Google Public Policy Blog: Congressional hearings on online competition and our ad agreement with Yahoo

Google Public Policy Blog discusses the search engine's agreement with Yahoo

Mashing the Media (and Watching the FCC)

Last week was a whirlwind of activity for the telecommunications, media and technology project with which I had been engaged since August 2006.

The folks at the Berkman Center for Internet and Society at Harvard were kind enough to invite me to speak in their luncheon series on Tuesday, October 9. I discussed "Media Tracker, FCC Watch, and the Politics of Telecom, Media and Technology." I'm happy to report that the event is now archived on Media Berkman as a webcast.

I spoke about the work of the "Well Connected" Project at the Center for Public Integrity for which I was responsible. I devoted most of my time in the lecture to the Media Tracker, the interactive database at the heart of the project. The Media Tracker combines data from publicly available sources in a new and unique way, mapping out media and telecom ownership at the ZIP code level. Ownership is linked to lobbying expenditures and campaign contributions by company. The level of contribution by a telecom, media or technology company to any federal candidate can be viewed – documenting who has received what from whom.

As you'll see from the webcast, at the end of my introductory remarks, I also discussed FCC Watch, a database that takes this oversight one step further, recording every lobbying encounter before the FCC. As reported by Brendan McGarry, a former reporter for the project, the most significant battle this year has been over the 700 Megahertz spectrum, a valuable swath of radio frequencies that has been the subject of extensive lobbying by former FCC Chairman Reed Hundt, by Google, by spectrum incumbents and by the Bell companies.

And people are listening! The great thing about speaking at Berkman is that a good chunk of the most influential bloggers on the intersection of technology and politics are already in the room. I've been very gratified by the responses they have made.

In his blog post, Ethan Zuckerman (blog: My Heart's in Accra) covered the waterfront, but was particularly taken by the set of features in FCC Watch:

Clark is interested in the question of who watches the regulators, and wants to offer a rich set of data that lets interested parties see who is attempting to influence the FCC. The FCC is an interesting institution to watch, in the sense that their decisionmaking is heavily influenced by ex parte filings, filings from interested parties that aren’t revealed to all the participants in discussion over an issue. That means that when the FCC is trying to decide the future of the 700Mhz spectrum, non-profits, for-profits and interested individuals can all have contact with the FCC, but their submissions aren’t added to the public record. ...

We search contacts made to commissioner Kevin Martin, searching for Google, and discover that Larry Page called Martin a few days back to lobby for “whitespace” in the 700Mhz spectrum.

FCC Watch developed as an outgrowth of brainstorming sessions that the project had with its advisory committee. The idea was simple: the Media Tracker already tracked lobbying dollars, campaign contributions and privately-funded trips by the major telecom, media and technology companies: what other indices of political influence could we find? But the credit for executing the system belongs to Ben Welsh, the expert computer-assisted reporter at the Center for Public Integrity then assigned to the project. Welsh developed an interactive tool that enables an extremely fine-tuned analysis of who is lobbying at the FCC -- and what they are lobbying for. It's that system that allowed those at Berkman to see the latest phone call from Larry Page -- or from anyone in the telecom and media space -- to FCC Chairman Kevin Martin.

David Weinberger (blog: Joho the Blog) was particularly interested in broadband tracking, and how more detailed information about how to obtain information about the availability of broadband services. (See David's post.) One of the key efforts of the project, under my direction, was the quest to obtain information from the FCC about the names of the companies that provide broadband service in each particular ZIP code. We filed a lawsuit in federal district court in Washington to obtain the information, under the Freedom of Information Act. The FCC denied our request. Right now the matter is pending before Judge Ellen Huvelle.

Say Doc Searls and John Palfrey, "Drew's work links in obvious fashion to Lawrence Lessig’s next 10 years of work on corruption." Cyberlaw guru Lessig, of course, was instrumental in the establishment of the Center for Internet and Society at Harvard, and is now at a similarly-named organization at Stanford Law School. I'm flattered by the comparison, and certainly hope to do my part to use the Web to cast a more mindful eye on the unseemly goings-on in Washington.

And now MyDD has chimed in, too. Shai Sachs presents his theory about "Newspaper ownership and conservative dominance of op-ed pages," and wants to use the Media Tracker to prove his case:

By typing in your zip code or city and state in the search form on the front page, you can discover which companies own the media in area - including TV, radio, cable, broadband and newspapers. What's more, those companies are cross-referenced with campaign finance records, to give us some idea of the ideological bias of the media owners. For example, here's the political influence of Clear Channel - unsurprisingly, employees and PACs of the company contribute much more to Republicans than to Democrats (nearly 70% to Republicans, and 30% to Democrats). Unfortunately, neither Media Matters nor MediaTracker expose their raw data, so it's difficult to evaluate, in a systematic way, whether or not conservative ownership is correlated with conservative opinion pages. Still, it's possible to get a snapshot of some media markets.

All of this makes my departure from the Center for Public Integrity, on Friday, October 12, all the more untimely. The executive director of the Center told me that the organization was discontinuing the "Well Connected" Project, and the Media Tracker, as currently constituted. As a result, there will be no updates to the Media Tracker database, or to the articles and profiles that are included in the database.

I would have liked it if the project had been able to survive, grow and thrive.

I'm looking forward to a variety of exciting new ventures. I hope to be able to announce one of them within the next several weeks. I'll be posting news -- as well as news articles and blog posts on the politics of telecom, media and technology -- here on my blog.

URL: http://www.drewclark.com/2007/10/mashing-media-and-watching-fcc.shtml

Chairman Martin Proposes Cable Carriage for New TV Broadcasters

ASPEN, Colo. – Federal Communications Commission Chairman Kevin Martin on Tuesday offered two proposals that he said would address concerns about objectionable content and add “access to new voices in the media.”

Martin repeated his proposal to require cable operators to sell television programming a la carte, or on a per-channel basis. “The ability to pick and choose among the content being offered them by the cable operators,” he said at the Aspen Forum on Communications and Society here.

Parents would have “much have meaningful choices” in the programming they could watch, he said. Currently, “there is little or no incentive for the market or programmers to respond” to parents’ demands for less racy content.

Martin has previously urged a la carte pricing of cable systems, but Congress has failed to enact that policy.

The second suggestion, as with the first, would come at the expense of the cable industry. As television broadcasters transition to digital television, the ability to broadcast multiple channels of programming would “provide us an opportunity for others to lease some of that capacity,” said Martin.

“I have actually proposed that we specifically allow [minority and small-businesses] to lease some of that capacity,” he said.

“They would be treated just like full power stations,” said Martin, meaning that they would have the obligation to provide public interest obligations, such as three hours of child-oriented programming in a week.

“But they would also have the benefits of cable carriage,” said Martin. That means that these new television stations would enjoy mandatory carriage on cable system even if their over-the-air signals were extremely limited in their power.

URL: http://www.drewclark.com/2007/08/chairman-martin-proposes-cable-carriage.shtml

Drew Clark is blogging this week from the Aspen Institute’s Media and Values conference, where he is a rapporteur.

An Open Knowledge Base for the National Broadband Project

With the death of the last year's video franchising-Net neutrality bill, Democrats have now firmly taken the reins on telecommunications policy in Congress. Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii., has legislation designed to map out the availability of broadband, or high-speed Internet connections, in the United States, and it passed out of committee on July 19. Now, this week, Sen. Dick Durbin, D-Ill., announced an online effort to write national broadband strategy legislation. He will joined by several telecommunications and Internet experts in open-comment blogging sessions for four nights from July 24 - 27 at OpenLeft.com. Durbin says he will be crafting legislation based on the input he gets during those sessions. He will then post drafts of that legislation online for more feedback before filing it as a bill.

[more...]

URL: http://www.drewclark.com/2007/07/open-knowledge-base-for-national.shtml

and

http://www.publicintegrity.org/telecom/telecomwatch.aspx?eid=2982

Back to the Paper Bag

By Drew Clark

The National Association of Broadcasters likes to think of itself as the king of Capitol Hill. It carefully cultivates an invincible image. And some in the mainstream media buy it. The New York Times describes NAB as “the powerful trade lobby.” But in truth, right now television and radio broadcasters have never been weaker than in 1982, when Sen. Bob Packwood, R-Ore., uttered these famous words: “The NAB can’t lobby its way out of a paper bag.”

Over the last 10 years, the NAB spent $55 million in lobbying expenditures – more than any other association – to disprove Packwood’s hypothesis. But still, the association is now getting hit on all sides. On radio, this year NAB is battling the proposed merger of XM Satellite Radio and Sirius Satellite Radio. Besting such a merger would normally be easy – if NAB hadn’t been arguing for the opposite of what it now seeks. And last month an alliance of performers and recording companies called MusicFirst decided to strike for a performance royalty from over-the-air radio stations. American copyright law exempts terrestrial broadcasters from paying for performances.

But the biggest deal is now heading into the spotlight: vacant television channels known as “white spaces.” Everyone covets them: technology companies like Dell, Google, Intel and Microsoft, wireless carriers like Sprint-Nextel, advocates for rural broadband, and non-profit spectrum utopians who look at white spaces and see decentralized community networks.

Consider what the 700 Megahertz (MHz) brouhaha is all about. There, about 60 MHz of choice beachfront property will go on sale by January 2008. There is buzz about who will bid – even if the Federal Communications Commission decides to endorse the plan put forward by Frontline Wireless, which it probably hasn’t. FCC Chairman Kevin Martin has already gotten great press out of less-than-complete open access plan.

But the reason we’re even having this discussion is because the broadcasters lost the spectrum wars – or at least the first spectrum war of the 21^st Century. In early 2006, Congress said enough: broadcasters weren’t effectively using channels 52 to 69, and certainly wouldn’t need them after the transition to digital television (DTV) was completed. Television stations will be forced off those channels, corresponding to 698-806 MHz, on February 17, 2009.

That’s 700 MHz. But what about 500 MHz and 600 MHz? All told, there are 294 MHz of frequencies that broadcasters will continue to occupy ever after the DTV switchover. If more than 85 percent of Americans receive television from cable or satellite, as they do, what sense does it make to reserve these choice frequencies for broadcasters’ exclusive use?

Not very much. And that’s where the advocates of white spaces make their entry. A look at the broadcast band for the ZIP code 20006 demonstrates that no more than four of the 21 channels between 30 and 50 are occupied: 32, 45, 47 and 50. That leaves 17 available as white spaces. The channel numbers vary from city to city, and will likely change with the DTV transition. Still, there’s still going to be a lot of unused real estate in the sky.

The coalition of techies wants to open them up for wireless broadband devices capable of “sensing” the local broadcast signals. When vacant, they would transmit data over the vacant channels. Microsoft and Philips Electronics have both presented the FCC with prototypes of such devices.

But the broadcasters are fighting back, and their coalition, including Walt Disney, E.W. Scripps, and Hubard Broadcasting, has been making the lobbying rounds at the FCC to complain that these devices would cause digital TVs to go dark. But this battle won’t be decided at the FCC. Chairman Kevin Martin refused to have anything to do with white spaces until Congress – both Republicans and Democrats – made it clear it wanted him to proceed.

Putting the broadcasters’ arguments about interference aside, are white spaces a good idea? In pure Washington fashion, the answer depends on how you see the NAB’s future strength. White spaces makes the most sense if you still believe that broadcasters treat the airwaves the way Texans treat the Alamo. But for those who believe that the NAB is amenable to reason, and economic incentives, here’s the next puzzle: what will it take to entice broadcasters to sell, give up or vacate the remaining airwaves? There are plenty of telcos, techies, and community activists that believe they can do better with them. All they need now is a game plan to help the broadcasters out of their paper bag.

This column originally appeared on the blog "TelMeTech: The Politics of Telecom, Media and Technology." URL: http://www.telmetech.com/2007/07/back-to-paper-bag.html

Well Connected Project Begins Wiki Issue Portal on Congresspedia

Today, the Well Connected Project of the Center for Public Integrity is excited to launch an issue portal jointly with Congresspedia. This issue portal is a wiki, like Wikipedia, creating a collection of articles on telecom, media and technology policy, in a single location. Anyone can read, write and edit these articles.

[more...]

URL: http://www.drewclark.com/2007/07/well-connected-project-begins-wiki.shtml

or

http://www.publicintegrity.org/telecom/telecomwatch.aspx?eid=2980

FTC Report on Broadband Resurrects Freedom of Service Information

By Drew Clark

WASHINGTON, July 3, 2007 – The Federal Trade Commission intends to monitor the information that telecom and cable companies provide about high-speed Internet service in the service plans they offer to customers, according to a report issued last week by the agency.

The FTC asserts in the report, released on June 27, that since it has jurisdiction over matters involving consumer protection, it "will continue to enforce the consumer protection laws in the area of broadband access."

[more...]

URL: http://www.publicintegrity.org/telecom/telecomwatch.aspx?eid=2977

Podcast about the Fault Lines in Tech Lobbying

The podcast of my keynote speech at EDUCAUSE, "Mapping the Fault Lines in Telecom, Media and Tech Lobbying," is now available an online podcast.

Here's the blurb from the event:

The digital convergence of telecommunications, media, and technology is changing the landscape for policy makers and the industries that lobby them, as well as the users of computers, telephones, entertainment and knowledge. The Center for Public Integrity's Well Connected project tracks each of the major telecom, broadcast, cable, news, entertainment, wireless, and computer companies. Americans can access this free database to see who owns the media and communications networks in their city by typing in their ZIP code. The project is also responsible for a freedom of information lawsuit to obtain data about local broadband deployment from the FCC. This session will address the need for the educational users of computing and communication to be attuned to the lobbying fault lines that affect all of these sectors, with a particular focus on recent developments in telecommunications and intellectual property.

iPhone or iCarrot?

By Stephen Bone

Since the early days of the cellular industry, the justification for multi-year contracts has been handset subsidies. Since the cellular carriers subsidize the cost of the handsets, the argument goes, they need lock-in contracts to guarantee sufficient time to recover the up-front equipment costs. Holes in that story now appear with the iPhone.

Apple and AT&T have both stated that the iPhone is not being subsidized. That is the reason that the device is so awfully expensive. So cell phone consumers need to be asking themselves, “Was the contract-for-handset-subsidy argument legitimate or was it just an excuse to allow the cell companies to avoid short-term competitive pressures and quality service obligations?”

Given AT&T’s announcement that their plans for the unsubsidized iPhone will require a two-year contract, it would appear that cell phone contract requirements have indeed been about avoiding competitive pressures and service commitments.

Some might suspect that AT&T is simply trying to earn a few extra dollars from the iPhone excitement. However, AT&T may be thinking much, much bigger then that. What AT&T may be trying to do is to redefine the business model for the entire American cellular industry. They may want to set a precedent for getting rid of handset subsidies altogether. And the reason for the two-year contract with the unsubsidized iPhone is to establish that lock-in contracts remain a part of the deal.

That doesn’t have to happen. If consumers say “no” to this Friday’s launch of the unsubsidized, two-year-contract-required iPhone, then AT&T will realize that its new business model will not succeed in the American marketplace. They will have to modify the terms of the iPhone plan. If consumers instead say “yes” and buy the iPhone with the two-year contract, then it will only be a matter of time before all handset subsidies disappear and all cell phone users have to pay both the full cost of their handsets and still be locked into multiple-year contacts. Those who purchase iPhones under the current arrangement may very well be sealing that fate for all cell phone users.

Consumers should remember that AT&T is the company that, with its AT&T Wireless service, had the worst service reputation in the cellular industry. AT&T Wireless lost millions of customers in 1994, within the first few months that cell phone numbers became portable. Consequently, AT&T knows how important it is to lock in their customers, because AT&T’s previous wireless customers left in droves the moment it became possible to do so. That is why the “new AT&T” is so obsessed with preserving “the contract.”

That history, by itself, didn’t bode well for iPhone buyers. Now it turns out that the “new AT&T” is just like the old AT&T: willing to cut corners on service in search of a quick buck. Why else would AT&T be so insistent on preserving their two-year lock? It knows that it still risks short-term competitive pressures based on its service quality.

Either way, before American consumers become iPhone users, they need to consider the implications of assisting AT&T in sneaking in this new cell-industry precedent. Yes, the iPhone is an amazing device, but consumers need to understand the very expensive long-term burden they are risking if they acquiesce to AT&T's terms for this tempting electronic carrot. The decision to buy this week doesn’t just affect just them: it potentially affects every cell phone user in America.

This commentary originally appeared on TechSwot (http://www.techswot.com). Stephen Bone is a retired maritime I.T. officer who occasionally writes on tech industry trends. He can be reached at StephenBone@TechSwot.com.

Corporate Blogs: The New Editorial Page?

Google's public policy shop today officially joined the blogosphere, joining Cisco (February 4, 2005), Global Crossing (November 7, 2005), and Verizon Communications (October 2, 2006), each of which already have corporate policy blogs. The maiden post, by Andrew McLaughlin, Google's director of public policy and government affairs, promises "public policy advocacy in a Googley way." It's one in which users will "be part of the effort" to help "refine and improve" the company's policy positions. The blog already has 12 posts, done during the company's internal test. The most recent – which I suspect provided the occasion to officially launch the blog – is a short summary of the official Google position on network neutrality.

McLaughlin stoked controversy among bloggers (including this one) when in February he publicly suggested that it would be OK for broadband providers to charge other companies for quality-of-service guarantees "as long as it is done in a non-discriminatory way." The Internet search company went all-out to put out that fire, insisting that it hadn't changing its position on the hot-button telecom subject.

For the record, the Google blog states that the company's official position is that prioritizing all applications of a certain type, like streaming video, is OK. By contrast, prioritization of packet delivery based on the ownership or affiliation of the content – and charging a third party – is not OK.

The Google Policy blog already has some criticism from its co-corporate policy bloggers, including Verizon and Cisco. Incidentally, the companies disagree with Google on Net neutrality. Verizon's John Czwartacki says:

So I opened Wikipedia and learned that in Cricket a "googly" is a trick pitch, essentially a spinning curve ball designed to fool the batter or wicket guy or whatever he's called in Cricket.

So to prevent the tragically creative from accusing your Googley blog of also being "googly," I'd parse out that term carefully.

Cisco's John Earnhardt urges tells McLaughlin to:

Aim low…. Your stated goals are very high, and that is to be commended, but it is an awful lot of pressure to put on a blog...and your team.

For me, the most noteworthy part of the Google policy blog so far is its collection of videos of visits by presidential candidates – Hillary Clinton, John Edwards, John McCain and Bill Richardson – that have traipsed out to the Googleplex in less than four months. Hmm… I wonder if The New York Times editorial page, or CBS, can boast that kind of traction?

Broadcasters Hire Republican Trio to Lobby Against XM-Sirius

By Drew Clark

WASHINGTON, May 24, 2007 – The National Association of Broadcasters has enlisted the recently re-minted lobbying firm of Bluewater Strategies in its quest to combat the proposed merger of XM Satellite Radio and Sirius Satellite Radio.

In a Wednesday filing at the Senate Office of Public Records, lobbyists Tim Kurth, Andrew Lundquist and George Nethercutt, former Republican representative from Washington, said they would represent the NAB on the merger and other issues.

[more...]

URL: http://www.publicintegrity.org/telecom/telecomwatch.aspx?eid=2953

Supreme Court Rules for Verizon in Antitrust Matter

On Monday, the Supreme Court turned back another antitrust lawsuit against the Bell companies. TelecomTV, a British Web site for "telecoms executives," interviewed me on the case.

Second 'White Spaces' Device Presented to FCC

Many in the press (NYT, AP) are commenting this morning about on how Google on Monday encouraged the Federal Communications Commission to design their forthcoming auction of radio-frequencies to take advantage of real-time airwaves auctions. It's one more bit of news emerging from the 700 Megahertz (MHz) auction, which the FCC must begin before January 2008. In the words of telecom analyst Blair Levin, of Stifel Nicolaus, it is shaping up to be "a pivotal auction" that could provide "new blood for broadband... or [a] telco/cable sweep."

But there was another noteworthy filing at the FCC on Monday. The White Spaces Coalition -- whose members include Dell, EarthLink, Google, Hewlett-Packard, Intel, Microsoft and Philips Electronics -- met with commission officials and provided them with a prototype device for operating in vacant television broadcast channels. Philips' devices joins one previously submitted by Microsoft. (Look at page 3 for a picture of the "Microsoft TV White Spaces Development Platform.")

Just as the 700 MHz band offers new hope for telecom and video competition, many technology companies are looking to the vacant TV bands. The reason is simple: television channels so scattered, principally because they were designed around the 1940s-era NTSC standard, named after the National Television Standard Committee. As a look at the broadcast band for the ZIP code 20006 demonstrates, using FCC metrics, no more than four of the 21 channels between 30 and 50 are occupied: 32, 45, 47 and 50. That leaves 17 available within the "white spaces" between the frequencies where those stations broadcast. The occupied channel numbers will vary from city to city, which is why advanced sensing capabilities are needed to even begin to complete utilizing the spectrum in the television zone for something other that broadcasting.

WIPO Broadcast Treaty Panned at Copyright Office Forum

By Drew Clark

WASHINGTON, May 18, 2007 - Practically no one participating in a recent government forum here liked the proposed broadcaster protection treaty under negotiation at the World Intellectual Property Organization (WIPO) in Geneva.

Computer companies didn’t like it; telephone companies didn’t like it; the National Football League didn’t like it; consumer groups didn’t like it. Even a major broadcaster, National Public Radio (NPR), was opposed. “Unless and until we can get something that gives us our appropriate level of fair use rights, we would rather not see a treaty at all,” said NPR general counsel Neil Jackson.

That left Ben Ivins, senior associate general counsel at the National Association of Broadcasters, largely alone to support a proposed treaty on the protection of broadcasting organisations, which is scheduled to come before WIPO’s Standing Committee on Copyright and Related Rights (SCCR) from June 18 to June 22.

It will be the second “special session” of SCCR to consider last year’s directive from WIPO’s General Assembly for member country negotiators to narrow their differences and to progress toward a broadcaster protection treaty. If the June meeting is successful at producing a consensus draft version of a broadcast treaty, the measure is expected to go to a full diplomatic convention in November.

At the May 9 forum, which took place at the Copyright Office in the Library of Congress, Ivins called the committee’s current draft, or chair’s non-paper, a move “in the right direction.”

Ivins said that more than 20 countries support “a full panoply of exclusive rights” for broadcasters. Referring to WIPO Performance and Phonograms Treaty of 1996, which granted copyright-style protections for performers and sound recording companies, Ivins said, “The WPPT is the proper paradigm. We see no reason to, other than with minor differences, to deviate from that paradigm.”

“To many who have suggested that a parade of horribles would occur” with US ratification of such a treaty, Ivins said he had asked critics “to provide concrete examples of what [horrible things have] actually occurred in regimes around the world that have much more rights” for broadcasters.

But in the United States, Ivins’ is a minority view. The other companies with representatives who spoke on behalf of the treaty were News Corp., Time Warner and a European telecommunications and copyright industry consultant.

“As someone who represents a content company, my company does not oppose the treaty,” said David Fares, vice president of e-commerce policy for News Corp. Although Fares said that “copyright should be able to solve all the problems” faced by broadcasters, he added: “it doesn’t allow the broadcaster to seek damages for the piracy of their signal, therefore, they cannot recoup their investment.”

The United States is not a signatory to the 1961 Rome Convention, which granted exclusive rights in signals to broadcasters. Such signals are not eligible for copyright-style protection in the US, although the underlying content of broadcasts is protected by copyright.

The balance of U.S. industry and civil society interests are against Ivins’ position. In particular, most oppose the “exclusive rights” approach embodied in the current draft non-paper. They also said that the non-paper fails to adopt the narrower approach - one of banning signal theft - that the WIPO General Assembly appeared to endorse at the conclusion of its September-October 2006 meeting.

Referring to the current non-paper, David Wittenstein, an attorney at Dow Lohnes representing Dell, Intel and TiVo, said, “Article 9 prohibits anyone from making or importing anything that is capable of decrypting a broadcast.” The text of Article 9 requires treaty signatories to “provide adequate and effective legal protection against unauthorised” measures to unscramble broadcast signals.

Those electronic companies are concerned that the treaty would impact their ability to make in-home networking devices. “Virtually everything is capable of decrypting broadcasts. Surely it is not necessary to regulate computers to protect broadcasts.”

“We also share the concerns about adding a new layer of rights,” said Bob Garrett, an attorney at Arnold & Porter representing the NFL and other major leagues. “Those concerns are particularly applicable to those of us in sports.” Garrett said that national and international sports leagues were particularly concerned that the treaty appears to impair their ability to contract with broadcasters to retain the exclusive copyrights to sports programming.

“We are disappointed that the government is not defending US legal traditions,” said James Love, director of Knowledge Ecology International. Love said the US government had changed its position on the treaty, first supporting an Internet-based approach that include webcasting (dubbed “Rome plus”), then opposing the treaty last year after webcasting was excluded.

Referring to the US government’s comment on a draft version of the non-paper, Love said, “now we are seeing a position that moves closer to the Rome paradigm.” Such a new position, Love said, goes beyond US law and “grant[s] a copyright to packaging and third-party marketing.”

“US Telecom has long maintained that the appropriate approach to this treaty is the signal theft approach,” said Kevin Rupy, speaking on behalf of the association, which represents AT&T, Verizon and other carriers.

“None of the concerns that we have raised at previous [forums] have been removed, or even addressed by the non-paper,” said Gwen Hinze, international affairs director of the Electronic Frontier Foundation.

Hinze said the exclusive rights framework is inappropriate and conflicts with US law. She asked for an analysis by the US government about how the treaty, if adopted, could be embodied in U.S. law. Hinze also raised concerns about Article 9 of the draft, as well as its interaction with Article 3 (scope of protection) and Article 7 (the exclusive right to retransmission of broadcasts).

But the key voices in the room, the officials representing the U.S. government, were largely mute - at least insofar as revealing their negotiating position. A spokeswoman for the U.S. delegation said that the government’s position had not been finalised.

Still, the government came in for some criticism. “We are strongly disappointed in the government’s turn-around,” said Ed Mierzwinski, consumer program director for U.S. Public Interest Research Group.

That prompted a sharp reply from David Carson, the associate register for policy and international affairs, Library of Congress, and the chair of the meeting. “This was not drafted by us,” Carson said, referring to the non-paper.

“The relationship between this treaty and U.S. law has not been resolved,” replied Mierzwinski. “We hope that the non-paper results in a non-treaty.” Carson probed treaty critics and opponents on two questions: whether the draft treaty could be squared with U.S. law, and what other alternatives were there to the language in Article 9.

Sarah Deutsch, associate general counsel for Verizon, disputed Ivins’ assertion that “retransmission consent” in the U.S. was a form of broadcast signal protection. Under the Cable Television Consumer Protection and Competition Act of 1992, cable companies must either carry broadcasters’ signal or, at the election of the broadcaster, negotiate to pay the broadcaster.

“Retransmission consent is not an exclusive right to authorise, but a statutory scheme that Congress proposed to give access to local signals,” said Deutsch. Adopting the treaty as currently proposed would require the U.S. to add an entire new section to its copyright law, she said.

Ivins conceded that some changes in U.S. law would be necessary. “It might require some need to extend the right [of retransmission consent] beyond [cable companies]. To the extent that the student from MIT thinks it is neat to retransmit to the rest of the world, that is the type of activity that we would seek to use this protection to deal with.”

Among the other companies and organizations that signed a 9 May statement against the current treaty were AMD, AT&T, Creative Commons, Free Press, Google, Hewlett Packard, Panasonic Corporation of North America, Public Knowledge and several musicians’ and library groups, including the American Library Association, the International Music Managers Forum and the U.S. Music Managers Forum.

This story also appeared in Intellectual Property Watch

Transcript of May 9 WIPO Roundtable

I've just posted a rough-and-ready transcript (my own) of the May 9, 2007, roundtable at the U.S. Copyright Office concerning the World Intellectual Property Organization's Treaty on the Protection of Broadcasting Organizations. As the transcript is admittedly imperfect, it is not for quotation. However, I encourage distribution of this link for organizations and individuals interesting in following the WIPO Broadcast Treaty debate.