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Highlights of Commissioner Pai's Net Neutrality Dissent

Posted by Tom Giovanetti | Comments | May 18, 2014

Commissioner Pai strikes at the heart of the problem with assuming that the D.C. Circuit court gave the FCC broad authority to impose regulations on broadband. Some highlights:

". . . every American who cares about the future of the Internet should be wary about five unelected officials deciding its fate."

. . .

". . . President Clinton and Congress got it right in the Telecommunications Act of 1996 when they declared the policy of the United States to be 'preserv[ing] the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.'"

. . .

"If we are to take the D.C. Circuit at its word, section 706 grants the FCC virtually unfettered authority to encourage broadband adoption and deployment. So if three members of the FCC think that more Americans would go online if they knew their information would be secure, could we impose cybersecurity and encryption standards on website operators? If three members of the FCC think that more Americans would purchase broadband if edge providers were prohibited from targeted advertising, could we impose Do Not Track regulations? Or if three members of the FCC think that more Americans would use the Internet if there were greater privacy protections, could we follow the European Union and impose right-to-be-forgotten mandates? And because section 706 gives state commissions authority equal to the FCC,11 every broadband provider, every online innovator, every Internet-enabled entrepreneur may now have to comply with differing regulations in each of the 50 states. Tesla, Uber, Airbnb, and countless others can attest to the welcome that parochial regulators give to disruptive start-ups." Read More >>

"Welcome to the Stupid Internet" Still Holds Up

Posted by Tom Giovanetti | Comments | May 18, 2014

This past week I filmed an episode of the McCuistion program, a public affairs TV show that airs around the country, and the topic was net neutrality. It should air in a couple of months.

The program began with Tim Wu's definition of net neutrality, which is essentially the principle of non-discrimination: All bits have to be treated the same, with no discrimination. Essentially, the "dumb pipes" argument all over again.

This emphasis on non-discrimination reminded me of the first op/ed I wrote against net neutrality way back in 2006, in the early days of the net neutrality debate, entitled "Welcome to the Stupid Internet."

The piece is no longer archived on the San Jose Mercury News site, so we keep it archived here.

It's interesting to me that we are still at non-discrimination after all these years.

Of course, David Isenberg didn't like it. But Richard Bennett did, as did Scott Cleland

Here's what I think is interesting: For those eight years, we did not have net neutrality regulations, and the Internet blossomed. So . . . doesn't that mean that net neutrality proponents were wrong, and that the Internet was just fine without net neutrality regulations?

Oldie but goodie.

Read More >>

More Ad Dollars Flow to Pirated Video

Posted by Tom Giovanetti | Comments | May 7, 2014

Great piece in today's Wall Street Journal on ad-supported piracy.

Many people still think of piracy as a victimless crime; or rather, of a crime that affects a victim that they don't care about: Big Content, or whatever disparaging name they prefer to use. They like to convey the idea that piracy is simply people "sharing" content that they "care about."

But piracy is big business, and people are profiting from piracy. Valuable content is valuable, and people are going to make money off of valuable content. The only question is whether the profit-makers are those who invested in the creation of the content, or whether it's just parasites who are making the money.

Piracy websites are the criminals, but companies and networks that advertise on those piracy websites are the enablers. And it's appropriate to put pressure on companies and ad networks to ensure that their ads don't run on websites trafficking in illegal content.

In February, nonprofit Internet safety group Digital Citizens Alliance commissioned MediaLink to research how much money these sites are making. MediaLink examined 596 sites where viewers can find pirated movies and TV shows, and estimated those sites generate a total of $227 million in advertising revenue annually. Even "small" piracy sites could make more than $100,000 a year from ad space sold to major brands, the report said, because they don't pay for their content. The profit margins of the sites examined could range from 80% to 94%, based on the costs typically associated with maintaining such sites, which include hosting fees and human resources.

Take zzstream.li, for example, which helps users unearth and stream unlicensed video owned by companies including Home Box Office Inc., Warner Bros. Entertainment Inc. and Lions Gate Entertainment Corp. In March, it featured advertising for brands including Kraft, Toyota, Target, Honda, Lego and Claritin. The site reached 1.34 millioni people in March, according to online measurement firm com Score. Read More >>

Video of Tom Giovanetti Speaking on the U.S. Relinquishing Control of Internet Root Zone Functions

Posted by Tom Giovanetti | Comments | April 13, 2014

ICAC IANA CSPAN 1I was honored to speak at a panel discussion on Friday sponsored by the Congressional Internet Caucus Advisory Committee on whether transferring control of the Internet root zone functions from the U.S. Dept. of Commerce to some yet-to-be-determined multistakeholder organization is a good thing.

The briefing was televised on CSPAN, and the archive video can be seen here. Read More >>

Sen. Mike Lee Agrees with IPI on Ending the Ex-Im Bank

Posted by Tom Giovanetti | Comments | April 7, 2014

Great piece in National Review today by Senator Mike Lee (R-UT) on eliminating the Export-Import Bank.

I couldn't have said it any better, Senator Lee, though I did try.

Several times. Read More >>

Bigger Can Be Better; or Why the Comcast Merger is Probably Good for Time Warner Cable Customers

Posted by Tom Giovanetti | Comments | March 24, 2014

One or two guys oops, people can write a great app, or a great algorithm, and that's a great thing. Our economy is benefitting and consumers are reaping the benefits of such innovation and creativity that comes as the fruit of the minds and labor of a few.

But some things are really, really expensive and capital intensive to do, like building out and maintaining a 21st Century broadband and rich content network that is constantly innovating new products and services for its customers.

That's one of the reasons why I've never been big on municipal broadband networks, and it's a big reason why, as Marguerite Reardon wrote in CNET, the Comcast merger could be good for TimeWarner Cable customers. In fact, it almost certainly will be. Read More >>

Speaking at Cato on IP in the Trans-Pacific Partnership

Posted by Tom Giovanetti | Comments | March 21, 2014

Tom at Cato on IP in the TPPI had the privilege of speaking a couple of weeks ago at a Cato Institute briefing on whether it is wise or appropriate to include intellectual property protection in trade agreements, specifically in the Trans-Pacific Partnership (TPP), the major trade agreement that is currently in a pretty vital stage of negotiation. The name of the event was "Intellectual Property in the Trans-Pacific Partnership: National Interest or Corporate Handout?" It was kind of Bill Watson at Cato to invite me to participate, and you can see the video of the event on Cato's website here. You can also see my Powerpoint slide deck here.

My role at the event was to speak from the perspective that intellectual property protections should be part of such trade agreements. I was in the definite minority, as both the other two panelists and the moderator are all skeptical of IP protection in general, and certainly don't think we should be using trade agreements as leverage to ask our trading partners to raise their IP protection standards. But I was happy to play that role. Read More >>

Francis Gurry Wins Reelection at WIPO

Posted by Tom Giovanetti | Comments | March 6, 2014

A few hours ago Francis Gurry won re-election (technically, re-nomination) as Director General of the World Intellectual Property Organization (WIPO) in Geneva. This is a good thing.

My sources tell me Gurry received 46 votes on the first ballot, 4 votes over an outright majority. At this, the Estonian (7 votes) and Panamanian (10 votes) nominees withdrew.

What would normally then have happened is a second ballot, but after seeing Gurry’s large initial vote, some of the African Group went to the nominee from Nigeria, who had received 20 votes, and told him they were going to switch to Gurry, undoubtedly because they wanted to go with the winner. At this, the Nigerian nominee withdrew, so Gurry was nominated by consensus. Read More >>

One More Reason

Posted by Bartlett D. Cleland | Comments | March 6, 2014

Yesterday we wrote that the 6 percent who answered in a survey that they thought the U.S. has the best tax system in the world were wrong. Already today we have one more reason the 6 percent are wrong: The Tax Foundation released an analysis showing that the U.S. has the 9th highest top marginal tax rate on personal dividends compared to other countries in the OECD. So, in the U.S., you are highly taxed if you own a business, if you invest, if you save or if you earn income. And some people wonder why so many struggle to make ends meet? Figuring it out is not exactly an exercise in the advanced engineering of spacecraft. Read More >>

"You Didn't Build That" Comes to Copyright

Posted by Tom Giovanetti | Comments | February 15, 2014

When President Obama performed his infamous “You didn’t build that” soliloquy during the 2012 campaign, it obviously hit a nerve. Not because there was anything particularly outrageous with the point he was trying to make, but rather because the phrase was seen to be a revealing slip, and seemed to confirm what many had long suspected about Obama—that he had a dismissive attitude toward the traditional American value of the rugged individual who, though hard work and determination, built a successful business. Your success is not due primarily to your hard work and sacrifices, you see—it’s mostly due to everyone else. Really, we all out here sitting on our behinds are responsible for your success, and we don’t recall seeing any dividend checks lately from you. So it’s time to pay up.

Parents don’t raise children, you see—schools and institutions do. Entrepreneurs don’t build businesses—taxpayers and government bureaucrats do. It takes a village, remember?

It’s just a slight step from there to conclude that, since you don’t really get the credit for your success—since we all really had more to do with it than you did—it really ought be us, not you, who gets to say how your capital gets used. After all, you didn’t build that. Next thing you know, we’re wresting control of the means of production from the capitalists, because after all, they didn’t build that—the collective we did.

This is crap. The creator and builder has always been an American hero to all but that small, disgruntled minority that believe you must take from the creator to redistribute to others. In capitalism, as in any moral system, the builder and inventor and creator is a hero, and is deserving of his or her success. Because their success is simply the fruit of their labor, and everyone is entitled to the fruit of their labor as their possession. It doesn’t get much more basic than that.

But the mob still lurks out there, demanding that they are a better judge of how the fruit of your labor should be deployed than you are. I’ve long argued that the primary locus of this essentially nihilistic and even Marxist thinking is today being focused on intellectual property, and I’m sad to say that the latest iteration showed up in, of all places, the editorial page of The Wall Street Journal. Specifically, in “Sorry, Writers, but I’m Siding With Google’s Robots,” a February 7th op/ed by James Panero, a thirty-something art snob who, ironically, doesn’t seem to have a very high view of art—or at least of art that is protected by copyright. Read More >>

US Files WTO Complaint Against India's Domestic Content Requirements for Solar Panels

Posted by Tom Giovanetti | Comments | February 10, 2014

Today, the U.S. filed an official complaint with the World Trade Organization (WTO) against India for its domestic content requirements for solar panels.

Domestic content requirements are prohibited in most cases under WTO agreements.

Of course, the details of this dispute relevant to the solar panel industry are important. But this dispute takes place in a much wider trade dispute context in which India has been purposely ignoring and violating the rights of intellectual property rights holders as part of their domestic industrial policy. Particularly in the area of prescription drug patents.

As Sally Pipes writes in Forbes:

Over the last two years, the Indian government has attacked pharmaceutical patents with increasing aggression. In March 2012, it issued its first “compulsory license” for a kidney-cancer drug made by Bayer AG. A compulsory license allows firms to make generic copies of drugs supposedly still protected by patents in exchange for a licensing fee set by the government. The patent holder has no say in the matter.

Later that year, the Indian government revoked Pfizer’s patent on Sutent, which treats gastrointestinal tumors and advanced kidney cancer. No other country has taken such an action.

And in early 2013, India’s Supreme Court denied patent protection for Glivec, which is used to treat leukemia, despite the fact that it continues to be protected by patents in almost every other country.

To date, India has issued compulsory licenses or revoked patents for eight advanced pharmaceuticals. Read More >>

IP is Property Even Though Infringement Doesn't Deprive the Owner of Its Use

Posted by Tom Giovanetti | Comments | February 10, 2014
One of the arguments that IP skeptics use against intellectual property protection is to attack the idea that it is property at all. And, in their mind, a major argument against it being property is that infringement doesn't deprive the supposed owner of his or her supposed property.
In the IP skeptics' mind, if someone steals your car, they've deprived you of the use of your car, so that's wrong. If they steal your phone, or your house, or your toothbrush, that's obviously wrong because you've been deprived of the use of the item.
They contrast that with IP goods, in which if your song or book or software is copied, you are not deprived of the use of the item, so it's NOT theft because it's NOT property. 
This passes for logic to the IP skeptics. It's not logical, but they think it is. The reason it's not logical is that they are arguing from a wrong assumption: Their definition of property is wrong.
This is clear and non-controversial to anyone who knows the law or who has studied the law.

Good Video of a Copyright Discussion

Posted by Tom Giovanetti | Comments | February 7, 2014

Back on January 14th, the New York chapter of the Copyright Society hosted a debate between junior law school student Derek Khanna and MPAA Vice President of Legal Affairs Ben Sheffner.

The video has been posted on YouTube.

It's about an hour long, and it's worth a watch. It's a civil discussion, though I think the substantive arguments in favor of strong copyright protection trump Derek's rather facile arguments.

And I forgive Ben for botching our name <g>.

The discussion ranges from the politics of copyright to the economic importance of copyright. It's worth a watch. Read More >>

A Sad State of Affairs

Posted by Tom Giovanetti | Comments | February 7, 2014

House Speaker John Boehner has pretty much said that immigration reform is dead, and the main reason seems to be that the Republican Conference has no confidence that the President would faithfully execute the law that resulted from whatever legislative compromise that might arise in Congress.

Congress might require certain border security tests to be met, for instance, before allowing immigrants with legal status to begin applying for citizenship, for example. But the President might just blow off the border security requirements, as he has blown off any number of legal requirements during his term.

So here's where we are: Our President only selectively upholds the laws passed by the Congress. The normal response in our system to such an abrogation of the office of the Presidency would be impeachment, but since there is no will in the Congress for impeachment, we have reached the point where Congress cannot legislate because it doesn't have confidence that the President will faithfully execute the laws it passes.

This is a sad state of affairs.

All legislation is the result of trade offs and compromises. But if we know in advance that the President will pick and choose elements of the law to enforce or ignore, compromise becomes impossible.

The other normal response in our system would be for Congress to simply refuse to fund the Executive Branch until it begins to comply with the laws Congress passes. But there is no will in Congress to do that, either.

Much of this is the fault of letting the Executive Branch grow too large and have too much power. In a limited government as envisioned by our Founders, you could defund the Executive Branch for 3 months and people would hardly notice. But when you've given the Executive Branch such extensive control over the economy, defunding it means virtually shutting down the government. Read More >>

The Government Class Makes A Startling Admission

Posted by Tom Giovanetti | Comments | February 5, 2014

In case it wasn't clear enough that the Government Class is in the business of using government power to enrich themselves at the expense of taxpayers, this idiot spelled it all out for you:

“These transactions are the largest opportunities for people to make money off of government, and so we want to make sure that everybody is included,” Ald. Walter Burnett, 27th, said. “It’s a lot of money. It’s enough for everybody. Folks should make sure everybody is included.”

If you don't think corrupt management and Government Class self-enrichment can't turn Chicago into another Detroit, you're kidding yourself. Read More >>

 

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