The controversy over the Wikileaks revelations, studied closely by the blogosphere but largely condemned or ignored by newspapers and television commentators, underlines the increasing role of alternative forms of newsgathering, such as nonprofits like ProPublica who break stories like this one about BP’s safety record.  Even a team of journalism students and their professor at Northwestern University’s Medill School of Journalism have helped exonerate up to eleven wrongfully convicted inmates, including five on death row.  Where were the large newspaper chains and TV networks?  NYU journalism professor Jay Rosen has argued that “ Wikileaks is able to report on what the powerful wish to keep secret because the logic of the Internet permits it. This is new.”

About as many read some blogs each day as visit NYTimes.com, and there are millions of active blogs, YouTube accounts, Twitter users, and Facebook pages with quotes or links to documents, many just as important in their own way as the Wikileaks revelations.   Compared to the Washington press corps, which needs to maintain good relationships with public officials to preserve their access to interviews, junkets, briefing rooms, the legions of Internet posters, analysts, and aggregators of documents can release more, faster.

President Johnson made a telling handwritten revision to a key passage of his signing statement for the Freedom of Information Act of 1966.  I leave you with the initial draft, his revision, and the final version.

Draft Signing Statement for Freedom of Information Act, 1966

President Lyndon Johnson Signing Freedom of Information Act, 1966

— A Senate hearing on privacy, and a new privacy bill from Kerry.

— The DMCA goes for 0-2 this week.  And it’s just Tuesday.

— Comcast wins “least bad performance” award in broadband speed.

— So I guess that whole Buzz thing needs some work.

— Try, try, try to understand… it’s a magic pad.

The USF is a tax on people’s phone bill that is primarily used to subsidize phone service in rural areas that are expensive to serve.  Today, these subsidies are limited to traditional old-school telephone service rather than broadband.  The FCC’s National Broadband Plan (NBP) wants to change all that.  It proposes to reform the program to subsidize rural broadband networks instead.  And rural states — along with their Congressional delegations that are overrepresented in the Senate — really like the sound of that.

The catch, though, is that the FCC may lack the power to enact this politically popular reform because of Comcast.  Before Comcast, reforming USF would easily fall within the FCC’s Title I ancillary jurisdiction.  After Comcast, that authority’s not so clear.

So here’s the rub.  Because USF reform is politically popular, everyone wants the FCC to have authority to enact it.  Opponents of reclassification must therefore argue that the FCC retains sufficient ancillary authority even after Comcast.  Supporters, by contrast, argue that USF reform is impossible without reclassification (which is a powerful political argument).

So who’s right?  Short answer — it’s not clear, and it requires a ridiculously complex analysis.  In some parts of the statute, USF support seems limited to “telecommunications carriers.”  In other places, though, the statute mentions access to “information services.”  On balance, I think the statute doesn’t authorize USF reform post-Comcast, but it’s not a slam dunk.

If anything, though, this lack of clarity strengthens the case for reclassification.  Reforming USF under Title I will inevitably trigger a lot of tedious and expensive litigation — and different circuits could easily come to different conclusions.  USF reform, though, is merely one piece of the NBP.  Under a Title I approach, this same tedious litigation would accompany every single NBP action — delaying urgent reforms for years while US performance continues to fall behind the rest of the world.

To be sure, a future reclassification order will be challenged approximately 3.2 seconds after it’s adopted.  But it would be one litigation to resolve everything all at once.  Without reclassification, the NBP will die a death of a thousand cuts.

Why would a documentary filmmaker want to rip DVDs and incorporate clips into his or her films?  Well, you might want to interview Oscar- and Emmy-nominated directors on the censorship of their films, like documentarian Kirby Dick, while showing excerpts removed from theaters but allowed into the director’s cut or DVD extras.  Or, you might want to do a political documentary like the early Michael Moore, Robert Greenwald, or Alan Peterson.

Noncommercial videos also play an increasingly large role in entertainment, politics, and cultural criticism.  Last year, Professor Rebecca Tushnet of Georgetown presented the argument for this exemption in testimony to the Library of Congress, basically arguing that creating a fair use clip using a camcorder is difficult, expensive, and depends on access to large facilities:

As Professor Tushnet explained more fully in her written comments on behalf of the Organization for Transformative Works [OTW]:

Having been already well-established since the mid seventies, well before the Internet, or MP3s, or YouTube, before the idea of “remix” became mainstream, the vidding community has kept something of a low profile. Moreover, vidders may eschew sites like YouTube due to the low resolution and overall digital quality of the videos, in favor of distributing via high-quality downloads of individual vids. There is also a yearly convention held in Chicago, Vividcon, where vidders converge to share and discuss their work in the tradition of the pre-Internet fan gatherings. Vidding is a recognized form of remix culture, and is part of a three day summit on DIY or “Do It Yourself” video at USC’s School of Cinematic Arts in February, 2008; other featured genres include activist documentary, youth media, machinima, political remix and video blogging.⁸

The community may seem smaller than it actually is because it is less visible, but that does not make the creators of these works any less worthy of fair treatment under copyright law. Indeed, vidders have recently been featured in popular magazine articles,⁹ and the creation of OTW itself is a demonstration of the organization of the fan community. Moreover, many newcomers to vidding, especially younger fans, are not familiar with its history. Though they are not necessarily a part of the self-identified community of vidders, they are entitled to the same legal protection for their creative, transformative work, like any artists inventing for themselves a new language of reaction to the world around them.

Given the general spread of user-generated content, use of video in transformative works will only increase and become more prominent. As of this writing, there is a vid in the top twenty most viewed videos of all time on YouTube, with over 55 million hits.¹⁰ And though YouTube is not the most popular forum for all vidders, there are still countless vids on the site, some with millions of views.¹¹ Anthropologist Michael Wesch’s research has suggested that there may be as many as 15,000 remix videos uploaded to YouTube each day, and academic Francesca Coppa estimates that there are already tens of thousands created by self-identified vidders elsewhere on the Web, a number that may climb into the millions when taking into account those who are not a part of any organized community.¹²….

The twenty-five percent of young people who remix content are exposed to a unique opportunity for learning, personal expression, and individual autonomy.¹⁸ Psychologists have suggested that participation in communities that foster shared interests, trust, mutual support, and public narratives can enhance health, and that we should encourage these kinds of social institutions for youth.¹⁹ Similarly, literacy experts have recognized that appropriating elements from preexisting stories is an important part of the process by which children develop cultural literacy, and some educators have suggested using fan fiction writing in a classroom context.²⁰ Common interest in the underlying source provides new creators with an audience that shares their enthusiasm; the audience responds by helping the new creators learn how to do better. Transformation of existing material is the glue that creates the community—audience members volunteer to help creators improve because they want more commentary on their favorite sources.²¹ Remixing video cultivates cultural literacy in regards to popular media, while also promoting technical literacy.

⁸ See http://www.video24-7.org/overview/.
⁹ See, e.g., Logan Hill, The Vidder, NEW YORK MAGAZINE, Nov. 12, 2007; Jesse Walker, Remixing Television, Reason Magazine, August/September 2008.
¹⁰ Available at http://www.youtube.com/watch?v=v3ARyAb_1Bs. As of Jan. 19, 2009, the vid is 18th in the Most Viewed of All Time list, and has 55,453,888 hits. It is a series of clips from Spongebob Squarepants set to the song “Soulja Boy.”
¹¹ See, e.g., Moonlight Shadow (Doctor Who), http://www.youtube.com/watch?v=8YyiFhfzQRA (1,066,864 views); Prison Break (Prison Break), http://www.youtube.com/watch?v=H0DnfS7dg9g (3,431,111 views); Soulja Boy Pooh (Winnie the Pooh), http://www.youtube.com/watch?v=316BF17k5d8 (12,094, 377 views);.
¹² Fred von Lohmann & Jennifer S. Granick, Comment of the Electronic Frontier Foundation, In the matter of exemption on circumvention of copyright protection systems for access control technologies, 29, 34 (2008).

At this point I’d like to take the liberty of posting the videos screened at the USC DIY summit as well as a couple of the other videos referenced in this testimony to the Librarian of Congress.

Extra bonus: Toy Story Requiem for a Dream!

Well, this morning the Library of Congress announced its latest round of exemptions, and there are some pretty big ones this time around.  The Electronic Frontier Foundation, after abstaining from the process all together in the past saying the process was “simply too broken,” played a major role in advocating for these changes.

First, LoC has finally decided to exempt motion pictures (read: DVDs) from anti-circumvention protection.  This exemption is not as broad as fair use, though, as it only covers documentary or noncommercial uses of the copyrighted motion pictures.  Moreover, LoC advocates a sort of least restrictive means test when determining whether a particular use should be exempted:  “Where alternatives to circumvention can be used to achieve the noninfringing purpose, such non-circumventing alternatives should be used.”  So this exemption might not be as broad as many would hope, but it finally gives consumers the peace of mind that they can legally rip their DVDs and use them in creative (albeit, noncommercial) content.

Second, LoC in perhaps a suprising and fairly bold move has exempted jailbreaking of mobile handsets.  This fight revolved around whether or not consumers should be able to tinker with their iPhone OS, so Apple fought hard against this measure.  Apple’s justification for having the DRM protection was to maintain its protected ecosystem.  However, the Register pointed out that the danger to Apple had little to do with copyright and much more to do with reputation.  Moreover, the use by consumers was intended to aid interoperability:

When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.

The third major exemption was to allow users to bypass DRM in order to enable text-to-speech functions on audio books.  At first this may seem like a simple, even unimportant exemption until you realize the case for audiobooks for the blind.  Still, this exemption is limited to the scenario where there are no commercial alternatives available.

The final exemption was given to allow researchers to test security vulernabilities within DRM-protected video games.  Another important if limited class.

The LoC did not grant all of the exemptions up for consideration, but it certainly did take a positive step to provide some balance to the DMCA.  This should offer hope for more progress in 2012.  I’m sure there will be plenty of discussion both on this blog and around the web as to the implications of today’s decision.

— In a win for EFF, the U.S. Copyright Office announces new exceptions to the DMCA, including increased “jailbreaking” rights for smartphones.

— Gizmodo summarizes the six new exceptions.

— iPhone jailbreakers win a battle, but not the war.

Other linkage:

— Man Broadband policy does not live on bread competition alone.

— The long national nightmare of online gambling bans may soon be over.

And the stakes are high.  If the answer is yes, then the FCC will have authority to adopt open network protections and to enact various aspects of the National Broadband Plan.  If the answer is no, it won’t.

Reclassification supporters say yes — broadband can be divided cleanly into a transmission component and a content component.  In legal terms, it therefore includes a “telecommunications service” component (which can be regulated) and an “information service” (which cannot).  Opponents, however, say no — broadband is a functionally integrated whole, and these divisions defy technological realities.  Accordingly, the whole thing is an “information service,” and cannot be regulated.

As Harris explains, a key question in this debate is “what exactly are ISPs offering when they offer broadband access?”  Are they primarily offering transmission to the wider Internet?  If so, that sounds like a telecommunications service.  Or, by contrast, are they offering a service that integrates various content and applications?  If so, that sounds more like an information service.

Interestingly, the ISPs’ own commercials may answer the question.  Below is a YouTube clip of Comcast’s family of turtles — the Slowskys.  As you can see, the entire point of the commercial is to emphasize the speed of Comcast’s network:

This commercial isn’t unique.  The comments filed are full of ISP ads that emphasize transmission qualities such as speed.  And this makes sense.  The market has changed since the late 1990s during the Pax AOL-ana.  When people bought AOL, they were buying not merely transmission service, but access to email, portals, etc.

Today, by contrast, we don’t think of the AT&T and Comcasts of the world as content providers.  They give us transmission to the third-party content we use (Google, Yahoo, Facebook, iTunes, etc.).  Their commercials seem to recognize this fact by distinguishing their services not on the basis of content, but of speed.

There’s a lot more to the debate of course.  But the ISP’s own commercials may not do them many favors in this context.