MediaSpace Wiki

Regulation Of Media Fall2004 Session11

• https://www.parentstv.org/ptc/fcc/fcccomplaint2.asp

Evolving notions of Property

• Lessig
  • "ideas released to the world are free ... The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright ... Here the law turns says you can't take my idea or expression without my permission: The law turns the intangible into property." Lessig (Free Culture, p. 84)
  • "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." Thomas Jefferson
  • The origins of copyright in the Statute of Anne (1710) and subsequent litigation (Donaldson vs Beckett, 1774).
  • Litigation and fair use.
    • Litigation costs money
    • The risk of litigation forces risk averse insurance requirements.
    • Deep pockets matter
    • Especially when there is a deadline.
  • "Cut and pasted" technology in a copyrighted world
    • The high cost of permissions
    • "Sampling" as the domain of the privileged
    • "The law was born to protect publishers' profits against a pirate. It has matured into a sword that interferes with any use, transformative or not." (Lessig, Free Culture, p. 99)
  • "The way back machine"
  • [http://imobissimo.com|Property]
    • "Creative Property owners must be accorded the same rights and protection resident in all other property owners in this nation." Jack Valente, MPAA President, Testimony to Congress, 1982.
    • But the framers defined creative property differently than other kinds of property.
    • The four modalities of regulation:

• Current issues
  • Law: Duration of Copyright
  • Law: Application of Copyright to Derivative works
  • Law and Architecture: Changing notions of Fair Use
  • Architecture and Law: Permissions on an e-book reader
  • Law and Architecture: Recording Hacks, Dancing Dogs, and the Digital Millenium Copyright Act
    • Circumvention of Copyright protection
  • Market: Concentration
• "The law now regulates the full range of creativity" p. 171
  • We have transformed from this:

	Publish	Transform
Commercial	Copyright	Free
Noncommercial	Free	Free

• To this

	Publish	Transform
Commercial	Copyright	Copyright (end of nineteenth century)
Noncommercial	Copyright (photocopier; 1975)	Copyright (digital copyright)

• "The enemy is regulation that does no good" (p. 172)
• "Free culture is increasingly the casualty in this war on piracy." (p. 172)

• MCChesney
  • "In Weimar Germany ... a handful of of mighty press barons fostered Hitler's advance to power. After the war, the U.S.-led occupying forces implemented strict ownership rules to prevent concentrated ownership because of its role in the rise of fascism." (p. 224)
  • A chapter on policy
    • but with three categories of policy
      1. Development and Deployment
      2. Ownership
      3. Public Media
  • Technology matters to media
  • But policy often trumps technology
    • FM Radio
    • Digital TV
    • Digital Radio
    • Spectrum giveaways
  • De facto Standards making also matters
    • QWERTY keyboards
    • VHS/BETA
    • Microsoft Windows
    • TIVO and digital recording
  • Business takes the least risk when it controls markets
    • Dominance in markets can be achieved via
      • Path Dependency and Effective Monopoly
      • Policy and Public Monopoly
      • Patents and control of technology
      • Copyright and control of content
  • So how does the Internet fit into this
    • The truth is that its too early to know
      • To what extent is lack of regulation by the government really regulation by other means?
      • To what extent does an infrastructure that doesn't respect national boundaries subject to government regulation?
      • To what extent can policy be used to stifle innovation and competition?
      • To what extent do resources trump sweat and good intentions even for an infrastructure where the price of entry is less than $70 a year?
      • McChesney would like to argue that the openness of the Internet can be challenged if ownership becomes too concentrated; if competitive pressures are allowed to slacken
    • Big media have used it, in the short term, as an argument to allow media concentration
      • And at least some players have used content ownership as a way to control the playing field
    • We have a few big sites that get a huge percentage of Internet hits
      • But these include some major new players that aren't yet owned by big media
      • And big media acquisitions have met with mixed results at best
    • We have many millions of sites, most of which net little traffic
  • All of this raises large questions of what constitutes "property" in the Internet age and who owns it
    • The courts declared the spectrum to be publicly owned
    • Can the Spectrum be given away on a permanent basis without effectively ceding that ownership to private interests?
  • Issues of policy
    • Private ownership of the media
      • Does it limit entry to the very rich?
    • Advertising as the funding source of media
      • Does it introduce content bias?
    • Concentration of ownership
      • Does diverse and distributed ownership better serve the public interest?
      • Newspapers have become oligopolies without any significant government policy changes
    • Coordinated efforts by media associations
      • Does self-regulation turn the media into an alternative government?
    • Broadcast ownership
    • Copyright
      • Has policy change turned copyright into a corporate property right?
    • Antitrust law
      • At what level of concentration does antitrust law apply?
      • So what is at issue for media antitrust law?
        • advancing informed and active self-government
        • market power over price based on competition
        • cost structures matter such that more production intensive media may always be less competitive
        • cross ownership
  • Is there a solution in funding public broadcasting?