Today Public Knowledge artist-in-residence Elisa Kreisingerunveiled a new blog post detailing how Universal Music Group (UMG) and YouTube turned their backs on fair use.  You should read her full story here, but the short version is that YouTube and UMG agreed to let UMG take down videos, even videos making fair use of UMG music.  That means that UMG could take down videos that did not infringe on UMG copyrights.

Normally, UMG would only be able to take down videos that could infringe on UMG controlled music.  Elisa believes that her mashup video makes fair use of UMG music, and therefore does not infringe on any UMG copyrights.  While the Digital Millennium Copyright Act (DMCA) allows a host like YouTube to keep showing a video if the creator asserts fair use, in this case YouTube decided to ignore Elisa’s argument and let UMG take the video down.

Obviously, this is a problem.  The DMCA notice-and-takedown rules were specifically designed to allow intermediaries like YouTube to host controversial content without fear of copyright liability as long as they stayed out of judgment about what did and did not infringe copyright.

Fair use prevents rightsholders from silencing critics with the threat of a copyright infringement lawsuit.   By giving UMG the ability to take down videos that use their content regardless of fair use, YouTube has given UMG sweeping power to control what is – and is not – said about UMG and UMG artists.  UMG should not be asking for this kind of power, and YouTube should not be granting it.

This agreement also highlights a growing – and troubling – trend in the world of copyright. Rightsholders (and some government officials) have increasingly been calling for “voluntary agreements” to increase rightsholder control and the obligations of intermediaries.  The agreement between YouTube and UMG shows what happens when big industry players are brought together to work something out: users lose.  Large rightsholders use the voluntary agreement frameworks to undermine key user rights. While things like fair use matter a lot to individual users, it may not be worth it for either side to insist that fair use is protected in a voluntary agreement. Users only realize what happened when something they relied upon – like fair use – suddenly disappears from important platforms.

Fortunately, there is an alternative way to address copyright’s problems.  Instead of pulling big players into a back room to cut a deal, we can use the actual legislative process.  While no process is perfect, reforming copyright through the legislative process gives the public, users, and smaller content creators an opportunity to participate.  It increases the likelihood the improvements will benefit everyone, not just the largest commercial parties.

Our copyright system is in dire need of fixing, but private agreements are no substitute for real policy fixes.  As Elisa’s case vividly illustrates, when private agreements undermine fundamental parts of the law everyone except the biggest players lose.

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Yesterday, the FCC released its proposed open internet (net neutrality) rules.  Although both Chairman Wheeler and the proposal extensively discuss the problems that occur when ISPs get to choose winners and losers online, the proposed rules still create fast lanes and slow lanes on the internet.  Read on to see just how these fast lanes and slow lanes would work.

Minimum Level of Access (the Slow Lane)

Everything starts with what the order describes as a “minimum level of access.”  This is the slow lane.  The order asks questions about how to actually define this “minimum level of access” (more on that below), but the most charitable reading for now is that it is essentially what you currently get with your internet connection.  That is, your current internet connection forms the benchmark for a level of access that ISPs cannot mess with.  Your ISP cannot block content or degrade this connection within this minimum service.  The rules aspire to make this level “sufficiently robust, fast, and dynamic for effective use by end users and edge providers.”  As described below, we’re not sure that is possible.

Everything Else (the Fast Lane)

Once you get outside of this minimum level of access, ISPs have a lot more flexibility to start cutting deals.  This is the fast lane.  ISPs are allowed to start selling fast lane service to whichever “edge providers” (that’s services, sites, businesses, etc. that you would want to connect with online) they want (or none at all), as long as the deal they cut passes a “commercially reasonable” test.

The proposed rules try to define “commercially reasonable” by using a multi-factor test.  These factors include the impact on present and future competition, the impact on consumers, the impact on speech and civic engagement, technical characteristics, “good faith” negotiation, industry practices, and “other factors.”  As you read these factors you may start to think that they are pretty broad, and that the outcome of any one dispute would turn on who happened to be balancing them.  This would be a reasonable conclusion.  What is clear is that some kinds of discrimination will qualify as being commercially reasonable.

A Two-Tier Internet

The result of this structure is a two-tier internet: a minimum level of access that ISPs cannot degrade, and a premium lane with plenty of flexibility for deal making.  The FCC appears to assume that the “minimum level of access” will remain a vibrant space for innovation and communication.  Unfortunately, this assumption is flawed.  Yesterday’s post had details of 5 reasons why this plan can never make sense, so for today we can just focus on two.

The Slow Lane Will Always Be Bad (Economic Reason)

This one is easy to understand.  Once there is a split internet, ISPs have the incentive to push every new innovation towards the fast lane.  Innovation in the fast lane means extra revenue, while innovation in the slow lane gets them nothing.  Investments that would have gone into the entire network before the split will now only go into the fast lane.  That means that the forces that have traditionally increased speeds for everyone will now be reserved for those who can pay extra.  All the while, the slow lane just keeps getting slower in comparison.  After all, a slow slow lane makes the premium fast lane an even better value!

The Slow Lane Will Always Be Bad (Regulatory Reason)

One response to these economic forces would be to impose some sort of regulatory requirement of slow lane improvement.  The FCC itself proposes three possible ways to do this: a best efforts delivery requirement, a minimum quantitative performance requirement, or an objective, evolving “reasonable person” standard. 

Unfortunately, none of these will protect a viable slow lane over time.  As discussed in detail inyesterday’s post, none of these factors can take into account the innovation that we don’t see in a split internet.  We simply don’t have a way to account for all of the innovation that does not show up because it can’t afford the fast lane to get off the ground.  Beyond that, there will always be excuses for why the slow lane can’t quite incorporate this improvement or that improvement, or why it is OK that the slow lane could not quite hit the benchmark it was supposed to. 

There is Still A Good Option

Most of the FCC’s text introducing the proposed rules does a good job of explaining all of the problems with a non-open internet.  But when it comes time to actually protect the open internet, the rules fall short.  In large part, this is because the rules are bending over backwards to comply with the ruling from the DC Circuit earlier this year that struck down the old open internet rules.

But this path is not the only one available after the DC Circuit’s ruling.  If the FCC reclassifies broadband internet access as a Title II common carrier (there’s that term again), it can just prevent ISP discrimination outright.  Under Title II, there it no need to create a fast lane that allows “commercially reasonable” agreements and a slow lane where everything is treated equal.  Instead, content can just be treated equally.

That’s why we are urging the FCC to take steps to actually protect an open internet.  And why you should too.

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Today the FCC released its Open Internet Notice of Proposed Rulemaking – basically a draft version of its net neutrality rules.  While there is plenty to say about them, in this post I’d like to focus on one part – fast lanes.  Read on for all (or at least some) of the reasons they are a bad idea.

Although the FCC appears to have backed away from its original embrace of internet fast lanes and slow lanes in response to massive public outcry, and Chairman Wheeler made a passionate presentation about the value of a free and open internet at today’s meeting, the proposed rules still imagine a world where some sort of bifurcation of the internet is allowed.  Specifically, it assumes two types of service.  Within the “minimum level of guaranteed access,” (something that could also be considered the “slow lane”) the proposed rules would prevent at least most blocking and discrimination.  But beyond that unknown minimum level of guaranteed access (could be thought of as the “fast lane”), discrimination would be allowed as long as it was “commercially reasonable.”

That is a huge problem. Fundamentally, this is because there is no real way to have a internet divided between fast lanes and slow lanes that also brings all of the benefits that we have come to expect from our current, single, open internet.  Why is this so?  Let’s consider the ways.

1. Internet for Haves, Internet for Have-Nots

A fast lane/slow lane internet adds a new, unwelcome element to innovation online.  Traditionally, new services and websites succeeded or failed based on the quality of their offering.  But in a fast lane/slow lane internet, success goes to the services and websites that can afford to pay off the biggest ISPs.  Service beyond a “minimum level” is often where innovation happens.  It shouldn’t only be available to some.

2. ISPs Get to Decide Who Wins

Of course, “available to some” assumes that ISPs are even interested in doing business with a new service or site.  The proposed rules would give ISPs a lot of flexibility to pick winners and losers online, and simply ignore some players all together.  As long as its decision is commercially reasonable, an ISP could just freeze someone out of the fast lane before they even started competing.

3. The Slow Lane Will Always be Bad

This is just common sense.  If you are charging people to get into the fast lane, it has to be worth the money.  To put it another way, the slow lane has to be bad enough to justify paying to get out of it.  If the slow lane really is good enough for anything that you want to do online, why would anyone ever pay to get into the fast lane?  The result is that the slow lane will always be at least inadequate enough to push a critical mass of users towards the (paid) fast lane.

4. Investment Flows to the Fast Lane

Going forward, ISPs will have a choice.  Should they invest in the fast lane or the slow lane?  Since they get to charge extra for one and not the other, that becomes an easy decision.  You can be sure that any new innovation that would make the network faster or more responsive will debut in the fast lane.  And it may not ever trickle down into the slow lane.

5. Hope You Enjoy the 2014 Internet – It Just Became the High Water Mark

The proposed rules suggest that we don’t need to worry about a fast lane, because the slow lane (the “minimum level of access”) will always be good enough to protect innovation.  In fact, splitting the internet would all but guarantee that “good” internet circa 2014 becomes the baseline well into the future.  Put another way, the slow lane is stuck at today’s average level of service.

That is because benchmarking an “adequate” slow lane becomes all but impossible once you have split the internet.  In the absence of a unified open internet, how could you set the slow lane standard?  One option would be to look to other countries.  But the United States is already well behind other countries in broadband speed, and even today there is always an apologist willing to explain why it is OK that the US is falling behind.  There is no reason to think that would change in the future.  Even if you were willing to use an international benchmark, what would it be?  “The United States shall always have at least the 16th fastest broadband in the world”?  That’s nothing to strive for.

Another way to approach it would be to assume some sort of annual rate of improvement, or some sort of rate that marked “adequate” broadband speed improvements.  But what would the rate be?  Until 2008, the FCC defined “broadband” as 200kbps (that’s kbps, not Mbps).  In 2010, it updated that figure to 4 Mbps.  Those are not numbers that people should have been satisfied with, even at the time.  And even a speed increase rate that looks ambitious today could be rendered glacial by an unexpected innovation.

More importantly, since the slow lane would undermine the virtuous cycle of broadband innovation (high speeds encourages new services, which themselves encourage higher speeds, which starts the cycle over again), we may not even see the innovation that would push up speeds on a single, neutral network anymore.  As venture capitalist Fred Wilson memorably dramatized, we won’t even know what we are missing when innovative startups that push the network never get funded.  Those startups don’t file a complaint with the FCC before the fizzle out.  They just disappear.  You may never miss what you never know, but it will be a shame when the fast lane/slow lane internet settles into a comfortable dotage where real innovation is just too much trouble.

The Good News

The good news is that the FCC’s proposal is just that – a proposal.  There is still time to change it, and to convince the FCC to create real net neutrality rules that prevent paid prioritization and internet fast lanes.  But that opportunity won’t last forever.  So act now, and tell the FCC where you stand.

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Last month during Sunshine Week, the White House Office of Science and Technology Policy released a memorandum directing federal agencies to develop a plan in the next six months to make their scientific collections more available to the public. This is a great move on its own – federal agencies collect all sorts of interesting information on behalf of the American people, and it is important to make that information as easy to access as possible. But more specifically, it could be a first step toward creating a central repository of all of the government’s 3D scans. And the government has a lot of things to be scanned.

Laser Cowboys and Fossilized Whales

First, the memo recognizes the pioneering work that the Smithsonian Institution’s “laser cowboys” have been doing in digitizing its physical collection. For the past few years, the Smithsonian has been creating detailed 3D scans of physical objects in its collection andmaking them available to the public for viewing and download. What they have managed to make available so far is a tantalizing taste of what kind of objects could possibly be available if the US Government digitized everything it had. But it is really only the tip of the iceberg (or, perhaps more accurately, the tip of the fossilized whale) of the Smithsonian’s collection (137 million artifacts and counting). And the Smithsonian’s collection is one of countless collections spread throughout the entire U.S. government.

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This is my first “real” (non-blink an LED) arduino project.  The problem: our bar blocks the lightswitch for the light over the living room table.  The solution: control the light by touching a picture around the corner.  Touch the picture once to turn the light on and touch it again to turn the light off.

Supplies:

1 Arduino (I used Adafruit’s Adruino Micro without headers): $22.95

Bare Conductive electric paint: $24.95

1 330k resistor

1 usb power supply: $5.95

1 usb cable (A to micro B): $3.95

1 arduino-controllable relay (I used the Sparkfun Beefcake Relay Control Kit): $7.95

1 solderable breadboard: $4.95

1 washer (optional)

1 magnet (optional)

arduino capsense library

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