Three things:  First, Judge Marilyn Hall Patel is a confident, no-nonsense person.  Just look at the bold way she dashed off the date on this order [short pdf], issued yesterday.  She knows what she's talking about.

In this order, she makes short work of the absurd suggestion that one of the statutory exclusive rights of a copyright holder -- the "distribution" right -- was somehow amended by the ART Act to include the right to "make available" electronically.  We knew this argument was going to be made, and it's nice to see it being knocked down so handily: "If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so."

(Thanks to Fred von Lohmann.)

Second, it looks like we're heading swiftly into deep broadcast flag legislative territory.  Drafts are being circulated now that would ratify the November 2003 order and give the Commission the authority to "adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks."  Does this include the authority to (attempt to) close the analog hole?

Third, I've been diving into telecom lore.  It feels as if this is going to be a transformative mental experience -- similar to what happens to you after your first year of law school.  Before:  a wifty music major (did you see this week's New Yorker cover?).  After:  a canny, jaded, argumentative employed person.  If you need a good reference/introduction to telecom policy, Jon Neuchterlein and Phil Weiser have put out a well-crafted book on the subject (highly recommended).