Marvin Ammori

Here it is.

A well-known conservative federal judge in Texas, Judge Jerry Smith, engaged in a “disgraceful” “hissy fit”–or asked a reasonable question, depending on your point of view. In response to recent comments by Obama that courts should defer to considered judgment by a duly elected, enacting Congress, Judge Smith asked the DOJ to file a brief letter affirming judicial review in a case.

The Attorney General filed a short letter. For those who speak “lawyer,” we can translate the text as DOJ’s polite way of saying: “The President is right, the courts have said so repeatedly, and you are completely out of line.”

It reminds me of the scene in the Other Guys, “Tuna v. Lion,” where Will Ferrell turns Mark Walberg’s arguments against him and ends “Did that go how you thought it would go? Nope.”

Here’s the clip, with Will Ferrell playing Eric Holder and Mark Walberg playing Jerry Smith.

Bloomberg has an excellent story about the undisclosed political money spent by corporations and energy interests during 2010–made possible by the Supreme Court’s notorious Citizens United decision.

This quote jumped out at me:

The non-party organizations that don’t disclose their donors increased their spending to $133 million in 2010, compared with $875,000 during the previous off-year elections in 2006, according to the Center for Responsive Politics, and favored Republicans by a ratio of 10-to-1.

That is, the decision resulted in a 150x increase in spending among such groups. And the spending was 10x more likely to help the party that appointed all five Justices in the Citizens United majority.

Here is the published version of my recent article, First Amendment Architecture. It is the lead article in the current volume of the Wisconsin Law Review.

Please read it!

Also, obviously, I’d like to extend a big thanks to the Wisconsin Law Review staff. Their editing was extremely helpful and they managed to deal with considerable editing and reorganization after acceptance.

Also, thanks to the folks at Concurring Opinions and to Stanford Technology Law Review for online and in-person symposia on the article. Both symposia, along with feedback from many friends, improved my thinking considerably.

According to reports, the Federal Trade Commission is releasing their much anticipated report on consumer privacy today, at 11am.

UPDATE: Here is the report (pdf).

A start-up Internet TV company called Aereo recently announced 20 million dollars in funding a few weeks ago. U.S. broadcasters celebrated the news by suing it for copyright infringement.

Broadcasters brought very similar suits against the first cable companies in the 1960s and 1970s, and took those cases all the way to the Supreme Court. The broadcasters should lose these cases just as broadcasters lost those cases.

Aereo provides a simple value proposition: you can watch broadcast TV through the Internet on any of your devices. You might want to watch NBC on your iPad or iPhone instead of your television. That would be convenient. You do other things with your iPad–like listen to music you own, call your friends, read books, watch movies. And, hey, you already can watch NBC for free over the air, with a regular antenna. Why can’t you just take that antenna signal and stream it to your own devices?

That’s where Aereo comes in. The company decided to rent high-definition antennas to consumers. Nothing problematic there: anyone could go to a Radio Shack and buy, or even rent, an antenna. Aereo then provides the technology to let you stream that antenna’s feed directly to your devices. Of course, the antenna you’re renting isn’t on your roof; it’s in some windowless Aereo building somewhere. But it’s your antenna and nobody else’s. You’re not sharing that antenna with anyone else.

Aereo’s business model is creative, convenient, and looks completely legal.

Let me explain one limit–it applies only to broadcast channels. Some TV channels are available over the air and on cable & satellite, like NBC and ABC affiliates, while others are available only on cable & satellite, like ESPN, CNN, and others. Those available over the air are “broadcasters.” Anyone can watch them for free with an antenna. And Aereo is capturing those over-the-air signals.

The broadcasters don’t like Aereo. This isn’t because they oppose every innovative new business model that would make it easier for users to watch and enjoy their content. (But good guess!) It’s because most people don’t watch their channels over the air for free–most people watch broadcasting through cable and satellite subscriptions. Big broadcasters generally charge the cable and satellite companies who carry their programs. That is, CBS can charge Time Warner Cable or Comcast for carrying CBS. If people start watching CBS online, then CBS can’t charge Time Warner Cable or Comcast nearly as much. Also, the broadcasters have their own designs for streaming broadcasting content to your iPad: it’s called Hulu Plus and it costs money every month. This is why broadcasters have blocked devices like Google TV, which tried merely to display websites on a bigger screen–the bigger screen was a TV and the websites included broadcast TV websites, but the broadcasters prohibited streaming of the websites on big screens. Finally, if you’re keeping score here, the cable companies have their own strategy for how you watch TV on your iPad–their internal name for the strategy is “TV Everywhere” and it requires you to pay a cable subscription to watch what you want on the Internet. (I have argued that TVE is the product of anticompetitive agreements.)

Broadcasters and cable companies could compete with Aereo and see what consumers prefer, but they preferred to file suit. The suit is probably designed to distract executives at Aereo, raise their costs considerably, rattle investors ever considering in investing in a similar company, and drive Aereo out of business whether or not it’s illegal. (See Veoh.)

I haven’t seen the pleadings, just the news reports. But the broadcasters sued the first cable companies forty years ago. Those cable companies were “copyright pirates.” They took one TV antenna, put it on top of a hill, and then rolled cables out to lots of different houses so that everyone with a cable could get better TV reception. They then imported TV channels from far-away broadcasts; the NBC broadcasting affiliate in New York probably had better football games and better evening programs than those in Omaha, so Omaha broadcasters would lose money when people watched the New York programming instead.

The broadcasters sued, accusing the cable companies of pirating their signals and sharing the signal with thousands of people–some of them hundreds of miles away. But the Supreme Court didn’t bite. In two cases, Fortnightly and Teleprompter, the Court held that cable companies could take the freely available content just like anyone else with an antenna. At the time, cable companies were known as “community antenna television”–they provided TV to an entire community. The Court said cable systems “basically do no more than enhance the viewers’ capacity to receive the broadcast signals,” so they fall in the same “category of viewers,” which is a category of people not infringing on the broadcasters’ copyrights.

I cannot see how Aereo could be infringing if the cable companies were not. The cable companies were offering community antennas. Aereo is offering an antenna per person, individual antennas. Congress later overturned those cases in 1976 and imposed a compulsory license for cable companies in 17 USC 111–and later gave broadcasters additional rights against cable companies of “retransmission consent.”The 1976 law did not envision today’s world and there is an argument that some of the language in 111 might ensnare Aereo. And some recent court cases have been less friendly (here, here) to disruptive innovators than the Supreme Court was years ago.

But Congress never said that using your own antenna is an infringement. That is the key argument that appeals to me here. A do-it-yourself way of receiving broadcasts on your iPad screen instead of on your big “TV” screen or some other little “portable” TV screen would have to be legal–from your point of view they’re just two different screens. Why can’t you watch TV, from your own antenna, on any screen you want to use in your house?

So the legal case is [update: might] be shaky.

The broadcasters’ messaging can’t be pretty either. NBC is offered over-the-air for free largely because of history and because of US government handouts. Since the 1930s, the government regulated the airwaves to favor large, powerful broadcasters rather than amateurs or unlicensed uses–handing large broadcasters billion-dollar licenses for free in exchange. In the 1990s, broadcasters received billions handed to them in terms of new spectrum, spectrum they now want to be paid for relinquishing. All along, the broadcasters’ key argument for their value was that they provided “free” over the air broadcasting available to all Americans, rich or poor.

Now the broadcasters are trying to stop people from “enhancing” their ability to receive TV signals–to any screen they own, for free. That should lose in court of public opinion no less than it should lose in court.

(These are initial impressions. As always, happy to correct mis-impressions. And two notes. I have long written about threats to online TV from incumbent providers, including in this law review article. And I represent some tech companies but not on these issues.)

Tomorrow I am speaking on a panel at the New America Foundation on “Tinkering with Tomorrow.” The day’s line-up is a who’s who of academics (Tim Wu), White House officials (Tom Kalil), start-up CEOs (Etsy’s CEO), and journalists (from Slate and Ars Technica). Here is a link. Future Tense is a collaboration among New America Foundation (where I’m a Legal Fellow), Slate Magazine, and Arizona State University.

It will be great fun, a really important discussion.

I will be on a panel discussing the patent system and the Do-It-Yourself Movement. In preparation, I am reading about patent prospect theory, the Homebrew Clubs, hacker spaces, Yochai Benkler’s works on peer-produced innovation, and von Hippel’s work on user-innovation. If you find that kind of thing fascinating–and you should–hope to see you Wednesday at the New America Foundation.  

Following citizens’ victory against the SOPA & PIPA censorship legislation, citizens groups and advocates for open technologies are proposing forward-looking proposals and agendas for our digital future.

One of the leaders in the space, Public Knowledge, has worked with other groups to launch Internet Blueprint. Its focus is copyright law–only one of the many legal policies that could undermine Internet freedoms and access, yet a very important one.  The Internet Blueprint proposes strengthening DMCA safe harbors–a geeky legal exemption that is actually one of the most important policies preserving our speech rights and powering speech-enabling policies. My friend Nick Bramble, at Yale, has an amazing draft paper setting out the case for how the DMCA safe harbor, along with another immunity, advances the First Amendment through both legislative and judicial decisions powering open platforms like Twitter, WordPress, and Tumblr.

Other proposals in the Blueprint include: shortening the disturbingly long copyright terms that undermine innovation and freedom of speech (something that Lawrence Lessig famously challenged in the Supreme Court case Eldred v. Ashcroft) and strengthening fair use, a right to use copyrighted material for criticism, remixing, educational uses, and personal uses.  Fair use is rooted in the First Amendment and central to creativity.

The important overall picture is this: the Internet is not just a one-to-many distribution medium for content. It’s not another way for Hollywood to distribute movies–after theaters, DVDs, HBO, TBS, and CBS. It is a platform for speech and association that has disrupted regimes and empowered millions. We should keep the Internet and evolving technologies open, not closed. We should not close them either for governmental interests nor for the commercial interests of studios and labels (or cable or phone companies). The blueprint for the Internet’s architecture should be openness, and that openness rests on good policy as much as it rests on good technology.

And we can’t look to the courts or Congress to choose the right policies for openness unless we’re all involved. Just as the “environmental movement” has consisted in yearly fights and battles for decades to preserve healthy natural ecosystems, the freedom movements must remain “eternally vigilant” (in the words of a famous Supreme Court decision) year in and year out to preserve an open Internet ecosystem. It will not be easy, but it will be worth it. And this Blueprint is important for setting some goals in that ongoing struggle for online freedom.

On Friday, I spoke at a symposium about a recent article I wrote. A few friends have been posting really insightful thoughts about that article, and other First Amendment ideas, on an online symposium over at Concurring Opinions.

I decided to post my talk here, as a brief 2100 word synopsis of the 30,000 word article. (I have been posting a less brief blog series on Concurring Opinions: 1, 2, 3, 4, 5, 6, 7, and 8 will be the last.)

The Stanford talk is after the jump.

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Next Friday, February 10, the Stanford Technology Law Review is holding its annual symposium, and this year’s topic is an important one: First Amendment Challenges in the Digital Age. Of the three panels, one is devoted to privacy and another to copyright. The third is devoted to a long, ambitious law review article … written by me. The panel participants joining me to discuss the article are two of the nation’s great free speech scholars–Harvard’s Yochai Benkler and the University of Virginia’s Lillian BeVier. The article is called First Amendment Architecture. In it, I argue that the First Amendment plays an important role in ensuring adequate physical and digital spaces for speech, and that this role is not some exceptional outgrowth of First Amendment doctrine but is central to understanding what the First Amendment “means.” While I submitted the paper for publication in February 2011, the subsequent events of the Arab Spring, the Occupy Movement, and the fight over SOPA/PIPA have all highlighted the significance to democratic speech of open physical and digital spaces.

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Are Democrats really going to eat their own for standing against SOPA/PIPA and standing with freedom of speech, innovation, cybersecurity, and the entire public?

This hit piece in Politico suggests some Democrats are foolish enough to think they should tear down Senator Wyden for his heroic work in fighting for a free and open Internet–something he’s been doing since the 1990s. In 2006, Senator Wyden authored the very first network neutrality bill. This year he fought to kill SOPA and PIPA. I’m biased since I was there both times, but he deserves praise, from his party and the nation, not a knife in the back.

While the piece focuses on Medicare, it seems timed to attack him for his work on SOPA, which is dead as of last Friday. Part of the Politico piece makes it explicit: