At Stanford Technology Law Review’s annual symposium last month, Harvard Law Professor Yochai Benkler gave remarks on physical and digital spaces, as part of a panel discussing Marvin’s article on First Amendment Architecture. You can view his talk below:
Georgetown University’s Institute for Law, Science, and Global Security hosted a discussion this morning between the Institute’s Director, Dr. Catherine Lotrionte, and US Cyber Command’s Legal Counsel, Col. Gary Brown*, on the topic of “Legal Challenges to Advancing Cybersecurity.” The purpose of the discussion was to highlight some of the lessons learned from a conference held last year on the same topic, in which policymakers and other leaders in cyber attempted to tackle the legal complexities of cybersecurity.
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The Heritage Foundation held an event this morning on cyber threats, with particular attention paid to House Intelligence Committee Chairman Mike Rogers’ bill, HR 3523 – the Cyber Intelligence Sharing and Protection Act of 2011.
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Talk to the average person, and they might tell you U.S. Cyber Command is the first real effort the US military has made at addressing cyberspace. The Atlantic Council’s event yesterday, entitled “Lessons From Our Cyber Past: The First Military Cyber Units,” dispelled that myth, and revealed some insights into how exactly the US has been approaching the very real threats posed by our adversaries in the online realm.
Speaking at the event were the leaders of these first forays into cyber: Col. Walter “Dusty” Rhoads, USAF (Ret.), who was the Founding Commander of the 609th Information Warfare Squadron; Lt. Gen. John H. “Soup” Campbell, USAF (Ret.), who was the Founding Commander of Joint Task Force – Computer Network Defense; and Maj. Gen. James D. Bryan, US Army (Ret.), who was the Founding Commander of Joint Task Force, Computer Network Operations. The Atlantic Council’s Jason Healey moderated the event.
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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.
Earlier today, the Atlantic Council hosted a panel discussion on NATO’s developing role in cyber defense and security. Participants included IBM’s NATO and European Defence Leader Leendert Van Bochoven, IBM’s Vice President Security Counsel & Chief Privacy Officer Harriet P. Pearson, and the Director of the Atlantic Council’s Cyber Statecraft Initiative, Jason Healey. Barry Pavel, the Director-Designate and Arnold Kanter Chair of the Brent Scowcroft Center on International Security at the Atlantic Council, moderated the event.
The event highlighted the Atlantic Council’s recent publication, NATO’s Cyber Capabilities: Yesterday, Today, and Tomorrow, which the council hopes will provide guidance to NATO at its upcoming summit in Chicago later this year.
Bochoven provided a brief introduction in which he noted that cybersecurity is one of NATO’s top priorities, and that as member states continue to connect information systems to industrial systems and other platforms, we must be able to defend those connected systems properly. Healey echoed this point, also noting that the alliance’s goal should be on “the basics,” and defending and securing NATO systems before broadening the focus to helping member states secure their individual systems.
Pearson spoke of NATO’s general cyber strategy, noting that the institution needs to provide a tight linkage between the operations side and the strategic side of cyber matters, and on the strategic side to have a long term focus. Collaboration is also key – not just in terms of member states working together but also cooperation between NATO and the private sector.
Asked what their single most important recommendation would be for NATO, each provided similar answers. Healey suggested the organization must be able to “unpack” the complex issues into simpler components that can be reasonably dealt with, as opposed to becoming mired in abstract discussions on “unsolvable problems” that ultimately lead nowhere. Pearson offered that leadership needs to clearly establish the reality in which NATO operates, and set key areas for the organization to focus on and take action. Bochoven said setting clear terminology for current and future efforts is essential, pointing to the phrase “full operational capacity” as an example of a misnomer that muddles the understanding of NATO’s progress in this area.
In response to an audience question on the subject of public private partnerships, Healey cautioned that NATO and government officials need to ask at the offset, “what do we want to accomplish?” so as to not lead to only marginally beneficial results because of a lack of clarity on those desired outcomes. Bochoven also pointed out that these partnerships need to have two-way value, so that there is a strong incentive on the part of the private sector to actively participate.
On the matter of information sharing, Pearson said the rate and pace of collaboration needs to pick up considerably, and at the same time transform from solely post-hoc sharing about cyber incidents to a system that incorporates anticipatory sharing, that can yield more valuable results. Ideally these relationships and sharing practices are devised before a major incident and not on the fly, Healey added, also noting that NATO countries need to be more willing to declassify information so it can actually benefit the private sector, citing the example of malware signatures.
Healey made an interesting comment that fits within some of the broader discussions taking place in the midst of Congress taking action on cybersecurity legislation, stating that we’re not teaching “cyber-mindedness.” He explained further by noting that during his time in the Air Force, airmen were taught about past battles and leadership, strategy, etc. to hone “air mindedness,” and that so far we’ve failed to do so for cyber. An interesting project might be to see what efforts to encourage cyber-mindedness have been taken so far, and evaluate those efforts as leadership on both sides of the Atlantic seeks to answer these important strategic questions on cybersecurity.
Next week, ACUS will be hosting an event on the history of US military cyber units, all of which were precursors to the recently stood up US Cyber Command.
If you’re in Washington DC this Wednesday, you’ll have to endure the agony of choice between two great cybersecurity panels.
George Washington University’s Homeland Security Policy Institute will be hosting roundtable discussion on pending cybersecurity legislation, with former Director of National Intelligence Mike McConnell, former Department of Homeland Security Director Michael Chertoff, and senior congressional staff. The event begins at 10:30 in the Jack Morton Auditorium, 805 21st Street, NW. See this link for more information.
And the Bipartisan Policy Center will be hosting an event at the same time on how best to forge public-private partnerships for cybersecurity, with a focus on policies put forth by the FCC. That discussion will include former Assistant Secretary for Policy at DHS, Stewart Baker; Director of Risk Management Information Security at CenturyLink, Michael Glenn; President of the internet intelligence firm Renesys, Andy Ogielski; and Assistant Secretary of the Office of Cybersecurity and Communications at DHS, Greg Schaffer. This event will be held at 1225 Eye St. NW, Suite 1000. See the link for more details.
Marvin Ammori 