FCC Chair Martin To Approve SatRadio Monopoly?

Hey, if folks keep swallowing the notion that the “introductory rate” is good enough reason to get cable or whatever, of course this makes sense — but I’m not sure that you can really fool enough people to get the satellite radio market to grow much. But, hey, I won’t buy cable TV so what do I know? F.C.C. Chief Backs XM-Sirius Deal (pdf)

he chairman of the Federal Communications Commission is recommending approval of the $5 billion merger between the nation’s two satellite radio broadcasters in exchange for concessions that include turning over 24 channels to noncommercial and minority programming, The Associated Press has learned.

That condition — along with others, including a three-year price freeze for consumers — convinced FCC Chairman Kevin Martin on Sunday to recommend approval for Sirius Satellite Radio Inc.’s buyout of rival XM Satellite Radio Holdings Inc. […]

[…] ”As I’ve indicated before, this is an unusual situation,” Martin said in a statement. ”I am recommending that with the voluntary commitments they (the companies) have offered, on balance, this transaction would be in the public interest.”

The companies also agreed to an ”open radio” standard, meant to create competition among manufacturers of satellite radios, according to FCC officials who spoke on condition of anonymity because the agreement has not yet been made public.


‘Goodnight Bush’ – Bashing the President, With Nods to a Classic

The manuscript — unsolicited and addressed simply to “Editor in Chief, Little, Brown” — arrived at its destination in a clear envelope, “which was very clever,” said Geoff Shandler, the Little, Brown editor in chief who received the package. “Without opening it, I could see some of the cover image they had designed.”

Such was Mr. Shandler’s introduction to “Goodnight Bush,” an unauthorized parody of the 1947 children’s bedtime classic “Goodnight Moon,” written by Margaret Wise Brown and illustrated by Clement Hurd.

[…] “I thought it was brilliant,” said Mr. Shandler, whose company also published the parody “Yiddish With Dick and Jane.” That book, from 2004, prompted the owner of the rights to the classic “Dick and Jane” primers to sue in 2005, alleging copyright and trademark infringement.

The publisher of “Goodnight Bush” is counting on the fair use doctrine, which allows limited amounts of copyrighted material to be used without permission. […]

Wonder how this would fit with the AP’s construction of the term?

Creepy Technology

Glad to know I’m not the only one uncomfortable with emails that have return receipts: Digital Domain – In the E-Mail Relay, Not Every Handoff Is Smooth

Some entrepreneurs have seen that uncertainty and offered senders the ability to obtain receipts that a given message has been read — without the recipient’s knowing that a confirmation has been sent back to the sender. ReadNotify, based in Queensland, Australia, started in 2000 and promises to report not only on whether a message is read, but also on how long it is opened for reading on the recipient’s PC. It can also send the message in “self-destructing” form, preventing forwarding, printing, copying and saving. I admire ReadNotify’s ingenuity in presenting booby-trapped messages as being feature-rich.

Last week, Chris Drake, the head of ReadNotify, defended his company’s service. Some experts have questioned whether such technology is legal under American law, but Mr. Drake says “e-mail tracking is legal because e-mail is ‘owned’ by the author.”

A similar service, MsgTag, based in Wellington, New Zealand, does not want its features to seem overly intrusive. “We’re interested in peace of mind, not spying,” the site says. Its distinction? It does not report on how long the message was viewed.

There are many technical reasons that these services cannot reliably detect when a message has been read. But even when they work, I find their furtive nature offensive. […]

I Didn’t Know the AP Was Empowered To Adjudicate ©

But, hey, who knows how large their budget for campaign contributions might be: The Associated Press to Set Guidelines for Using Its Articles

The Associated Press, one of the nation’s largest news organizations, said that it will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright.

The A.P.’s effort to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common, may offer a prominent definition of the important but vague doctrine of “fair use,” which holds that copyright owners cannot ban others from using small bits of their works under some circumstances.

[…] “As content creators, we firmly believe that everything we create, from video footage all the way down to a structured headline, is creative content that has value,” [Jim Kennedy, vice president and strategy director of The A.P.,] said.

But he also said that the association hopes that it will not have to test this theory in court.

“We are not trying to sue bloggers,” Mr. Kennedy said. “That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”

Good luck with that

Later: I got an email from Simon Ownes that points to his very detailed article on this DMCA takedown fight:

Hey Frank,

I saw your post today about Rogers Cadenhead receiving DMCA takedown requests from the AP. I spoke to Cadenhead on the phone this weekend and he filled me in on many of the details of the struggle he’s having with the AP. It turns out this isn’t the first time he’s butted heads with them. I published an article about my conversation with him over here:


Anyway, I thought this was something you and your readers might find interesting.

Take care,

Well worth a read!

An IPR Fight North of the Border

Purchase of Theme Song, a Staple of Canadian Culture, Upsets Hockey Fans

Imagine if Fox bought up all the rights to “Take Me Out to the Ballgame” and decreed it would be heard only on its own broadcasts. Then you might get some sense of how Canadians feel after the beloved theme song for the Canadian Broadcasting Corporation’s “Hockey Night in Canada” was purchased last week by the rival private broadcaster CTV.

CTV’s coup followed a long-running legal battle and negotiations with the song’s 80-year-old composer in a process that caused some Canadians so much anxiety that it provoked calls for an intervention by Parliament. […]

The Value of Botnets

I look forward to the second-guessing of these clearly self-serving statistics, but it’s certainly a problem/perception that those who’ve reframed the advertising business are going to have to confront: Drilling Down – Rogue Computers Used in Ad Fraud

“Botnets were once primarily used to perpetrate spam,” said Tom Cuthbert, the president of Click Forensics. “Because there’s been better detection and efforts made around stopping that, these botnet masters have identified that click fraud is a really good use of that technology.”

Struggling With Refining The Business Model?

And not doing terribly well with it so far, apparently: EMI’s New Boss Sees Cracks in Music World

It has been almost 10 months since Mr. Hands, through his private equity firm Terra Firma, bought EMI for about $6.4 billion, and by several accounts, including Mr. Hands’s own, it has been a chaotic time.

The company now wobbles under a huge debt load, a leadership vacuum — it has no chief executive and most major decisions are made by Mr. Hands — and low morale among many of its employees. Mr. Hands said about 80 percent of the $6.4 billion paid for EMI was for the music publishing unit, which owns copyrights and provides a steady flow of cash.

It is the other side of the business, recorded music, that he says he overpaid for, and could wind up selling if market conditions do not improve.

[…] [A]according to Mr. Hands, the company was doing worse than commonly thought. An analysis by McKinsey and KPMG found that EMI had lost £750 million ($1.5 billion) from selling new music over the last five years.

“We didn’t believe it at first,” he said, explaining that the figures that EMI previously reported counted sales of re-releases of music from old acts like the Beatles as new music revenue.

“They were doing everything they could to hide the fact that they were losing huge amounts of money in new music,” he said. “The good news was they were making a fortune in catalog.”

[…] Mr. Hands’s vision appears to be this: split the marketing function from the development of talent — called “A&R” for “artist and repertoire” in the parlance of the music business; and sharply cut costs by reducing artist advances and paying less on marketing music.

In a confidential business plan showed to investors last year, Terra Firma said one way to reduce costs would be to use social networking sites to “source new acts and as a means to test public reaction to individual acts.”

“Getting rid of management teams and starting afresh is something we’ve always done,” Mr. Hands said. And some of the biggest new hires have come from outside the music industry. An executive from Google was hired to run the digital business, and the creator of Second Life, the Web-based virtual world, was recently hired to work on digital initiatives.

The Hooked Scenario?

I read Hooked today – and this article is of a piece with the primary thesis of the novel – we’re allowing ourselves to be hooked on information — or what passes for it these days: Lost in E-Mail, Tech Firms Face Self-Made Beast

Some of the biggest technology firms, including Microsoft, Intel, Google and I.B.M., are banding together to fight information overload. Last week they formed a nonprofit group to study the problem, publicize it and devise ways to help workers — theirs and others — cope with the digital deluge.

Their effort comes as statistical and anecdotal evidence mounts that the same technology tools that have led to improvements in productivity can be counterproductive if overused.

The big chip maker Intel found in an eight-month internal study that some employees who were encouraged to limit digital interruptions said they were more productive and creative as a result.

A Nice Summary of the Bill-by-the-Byte Issue

But summary only: Charging by the Byte to Curb Internet Traffic

The Internet “is how we deliver our shows,” said Jim Louderback, chief executive of Revision3, a three-year-old media company that runs what it calls a television network on the Web. “If all of a sudden our viewers are worried about some sort of a broadband cap, they may think twice about downloading or watching our shows.”

Even if the caps are far above the average users’ consumption, their mere existence could cause users to reduce their time online. Just ask people who carefully monitor their monthly allotments of cellphone minutes and text messages.

“As soon as you put serious uncertainty as to cost on the table, people’s feeling of freedom to predict cost dries up and so does innovation and trying new applications,” Vint Cerf, the chief Internet evangelist for Google who is often called the “father of the Internet,” said in an e-mail message.

But the companies imposing the caps say that their actions are only fair. People who use more network capacity should pay more, Time Warner argues. And Comcast says that people who use too much — like those who engage in file-sharing — should be forced to slow down.

[…] As the technology company Cisco put it in a recent report, “today’s ‘bandwidth hog’ is tomorrow’s average user.”

One result of these experiments is a tug-of-war between the Internet providers and media companies, which are monitoring the Time Warner experiment with trepidation.

“We hate it,” said a senior executive at a major media company, who requested anonymity because his company, like all broadcasters, must play nice with the same cable operators that are imposing the limits. Now that some television shows are viewed millions of times online, the executive said, any impediment would hurt the advertising model for online video streaming.

Mr. Leddy of Time Warner said that the media companies’ fears were overblown. If the company were to try to stop Web video, “we would not succeed,” he said. “We know how much capacity they’re going to need in the future, and we know what it’s going to cost. And today’s business model doesn’t pay for it very well.”

Yes, We Have No Bananas

But at least we do have us some habeus

Sad that it was a 5-4 decision, but thank goodness it came down this way — something to think about in the voting booth this November: Justices Rule Terror Suspects Can Appeal in Civilian Courts — the opinion

The real tragedy is this quote from our leader in this Reuters article: Top court rules for Guantanamo prisoners (pdf). Yes, it may be out of context, but as written it suggests a need for a return to the civic textbooks:

“We’ll abide by the court’s decision. That doesn’t mean I have to agree with it,” Bush told a news conference in Rome, where he was on a weeklong European visit. “We’ll study this opinion and we’ll do so … to determine whether or not additional legislation might be appropriate.”

Hmmm — what do you think?

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.

[…] This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. […]

[…] Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for struc­tural barriers against arbitrary suspensions of the writ. […]

[…] The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy.

[…] Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. […]

[…] We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) […]

[…] To the extent any doubt remains about Congress’ intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. […]

[…] We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release. […]

[…] The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. […]

[…] There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee’s argument that he is not an enemy combatant and there is no cause to detain him. […]

[…] MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.

But here’s the real killer:

Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. […]

It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. […]


And imagine the outcome if, say, John Yoo were to get a seat on this court.

See, for example — Brown Faces New Protests Over Terror Bill (pdf); Terror Bill Passes Narrowly in Britain

Later: Newt Gingrich gives us the talking points for those who can’t bear this decision: Face The Nation: Gingrich Thinks SCOTUS Gitmo Decision “Could Cost Us A City” — as the commenters point out: “you mean in addition to New Orleans and Grand Cedar Rapids?” (I couldn’t believe it when I heard him say it on Face the Nation myself)