In preparing for today's lecture on internet governance (whatever that is), I ran across an essay by Langdon Winner from 1997. It's called "Cyberlibertarian Myths and the Prospect for Community," and it's pretty bleak.

Mr. Winner says, in summary, that cyberlibertarians in 1997 are both shallow and obsessed. Shallow because they don't seem to care about community, institutions, democracy, or citizenship, and obsessed because they value individuality, free markets, and homogeneity above all else.

Let's assume he was right. Has the Wired culture made any progress towards enlightenment in the last seven years?  I'm going to suggest that it has -- but it just hasn't become conscious of the communitarian realities of online life yet.  The time may be ripe to collectively imagine a better world.  We can do this in two ways:  by shedding light on the role of groups in our lives, and by realizing how the networked, interactive screen changes our relationships with these groups. 

If this sounds vague to you, consider this:  We are just now beginning to see the structure of social organizations in new ways. We know that scale matters. We know that, given the chance, people will find ways to trust each other and work creatively together to pursue shared goals.

But many groups we're involved with are dysfunctional (like large corporations) and don't seem susceptible to change by individuals.  This is stressful. (Indeed, one definition of "bad" stress is an inability to change your environment.)

What if you could enrich your life with groups you haven't thought of before: different forms of jobs, interest groups, affiliations; crossing geographical and other boundaries, perhaps lasting for only a short time?

What if you could change groups you care about by acting collectively with others? What if you had more choices, both of roles and affiliations?

Networked, interactive screens make all of this possible.  We can visualize the groups we're involved with (and we should force those groups to have an online component); we can form new kinds of firms that exist only online; we can see the state of the group at a glance; and we can interact with the group using the screen. 

It turns out that the individual may not be the most important element of online life.  Groups may be -- and now we can collectively imagine them in ways we haven't been able to in the past.

David R. Johnson and I are talking about writing a treatment of this subject.  This sounds to me like a possible response to Mr. Winner.  But let me know.

It seems to me that we need to get the net heads to talk to the bell heads.  I'm planning to have a Cardozo conference in the fall that would focus on the IP-enabled services rulemaking. 

How can it be that email/IM etc. should be taxed "just a little" and the FBI should have a back door into these services -- just to support the existing telephone system?  I'm sure I have a great deal to learn.  But even the language makes little sense to me.  Who should speak at this conference?

Now that CFP taught me all about FCC regulatory policy, I feel empowered to be paranoid. 

ATT wants to offer VOIP.  Because their service touches the telephone system at some point, the FCC has said that ATT's VOIP will be a regulated service -- meaning CALEA, E911, and other obligations have to be met, and access charges have to be paid.  This seems entirely consistent with the notion that, someday, email, IM, and P2P generally will be regulated services too.

Here's the reasoning.  To the extent the following are true of  ATT's VOIP, they're true of email and IM:  the service (1) uses ordinary customer premises equipment, (2) originates and terminates on the telephone system, and (3) undergoes no net protocol conversion and provides no enhanced functionality to end users due to the provider's use of IP technology.  As I understand it, if a service isn't "processed" somehow by its transport across the net, it's a telecommunications service (that's what the "enhanced functionality" reference means).

Chairman Michael Powell says that ATT "argues that its service should be exempt from the access charge regime because it may use IP in its transport system. . . [but] customers are in no discernable way receiving the transforming benefits of an IP-enabled service.  In fact, the consumer receives the same plain old telephone service."  He goes on to say that if the FCC listens to ATT, that would be merely "sanction[ing] regulatory arbitrage and would collapse the universal service system virtually overnight."

The argument about email and IM (as I dimly understand it) is that consumers are receiving the same services they used to get from Western Union.  No difference.  Sure, the old telegraph operators aren't there, and the consumer is doing the typing, but once the message has been put together it's sent along the same plain old telephone lines.  In this view, the email or IM is just like a telegraph that gets routed along by the telephone network.  So email and IM should be on a level playing field with (now not thought about much) Western Union.

The justification for putting email and IM on a regulated footing as "just another" IP-enabled service is that if we don't do this the whole regulatory system will collapse.  The telephone system as we know it will be destroyed.

This rationale is very similar to the broadcast flag reasoning:  if we don't make rules for the devices that receive, store, and manipulate television broadcasts (and the devices that connect to those devices), the broadcast system as we know it will be destroyed.

The arguments for protecting telephones are stronger than for protecting broadcasts, but they're undeniably similar.  We have to do this, or the American way of life will be destroyed.  If you argue against this, you're un-American.  In fact, if you argue against this, you're in league with terrorists.

Where is this going?  One key IP-enabled service that's quite popular these days is P2P.  "Operation Fastlink" went after warez sites and hackers the other day, using language that sounds just like the war on terrorism:  "These groups are sophisticated and able to communicate instantly via the Internet, and have the ability, with the stroke of a button, to destroy evidence located across the globe. The synchronized efforts of law enforcement worldwide prevented the thieves from destroying the evidence or disappearing into cyberspace without detection."

Where would these warez files end up?  On P2P systems:  "Once a product is stolen and made available on a "warez" group's secure server, it is only a matter of hours before the stolen works are distributed throughout the world, ending up, for example, on public peer-to-peer file-sharing networks accessible to anyone with Internet access."

What does the content industry want more than anything? To shut down P2P systems.  How can they get there?  I'm not sure they can.  But having the FCC regulate P2P has got to be a start.

A current FCC Notice of Proposed Rulemaking is suggesting guidelines for IP-enabled services.  At CFP yesterday, Bob Cannon and Chris Savage gave a thorough FCC tutorial, and ended with a discussion of this NPRM and VOIP generally.  I raised my hand and asked whether "IP-enabled services" included the DNS and email.  Answer:  yes.

Here's the footnote setting the scope of the NPRM: 

Specifically, the scope of this proceeding – and the term "IP-enabled services," as it is used here – includes services and applications relying on the Internet Protocol family. IP-enabled "services" could include the digital communications capabilities of increasingly higher speeds, which use a number of transmission network technologies, and which generally have in common the use of the Internet Protocol. Some of these may be highly managed to support specific communications functions. IP-enabled "applications" could include capabilities based in higher-level software that can be invoked by the customer or on the customer’s behalf to provide functions that make use of communications services. Because both of these uses of IP are contributing to important transformations in the communications environment, this Notice seeks commentary on both, and uses the term "IP-enabled services" to refer to "applications" as well as "services." Recognizing the broad scope entailed by this definition, we invite comment below on how we might more rigorously distinguish those specific classes of IP-enabled services, if any, on which we should focus our attention. We emphasize, however, that this Notice does not address standard-setting issues for the Internet Protocol language itself, which are more appropriately addressed in other fora, or other items outside this Commission’s jurisdiction, such as Internet governance.

That last sentence makes you think about ICANN -- the White Paper said that the idea was to create a group to deal with "management and administration of Internet names and numbers on an ongoing basis," and not to provide "Internet governance."  So maybe the FCC is interested in taking on ICANN.  Whoof.

But putting ICANN aside, what about everything else that uses IP?  What about email (and blogging applications)?

The pro-regulatory view is that email is "affected with the public interest" and some sort of a common carrier. Email equals Western Union. Whoof again.  The thinking would be that because we all use email, maybe there should be CALEA obligations inherent in it (backdoors for snooping).  Or 911 obligations.  Or address portability.  Or you name it.

My reaction is mostly amazed disbelief.  Aren't there user agreements that have to do with email?  Don't we want to let the market dictate which email solutions people prefer because of the kinds of rules and promises those solutions provide? Don't we want to encourage businesses to roll out applications without having to check whether FCC guidelines are being met? Is there really a market failure here that drives a need for regulation?

Because one bit looks very like another, all of the VOIP discussions may also apply to any other sort of application you can think of.  What does this mean for the future? 

Have you seen the draft Calif. SB 1506?  Tell me it won't pass.  It makes anyone criminally liable who "knowingly electronically disseminates a commercial recording or
audiovisual work without disclosing his or her true name and address, and the title of the recording or audiovisual work."

You say, "No big deal.  We already have criminal copyright law on the books."  But don't criminal copyright statutes involve infringement?  This is a strict liability offense:  no name and address, and boom, you're in jail.

What if you're twelve years old?  We have one federal statute, COPPA, which makes it illegal for an ISP to knowingly gather personal information about a person under the age of 13 without parental consent.  Here, the twelve-year-old must provide that information. 

What if you're doing research?  Forget it; no name and address, and the inquiry is over.  No fair use exception here. 

Now, the proposed bill has an exception for people who electronically disseminate "a commercial recording or audiovisual work to his or her immediate family, or within his or her personal network, defined as a restricted access network controlled solely by that person or people in his or her immediate household."  Well, that's nice.  But what's a family?  And what about friends and colleagues and personal noncommercial use generally?  Isn't this a run towards a "personal digital network network environment" or PDNE?  (Some pronounce that acronym as "PID-nee" and smile.  Some don't smile.)  What's the relationship between that PDNE and traditional copyright law? 

(A great lobbying move:  soon if you object to the concept of a "family-use" exception you'll be tagged as being against the idea of families.)

Perhaps the statute is preempted, but it doesn't (except in the findings) talk about copyright.  In fact, like the broadcast flag rule, it aggressively does not deal with traditional copyright concepts. 

I have to agree with Arnold:  being a proud member of the California legislature should be a part-time position.

I'm spending the morning at BloggerConII.  Dave Winer is right:  panels and "experts" are dead ways of running conferences.  This one is saying about itself that it's going to be a real discussion.  We'll see.  The crowd is serious and intent.  Good group of discussion leaders, including some of my favorite bloggers:  Dan Gillmor and David Weinberger.

Group now plans to sing the BloggerConII song and has chosen Take Me Out To The Ballgame.  Poor accordion guy has to play with us.

I had fun sitting next to John Palfrey.  That made this session worthwhile; real people definitely needed for overheated-rooms in which we talk about blog tool features. 

When Cory Ondrejka of Second Life started talking the other night, I had my new (graphically adequately powerful) laptop open.  If you think it's hard to concentrate on a presentation when you're looking at email, just imagine how difficult it is to focus when you're in a different world.

Second Life is well worth looking into, and Cory (SL's Vice President for Product Development) is a very patient man.  He's a good ambassador for Second Life; he'll answer any question thoughtfully and carefully, and he has an open mind.

Cory met with a small group here in NY on Tuesday night, and then went up to Yale to see the ISP fellows and Yochai Benkler's class; he's speaking at New York Law School today.

After a while, I put the laptop lid down so I could listen closely.  (I'm not a very agile presence in Second Life just yet; if you see an avatar spinning and gesturing meaninglessly, that's me.  The new laptop just came into my life this week.)

What Cory had to say was fascinating.  Fully half of SL's subscribers are busy building interactive, scripted objects, using a C-like scripting language.  Artists and all sorts of other people have adopted the SL language, and they're producing like mad.  They're building museums and stores and planes and taxis, both individually and in groups.  Cory says a big bump in productivity happened after SL announced it was giving IP rights to subscribers in their creations.

"What?" you say.

Well, it would be good for Cory to create an IP-free island in Second Life to test this hypothesis, but it appears that having the spur (or carrot) of IP rights has actually had its intended effect:  people are building.  It's a green world; a place where copyright is being used to support the overall interest of the place.  Lots of great questions here; but mostly it seems to me that this isn't creating a litigious world (at least not yet). It's creating a creative burst of energy, as people buy land and build. 

Cory kindly did a demonstration of "Property Law: The Game" for us.  I had sent him a list of adverse possession elements, and he had the idea of providing lots of building materials and asking students "build what, where, and be there for how long" in order to prove title.  Gripping.  The next step is to do a very short course module "in world."  Small is possible.  Big is overwhelming.

So I'm a huge fan of Second Life, and I hope to be able to figure out how to talk to the people there at some point.  (The avatars clump, predictably; we all look for companionship.)  And the next time Cory comes to talk, I'll remember to be in the same world.

Why do we have reunions?  The Yale Symphony had its first-ever reunion this past weekend, and I have some suggested answers to this question.

We have reunions to celebrate getting older rather than to return to our youth.  It was great to see the current instantiation of the orchestra -- there are wonderful players in the group -- but I don't think that those of us who were distant from our college years (compared to, say, the class of '02) wanted to be that age again.  We were having too much fun ignoring the current occupants and talking to the other alumni.

There are exceptions to this celebration, of course; it was hard to know what to say to the alum who saw pictures of himself/herself from his/her undergraduate days and said "I've gained 50 pounds since then."

Reunions give us a chance to see places we used to see.  It was great to be on the stage of Woolsey Hall again in the middle of a very loud orchestra.  (Large numbers of trombone players showed up from the alumni ranks.)  I remembered the view out the windows and how uncomfortable the hall's chairs are. 

We like reunions because they take us out of our day-to-day lives briefly, reconnect us to the past, and then let us go home.  Reunions are disruptive.  We leave our homes and our routines to visit another life.  It's space travel and time travel combined.  The air is different at a reunion.  We tell old stories to friends who understand us.  But then it ends, mercifully, and we return to where and how we live, and all the problems/joys/deadlines of that life.

So:  when has social software/social life online been sustained enough to trigger a desire for a reunion?  And what do those reunions look like?  I'm sure they've happened.  But how do we celebrate our aging, see places we used to see, and experience the disruptiveness of a reunion online? Or does the timeless, borderless, "classless" nature of the online flow make all sessions reunions, in a sense?

Let me know. 

After they finished the tenth installment of their enormous multi-volume history, The Story of Civilization, Will and Ariel Durant wrote a set of thirteen essays entitled The Lessons of History.  I happened to pick up this volume yesterday; it's both slim and sweeping.  

The Durants loved history, and wanted to show their readership what waves and tensions and trends they perceived.  It's not a great book, but it's an undeniably forceful one.  One essay discusses the essential moral characteristics of individuals, listing six traits and providing "positive" and "negative" descriptions of ways in which people act.  Here's a quote:  "Human beings are normally equipped by "nature" (here meaning heredity) with six positive and six negative instincts, whose function it is to preserve the individual, the family, the group, or the species. (Action, Fight, Acquisition, Association, Mating, Parental Care) . . . Each instinct generates habits and is accompanied by feelings. Their totality is the nature of man ." (Note to law review editors:  not a footnote within miles.)

For "Association," the Durants say flatly that "privacy" is a negative instinct of mankind.  That's it.  If you're private, if you want solitude, you're just not helping Progress.

Now, I don't agree with the Durants' black-and-white view of human nature.  There's a continuum out there, and putting things into boxes the way they did may not have advanced Progress either.  (And they say "cooperation" is a negative trait too -- the opposite of "competition.  I don't agree with that either.)  But having this 35-year-old use of "privacy" in front of me on the page provokes me to say the following:

We have no assurances, as we walk down the street, that no one is watching.  In fact, to the contrary, there may be all kinds of things and people and machines watching that we do not see.  Instead of worrying about that, we talk to the people behind the counters in the stores, we engage with the cab driver about the weather, and we notice who goes by. 

If we're really worried about privacy, what concerns us is someone developing a full-blown dossier of our every move and publishing it to people whose possession of this information would be hurtful to us in some way.  But, other than this particular worry, whether someone's watching is of no particular interest or consequence.  There is so much information in the world that it is unlikely that we'll be important enough to cause the sifting that would produce such a dossier.

Same thing for online life.  All of us send a great deal of email and wander around for hours at a time.  Sure, someone could be watching.  But should we worry?  Should we be concerned that an ad may be targeted at our computer based on our online activities?  Who is hurt by the personalization of advertising? or even content?  Might it be a "negative" instinct to be concerned about this -- and particularly to be so concerned about it that we stop wandering around online or sending email?

The recent protest letter re Google mail strikes me as a negative step -- a step backwards.  Google may indeed have established for itself something that is much more like a global platform than a search engine.  Its engineering costs have likely gone way down, while its pool of available information has grown enormously.  But asserting that Google mail should be suspended for privacy reasons seems out of proportion to the risks involved.

After all, the people I deal with every day (dry cleaners, doormen, shopkeepers) have made no promises to me about how long they'll keep my image in their minds.  The people at my school aren't telling me how long they will keep records of my employment. These people know much more about me (granted, only shards of information, but more of it) than Google will. 

But EPIC and others are asserting that Google's "data retention and correlation policies are problematic in their lack of clarity and broad scope." So don't use Google. It's not being forced on you. Go use a paid-for mail service that makes clearer promises to you.

Google shouldn't need permission from privacy-knowledgeable people before opening up a new service.  The fact that some are distressed about Google automatically transmitting email says more about perceived lack of choices of rulesets for email data than anything else.  Google is so successful that people worry it will become the only show in town.

Yes, privacy matters, particularly (and maybe exclusively) when there is a risk of disclosure of a detailed dossier of your online life.  But a commercial company can open up a new service without making promises to anyone about its privacy practices.  If it breaches the promises it has made, that's one thing.  Merely rolling out the service, on the other hand, might just be Progress.

Steven Johnson's Mind Wide Open is a book you should buy and read.  There is a great deal to say about this book, but I'll start with the jokes.

On p.129, there's a good section about jokes -- it turns out that their real purpose is social bonding rather than humor.  We laugh so easily with people we know, and there's a reason.

Johnson says:

[S]ocial interaction without laughter produces modified brain chemistry, which affects both your background impression of the exchange -- its emotional color -- and the resulting trace memories the exchange leaves in your head.  Putting smiley faces into email to supplement the lack of verbal intonation helps convey when you're trying to be funny, but because the recipient of your message is still alone when reading it, she won't be likely to laugh out loud . . .

As the brain science of social connection becomes more widely appreciated, our communications tools will be judged increasingly with this yardstick.  Attention deficit disorder is conventionally described as the classic ailment of our multitasking age, but when you look at most electronic communication through the lens of neuroscience, it's hard not to think that autism might be a more appropriate "poster condition" for the digital society.

This was an "aha" set of paragraphs for me; I've often wondered about the effect or meaning the flatness of electronic communications will have for society.  Nothing comes close, so far, to the many channels of communication we have when we talk face to face.  Maybe we'll get better at graphics; maybe our emoticons will be tied to our pulse rates and sweatiness; maybe it'll be done through gentle constant probing of our foreheads.  But communication isn't rich enough online (yet) to be humanly satisfying.

This is too long for a blog posting, but here it is -- my lunchtime address to the Copyright Office. 

I'm delighted to be here this afternoon, and thanks to my hosts.  Particularly appropriate that you've come here to Cardozo, which has one of the top-ranked IP programs in the country.  I'd tell you we were ranked sixth, but that information is under lock and key until this afternoon.

I'm proud to be talking to you.  The copyright office leads the establishment of copyright policy for this country.  You provide invaluable domestic and international policy advice and take part in treaty negotiations.  You're a vital congressional agency

The copyright office serves the nation and communicates to the public about copyright policy.

You understand the copyright balance better than anyone.  You understand that copyright is a tradeoff between exclusive rights being accorded to authors and copyright owners, on the one hand, and public, lawful use of works on the other.  You know that we provide statutory intellectual property incentives to innovators to produce new creations -- because we have a desire to provide to society a steady stream of follow-on innovations that lead to further gains.

But I'm here to tell you during this peaceful lunchtime in this lovely setting, right here at the intersection of 12th and 5th, that copyright policy is being taken away from you

And you may never get it back; and if you're told that you're in charge of it, as you assist with international negotiations, you're not being told the truth.

Where is copyright policy for the internet age being made?

three quick examples: 

first -- the story of the clever state statute

As you probably know, bills to protect cable and movie companies, based on an MPAA model, are moving rapidly through numerous state legislatures. The only problem is that we don't really know what this legislation will end up doing, and it's very broadly drafted.

The MPAA says these are just updating telecommunications and cable- theft laws to reflect rapidly changing digital technologies.  They call them "theft of service" legislation, and often there is no discussion of these bills at all before they're passed.  The form of these bills is changing,  but they're continuing to be mounted in the states.

But the laws as drafted go far beyond protecting the copyright interests of cable and movie companies. The bills reach into homes to control what kinds of devices consumers may use in connection with the services they've paid for. Consumers have never needed the "express authorization" of their cable or phone company before buying a new TV, VCR or PC.  But now they may.  

So, they're called "theft of service" laws but can be understood as "theft of copyright policy" laws.  As the people who know about copyright policy know, a copyright owner hasn't in the past had the ability to proclaim what kind of machine can get access to his content.  Last time I checked, it was still the law that a copyright owner’s statutory monopoly will not reach a device so long as that device is “merely …capable of substantial noninfringing uses.”

Next:  I'll call this The Case of Policy By Demand

Another way in which copyright policy in the internet age is being shaped is by demand letters being sent under the authority of the DMCA.  You're probably familiar with the genre -- there are many recent particularly egregious examples:

Diebold used DMCA demand letters to attempt to cut off political speech about the competency of its machines

Chamberlain claimed that the DMCA's anti-circumvention provisions prevented competitors from developing products that inter-operated with Chamberlain's garage door openers,

Sony claimed that game enhancer software violated the DMCA (by outlawing avoiding country codes for games).  this gave Sony control over complementary games and stopped competition with Sony's OWN game enhancer

Sony, again, used the DMCA to threaten hobbyists who created competing software for Sony’s Aibo robot dog.

Lexmark threatened aftermarket laser printer toner vendors that offered toner cartridges to consumers at lower prices. 

This seems like anticompetitive behavior -- controlling markets by controlling anti-circumvention techniques, and using demand letters to do it.  This was not what Congress had in mind when enacting the DMCA.  And you know that better than anyone.

And those are just the things we know about that have become lawsuits.   You might suspect that many demand letters are going out that don't ripen into lawsuits because the demandee just doesn't want to spend the money to fight.  And ISPs receiving letters like this may be cutting people off so as to avoid hassle.   Even though many of these claims are far away from what the DMCA's job was supposed to be. 

What does this tell us?  that copyright policy is perceived to provide an engine of control over aftermarkets -- not the balanced regime you know it is.

And finally:  the Case of the Breathtaking Reach

The FCC's recent rulemaking in the broadcast flag matter raises significant questions about where copyright policy is going.  The name of the proceeding was changed at the last moment from "copy protection" to "content protection."  But it's really all about copyright.

The video content industry has successfully convinced the FCC that television broadcasts need to be protected against online redistribution by people who receive such broadcasts.  This fight is not (really) about television broadcasts.  This fight is really about the protection of the video content industry's business model.  This 20th century industry is very afraid of the effects of the online world on its ability to protect content from unauthorized distribution.  The friction of the offline world (the cost and difficulty of making hard copies) does not exist online, where perfect copies can be made instantly of the largest conceviable sets of bits.  So distribution control is made much more difficult online.

The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any software or device that touches digital television content protect the content against unauthorized onward distribution.  In order to make this happen, the FCC has established a new and extraordinarily broad regulatory regime that mandates the use of "authorized" content protection technologies by virtually every consumer electronics product and computer product -- including digital television sets, digital cable set-top boxes, direct broadcast satellite ("DBS") receivers, personal video recorders (PVRs), DVD recorders, D-VHS recorders, and computers with tuner cards. Until the FCC can settle on a new regime for approval of "authorized" technologies, it itself will decide which technologies manufacturers are allowed to use. 

In effect, the broadcast flag rule represents a (so far) successful effort by the content industry to shift the costs of protecting controlled distribution of their product from their shoulders to those of  the high-tech and consumer electronics manufacturing sectors in this country.  Rather than have encryption or other protection travel with the content, and having the evasion of such encryption be subject to enforcement actions under the DMCA, the idea is that protection of such content will be assured by machines after they have received it.

The broadcast flag proceeding started off in August 2002 entitled "In the Matter of Digital Broadcast Copy Protection."   The NPRM clearly stated in its first paragraph that the issue with which the FCC was concerned was about protecting copyright rights:

"Without adequate protection, digital media, unlike its analog counterpart, is susceptible to piracy because an unlimited number of high quality copies can be made and distributed in violation of copyright laws."

The FCC's logic appears to have been that without a broadcast flag scheme in place, "high value" content would migrate away from broadcast and towards cable and satellite systems -- in which content was encrypted before it was sent out, and thus protected against infringement.   The FCC was clearly concerned about protecting the copyright rights of the content owners. 

The flag is itself a very simple signal that will have to be listened to and implemented by a huge array of devices and software programs.  It is the implementation of the flag that matters -- the mandate that devices have to follow its dictates.  And once one device in a home follows the flag's rules, all content received by that device, whether broadcast or not, in the public domain or not, copyrightable or not, can't be sent outside the home.  It's the vampire rule -- once I bite you on the neck, you're mine.  All consumers will be protected against their own "unauthorized uses." 

Also, slightly inside baseball, the Commission is being urged to create a definition of a PDNE (personal digital network environment) within which copying and transmission can occur.  This is an incredibly broad request to do something incredibly constraining.  The MPAA is suggesting that the Commission define a "local environment" within a tightly defined geographic area.

Wait a minute.  I have content provider bona fides.  Both my parents are composers.  But this is the era of the internet.  Things don't happen in a "local environment" any more, and to suggest that they do seems to attempt to avoid involvement of the internet in digital media altogether.

This is, quite simply, breathtaking.  And once the public figures out what's going on in the name of protecting copyright policy, they'll be furious. 

And I'm not even going to start with the effort to close the analog hole.

these are just sketches of what's going on.  And I'm a centrist on these matters.  But the polemics of copyright policy has become these days like a threat -- if you're not with us, you're against us.  There's the rising perception that copyright owners have control over all unauthorized uses.  As if the mere right to control is the ultimate end of copyright policy.  It's the new normal.

But you know that this new normal isn't reflective of actual copyright policy as was intended in the Constitution or by the framers.  And that the enlistment of neutral third parties in the implementation of this new normal (manufacturers, ISPs, software companies) is overreaching.

A key part of the copyright policy response has to be resisting the claimed "newness" of this situation.  The same arguments are still being made over and over again about bad generation of internet users feeling they have an entitlement to listen to music while, meanwhile, new business models are taking off -- and the video guys will have the same experience.

In fact, this isn't so new.  It certainly doesn't require new laws, new bureacracies, or new asymmetries of information [Koh talk about Patriot Act compliance].  What do I mean by that?

What authorities don't copyright owners already have?  We need to ask that question.

We need some demonstration that the authorities already given (like the DMCA) have been wisely used.

We need to question whether new institutions should be making copyright policy -- why does FCC get to start making copyright policy?

Why does the "new normal" include such asymmetry of information?  Content owners can get all information about uses of their content, but there's no evidence that we're getting more or better content as a result -- no tradeoff for this

Technology is not a substitute for ideas; even new threats do not require new rules (new legislation), new bureaucracies (such as the FCC), or new asymmetries of information (in any mandated DRM context).  We need to resist the claimed necessity for these things, and, overall, the idea of the new normal.

It's gotten to the point where even mainstream manufacturing companies are worrying about balance -- recent report by the Committee for Economic Development, a group of mainstream US businesses that has taken strong public positions on the Marshall Plan and campaign finance, evidences this, where we took a hard look at the effects on economic growth of the nation of implementing the "new normal" in the digital world.  And these companies weren't happy.

You, the copyright office policy makers, are the keepers of the flame.  Don't let this happen.  Don't let copyright policy be made without you.