videos.

ITU Broadband Report: US Ranks 24th Globally in Internet Usage

The US ranks 24th worldwide in the percentage of residents who use the Internet, according to the International Telecommunications Union’s 2013 State of Broadband Report.

Eighty-one percent of US residents use the Internet, the ITU said. The US ranks ninth worldwide measured on mobile broadband penetration, according to the new ITU research. Just under three-quarters (74.7%) of US citizens use mobile broadband, the ITU said. Ahead of the US were several Asian and European countries and Australia. The nation with the highest percentage of people using the Internet was Iceland, where 97% of the people are Internet users. The top 10 countries all had usage rates above 88% and all but two – New Zealand and Qatar – are in Europe.

Network neutrality: A complex issue, then and now

[Commentary] Network Neutrality debates are fundamentally about switching – whether network switches can treat some packets differently from others. The telephone interconnection debates of the early 20th century – and, in particular, to AT&T’s preference for (non-neutral) manual switchboards over (neutral) automatic switches reminds us that design decisions in complex networks are rarely as simple as network neutrality proponents suggest they are – and that market forces, if given time to operate, can secure the consumer benefits that regulators aspire to promote without the appurtenant risk that regulatory intervention may stunt the market.

Up until 1919, AT&T doggedly refused to adopt automatic switching technologies. This history is an interesting precursor to the modern concept of network neutrality. Network neutrality presents much the same question: how to best provide switching to different types of services. Yet today, despite the market being more competitive and subject to more scrutiny than AT&T was 100 years ago, network neutrality proponents advocate regulatory control of switching – government edicts saying what switching technologies can and cannot be used (and therefore, can or cannot be further developed). And this despite little evidence that network neutrality poses anything more than hypothetical harms. The market has worked in the past – how about we give it a chance today, before deciding to regulate it? If things don’t work out, if the net-neutrality proponents’ parade of horribles does come to pass, regulatory intervention will still be an option. Until then, we should be cautious of the impulsive regulatory instinct: too-readily opting for regulation over the market is the sort of automatic switch we should avoid.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]

Benton

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