Open Internet Focus of PK's Hill Telecomm Efforts

Subject: In the Know - December 14, 2005
   Date: Wed, 14 Dec 2005 17:42:18 -0500 (EST)
   From: Public Knowledge <[email protected]>
     To: [email protected]


*************************************************************
 In the Know - a (usually) bimonthly Public Knowledge update
*************************************************************

December 14, 2005

Contents:

* Open Internet Up for Hill Discussion
* NIH Gets Strong Recommendation on Open Access
* New Fair Use Report Sets Out Strong Case


==================================================
 Open Internet Focus of PK's Hill Telecom Efforts
==================================================

The House Commerce Committee put off for the year its effort to
pass a rewrite of the Telecommunications Act of 1996.  At one
point it appeared that the Telecommunications Subcommittee would
start the process with a markup of legislation this week, but the
Subcommittee over the past few days has heard from a variety of
organizations with deep concerns about staff drafts of the
legislation.  As a result, the Subcommittee decided to wait until
some of the more sticky issues in the bill can be more fully
explored.

For PK, the central issue in the bill is whether consumers will
be able to continue using the Internet as we have since the
beginning - with the ability to go anywhere on the Web, access
any service, application or piece of equipment we choose.  The
alternative is that the service providers control the network in
such a way that some services aren't accessible or don't operate
as well as others.  The policy debate is called "network
neutrality," or "net neutrality," or, as PK likes to call it,
"bit discrimination."

The debate over control of the broadband network heated up
recently not only as the staff of the House subcommittee produced
draft legislation with network neutrality language in it, but
also as top officials from telephone companies said they are
prepared to exert more control over the material that goes over
their broadband networks.  AT&T (formerly SBC) Chairman Edward
Whitacre said he didn't like the idea of companies like Google
using his network for free, while BellSouth Chief Technical
Officer William Smith said he wants the ability to cut deals to
give certain Web service providers preference and priority over
others providers.

PK disagrees, and has been in the forefront of the discussion to
preserve the nature of the Internet as a medium in which all
providers and users have an equal chance to have access to, and
to supply, content for the Web. As PK President Gigi Sohn said in
a Washington Post article, "Prioritization is just another word
for degrading your competitor."  PK has argued consistently that
we don't think the Internet should be turned into a cable system
in which the network operator decides which services are allowed
onto the network and on what terms.

On Dec. 2, PK sponsored a well-attended briefing for Hill staff
on "The Importance of an Open Internet for the National
Economy."  Our speakers were Chris Murray, vice president of
government affairs for Vonage; Matthew Zinn, vice president of
TiVo; Dr. Mark Cooper, director of research for the Consumer
Federation of America; Mark Luker, vice president of EDUCAUSE,
and Dr.-Ing. (the representation for Ph.D. in German) Barbara van
Schewick of Stanford Law School.  Gigi moderated the session. 
The group each presented different views on the dangers of
discrimination in the network.  Chris noted that in today's
deregulated environment, competitive service providers aren't
sure they have any legal remedies in the current environment if
they believe they were victims of discrimination.  Barbara said
that, contrary to claims from network providers that they would
have no reason to discriminate against anyone, there is economic
benefit from excluding non-affiliated services.

PK will release in January its own discussion paper on the
virtues of the Open Internet.  Unlike our more comprehensive
paper on an Open Broadband Future, the new paper concentrates on
the net neutrality issue.  Our paper finds that without an
enforceable net neutrality policy, "it is doubtful that the
Internet of the future will remain open and accessible to all."
Our paper concluded that "the benefits of requiring an openness
policy for broadband operators far outweigh the minimal burden on
network operators."

The executive summary of our paper is here:
 
http://www.publicknowledge.org/content/papers/20051201-open-internet-summary

The Washington Post story on BellSouth's proposal is here:
  
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/30/AR2005113002109.html?nav=rss_technology

Dr.-Ing. Van Schewick's paper is here:
  
http://web.si.umich.edu/tprc/papers/2005/483/van%20Schewick%20Network%20Neutrality%20TPRC%202005.pdf


================================================
 Advisers Recommend Stronger Open Access Policy
================================================

The Public Access Working Group at the National Institutes of
Health (NIH) has made some solid recommendations for improving
the obviously failing open access policy.  The group, at its
November 15 meeting, recommended changing the open access policy
so that instead of simply requesting authors of publicly funded
research to post their papers, the authors would be required to
post them to PubMed Central, NIH's online repository.

The Working Group also said that the current delay in publishing
papers online should be only six months after publication in a
printed journal, rather than the current 12 months.

In response, the Alliance for Taxpayer Access (ATA), of which PK
is a member, put out a statement in support of the
recommendations and sent a letter Dec. 6 to Dr. Elias A. Zerhouni
asking that the recommendations from the Working Group be
promptly implemented.

As the ATA pointed out, it's obvious that the current policy
isn't working. If all of the NIH-funded researchers complied with
the policy, about 5,000 papers would be submitted in a single
month.  Fewer than 2,000 have been submitted from May through
September.

Meanwhile, Congress is starting to get more involved.  Sen.
Joseph Lieberman (D-Conn.) and Sen. Thad Cochran (R-Miss.) are
expected soon to introduce formally legislation mandating
publication of taxpayer-funded information.  Their bill,
announced Dec. 7 when the Senate was not in session, would create
the American Center for Cures (ACC) within NIH.  The bill would
require, among its many provisions that taxpayer-funded research
be posted to PubMed Central within six months of publication. 
The enforcement mechanism is quite simple - grantees or Federal
government employees who don't follow the rules would lose future
funding for their projects.

PK believes the bill is a good idea.  Peter Suber, director of
PK's Open Access project, said, "The CURES Act should greatly
accelerate the translation of fundamental medical research into
therapies.  At Public Knowledge we especially applaud the
public-access provisions, which assure free online access to all
medical research conducted by the Department of Health and Human
Services.  The NIH was the trail-blazer here, but its online
access policy called for voluntary participation and allowed long
delays before researchers, healthcare professionals, and the
public could see the results of NIH-funded research.  The Act
would make the U.S. Department of Health and Human Services a
worldwide leader in providing public access to publicly funded
medical research."

Responses (other than PK's) to the NIH Working Group
recommendations are here:
  http://www.taxpayeraccess.org

Information on the Lieberman-Cochran bill is here. This is the
news release.  Links to a summary and analysis of the bill are in
this document:
  http://lieberman.senate.gov/newsroom/release.cfm?id=249566


========================
 Will Fair Use Survive?
========================

That's an excellent question, as asked by a new report by
Marjorie Heins and Tricia Beckles from the Brennan Center for
Justice at the NYU Law School.

The full title, "Will Fair Use Survive?  Free Expression in the
Age of Copyright Control," has some excellent history and
analysis of the situation in which we find ourselves.  The report
is particularly good when describing the problems of cease and
desist letters and take-down notices as intimidating experiences
that threaten creativity.

The authors conducted an analysis of 320 cease-and-desist letters
and found that almost half had the potential to chill speech. 
They also had some interesting survey results with stories about
fair use.

We should note that the copyright wars aren't new.  We will leave
it to the eminent authority on everything, Groucho Marx, to tell
the story as related in the report:

    "Groucho Marx made a rhetorical contribution to fair use in 
    the 1940s, when he replied to a cease and desist letter from 
    Warner Brothers, threatening to sue if he did not change the 
    title of his forthcoming movie, A Night in Casablanca - a 
    parody of the Humphrey Bogart/Ingrid Bergman classic, 
    Casablanca. "Up to the time that we contemplated making this 
    picture," Groucho began, "I had no idea that the city of 
    Casablanca belonged exclusively to Warner Brothers." He asked 
    whether Warner Brothers also claimed exclusive rights to the 
    term "brothers": "Professionally, we were brothers long 
    before you were." Groucho continued with riffs on the Warner 
    brothers' first names, Jack and Harry (Jack and the 
    Beanstalk, Jack the Ripper, Lighthouse Harry, etc.) A Night 
    in Casablanca was released; Warner Brothers did not sue."

We commend the report to your attention.  You can find it at:
  http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf


-------------------------------------------------------------------
Make PK A Part of Your Holiday Giving:  This has been a great
year for you and PK.  We won our broadcast flag case.  We 
testified before Congress on crucial issues like the broadcast
flag and fair use and continue to develop excellent relationships
with Capitol Hill.  We're right in the middle of the next big
issue - the telecom legislation that will start moving early next
year.  While there's still time to take that 2005 deduction,
consider donating to PK.  You can read all about it here:
http://www.publicknowledge.org/news/2005-eoy-campaign.  You can
become a member here:  http://www.publicknowledge.org/membership.
Or simply donate: http://www.publicknowledge.org/donate.  In
either case, we thank you for your support.
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Briefly:  We frequently talk about the death of innovation. 
Here's the latest tale, courtesy of boingboing:  PearLyrics was a
little program that pulled lyrics of songs from either the MP3
file or from another location. It was built as a specialized
browser, but the good folks at Warner/Chappell music publishers
seemed to think it was a copyright violation, so the site shut
down rather than fight.  The boingboing item is here:
  http://www.boingboing.net/2005/12/06/warner_music_attacks.html

The poignant good-bye note on the web site is at
http://www.pearworks.com. Unfortunately, the pearworks
proprietor, Walter Ritter, is an Austrian, and out of reach for
potential American-based allies.  EFF warned Warner/Chappell
against trying such an attack on a U.S. software designer. EFF
posted more detail here:
  http://www.eff.org/deeplinks/archives/004246.php

Congress appears to be still hung up on the legislation that
includes the hard date for returning the "analog" broadcast
spectrum.  The issue remains whether drilling in the Arctic
National Wildlife Refuge (ANWR) will be included.  Sen. Ted
Stevens (R-Alaska) is holding out for including it in the Senate
version, while there appear to be sufficient votes in the House
to make sure the ANWR provision isn't included.

Best Wishes for the Holiday Season from PK.

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