Last week, Senator Patrick Leahy (D-VT) and Representative John Conyers Jr. (D-Mich) introduced a new patent reform bill, which incorporates some provisions from previous reform efforts. Several high-tech companies have been pushing for an overhaul of the nation's patent system, and these companies seem confident that the Obama Administration will shepherd the reforms that they are seeking. Currently, the White House website seems to confirm the high-tech industry's beliefs. The new Administration is calling to reform the patent system in order to "reduce uncertainty and wasteful litigation" and to "ensure that our patent laws protect legitimate rights." While tech companies support the validity of the need for such reform, other industries, such as the pharmaceutical industry, oppose various aspects of the latest bill. In addition, some members of Congress have called for the nominations of a new PTO Director and Undersecretary of Commerce before the bill moves any further.
While the bill's sponsors are hopeful that it will generate new jobs and enhance innovation, various studies dispute whether the legislative language will increase jobs in the tech sector, or threaten the existence of certain manufacturing jobs. The bill also contains a number of provisions that have been deemed controversial, including limitations on damages for patent infringement suits.
For more information on the Patent Reform Bill, pleace visit:
http://news.cnet.com/8301-13578_3-10187240-38.html
For the language of the bill, please visit:
http://judiciary.senate.gov/legislation/upload/PatentReformActOf2009-AsIntroduced.pdf
For more information on the White House's Technology Agenda, please visit:
http://www.whitehouse.gov/agenda/technology/
Friday, March 13, 2009
Taxi!
The question presented itself last night in my trademark class, and I've been mulling it over ever since. Can a taxi cab company register the color yellow as a color mark with the U.S. Patent and Trademark Office?
My first instinct is to say no-- while a single color used on goods may acquire trademark rights, colors that are functional are not protectable. The Supreme Court's decision in Qualitex Co. v. Jacobson Products Co., 34 USPQ2d 1161 (1995) sheds further light on how a color mark can acquire distinctiveness and secure protection under U.S. trademark law.
From my perspective, based on Qualitex, the color yellow for taxi cabs is functional: when I am in the middle of a busy city, and I need a cab, I keep an eye out for a yellow car. Because yellow is an easy color to spot in a sea of traffic, given the low number of cars with that color (most people do not choose yellow for their own cars, and I would venture to say on a certain level it is a specialty color that most dealerships do not offer up front-- you likely have to order it) it makes hailing a cab a more efficient process.
Now, I must admit, most of my taxi experience has occurred in Washington, D.C. and New York City. But I have gotten into many taxis from different companies in these cities that were yellow, so many different companies have been using this color for as long as I can remember. While taxi cabs do come in other colors, it is the bright yellow car that catches my eye and causes me to hustle to the corner to wave the car down. The color yellow does have a value, but it does not cause me to think of any specific company in the way pink insulation makes me immediately think of Owens Corning (See In re Owens Corning Fiberglass Corp. 227 USPQ 417 (Fed. Cir. 1985)); or, how a yellow and green tractor makes me think specifically of John Deere.
Even various "taxi-related" websites use yellow-- see the link below:
http://www.worldtaximeter.com/new-york/taxi_companies
In sum, it seems the color yellow for taxi cabs is in fact functional, perhaps via accident of history, but nevertheless, it has a value to both customers and the companies that help us get around town.
For more on the history of the New York Yellow Cab, please visit:
http://www.npr.org/templates/story/story.php?storyId=11804573
For more on popular car colors in North America, please visit:
http://www2.dupont.com/Automotive/en_US/assets/downloads/colorpop2005.pdf
My first instinct is to say no-- while a single color used on goods may acquire trademark rights, colors that are functional are not protectable. The Supreme Court's decision in Qualitex Co. v. Jacobson Products Co., 34 USPQ2d 1161 (1995) sheds further light on how a color mark can acquire distinctiveness and secure protection under U.S. trademark law.
From my perspective, based on Qualitex, the color yellow for taxi cabs is functional: when I am in the middle of a busy city, and I need a cab, I keep an eye out for a yellow car. Because yellow is an easy color to spot in a sea of traffic, given the low number of cars with that color (most people do not choose yellow for their own cars, and I would venture to say on a certain level it is a specialty color that most dealerships do not offer up front-- you likely have to order it) it makes hailing a cab a more efficient process.
Now, I must admit, most of my taxi experience has occurred in Washington, D.C. and New York City. But I have gotten into many taxis from different companies in these cities that were yellow, so many different companies have been using this color for as long as I can remember. While taxi cabs do come in other colors, it is the bright yellow car that catches my eye and causes me to hustle to the corner to wave the car down. The color yellow does have a value, but it does not cause me to think of any specific company in the way pink insulation makes me immediately think of Owens Corning (See In re Owens Corning Fiberglass Corp. 227 USPQ 417 (Fed. Cir. 1985)); or, how a yellow and green tractor makes me think specifically of John Deere.
Even various "taxi-related" websites use yellow-- see the link below:
http://www.worldtaximeter.com/new-york/taxi_companies
In sum, it seems the color yellow for taxi cabs is in fact functional, perhaps via accident of history, but nevertheless, it has a value to both customers and the companies that help us get around town.
For more on the history of the New York Yellow Cab, please visit:
http://www.npr.org/templates/story/story.php?storyId=11804573
For more on popular car colors in North America, please visit:
http://www2.dupont.com/Automotive/en_US/assets/downloads/colorpop2005.pdf
Thursday, March 12, 2009
Does Radio Promote Music or Does Music Promote Radio?
TRUE or FALSE: "Just as Radio Promotes Music, Music Promotes Radio"-- Herbie Hancock
On Tuesday, March 10, 2009, Smashing Pumpkins lead singer Billy Corgan testified before the House Judiciary Committee on H.R. 848, "The Performance Rights Act." Corgan and the other witnesses attempted to shed light on the above quote, as they made their cases as to why a new performance right is needed (or why one is not necessary). The full hearing webcast can be viewed on the Smashing Pumpkins Website at: http://www.smashingpumpkins.com/.
Speaking along with Mitch Bainwol, Chairman of the Recording Industry Association of America ("RIAA"), Corgan testified on behalf of the MusicFirst Coalition, which represents various artists, labels and managers. Both witnesses spoke in favor of H.R. 848, explaining that the Act would end the unfair exemption that broadcasters receive (they currently do not have to pay artists any royalties) for over-the-air broadcasts. Steve Newberry spoke on behalf of the National Association of Broadcasters, and urged Congress to cosinder how the evolution of advanced technologies has undermined the financial position of the four major record labels. He explained that broadcasters have continued to do their job in a highly competitive environment, and touted the benefits of airplay as a promotional tool in the recording industry.
On the one hand: The lack of a performance right for musicians that allows them to profit from the use of their work seems contrary to the original purpose of copyright rights as outlined in the U.S. Constitution. The airwaves constitute the most common forum for the transmission of music, and it seems that allowing musicians to collect royalties would benefit new and emerging artists. Perhaps a sliding scale could be created with regard to the amount of royalties a given artist may collect based on the artist's popularity, the number of times a particular song may be played, and the size of the actual broadcaster. It seems appropriate, at first glance, that a flat exemption be provided to the smallest stations and religious organizations...but small stations may become top 40 stations via the profit advantage, because they will have free access to the most popular songs, while the big guys will be footing the bill.
On the other hand: On the flip side, however, let's not forget that radio stations do not charge their listeners either-- would the imposition of a performance right kill music? Would fewer people listen to the radio? (I know I would if I was forced to pay, Comcast already has me over a barrel for tv service). Why was this argument not raised during the height of radio, during the 50's and 60's when it was mainly being used to promote new records? Aren't these artists tired from their last fight against Napster? I'm curious.
Perhaps a middle ground can be found-- perhaps contracts can be renegotiated where certain songs are paid for-- but be prepared, this will massively change the way radio operates...there is a huge value to playing unusual music, the non-popular songs, which stations will not likely pay for...this may be the unofficial rise of the avant garde approach to radio. Maybe I won't have to listen to Lady GaGa and her "Poker Face" anyomore. Maybe I'll read more.
On Tuesday, March 10, 2009, Smashing Pumpkins lead singer Billy Corgan testified before the House Judiciary Committee on H.R. 848, "The Performance Rights Act." Corgan and the other witnesses attempted to shed light on the above quote, as they made their cases as to why a new performance right is needed (or why one is not necessary). The full hearing webcast can be viewed on the Smashing Pumpkins Website at: http://www.smashingpumpkins.com/.
Speaking along with Mitch Bainwol, Chairman of the Recording Industry Association of America ("RIAA"), Corgan testified on behalf of the MusicFirst Coalition, which represents various artists, labels and managers. Both witnesses spoke in favor of H.R. 848, explaining that the Act would end the unfair exemption that broadcasters receive (they currently do not have to pay artists any royalties) for over-the-air broadcasts. Steve Newberry spoke on behalf of the National Association of Broadcasters, and urged Congress to cosinder how the evolution of advanced technologies has undermined the financial position of the four major record labels. He explained that broadcasters have continued to do their job in a highly competitive environment, and touted the benefits of airplay as a promotional tool in the recording industry.
On the one hand: The lack of a performance right for musicians that allows them to profit from the use of their work seems contrary to the original purpose of copyright rights as outlined in the U.S. Constitution. The airwaves constitute the most common forum for the transmission of music, and it seems that allowing musicians to collect royalties would benefit new and emerging artists. Perhaps a sliding scale could be created with regard to the amount of royalties a given artist may collect based on the artist's popularity, the number of times a particular song may be played, and the size of the actual broadcaster. It seems appropriate, at first glance, that a flat exemption be provided to the smallest stations and religious organizations...but small stations may become top 40 stations via the profit advantage, because they will have free access to the most popular songs, while the big guys will be footing the bill.
On the other hand: On the flip side, however, let's not forget that radio stations do not charge their listeners either-- would the imposition of a performance right kill music? Would fewer people listen to the radio? (I know I would if I was forced to pay, Comcast already has me over a barrel for tv service). Why was this argument not raised during the height of radio, during the 50's and 60's when it was mainly being used to promote new records? Aren't these artists tired from their last fight against Napster? I'm curious.
Perhaps a middle ground can be found-- perhaps contracts can be renegotiated where certain songs are paid for-- but be prepared, this will massively change the way radio operates...there is a huge value to playing unusual music, the non-popular songs, which stations will not likely pay for...this may be the unofficial rise of the avant garde approach to radio. Maybe I won't have to listen to Lady GaGa and her "Poker Face" anyomore. Maybe I'll read more.
Tuesday, March 10, 2009
A National Broadband Strategy
Today, The Federal Communications Commission ("FCC"), The National Telecommunications and Information Administration ("NTIA"), and the Rural Utilities Service ("RUS") held a joint meeting at the Department of Commerce ("DOC") to discuss how they will implement the new broadband grant programs. NTIA, RUS and the FCC are accepting comment from the public on these programs. Specifically, NTIA and RUS are seeking the public's opinion on the percentage of grant funds to be apportioned, the role of the states, eligible grant recipients, grant selection criteria, grant mechanics, broadband mapping, and other categories highlighted in their recently released notice which can be found at:
http://www.ntia.doc.gov/frnotices/2009/FR_BTOP_RFI_090312.pdf
Further public meetings will be held in Washington D.C. on March 16, 19, 23 and 24, 2009. Field hearings will also be held on March 17 and 18, 2009, and the agencies may hold additional meetings as needed.
The FCC is also seeking comment on the creation of a national broadband strategy. A plan for a national broadband strategy has been subject to industry buzz for several years now, with various groups in the telecom sector floating their proposals before the Commission and on Capitol Hill. The FCC is specifically seeking public feedback on Congress' directive in the Food, Conservation and Energy Act of 2008 (2008 Farm Bill) which became public law last June. What I have found most surprising in the push for a broadband plan is the focus on what has been termed the "rural broadband" issue. It is important that a national strategy operate in a way that will connect all underserved and unserved areas, whether rural or urban.
One important aspect of a national plan is an efficient and reliable broadband mapping system, so that we can see what specific areas lack affordable access or rank low on the penetration scale. I've given some thought as to how the private and public sectors can work together to make sure such an undertaking would be successful. Recently, I attended an event at the New America Foundation that announced the release of Google's new "Measurement Lab." Bill Maguire, a member of the audience (and Counsel for Technology Policy for the House Committe on Small Business) suggested tweaking the tool in a way that would allow it to track the location of those logging on, in order to help with creating a national broadband map. While this would raise some privacy concerns, I think the underlying idea is a step in the right direction, and there are some other groups attempting to collect information from the public such as BroadbandCensus.com. Perhaps we can even figure out how folks are using their broadband-- are they primarily students, businesses, et. cet. Getting the right data will be challenging, but hopefully, the Commission will receive some good public input on how to create a comprehensive broadband map.
For more information on BroadbandCensus.com, please visit:
http://broadbandcensus.com/
For more information on Google's Measurement Lab, please visit:
http://measurementlab.org/
http://www.ntia.doc.gov/frnotices/2009/FR_BTOP_RFI_090312.pdf
Further public meetings will be held in Washington D.C. on March 16, 19, 23 and 24, 2009. Field hearings will also be held on March 17 and 18, 2009, and the agencies may hold additional meetings as needed.
The FCC is also seeking comment on the creation of a national broadband strategy. A plan for a national broadband strategy has been subject to industry buzz for several years now, with various groups in the telecom sector floating their proposals before the Commission and on Capitol Hill. The FCC is specifically seeking public feedback on Congress' directive in the Food, Conservation and Energy Act of 2008 (2008 Farm Bill) which became public law last June. What I have found most surprising in the push for a broadband plan is the focus on what has been termed the "rural broadband" issue. It is important that a national strategy operate in a way that will connect all underserved and unserved areas, whether rural or urban.
One important aspect of a national plan is an efficient and reliable broadband mapping system, so that we can see what specific areas lack affordable access or rank low on the penetration scale. I've given some thought as to how the private and public sectors can work together to make sure such an undertaking would be successful. Recently, I attended an event at the New America Foundation that announced the release of Google's new "Measurement Lab." Bill Maguire, a member of the audience (and Counsel for Technology Policy for the House Committe on Small Business) suggested tweaking the tool in a way that would allow it to track the location of those logging on, in order to help with creating a national broadband map. While this would raise some privacy concerns, I think the underlying idea is a step in the right direction, and there are some other groups attempting to collect information from the public such as BroadbandCensus.com. Perhaps we can even figure out how folks are using their broadband-- are they primarily students, businesses, et. cet. Getting the right data will be challenging, but hopefully, the Commission will receive some good public input on how to create a comprehensive broadband map.
For more information on BroadbandCensus.com, please visit:
http://broadbandcensus.com/
For more information on Google's Measurement Lab, please visit:
http://measurementlab.org/
Monday, March 9, 2009
Czech Republic "Hangs Up" on EU Telecom Talks
Talks aimed at changing the European Union's ("EU's") telecommunications rules deteriorated last week when the Czech Republic (which currently holds the rotating presidency) refused to join a compromise in the negotiations. The erosion of the negotiations may prevent an agreement from being reached on the legislative package before the European Parliament elections in June. This package includes:
- a proposal for a unified regulatory body for the entire EU (comprised of national regulators from the 27 member states)
- redistribution plans for spectrum following the analog-digital switch
- rules on mobile number portability
- the potential for enforced "functional separation"
Much of the package was authored by Commissioner Viviane Reding, who has advocated the creation of a single European regulator. Reding's system would likely be similar to the FCC in many respects. Practically, it may function similar to the way the national central banks operate, with national regulators responsible for analyzing their own markets, and a central regulator that would issue final decisions.
While both proponents and opponents of these proposals are on the sidelines, it seems that a more centralized regulator could theoretically benefit EU telecommunications companies (particularly smaller firms) by increasing regulatory certainty and unifying resources. It may assist in the push to further privatize the former government-owned telecom monopolies throughout Europe.
For more on the EU proposals, please visit:
http://www.techworld.com/networking/news/index.cfm?newsid=112282&pagtype=all
Sunday, March 8, 2009
Small Telecoms, Big Apple
I always love having a reason to visit New York City, one of my favorite cities in the world (ok, being raised in NY, I am a bit biased, but we do things better in NY than anywhere else: pizza...better...fashion...better...traffic...best). This past trip, I was able to take time to enjoy Central Park, and my run was the inspiration for my latest Last Mile posting. I was also able to walk past Ground Zero, the World Trade Center site, and it is still simply overwhelming, for lack of a better word. My reason for this particular trek up north: to see a New York University ("NYU") presentation on telecom issues related to the AT&T divestiture.
On Friday, March 6, 2009, I traveled to New York City to attend: Has Divestiture Worked? A 25th Anniversary Assessment of the Breakup of AT&T. The discussion took place at NYU, and was sponsored by the New York Chapter of the Internet Society ("ISOC-NY") and the Open Infrastructure Alliance ("OIA"). Among the panelists were Jonathan Askin, Bruce Kushnick, Dave Burstein and Joe Plotkin, all proponents for enhanced competition in the U.S. telecommunications market. Their biographies can all be found at:
http://25thanniversaryofthebreakupofatt.blogspot.com/
The event produced some interesting data and enabled folks to share their own personal experiences on the AT&T breakup and restructuring. Now, as Burstein pointed out himself, you always have to be careful of where you are getting data from and you have to be aware of how it is being manipulated-- I had some issues with Mark Cooper's findings, but I think Scott Cleland (participating in the audience) was able to jump in and rescue his point. Hopefully, the presentations will soon be made available on the web, and I am eagerly awaiting the release of new competition data from Teletruth, which should happen some time this week. Needless to say, all in the room were in agreement: there needs to be enhanced "competition on a regulated wire" in the U.S. telecommnications market. Moreover, the FCC needs to reshape itself as a transparent agency with increased regulatory certainty. One panelist referred to the Commission's recent activity as "irregulation." Other panelists shared the perspectives of small businesses, small ISPs and the creative community. Overall, the event was timely (right on the heels on the FCC and Telecom Act's 75th Anniversary as well, so cheers all around) and I hope it will encourage the proponents of competitive markets to hone their organizing skills and structure other useful discussions moving forward.
I must be honest: Given the current composition of the U.S. telecommunications market, I am always surprised to hear that there are in fact ISPs still out there (if you are an ISP, please, e-mail me-- I would love to see how many of you still exist). It was refreshing to hear that several small telecom companies are still pushing to provide consumers with personalized service, and I am interested in seeing how these entities will grow over the next few years. In the meantime, Chairman Copps is doing a fine job of steering the Commission away from the course it has been on, and it seems he and his staff are really working to address some of the transparency and other governance issues that many have been critical of these past few years.
On Friday, March 6, 2009, I traveled to New York City to attend: Has Divestiture Worked? A 25th Anniversary Assessment of the Breakup of AT&T. The discussion took place at NYU, and was sponsored by the New York Chapter of the Internet Society ("ISOC-NY") and the Open Infrastructure Alliance ("OIA"). Among the panelists were Jonathan Askin, Bruce Kushnick, Dave Burstein and Joe Plotkin, all proponents for enhanced competition in the U.S. telecommunications market. Their biographies can all be found at:
http://25thanniversaryofthebreakupofatt.blogspot.com/
The event produced some interesting data and enabled folks to share their own personal experiences on the AT&T breakup and restructuring. Now, as Burstein pointed out himself, you always have to be careful of where you are getting data from and you have to be aware of how it is being manipulated-- I had some issues with Mark Cooper's findings, but I think Scott Cleland (participating in the audience) was able to jump in and rescue his point. Hopefully, the presentations will soon be made available on the web, and I am eagerly awaiting the release of new competition data from Teletruth, which should happen some time this week. Needless to say, all in the room were in agreement: there needs to be enhanced "competition on a regulated wire" in the U.S. telecommnications market. Moreover, the FCC needs to reshape itself as a transparent agency with increased regulatory certainty. One panelist referred to the Commission's recent activity as "irregulation." Other panelists shared the perspectives of small businesses, small ISPs and the creative community. Overall, the event was timely (right on the heels on the FCC and Telecom Act's 75th Anniversary as well, so cheers all around) and I hope it will encourage the proponents of competitive markets to hone their organizing skills and structure other useful discussions moving forward.
I must be honest: Given the current composition of the U.S. telecommunications market, I am always surprised to hear that there are in fact ISPs still out there (if you are an ISP, please, e-mail me-- I would love to see how many of you still exist). It was refreshing to hear that several small telecom companies are still pushing to provide consumers with personalized service, and I am interested in seeing how these entities will grow over the next few years. In the meantime, Chairman Copps is doing a fine job of steering the Commission away from the course it has been on, and it seems he and his staff are really working to address some of the transparency and other governance issues that many have been critical of these past few years.
Wednesday, March 4, 2009
Checkmate: Has Copyright Law Met its Match?
Question: Are chess moves subject to copyright law? Should they be?
Earlier this month, a German chess site, "Chess Base" was broadcasting the first four games of a match between World Cup candidates Veselin Topalov and Gata Kamsky. The site was required to cease broaddcasting because it lacked permission from the Bulgarian Chess Federation (BCF). A friend forwarded me the article, which can be found at:
http://www.wccc2009.com/en/news&article_id=41.html
The action begs the question: can a chess move receive copyright protection? I must admit, I am no expert when it comes to the mechanics of chess, but I would first want to gain a better grasp on what category of copyrightable subject matter "chess moves" would fall under in Section 102 of the Copyright Act. Since there are a limited number of moves (I suspect) wouldn't chess be reduced to something as formulaic as a mathematical equation, and wouldn't its factual essence prevent copyright protection?
There is another layer here: the fact that the moves in question were a part of a broadcast (an internet broadcast, to be precise)...perhaps we can more accurately compare chess moves to a musical composition, where certain groupings produce a more desireable result...but back to the broadcast itself...much like a book published on chess moves (literary work), the broadcast may be able to receive protection which would not extend to the underlying ideas, concepts, principles illustrated (Section 102 (b)). However, the notion that chess players could profit from their moves makes chess even more intriguing to me...what would Bobby Fischer think?
Earlier this month, a German chess site, "Chess Base" was broadcasting the first four games of a match between World Cup candidates Veselin Topalov and Gata Kamsky. The site was required to cease broaddcasting because it lacked permission from the Bulgarian Chess Federation (BCF). A friend forwarded me the article, which can be found at:
http://www.wccc2009.com/en/news&article_id=41.html
The action begs the question: can a chess move receive copyright protection? I must admit, I am no expert when it comes to the mechanics of chess, but I would first want to gain a better grasp on what category of copyrightable subject matter "chess moves" would fall under in Section 102 of the Copyright Act. Since there are a limited number of moves (I suspect) wouldn't chess be reduced to something as formulaic as a mathematical equation, and wouldn't its factual essence prevent copyright protection?
There is another layer here: the fact that the moves in question were a part of a broadcast (an internet broadcast, to be precise)...perhaps we can more accurately compare chess moves to a musical composition, where certain groupings produce a more desireable result...but back to the broadcast itself...much like a book published on chess moves (literary work), the broadcast may be able to receive protection which would not extend to the underlying ideas, concepts, principles illustrated (Section 102 (b)). However, the notion that chess players could profit from their moves makes chess even more intriguing to me...what would Bobby Fischer think?
Broadband Initiatives Meeting to Take Place on March 10
On March 10, 2009 the Department of Agriculture's Office of Rural Development, the Department of Commerce's National Telecommuincations and Information Admnistration ("NTIA") and the Federal Communications Commission ("FCC") will hold a meeting to examine "Broadband Initiatives in the American Recovery and Reinvestment Act of 2009." This will be the first of a series of public meetings to discuss the various broadband components of the new Rural Development Broadband Plan.
For the federal register notice of this event please visit:
http://www.usda.gov/rus/telecom/publications/pdf/public-broadband-arra2009.pdf
For the federal register notice of this event please visit:
http://www.usda.gov/rus/telecom/publications/pdf/public-broadband-arra2009.pdf
Julius Genachowski Nominated as New FCC Chairman
On March 3, 2009 President Barack Obama formally nominated Julius Genachowski as the new Chairman of the FCC. Numerous trade associations and public interest groups have supported this pick, including Public Knowledge and the American Cable Association ("ACA"). Through his business experience and previous work at the FCC, Genachowski will bring a wealth of talent to the Commission.
With one Republican seat open and speculation that Commissioner Jonathan Adelstein (D) will not be renominated, but perhaps moved to head the Department of Agriculture's new broadband program, the face of the Commission is poised for dramatic change. Ajit Pai and Senator Sam Brownback (R-KS) may be in the running for the Republican slot. South Carolina public utilities official Mignon Clyburn could possibly round-out the Democratic majority.
For more on Julius Genachowski, please visit:
http://www.netcaucus.org/biography/julius-genachowski.shtml
With one Republican seat open and speculation that Commissioner Jonathan Adelstein (D) will not be renominated, but perhaps moved to head the Department of Agriculture's new broadband program, the face of the Commission is poised for dramatic change. Ajit Pai and Senator Sam Brownback (R-KS) may be in the running for the Republican slot. South Carolina public utilities official Mignon Clyburn could possibly round-out the Democratic majority.
For more on Julius Genachowski, please visit:
http://www.netcaucus.org/biography/julius-genachowski.shtml
Thursday, February 19, 2009
Stimulus Bill: Bucks for Broadband
On Tuesday, February 17, 2009, President Barack Obama signed into law a $787 billion dollar stimulus package. $7.2 billion dollars will go towards broadband projects, with the U.S. Department of Commerce running a $4.7 billion dollar program and the remaining $2.5 billion falling under the Direction of the Department of Agriculture.
Notably, the bill stipulates that projects funded via the Commerce Department's National Telecommunications and Information Administration (NTIA) must adhere to "nondiscrimination and openness principles." Specifically, the agency must ensure that the recipients of the funding follow the FCC's 2005 Broadband Policy Statement. This statement, while deemed "advisory," set forths the Commission's 4 net neutrality principles:
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to access the lawful Internet content of
their choice.
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to connect their choice of legal devices that
do not harm the network.
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to competition among network providers,
application and service providers, and content providers.
Some industry experts believe that this requierment was a clever way for Congress to address net neutrality issues in a "back-door" fashion. Moreover, experts disagree as to whether these provisions will really serve Congress' intended goal: to increase broadband adoption across the United States.
For more on this, please visit:
http://news.cnet.com/8301-13578_3-10144035-38.html?tag=mncol;txt
Notably, the bill stipulates that projects funded via the Commerce Department's National Telecommunications and Information Administration (NTIA) must adhere to "nondiscrimination and openness principles." Specifically, the agency must ensure that the recipients of the funding follow the FCC's 2005 Broadband Policy Statement. This statement, while deemed "advisory," set forths the Commission's 4 net neutrality principles:
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to access the lawful Internet content of
their choice.
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to connect their choice of legal devices that
do not harm the network.
• To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to competition among network providers,
application and service providers, and content providers.
Some industry experts believe that this requierment was a clever way for Congress to address net neutrality issues in a "back-door" fashion. Moreover, experts disagree as to whether these provisions will really serve Congress' intended goal: to increase broadband adoption across the United States.
For more on this, please visit:
http://news.cnet.com/8301-13578_3-10144035-38.html?tag=mncol;txt
Royalty Board Lowers Rates for Internet Music
On February 16, 2009 a deal was reached that will lower the rates set in 2007 by the Copyright Royalty Board for Internet radio webcasters. In its 2007 decision, the board had significantly increased the rates that these operators were required to pay artists and recording companies.
The National Association of Broadcasters and SoundExchange (a group that collects royalties) agreed to lower these rates by approximately 16 percent in 2009 an 2010. That means for every song per 1,000 listeners in 2009, a station will pay $1.50. This rate will raise to $2.50 per 1,000 listeners by 2015. Rate agreements for certain groups, including religious broadcasts and college broadcasts have yet to be negotiated.
In recent weeks, issues related to performance rights have been taking center stage on Capitol Hill. On February 4, 2009, a bipartisan bill, "The Performance Rights Act of 2009" (S. 379) was introduced by Senators Patrick Leahy (D-VT) and Senators Orrin Hatch (R-UT), Dianne Feinstein (D-CA), Bob Corker (R-TN) and Barbara Boxer (D-CA). On the House side, John Conyers (D-MI), Chairman of the House Judiciary Committee, and others have co-sponsored H.R. 848, which was last referred to the Judiciary Committee. This proposed legislation intends to "provide parity in radio performance rights under title 17, United States Code" and would require U.S. terrestrial radio stations to pay performance royalties to various artists. The bill attempts to enhance the level of fairness in the music industry between broadcasters and artists through the establishment of new performance rights.
Because these U.S. stations do not pay artists for their music, foreign radio stations do not compensate performers when their songs are played abroad. This has negatively impacted the music industry, but opponents of the bill such as the National Association of Broadcasters, view it as an "unfair tax" on radio stations. Section 3 of the bill does carve out special treatment for smaller broadcasters, as well as non-commercial, educational and religious stations.
For more information on SoundExchange, please visit:
http://www.soundexchange.com/
For more information on the National Association of Broadcasters, please visit:
http://www.nab.org/AM/Template.cfm?Section=Home
For the full text of H.R. 848, please visit:
http://www.govtrack.us/congress/bill.xpd?bill=h111-848
The National Association of Broadcasters and SoundExchange (a group that collects royalties) agreed to lower these rates by approximately 16 percent in 2009 an 2010. That means for every song per 1,000 listeners in 2009, a station will pay $1.50. This rate will raise to $2.50 per 1,000 listeners by 2015. Rate agreements for certain groups, including religious broadcasts and college broadcasts have yet to be negotiated.
In recent weeks, issues related to performance rights have been taking center stage on Capitol Hill. On February 4, 2009, a bipartisan bill, "The Performance Rights Act of 2009" (S. 379) was introduced by Senators Patrick Leahy (D-VT) and Senators Orrin Hatch (R-UT), Dianne Feinstein (D-CA), Bob Corker (R-TN) and Barbara Boxer (D-CA). On the House side, John Conyers (D-MI), Chairman of the House Judiciary Committee, and others have co-sponsored H.R. 848, which was last referred to the Judiciary Committee. This proposed legislation intends to "provide parity in radio performance rights under title 17, United States Code" and would require U.S. terrestrial radio stations to pay performance royalties to various artists. The bill attempts to enhance the level of fairness in the music industry between broadcasters and artists through the establishment of new performance rights.
Because these U.S. stations do not pay artists for their music, foreign radio stations do not compensate performers when their songs are played abroad. This has negatively impacted the music industry, but opponents of the bill such as the National Association of Broadcasters, view it as an "unfair tax" on radio stations. Section 3 of the bill does carve out special treatment for smaller broadcasters, as well as non-commercial, educational and religious stations.
For more information on SoundExchange, please visit:
http://www.soundexchange.com/
For more information on the National Association of Broadcasters, please visit:
http://www.nab.org/AM/Template.cfm?Section=Home
For the full text of H.R. 848, please visit:
http://www.govtrack.us/congress/bill.xpd?bill=h111-848
Wednesday, February 18, 2009
Asleep at the "Switch": Did I Miss the DTV Transition?
True: I wanted to call this article “I want my DTV” but a quick search on Google revealed that I am not so clever. The Wall Street Journal had already published that exact headline in yesterday’s online opinion section.
You can read WSJ’s article at:
http://online.wsj.com/article/SB123482718276095125.html
False: The DTV transition occurred on February 17, 2009. Congress passed legislation (S. 352) to delay the transition until June 12, 2009. While some stations have moved forward and made the transition, the remaining stations are poised to do so sometime between March 14 and June 12, 2009. The FCC reports that approximately 220 stations stopped broadcasting in analog prior to Tuesday, and about 421 stations completed the transition by Midnight on Tuesday, for a total of 641 stations having made the transition. Needless to say, the various switch dates have led to consumer confusion. The FCC has released some recent news with these details, as well as the call volume on this issue on their consumer help line.
These materials can be found at:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-288530A1.pdf
and
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-288641A1.pdf
Let’s Face It: digital television sounds cool, and once the transition is complete consumers will benefit from the new technology while the FCC also frees up some valuable spectrum. Part of being a member of the new, "technologically-driven generation on the rise" makes the notion of improved picture quality and multicasting capabilities an exciting new feature for me. However, many consumers who are not as tech savvy have experienced a myriad of problems related to a lack of reliable information and a scarcity of resources needed to make the DTV transition a smooth one.
Moving Forward: The FCC has recently ramped up its advertising of the DTV transition (Congress moved forward and switched the date anyway, because Congress can do that), but more must still be done to ensure that all consumers understand what they actually need. The FCC's news updates have, in fact, been helpful. For this transition to work, consumers need to be given accurate information, and the government needs to make sure that converter box coupons and other necessary resources are available—something that a mere date switch cannot fix. Despite how long consumers waited to cash in their coupons, in a country focused on connecting everyone to broadband, no one in “TV-land” should be left in the dark.
For more on the DTV transition, please visit:
http://www.fcc.gov/
and
http://www.dtv.gov/
You can read WSJ’s article at:
http://online.wsj.com/article/SB123482718276095125.html
False: The DTV transition occurred on February 17, 2009. Congress passed legislation (S. 352) to delay the transition until June 12, 2009. While some stations have moved forward and made the transition, the remaining stations are poised to do so sometime between March 14 and June 12, 2009. The FCC reports that approximately 220 stations stopped broadcasting in analog prior to Tuesday, and about 421 stations completed the transition by Midnight on Tuesday, for a total of 641 stations having made the transition. Needless to say, the various switch dates have led to consumer confusion. The FCC has released some recent news with these details, as well as the call volume on this issue on their consumer help line.
These materials can be found at:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-288530A1.pdf
and
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-288641A1.pdf
Let’s Face It: digital television sounds cool, and once the transition is complete consumers will benefit from the new technology while the FCC also frees up some valuable spectrum. Part of being a member of the new, "technologically-driven generation on the rise" makes the notion of improved picture quality and multicasting capabilities an exciting new feature for me. However, many consumers who are not as tech savvy have experienced a myriad of problems related to a lack of reliable information and a scarcity of resources needed to make the DTV transition a smooth one.
Moving Forward: The FCC has recently ramped up its advertising of the DTV transition (Congress moved forward and switched the date anyway, because Congress can do that), but more must still be done to ensure that all consumers understand what they actually need. The FCC's news updates have, in fact, been helpful. For this transition to work, consumers need to be given accurate information, and the government needs to make sure that converter box coupons and other necessary resources are available—something that a mere date switch cannot fix. Despite how long consumers waited to cash in their coupons, in a country focused on connecting everyone to broadband, no one in “TV-land” should be left in the dark.
For more on the DTV transition, please visit:
http://www.fcc.gov/
and
http://www.dtv.gov/
Saturday, February 14, 2009
USPTO Hosts Roundtable on Deferred Examinations
On February 12, 2009 I attended a roundtable at the United States Patent and Trademark Office ("USPTO" or "PTO") that focused on how to successfully implement a process for deferred patent examinations. The event featured an impressive group of participants, including Arti Rai, of Duke University School of Law, Nancy Link, of the USPTO, Herb Wamsley of the Intellectual Property Owners Association, and Richard Wilder of Microsoft. Several other USPTO representatives contributed to the discussion, which was kicked off by Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the USPTO, John Doll. John Whealan, Associate Dean for Intellectual Property Law Studies at The George Washington University Law School moderated a thoughtful discussion, which examined past efforts to create a deferred examination system, and contrasted how such a system would coexist with the continuing examination process and provisional applications.
The PTO does not currently have a proposal or a plan ready for consideration, and the roundtable served as a useful way to engage the public with PTO representatives in order to examine the relevant issues, identify challenges, and envision potential provisions for a deferred examination system. Additionally, speakers evaluated the success of similar systems enacted by foreign countries, and discussed the benefits and drawbacks both domestically and internationally. Notably, the panelists listed a reduced burden on the PTO, greater speed in the application process, a higher quality of applications, and the ability of inventors to focus resources on R&D as expected benefits. The drawbacks identified included submarine concerns/claim creep issues and potential "blue sky filings."
For more on the USPTO's policies regarding patents, please visit:
http://www.uspto.gov/
The PTO does not currently have a proposal or a plan ready for consideration, and the roundtable served as a useful way to engage the public with PTO representatives in order to examine the relevant issues, identify challenges, and envision potential provisions for a deferred examination system. Additionally, speakers evaluated the success of similar systems enacted by foreign countries, and discussed the benefits and drawbacks both domestically and internationally. Notably, the panelists listed a reduced burden on the PTO, greater speed in the application process, a higher quality of applications, and the ability of inventors to focus resources on R&D as expected benefits. The drawbacks identified included submarine concerns/claim creep issues and potential "blue sky filings."
For more on the USPTO's policies regarding patents, please visit:
http://www.uspto.gov/
Friday, February 13, 2009
Framework for an African Information Economy
On February 11, 2009 I attended a discussion hosted by Qorvis that focused on how the public and private sectors could work together to bring Africa into the global economy. The speakers explained some of their personal experiences in Africa, and examined the potential challenges that would impact an initiative similar to the Clinton Administration's "Framework for Global Ecommerce." The event was extremely informative, and you can watch each individual presentation on Qorvis' website (please see the below link).
One presentation was based on a new book by Vijay Mahajan entitled: Africa Rising: How 900 Million African Consumers Offer More Than You Think. Throughout the book, Mahajan prescribes the following actions for individuals interested in the African market:
For a summary and webcast of this event, please visit:
http://www.qorvis.com/an_influential_firm/news/event_details/09-02-11-framework.html
For a summary of Vijay Mahajan's book, please visit:
http://www.amazon.com/dp/0132339420/?tag=googhydr-20&hvadid=2741448837&ref=pd_sl_730dctofye_e#reader
One presentation was based on a new book by Vijay Mahajan entitled: Africa Rising: How 900 Million African Consumers Offer More Than You Think. Throughout the book, Mahajan prescribes the following actions for individuals interested in the African market:
- Recognize that Africa is richer than you think
- Aim for Africa Two
- Find opportunities to organize the market
- Develop strategies for the most useful market in the world
- Understand that Africa is not a "media dark" continent
- Recognize the hidden strength of the African diaspora
- Build Ubuntu markets
For a summary and webcast of this event, please visit:
http://www.qorvis.com/an_influential_firm/news/event_details/09-02-11-framework.html
For a summary of Vijay Mahajan's book, please visit:
http://www.amazon.com/dp/0132339420/?tag=googhydr-20&hvadid=2741448837&ref=pd_sl_730dctofye_e#reader
Broadband 2009
On Tuesday, February 10, 2009, the American Enterprise Institute (AEI) hosted a panel discussion to examine broadband's role in the economy and the economic stimulus package. One particular area the panelists analyzed was the benefit of a rural subsidy for broadband. The debate over how to expand broadband to underserved rural areas is a complicated one, and a real strategy will require careful crafting; the current stimulus package may not be the best vehicle for such a complex undertaking. Additionally, whether or not a subsidy will solve the problem is debatable.
There are many questions we should ask moving forward: will subsidizing broadband in rural areas really benefit those individuals the government intends to benefit? Are the levels of poverty greater in rural areas than in urban areas? At the end of the day, a public-private partnership may offer more attractive benefits, and we should seriously consider this as a part of a national broadband strategy.
The "broadband problem" is one that even the past Administration claimed it would fix-- under the Bush Administration, the catch phrase was "Broadband by 2007." The Obama Administration has a unique opportunity to tackle this problem that some believe has compromised our position as the global leader in technology. Increasing the United States' global ranking will take more than the typical focus on a fix from the "last mile." The connection to the actual Internet backbone cannot be ignored, and a deeper look at the role of competition in the market wouldn't hurt.
A summary of the AEI event can be found at:
http://www.aei.org/events/filter.all,eventID.1881/summary.asp
A Report on Broadband Use by Rural Small Businesses can be found at:
http://www.sba.gov/advo/research/rs269tot.pdf
Testimony from Connected Nation on their public-private partnership initiative can be found at:
http://www.house.gov/smbiz/hearings/05-09-07-sub-broadband/testimony-05-09-07-connect-kentucky.pdf
There are many questions we should ask moving forward: will subsidizing broadband in rural areas really benefit those individuals the government intends to benefit? Are the levels of poverty greater in rural areas than in urban areas? At the end of the day, a public-private partnership may offer more attractive benefits, and we should seriously consider this as a part of a national broadband strategy.
The "broadband problem" is one that even the past Administration claimed it would fix-- under the Bush Administration, the catch phrase was "Broadband by 2007." The Obama Administration has a unique opportunity to tackle this problem that some believe has compromised our position as the global leader in technology. Increasing the United States' global ranking will take more than the typical focus on a fix from the "last mile." The connection to the actual Internet backbone cannot be ignored, and a deeper look at the role of competition in the market wouldn't hurt.
A summary of the AEI event can be found at:
http://www.aei.org/events/filter.all,eventID.1881/summary.asp
A Report on Broadband Use by Rural Small Businesses can be found at:
http://www.sba.gov/advo/research/rs269tot.pdf
Testimony from Connected Nation on their public-private partnership initiative can be found at:
http://www.house.gov/smbiz/hearings/05-09-07-sub-broadband/testimony-05-09-07-connect-kentucky.pdf
Welcome to Technocratically Correct
Like many others, I have decided to start a blawg to initiate discussion on legal developments in my fields of interest and to share scholarship and new ideas. As an active telecom/IP attorney, and an LL.M. student focusing on intellectual property law, I have developed a need for a forum for some of my thoughts with regard to telecommunications, patent, copyright and trademark law. Yesterday (February 12, 2009) marked my two-year anniversary as a public sector attorney, and I thought it represented an appropriate time to take on this project. The title, while a bit tongue-in-cheek, represents my desire to focus on substance and "outside thinking" with each post. I hope that a wide variety of commenters will become engaged, including students, engineers, attorneys, economists, and anyone else interested in sharing their own opinion. I also hope that this blawg will eventually serve as a useful resource on telecommunications and intellectual property law. In no way are any of my comments meant to represent the views of the government agency that I work for, they represent my own personal views. I look forward to your comments and I hope that you enjoy Technocratically Correct.
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