Techdirt. Stories filed under "hearings"

The Law Should Never Be Secret, So Why Will CISPA Debate Be Secret?

Mike Masnick — Tue, 9 Apr 2013 22:55:00 PDT

As we mentioned last week, CISPA is scheduled for markup tomorrow, and the markup will be done behind closed doors without any public scrutiny allowed. This makes no sense. They are not debating the reason for the law, but rather the text of the law itself. The law will be public, and any debate about the language and amendments included should be public as well. As Julian Sanchez points out, it makes perfect sense for intelligence briefings to be held in secret, but it never makes sense to hold debates about what the law should be in secret. So why is Congress doing so?

In the meantime, it appears that the main backers of the bill will be supporting some amendments (and may release a manager's amendment), which marginally limits how the information it gets from companies can be used. However, this does little to deal with the real problems of the bill: the immunity companies get for sharing pretty much any private info with any government agency. At the very least, there's no reason that CISPA shouldn't require that companies strip personally identifiable information from any data they share with the government.

But, really, this deserves to go much further. At no point -- in the many years that cybersecurity legislation has been discussed -- has anyone in Congress explained why we need this. Yes, they've given FUD-like horror stories about planes falling from the sky, or they've pointed to Chinese hackers. But what they have not done is show how (a) current law gets in the way of the necessary information sharing to help combat any threats or (b) how CISPA will help stop such attacks. You'd think that both of these points would be at the top of the list of the things that Congress would be explaining to get support for this bill. Instead, we hear scare stories about evil hackers out to destroy us, and an awful lot of "trust us." It's tough to trust the government, though, when they won't even let you know what they're debating.

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Why Is The UK Blocking Access To Sites Without Any Hearings?

Mike Masnick — Fri, 1 Mar 2013 18:38:15 PST

We already wrote about the UK court letting the BPI decide what sites the court would order all UK ISPs to block access to, but as more details come out about the process, the scarier it is. As Duke noted in our comments, the whole process lacked any sort of due process:

For those interested the full judgment is here: EMI Records Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 379 (Ch)

The law is a bit worrying (I haven't read it in that much detail but I think it goes slightly further than previous ones) - the main concern is that, again, there was no hearing, no defence, no cross-examination of evidence etc.. Without seeing the witness statements I can't be sure, but I think the judge just accepted everything the BPI had to say at face value.

That's not justice - not in an adversarial court system.

The Open Rights Group (ORG) in the UK has quite reasonably expressed its concern about how such blockades are likely to stifle speech, especially when there is no one allowed to argue against the blocking.

We are concerned that these orders are not protecting speech, are overblocking forums and discussion, and are prone to error as the actual block lists are private.

Furthermore, users and the public interest have not been represented in the processes

It amazes me that anyone thinks it's reasonable to shut down a site without any sort of due process in the form of an adversarial hearing, in which multiple sides can be presented. The opportunity for widespread abuse and the stifling of free expression is massive.

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SOPA Delayed; Cantor Promises It Won't Be Brought To The Floor Until 'Issues Are Addressed'

Mike Masnick — Fri, 13 Jan 2012 23:57:22 PST

Some late breaking news here: following Lamar Smith's announcement that the new manager's amendment for SOPA will remove DNS blocking (to be added back at a later date after it's been "studied"), Rep. Issa has announced that he will now postpone the "nerd" hearing that he was holding in the House Oversight Committee, which was originally scheduled for Wednesday. The key reason? Majority Leader Eric Cantor has promised him that he will not bring the bill to the floor unless there's real consensus on the bill. That's big news -- though, as Issa notes in his statement, it's worrisome that Senator Reid still seems to want to move forward with PIPA:

"While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House. Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote,” said Chairman Issa. “The voice of the Internet community has been heard. Much more education for Members of Congress about the workings of the Internet is essential if anti-piracy legislation is to be workable and achieve broad appeal.”

"Earlier tonight, Chairman Smith announced that he will remove the DNS blocking provision from his legislation. Although SOPA, despite the removal of this provision, is still a fundamentally flawed bill, I have decided that postponing the scheduled hearing on DNS blocking with technical experts is the best course of action at this time. Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks."

Indeed. It is still important that Congress hears from "the nerds" and plenty of other experts concerning the implications of these attempts to regulate the internet, but if SOPA is not going to be rushed to the floor, such hearings and education can (and should) happen in due time, rather than rushing to get them in, just as Congress comes back into session. There are more important things for Congress to focus on.

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A Look At The Testimony Given At Today's SOPA Lovefest Congressional Hearings... With A Surprise From MasterCard

Mike Masnick — Wed, 16 Nov 2011 06:55:52 PST

We already know that today's SOPA hearings for the House Judiciary Committee are totally stacked in favor of the bill. But with the hearings getting underway, we wanted to dive in and look at what's about to be said. Most of the testimony leaked out yesterday, allowing us to spend some time going through it -- it's all embedded below. However, here's a taste of what's going to be said... with some additional commentary (of course).

First up, the most troubling of all: Maria Pallante, the Register of Copyrights (aka, Head of the US Copyright Office). She should be here to defend the public and to make sure that massive regulatory capture by a couple of stagnant industries doesn't happen. But, that's not how the Copyright Office rolls. Instead, her testimony is basically the US Chamber of Commerce's key talking points (perhaps not a surprise, since the main lobbyist at the US Chamber who's in charge of shepherding this bill into law only recently worked at the US Copyright Office). If you had hoped for some reasoned argument about pushing back on the massive excesses of SOPA and the broad definitions, you're not going to get it from Pallante.

It is my view that if Congress does not continue to provide serious responses to online piracy, the U.S. copyright system will ultimately fail. The premise of copyright law is that the author of a creative work owns and can license to others certain exclusive rights – a premise that has served the nation well since 1790. Congress has repeatedly acted to improve enforcement provisions in copyright law over the years, including in the online environment. SOPA is the next step in ensuring that our law keeps pace with infringers....

[....]

The response provided by SOPA is serious and comprehensive. It requires all key members of the online ecosystem, including service providers, search engines, payment processors, and advertising networks, to play a role in protecting copyright interests – an approach I endorse. Combating online infringement requires focus and commitment. It should be obvious that we cannot have intermediaries working at cross-purposes.

In other words, the successful tech industry should be hindered and shackled because my friends in Hollywood are too clueless to adjust their business models. Really?

SOPA is also measured. It appropriately provides much broader tools and flexibility to the Attorney General than it provides to copyright owners. This is a sound policy choice at this time. The Department of Justice has experience fighting online infringers, will use resources carefully, must exercise prosecutorial discretion in bringing actions, and must plead its case to the court and obtain a court-issued order before proceeding. Put another way, while the copyright industries are extremely important (and certainly a point of pride with respect to the U.S. economy), SOPA recognizes that many sectors rely on, invest in, and contribute to the success of the Internet.

Almost none of that is accurate. It is not measured. It is vague, broad and dangerous. The Justice Department's "experience" going after infringers has been to take down websites with no notice based on false info from copyright holders... and then to threaten those who seek to appeal with criminal charges. This is not "using resources carefully," it's government sponsored censorship.

It is for this reason that SOPA puts only limited tools in the hands of copyright owners, and provides the Attorney General with the sole authority to seek orders against search engines and Internet service providers. This is not to say that we should not continue to assess Internet piracy and the impact of SOPA or whether additional measures or adjustments may be needed. Indeed, SOPA assigns ongoing studies to the Copyright Office and the Intellectual Property Enforcement Coordinator for these very purposes. But I do think SOPA provides the right calibration at this time.

First off, the "limited tools" include the ability to completely cut off funding to any website based solely on accusations. Perhaps I learned a different language from Pallante, but that's hardly "limited."

Furthermore, how the hell can she say that this is "the right calibration," when even she admits this issue has not been studied yet? The bill is completely "shoot first, measure later," with no details on how it's effectiveness -- or harmfulness -- will be measured.

As with any legislation, SOPA deserves and can only benefit from a robust discussion. As the Committee works to further improve and refine the bill, I know it will fully consider a variety of perspectives and suggestions, including from my fellow witnesses. This said, I believe that Congress has a responsibility to protect the exclusive rights of copyright owners, and I urge the Committee to move forward with this in mind.

Yes, a robust discussion that leaves out nearly everyone opposed to the bill, and only allows a single party -- one easily dismissed -- to speak about concerns on the bill. A robust discussion that leaves out public interest groups, despite Copyright's entire purpose being for the benefit of the public. This is a shameful bit of testimony from the Head of the Copyright Office, and one that guarantees her a tarnished legacy in her role.

From there, she goes on to defend the US blacklist of sites the Attorney General decides are dedicated to infringement by (1) repeating the US Chamber's debunked talking points, (2) praising ICE's highly questionable domain seizures, which are currently being litigated (a fact she conveniently ignores) and (3) quoting (of course) Floyd Abrams, leaving out that he was paid by the MPAA to give that opinion. Even worse, she quotes the really questionable part of his claim:

It also bears repeating that injunctions are not at odds with the First Amendment. As noted First Amendment scholar Floyd Abrams has observed, they are "a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations."

This is true, but highly misleading. Injunctions are allowed against those infringing. But that's not what SOPA is about. SOPA is about issuing injunctions on innocent third parties. That's what we're concerned about. And for Pallante to ignore that point is really unfortunate.

She then goes on to defend the private right of action to kill off websites based on a single accusation. She claims, laughably, that because the private right of action only leads to injunctions, rather than monetary rewards, there's little incentive to abuse. Wait. Is Ms. Pallante totally ignorant of the past decade plus of the DMCA? The DMCA takedown process also is basically about blocking content and not about monetary relief, and yet it's widely abused, with some estimates suggesting that over 30% of DMCA takedowns are questionable. The problem with SOPA (totally ignored again) is that unlike the DMCA -- which targets the specific content -- SOPA will kill off entire sites.

Even more stunning: rather than suggesting that such abuses may come from copyright holders sending bogus takedowns, she worries instead that payment processors and ad networks may ignore such takedowns -- and hints that if anything, the bill may need refinement on that front. Whoa. It's like an alternative universe where everything is mirrored. Again, we know what happens. We have the less draconian DMCA already and see how widely it's abused. And we see that those who receive takedowns generally abide by them.

Speaking of the DMCA, she pretends -- totally against the text of the actual bill -- that nothing in SOPA will impact the DMCA. This is hilarious. Why would anyone use the DMCA to take down a specific piece of content when they can now kill off an entire site using SOPA? Amusingly, she points to the fact that payment providers and ad networks face no monetary liability under SOPA... but ignores that just two paragraphs above, she was hinting that perhaps the law should be changed to include such liability to make sure they comply. This is the ultimate in cynical, obnoxious politics. Put in that one clause that makes you able to pretend something is reasonable (no monetary punishment!) and then be ready to remove that the second the bill is in place.

Finally, she talks about how "pleased" she is that SOPA turns streaming into a felony. Apparently Pallante would prefer people no longer stream videos any more. Has she even used the internet? Amusingly, she cites YouTube as an example of a legal source for streaming... ignoring the fact that under SOPA, YouTube likely wouldn't have even existed. It's as if she doesn't even understand the bill she's supporting and what it will do to the technology world.

And people wonder why so many Americans think copyright law is a joke? Perhaps they should look at the Copyright boss.

Next, we've got MPAA VP Michael O'Leary. His testimony is really worthy of having been written in Hollywood, seeing as it kicks off with a tearjerker of a story about the poor, poor stunt coordinator, "who depends on the residual payments he earns to help support his wife and three children between productions." Of course, the rest of the world doesn't get to sit back and get a check for work they did in the past, but actually has to keep working to support their families. Of course, how much do random key grips, stunt coordinators and boom mic operators (the favorites for these multi-millionaires to exploit in this kind of way) really make from residuals? It's a lot less than these kinds of testimonies suggest.

O'Leary continues to pull at heart strings, by trying to rope all sorts of other businesses into the movie and TV industry including (I'm not joking) the dry cleaners that serve the cast and crew on location. Apparently, without movies, dry cleaners go out of business. Think of the poor dry cleaners!

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House Judiciary Committee Denies That Its SOPA Hearing Is Stacked In Any Way

Mike Masnick — Wed, 16 Nov 2011 05:51:52 PST

We've already discussed how the deck is completely stacked in favor of SOPA at the House Judiciary Committee meetings. Considering they invited five folks who are already in favor of the bill, and only one against, you'd think that this was undeniable. But in the intellectually dishonest vortex of Congress, where apparently you can deny reality and stick your tongue out at anyone who calls you on it, a nameless Judiciary Committee staffer has insisted that nothing could be further from the truth, and the hearings are perfectly well balanced.

“Throughout the legislative process, we have met with groups and companies with different views on how to address rogue websites. Earlier this year, the Committee held a hearing on the problem of rogue websites at which the public interest group perspective was represented by the Center for Democracy and Technology. We also heard from Floyd Abrams—a well-known constitutional scholar—who affirmed that the Stop Online Piracy Act is constitutional under the first amendment and provides sufficient due process. And tomorrow, we will hear from a representative of Google, which opposes legislative efforts to rein in rogue websites. Assertions that the legislative process has been stacked against the opposition are inconsistent with the facts.

“This bill has strong bipartisan support in the House Judiciary Committee. The theft of America’s IP costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. We must protect America’s intellectual property from rogue websites. The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators.”

Very little in that statement is true or accurate. First of all, Floyd Abrams is hardly a representative of the public -- as his outreach was on behalf of the MPAA. And, at the same time over 100 law professors, practitioners and scholars -- including many of the brightest names in the field -- have written a letter disagreeing with Abrams (and they did so on their own behalfs, not for a client). It's really incredibly sleazy for the committee to suggest that Abrams' testimony here is somehow part of the other side's views.

Separately, as we explained, Google is hardly the only voice speaking out against this bill, and putting them on the panel is the most cynical of moves by the committee. After all, they've been trying to pretend that only Google is upset about this bill, so putting Google as the sole "against" speaker, makes them easier to marginalize. Even worse, while it appears that Google shares some of the concerns of others lined up against this bill, its concerns are fairly specific to Google. It's unlikely to address the concerns of tons of other technology companies, content creators, innovators and the like. And, on top of that, there are no consumer, public or human rights organizations at the hearing.

This is the most insane part of all. Remember, copyright's sole purpose is to benefit the public. To have no one representing the public is the ultimate travesty, and the ultimate insult to the very core of copyright law.

Only inside the beltway does "bipartisan" matter. And, for what it's worth, the bill also has strong bipartisan opposition as well. This isn't a partisan issue. Whether it has bipartisan support or opposition only matters in the board games in the minds of Congressional staffers who think this is a game of red vs. blue, rather than mucking with the actual economy.

Finally, as for "the theft of America’s IP costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs" that's bullshit again. First of all, it's infringement, not "theft." That the "House Judiciary Committee" gets this basic terminology wrong again shows how they're insulting copyright law. Second, the $100 billion number has been debunked so many times -- including by the Government Accountability Office -- that it's really shameful to even bring that number up, and shows that the depths of intellectual dishonesty going on here. They'll cite any debunked number to prove a point.

Let's face facts: the Judiciary Committee is simply too afraid to hear from those who oppose the bill, because we have the facts, the public and the law on our side. And when you're trying to ram through a bad bill, Congress has no time for anything like that. So it sticks its head in the sand and pretends that's the way the world really is.

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House Judiciary Committee SOPA Hearings Stacked 5 To 1 In Favor Of Censoring The Internet

Mike Masnick — Tue, 15 Nov 2011 05:51:43 PST

Apparently the folks behind SOPA are really scared to hear from the opposition. We all expected that the Judiciary Committee hearings wouldn't be a fair fight. In Congress, they rarely are fair fights. But most people expected the typical "three in favor, one against" weighted hearings. That's already childish, but it seems that the Judiciary Committee has decided to take the ridiculousness to new heights. We'd already mentioned last week that the Committee had rejected the request of NetCoalition to take part in the hearings. At the time, we'd heard that the hearings were going to be stacked four-to-one in favor of SOPA. However, the latest report coming out of the Committee is that they're so afraid to actually hear about the real opposition that they've lined up five pro-SOPA speakers and only one "against."

Why is the Judiciary Committee so afraid to hear the concerns of the wider internet industry?

The five "pro" speakers are the Register of Copryights, someone from the MPAA, someone from Pfizer, someone from MasterCard, and someone from the AFL-CIO. The choice of MasterCard is deliberate, since Visa is against the bill -- because Visa recognizes that supporting a bill that requires them to cut off customers based on accusations of infringement is going to be a huge burden, and one that isn't good for their own customers.

Furthermore, the "one" against SOPA is going to be Google. This is a strategic choice, because the pro-SOPA folks know that Google is easy to dismiss on this topic, because they'll claim (not accurately) that Google just wants to profit from infringement. Google is already under a lot of scrutiny in Congress, and so it makes it much easier for pro-SOPA supporters to say that "ah, the only opposition is Google." And, yet, that's not true. Companies throughout the tech and internet industries have expressed concerns. Facebook, Twitter, Mozilla, eBay and over 160 startups have all come out against the bill. This isn't "just a Google issue." This is an issue of the entertainment industry trying to change the fundamental legal and technical framework for how the internet has functioned -- and in doing so, creating tons of liability and compliance costs for the part of the economy that is growing and has been creating jobs. Just because Hollywood is jealous, doesn't mean that they should get to use Congress to punish the industry that's doing well.

Either way, it's quite stunning that the Committee has decided to go so far in stacking the deck, and it shows just how unwilling they are to hear the real concerns about the bill.

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House Judiciary Committee Refuses To Hear Wider Tech Industry Concerns About SOPA

Mike Masnick — Thu, 10 Nov 2011 16:14:00 PST

Ever since SOPA was introduced, we'd heard that the eventual House Judiciary Committee hearings on the bill would be an unfairly stacked deck. Despite such wide opposition to the bill, and the fact that this represents a massive change to the regulatory and technological framework of the internet, we'd been told, repeatedly, that the hearings would be set up with three representatives in favor of the bill, and just one against. Apparently, the supporters of the bill are simply too afraid to actually listen to that many concerns and have to surround themselves with "yes men" to think they're doing the right thing.

Turns out that the decks are being even further stacked.

Today, we're hearing that the head of NetCoalition, who many people expected to represent the wider tech and internet industry's significant concerns about SOPA has been denied a seat at the hearings. This is the same group that has been requesting a seat at the negotiating table all along, and has been denied by the MPAA and its supporters. Basically, the decks are being stacked so far in favor of SOPA, that next week's hearing will be a total joke. We're even hearing rumors that it will now be 4 representatives in favor of SOPA, and no one who will represent the wider concerns of the internet industry that's about to be regulated. Instead, the committee is looking for someone who will only raise some specific narrow concerns about the bill.

I guess I have a simple question: just what are Reps. Lamar Smith, John Conyers and Bob Goodlatte afraid of? Are they really so fragile that they can't handle the idea that the wider internet industry is seriously worried about this bill? Must they only hear from those who helped write the bill in the first place? What kind of democracy is that?

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House Hearing On File Sharing Turns Into 'But Why Can't Google Magically Stop All Bad Things Online' Hearing

Mike Masnick — Wed, 6 Apr 2011 13:36:29 PDT

You kind of knew where things were heading when the House decided to have pre-COICA hearings on what websites can do to deal with copyright infringement -- especially when they titled it "Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites." The very fact that they're presupposing certain sites as "parasites," suggests this hearing was not about reasoned discussion (is any Congressional hearing ever really about that?), but about pointing fingers, and the key finger pointing was directly at Google. I'll have a separate post on the "prepared remarks" of the various speakers, but the Congressional Reps in attendance apparently focused most of their attention on Google, wondering why it's not magically stopping infringement online.

"The question isn't what Google has done," [Rep. Bob] Goodlatte told the audience. "But more about what Google has left to do."

He listed some of the accusations that some in the entertainment industries have leveled at Google, such as the ability of the alleged pirate sites to fund their operations by posting Google ads on their site, as well as an inability by Google to remove infringing materials promptly.

Note what he did not do, which is point out that Google has gone significantly beyond what the law requires to help copyright holders. It's even set up ways for them to directly monetize content when it's found to be infringing online. You would think that helping copyright holders monetize is more important than "stopping infringement," but somehow no one ever seems to think that way. Also note that Goodlatte simply took the (mostly false) accusations by the entertainment industry as fact -- and didn't seem to pay attention to the fact that almost none of the accusations were accurate.

Of course, the real crux of the argument is this belief that Google can somehow wave a magic wand and make infringement disappear online. It's technological cluelessness at its most extreme. Google has a long history of responding quickly to take down notices and (in our opinion) bending over backwards, far beyond what the law requires, to help copyright holders both defend their rights and to make money. The idea that Google "profits" from infringement has simply not been shown at all. The entertainment industry has this weird belief that anywhere AdSense ads are displayed, that massive profits follow. This is simply incorrect. But, even if it were true, how is Google to know what is and what is not infringing? It's a simple question and no one answers it, other than to say, "it's obvious." Then when it's pointed out that it's not at all obvious, they go quiet.

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Congressional Hearing On Wikileaks Surprisingly Focuses More On Gov't Overly Secretive Actions

Mike Masnick — Thu, 16 Dec 2010 14:12:00 PST

Earlier today, Congress held hearings about Wikileaks and, given how the government has been reacting so far, I fully expected pure grandstanding about how "evil" Wikileaks is and how Julian Assange must be brought to justice. There was some of that, but it appears much more of it was focused on how the US government was abusing the classification system to make things secret that never should have been secret -- and how that was the real problem. Panel chair John Conyers apparently kicked off the hearing by saying that criminal charges against Assange would be "extreme" and saying that "caution is needed" before anything is done:

"Prosecuting WikiLeaks would raise the most fundamental questions about free speech, about who is a journalist and what citizens can know about their government," Conyers said. "The problem today is not too little secrecy but too much secrecy."

He also noted -- in contrast to much of the hysteria we've heard -- that while the releases have been embarassing "the real-world consequences have been fairly modest." Rep. William Delahunt appeared to echo these sentiments and again noted that secrecy by the government has been the real issue:

"Secrecy is the trademark of totalitarianism. In contrast, transparency and openness is why democracy is all about," Delahunt said.

"There is far too much secrecy and overclassification in the executive branch, and I think it puts American democracy at risk."

Rep. Bob Goodlatte also noted that expansion of government secrecy was "out of control" and "illegitimate," while Rep. Bobby Scott noted that we need to remember the 1st Amendment. Rep. Hank Johnson warned of the "chilling effects" of prosecuting Wikileaks.

Many panelists appeared to make similar points as well. Thomas Blanton, the director of the National Security Archive at George Washington University, told the panel that the government always overreacts to leaks and that "more openness makes us more secure." He also urged the government to "use a little restraint" and to avoid rushing into charging Julian Assange with violating the Espionage Act.

Of course, not everyone argued this way. Many of the Congressional Reps still seemed pretty bloodthirsty to charge Assange. And some of the panelists seemed to agree. Kenneth Wainstein, a lawyer from O'Melveny and Myers, warned the panel that any lawsuit against Wikileaks would raise serious First Amendment issues but then argued that the government could easily distinguish Wikileaks from the media though he did so by misstating that Wikileaks was "indiscriminately" dumping documents -- a point that has been debunked already. Gabriel Shoenfeld, who is a big supporter of government secrecy, spent a lot of time talking about how there's too much secrecy and that the government leaks info to the press all the time but ended his talk by saying that doesn't apply to Wikileaks.

However, even those who seemed to think that the government should still seek to prosecute Assange, they all seemed to admit that the government is way too secretive and abuses its classification privileges.

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Paramount COO Shows FCC How To File Share, Blames Tech Companies, Has FCC Hide Its Presentation

Mike Masnick — Wed, 23 Sep 2009 07:30:00 PDT

Last week, the FCC held what was ostensibly a panel discussion about the National Broadband Plan, but which was actually focused on copyright issues. How, exactly, is copyright an issue for broadband? Well, mainly because the entertainment industry has been trying for years to get ISPs to act as copyright cops... and apparently the FCC felt the need to hear them out. While the deck was mostly stacked in favor of the entertainment industry in terms of speakers, thankfully the FCC allowed Gigi Sohn of Public Knowledge to take part as well -- and she questioned whether the FCC even had any mandate over such issues and wondered why the hearing was even being held. However, beyond stacking the deck of speakers, it appears the FCC gave significant other beneficial treatment to entertainment industry speakers.

Paramount's COO, Frederick Huntsberry, not only was given twice the amount of time to speak as the rest of the speakers had (10 minutes, instead of five, as Gigi was told), but also was able to convince the FCC that his talk was "owned" by Paramount, and should not be placed online -- as the FCC has done with all its other hearings. Wow. Yes, this was a public government hearing. Thankfully, the folks at Public Knowledge went through a low quality video of the whole proceeding and pulled out Huntsberry's part, where he not only demonstrates how file sharing works for the FCC, but goes on to implicate plenty of companies as aiding in the process, including Google, Yahoo, eBay, Boxee and others: In the video, he demonstrates using Mininova and Drop.io (which is an amazingly useful site for many things that have absolutely nothing to do with unauthorized file sharing -- and is now being unfairly tarred by Paramount). There isn't really anything surprising in the video. He basically shows what everyone knows: it's easy to share files these days. But he seems to miss the point of that. That is, he wants the gov't to come in and try to stop this (an impossibility), rather than recognizing that it's time for him to shift his business model. Yes, distribution is cheap and easy these days. In most businesses when distribution becomes cheaper and easier, that's a good thing. Why is it that Hollywood top execs still can't figure out how to take advantage of it?

Mehan Jayasuriya points out the many problems with the way the FCC handled this whole event:

Any presentation delivered at a public government hearing should be made available to the general public in a convenient format. Not everyone is able to travel to Washington D.C. for hearings and those who cannot should not be excluded--rather, they should be encouraged to participate in the debate. The mission statement on the Commission's new Broadband.gov site seems to agree: "A great way to create a connected America is to involve all Americans in the development of a National Broadband Plan. The FCC welcomes civic participation, and we look forward to more interaction through this website." If Paramount was concerned that its video would encourage "piracy," then the company should not have presented it at a public hearing. It's as simple as that.

All of the other presentation materials for all of the other workshops are available on the FCC's website, so that citizens can download, read, comment on, reference and critique them. Why should Paramount's statement be treated any differently?

During the presentation, Huntsberry seems to suggest that a number of legitimate technology companies, including Drop.io, Twitter, Google, Facebook, Apple, Boxee, Sony, LG, Yahoo!, PayPal and Rapidshare, are arguably acting to enable or encourage unlawful filesharing. These companies and the users of their products should have an opportunity to respond to this allegation.

In the beginning of the clip, Huntsberry walks us through a timeline of when various camcorded copies of Star Trek were leaked to the Internet. This timeline provides a great example of how widespread the problem of camcording is, though it's worth noting that camcording is already illegal in most U.S. States and has little relevance in the context of this workshop (it's also worth noting that Star Trek made over $200 million at the box office regardless of the fact that camcorded copies were available within hours of its theatrical release). This evidence that films are commonly pirated while still in theaters undermines many of the arguments made by the studios in the FCC's Selectable Output Control proceeding (i.e. "We need to be granted the power to shut off outputs on the back of your A/V gear, otherwise you will unlawfully copy the films that we broadcast via cable").

Not only did the FCC treat Paramount's presentation with kid gloves, the agency also treated the Hollywood execs preferentially throughout the course of the workshop. Upon entering the room where the workshop was held, attendees were greeted by a massive vinyl banner--presumably belonging to Paramount--on which the aforementioned Star Trek timeline was printed. While I appreciate the fact that a visual aid can be helpful, I can't help but feel like a PDF file submitted to the record would have sufficed.

But that's not all. Though these workshops were technically less procedural in nature than a formal hearing would be, MPAA Chairman and CEO Dan Glickman was repeatedly allowed to call his technical expert, MovieLabs CEO Steve Weinstein, up to the stand to chime in with additional comments--even though nothing he said was actually technical in nature. The Commission allowed Glickman to do this so many times that Weinstein also started calling others from the audience up to the stand, including Disney Executive Vice President Preston Padden and Disney Vice President Troy D. Dow. Perhaps I'm being overly cynical but I doubt that the Commission would have allowed any of the other panelists to engage in this kind of behavior.

And, again, uh.... what does copyright have to do with broadband policy in the first place? And where is it in the FCC's mandate that it has any say in copyright policy?

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