Only Connect - Should Broadband Access Be a Right?

Finland makes broadband access a right, $7 billion US stimulus for rural broadband improvements

by Joshua-Michéle Ross | @jmichele | comments: 11

This week gave us two reasons to reconsider the state of broadband connectivity in the US. First, Finland has announced that it will guarantee broadband access as a right for all its citizens:

Second, Yochai Benkler and the Berkman Center released a study of broadband Internet transitions and policy. A global review of how connected various countries are - and the policies that have performed well to stimulate connectivity, both in-home and mobile. While the U.S. has over 7 billion in stimulus dollars going toward improvements in rural broadband, money isn't the same as policy, and it is hard to dispute that we have fallen behind:

On those few measures where we have reasonably relevant historical data, it appears that the United States opened the first decade of the 21st centuries in the top quintile in penetration and prices, and has been surpassed by other countries over the course of the decade.

Benkler makes it clear that government policy has played a role in our decline. The U.S. began lagging as soon as the FCC abandoned it's position of "open access" and allowed telecom companies to lock down networks. (see page 12 of the report).

As our economy continues to lose mass in favor of information-based goods (U.S. exports lost 50% of their physical weight per dollar from 1993 to 1999*) and we continue to see the decoupling of workforce from workplace, connectivity is a critical factor in economic exchange and competitive advantage. Countries that build wide, fast networks to the last mile will have a huge leg up.

If government works best when it creates the conditions that allow citizens the maximum opportunity to succeed, two things seem clear. First, broadband access is a key piece of infrastructure and a necessary condition to many new jobs and opportunities. Second, our policies should steer back towards open access to support that right. Benkler is pretty clear that countries running half a generation ahead of the US (Japan, Korea etc.) are doing so as a result of open access policies. Achieving these ends does not necessarily require the government to own (or pay for) the solution. As Benkler notes on page 13 "there are models of high performing countries, like France, that invested almost nothing directly, and instead relied almost exclusively on fostering a competitive environment."

On a personal note, I divide my time between the US and France and I can tell you, my French broadband (in a rural, medieval village mind you) crushes any corporate workplace connection in the US. What do you think? Should broadband access be considered a right? Is "universal connectivity" just too big a job? And what should government's policy-making role be in all of this?

Legally Speaking: The Dead Souls of the Google Booksearch Settlement

by Pamela Samuelson | comments: 59

Guest blogger Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, as well as a Director of the Berkeley Center for Law & Technology and an advisor to the Samuelson High Technology Law & Public Policy Clinic at Boalt Hall. She has written and spoken extensively about the challenges that new information technologies pose for traditional legal regimes, especially for intellectual property law.

This piece will appear in the July 2009 issue of Communications of the ACM. Readers may also be interested in the slides from Pam's recent presentation, "Reflections on the Google Book Search Settlement."

Google has scanned the texts of more than seven million books from major university research libraries for its Book Search initiative and processed the digitized copies to index their contents. Google allows users to download the entirety of these books if they are in the public domain (about 1 million of them are), but at this point makes available only “snippets” of relevant texts when the books are still in copyright unless the copyright owner has agreed to allow more to be displayed.

In the fall of 2005, the Authors Guild, which then had about 8000 members, and five publishers sued Google for copyright infringement. Google argued that its scanning, indexing, and snippet-providing was a fair and non-infringing use because it promoted wider public access to books and because Google would take out of the Book Search corpus any digitized books whose rights holders objected to their inclusion. Many copyright professionals expected the Authors Guild v. Google case to be the most important fair use case of the 21st century.

This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the “dead souls” to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

Orphan Works

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them.

A broad consensus exists about the desirability of making orphan works more widely available. Yet, without a safe harbor against possible infringement lawsuits, digitization projects pose significant copyright risks. Congress is considering legislation to lessen the risks of using orphan works, but it has yet to pass.

The proposed Book Search settlement agreement will solve the orphan works problem for books—at least for Google. Under this agreement, which must be approved by a federal court judge to become final, Google would get, among other things, a license to display up to 20 per cent of the contents of in-copyright out-of-print books, to run ads alongside these displays, and to sell access to the full texts of these books to institutional subscribers and to individual purchasers.

The Book Rights Registry

Approval of this settlement would establish a new collecting society, the Book Rights Registry (BRR), initially funded by Google with $34.5 million. The BRR will be responsible for allocating $45 million in settlement funds that Google is providing to compensate copyright owners for past uses of their books.

More important is Google’s commitment to pay the BRR 63 per cent of the revenues it makes from Book Search that are subject to sharing provisions. The revenue streams will come from ads appearing next to displays of in-copyright books in response to user queries and from individual purchases of and institutional subscriptions to some or all of the books in the corpus. Google and the BRR may also develop new business models over time that will be subject to similar sharing.

One of the main jobs of the BRR will be to distribute the settlement revenues. The money will go, less BRR’s costs, to authors and publishers who have registered their copyright claims with BRR. Although the settlement agreement extends only to books published prior to January 5, 2009, BRR is expected to attract authors and publishers of later-published books to participate in the revenue sharing arrangement that Google has negotiated with BRR.

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