In a second major decision this morning, the Supreme Court has overturned a lower court rulings and handed cable providers (and the FCC) a clear victory. While telphone companies must continue to provide equal access to their infrastructure, cable companies need not follow the same guidelines. Indeed, the justification for this decision hinges on the fact that cable companies are providing content as well as bandwidth.
Does this mean that telephone companies can close off equal access once they provide IPTV services over an xDSL infrastructure? Only time will tell.
-CyclingRoo-
Wow. The comments are really flying on sites like Slashdot. One of the most interesting observations comes from kwilliamyoungatl who said, “They ruled on the Telecom *Act*. Congress can change the act with a majority vote and the signature of the president.” That’s right. So how quickly before the phone companies and cable competitors lobby for changes?

“One who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses,” Justice David Souter wrote.
And with those words, the Supreme Court unanimously overturned a lower court ruling and gave Hollywood a significant victory in its fight against illegal distribution of copyrighted material.
And now, the Court will have to define the term “promoting its use to infringe copyright.” But for now, it is clear that Grokster was promoting infringement. I wonder how broadly this will be interpreted by lower courts.
Round 1 goes to Hollywood. But will they be able to swing this stick very broadly? More to follow…
-CyclingRoo-

I got in the office this morning and checked my morning news feeds. I found an article at ZDNet Australia that really piqued my interest. Apparently, the federal court has overturned a lower court ruling and is holding a couple of sysadmins (from Swiftel) liable for infringing music found on their servers.
This is outrageous! Or is it. Let’s forget about the **AA and our visceral hatred of the position they hold. Now let’s consider this. If a theft ring was running shop out of an apartment complex, would we feel bad that the landlords were held responsible for the tenants storing stolen goods? And what if the landloards had been told by the government that the theft ring was in operation on their property?
Or how about this one… Are we incensed when members of a corporate board are held responsible for the illicit acts of their subordinates? Can and should the board be held responsible? In the United States, the Sarbanes-Oxley bill indeed holds execuitves personally liable for their corporations.
Alright. Those are extreme examples. And I do not mean to equate these sysadmins with derelict landloards or inefficient (and/or negligent) corporate officers. But you do have to ask the question whether it is appropriate to hold folks criminally liable for acts committed under their “watch.”
I don’t know the particulars of this case, but I do know that our nation routinely holds those in authority responsible for the actions of people under their purview. And just as importantly, if these sysadmins did receive appropriate notification of the alleged copyright infringements, then they really should have taken some kind of action to protect the rights of the copyright holder as well as those of the alleged infringers.
I guess the real question should be the following: what kind of notification did the sysadmins actually receive? At the same time, what kind of “protection” do the site tenants deserve? Back to our analogy, should the landlord have the right to enter the site and “censor” items in the tenants residence? If so, under whose authority can or should they act? Should they act on a simple claim from the neighbors? Or do they have an obligation to protect their tenants until the tenants are proven guilty?
Hmmm. Interesting questions. But these questions should not in any way impair the free use of distribution software itself. Just because something can be abused does not give the government to forebear all uses. Think of it. Web traffic can convey illicit content. Does that mean that http is “bad” and must be controlled? Of course not. In our society, we must prove guilt beyond a reasonable doubt. And just because one automobile owner is convicted of vehicular manslaughter does not give the government the right to ban all use of automobiles because they might be used in some future homicide.
-CyclingRoo-

It’s been a busy weeked for bloggers, podcasters and politics. On Friday, Ted Hu inundated me with a stream of political comments on a variety of subjects. Indeed, Ted opened the firehose on his email list. Ted, I love the fact that you have mastered multi-channel marketing of your political thoughts. But, sometimes, it’s too much. I got your fifteen emails on Friday. You might try rolling some of these into your blog (which I love, when you take the time to post). Ted understands how to speak his political opinions (which I usually disagree with). It is refreshing to see how he manages to be a product evangelist for Microsoft yet can still proudly espouse his personal political sensibilities. He walks a fine line – and does it fairly well.
But not everyone in Microsoft follows the same approach as Ted. The Scobleizer has gotten himself into quite a political discourse. Over the past few days, he has taken issue with politcal positions that Microsoft has taken. Stated more precisely, he has taken issues with Microsoft’s _withdrawal_ from certain political issues.
In the past, Microsoft executives have taken very affirmative stances on gay rights. Recently, Microsoft has received a good deal of criticism from its local community and the more conservative members of the company (and its shareholders) for taking such public stances on political issues. Consequently, Steve Ballmer made a point of noting that Microsoft needs to maintain a certain degree of separation from obviously political agendas. Most Microsoft shareholders have not invested in Microsoft stock because of its historical stances on gay rights. Instead, Microsoft shareholders have invested because of the economic returns associated with Windows and the Office product family.
But how does a corporate leader adequately separate his/her own political opinions and sensibilities from the needs of the shareholders (whom he/she serves)? That is a tough question. I have rarely been able to compartmentalize myself in such an easy (or clean) fashion. Apparently, Scoble cannot quietly compartmentalize himself either.
Therefore, Scoble is in a pickle. He feels quite strongly about the human rights issues involved. Yet he is now part of the Microsoft brand (not just an employee). His words and actions have a greater impact upon brand identity than the average Joe Programmer in Redmond. And he may even have a modest impact upon stock prices (albeit indirectly, as expressed through individual shareholder transactions). Consequently, his public statements have public impact upon the brand and how it is viewed by the growing number of blog readers.
So a cautious person would recommend that Scoble just drop the issue. But here is the rub. Scoble (and the entire blogging community) is predicated upon commentary and not just reporting. In a lot of ways, he is like Fox News Channel. I am sure Robert will hate the analogy, but it is apt. Fox News is watched because people want to hear the side comments from Fox & Friends and not just hear someone read the facts out loud. Indeed, a strict recitation of the facts can be gotten from any number of other sources.
But blogs are a means of getting news – and a whole lot more. People want to hear the news from people who care. They want to reach out to the personality that they have come to trust. People reached out to Walter Cronkite because they invested in who he was and what he said. Whether you were conservative or liberal, you would listen to Walter Cronkite because you trusted him to provide honest news.
Well, people trust Scoble’s thoughts on technology. And people invest in Microsoft. And those two paths have been synonomous for some time. But now there is some divergence between the two. So what should Robert do? I don’t have a clue. I don’t know him well enough to speak for his heart and soul. If I were in his shoes, I would urge Robert to listen to his heart and spirit. I disagree (vehemently) with Robert on this issue. But I find myself urging him to maintain his voice of honesty. Sometimes, you can do this and maintain your voice as a spokesperson for the company. Sometimes, you can’t. But in the end, you have to be able to look at yourself in the mirror and like the person you see.
BTW, Dave Winer has even gotten in on the discussion. While I think he agrees with Robert (from a political viewpoint), he disagrees with him from a corporate viewpoint. Dave believes that Microsoft is correct in removing itself from this political discussion. And I think Dave is right. The company is not a “non-profit” or “not-for-profit” organization with a political mission statement. Rather, it is a “for-profit” corporation with a specific mission: make profits for the shareholders. Consequently, the managers of the company must refrain from injecting their own political opinions that might otherwise divert the company from its core mission. Now, if the board wants to approve a change to the corporate mission statement, then that’s a different situation.
Starbucks is a good example of this. Their publicly-stated core mission is larger than just a good cup of coffee. Take a look at their recent press releases regarding the acquisition of Ethos Water. Clearly, the brand and corporate mission are larger than just coffee. Starbucks has a clear mission (articulated from the board) that includes political activism.
But this is not the case for Microsoft.
Dave Winer’s recommendation is that the company [Microsoft] disengage from such overtly political matters. So what is Dave’s advice for Robert? Should Robert continue to pursue his personal sense of “right and wrong” or acquiesce to the needs of the corporation? Only Robert can answer that. In my estimation, Robert is doing the right thing in taking the matter directly to board members (like Ballmer). Robert is trying to change the mission statement to extend beyond profitability and product. But Robert is doing this out in the open. That is his biggest challenge. By making his challenge publicly, he is not giving the board (or its members) any room for a quiet or thorough discussion. He may be forcing the issue into the realm of the soundbite. That’s too bad. My basic recommendation to Robert is to take this issue out of the blogosphere (and say so in your blog). Then take it up privately with relevant board members. Only then will mission statement reconsideration be plausible.
-CyclingRoo-