Mobile phone networks in the U.S. are developing a rating and filtering system to apply to content on their networks, according to a Reuters story by Antony Bruno.

The Federal Communications Commission oversees the distribution of wireless spectrum to U.S. operators, and wireless carriers do not want the [FCC’s] indecency campaign against radio, TV and cable broadcasters to come their way.

“The adult side of things has really kick-started it,” says Mark Desautels, [cellular industry association] VP of wireless Internet development. “As indecency becomes an increasing point of interest on the part of policymakers, we really need to be proactive about it.”

Avoiding government regulation by self-regulating is an old trick. In this case, though, it’s hard to see how the self-regulation will pacify the FCC. Here’s an example, from the article:

Wireless carriers and record companies view a rating and filtering system as an opportunity to offer a greater spectrum of content, including master ringtones or voicetones with explicit lyrics. Currently, wireless carriers offer only the most non-offensive content possible because they do not have a mechanism for limiting edgier content to adults.

Do they really think that the FCC will ignore complaints about explicit ringtones being heard in public, just because those tones happen to come from the phones of grownups? The FCC wants to stop kids from seeing or hearing adult content, period. Often they seem to be trying to keep adults away from adult content. Today’s FCC will never accept explicit ringtones, or visible-to-others adult images, being distributed in public.

Even more interesting is the mobile providers’ assertion that they control what happens on their networks. This may have been true historically, but we’re shifting now to a world where phones are really Internet-connected computers that are programmable by anyone. That means a phone can, in practice, access any data that its owner wants to get.

It’s true, of course, that mobile providers can wall their users off from the Internet, and can wall the phones that use their networks off from nonapproved programs. But doing so will make phones much less useful, by shutting out most of the world programmers and most of the world’s sources of information. Competition will force mobile providers to open their phone platforms to third-party programs and content.

The mobile providers would much prefer to keep their platforms closed. There is more money to be made by operating a closed platform than an open one, as long you can’t lose business to competitors who open their platforms. If you’re a mobile provider, you must feel the urge right now to make a deal with your competitors, in which you all agree to keep your platforms closed. But that would be an agreement not to compete, which is illegal.

It would be so much more convenient if some regulation came along that had the side-effect of keeping platforms closed. Perhaps a regulation that disallowed content that hadn’t been officially categorized by a mobile network provider. A regulation, coincidentally, just like the one the industry is starting to develop.

All of this is in vain, I think. The value to customers of open phone platforms is too large to ignore, and some platforms are open already. It’s hard to see how such a useful product feature can be stopped by voluntary means. And once platforms are open, people will get the content they want, like it or not.

A bill (HB 3245) introduced in the Texas state legislature would exempt meetings discussing “matters relating to computer security or the security of other information resources technologies” from the state’s Open Meetings Act.

This seems like a bad idea. Meetings can already be closed if sufficient cause is shown. The mere fact that computer security, or matters relating to it, will be discussed should not in itself be sufficient cause to close a meeting. Computer security is a topic on which Texas, or any state or national government, needs all the help it can get. The public includes many experts who are willing to help. Why shut them out?

The bill is scheduled for a hearing on Monday in the Texas House State Affairs Committee. If you live in Texas, you might want to let the committee members know what you think about this.

(Thanks to Adina Levin for bringing this to my attention.)

Yesterday a House subcommittee on “Courts, the Internet and Intellectual Property” held hearings on interoperability of music formats. (The National Journal Tech Daily has a good story, unfortunately behind a paywall.) Witnesses spoke unanimously against any government action in this area. According to the NJTD story,

[Subcommittee chair Rep. Lamar] Smith and other lawmakers who attended the hearing agreed with the panelists. The exception was Rep. Howard Berman of California, the subcommittee’s top Democrat, whose district encompasses Hollywood. He suggested that the confusing proliferation of non-compatible copy-protection technologies could be impeding the development of a legal digital-music marketplace.

What’s going on here? Rep. Smith’s opening statement gives some clues about the true purpose of the hearing.

Legitimate questions have been raised regarding the impact of digital interoperability on consumers. In the physical world, consumers didn’t expect that music audio cassettes were interoperable with CD players. Consumers switching from music cassettes to CDs bought the same music for $10 to $20 per CD that they already owned. Consumers accepted this since they felt they were getting something new with more value – a digital format that made every reproduction sound as good as the first playback.

Music is quickly becoming an online business with no connection to the physical world except for the Internet connection. Even that connection is increasingly becoming wireless. Some of the same interoperability issues that occur in the physical world are now appearing here. Consumers who want to switch from one digital music service to another must often purchase new music files and, sometimes, new music players.

For example, music purchased from the iTunes Music Store will only work on Apple’s iPod music player. Music purchased from Real cannot be accessed on the iPod. Last year, both companies became involved in a dispute over Real’s attempt to offer software called Harmony that would have allowed legal copies of music purchased from Real’s online music store to be playable on Apple’s iPod music player. Apple objected to this effort, calling it “hacker like” and invoking the DMCA. Apple blocked Real’s software from working a short time afterwards.

This interoperability issue is of concern to me since consumers who bought legal copies of music from Real could not play them on an iPod. I suppose this is a good thing for Apple, but perhaps not for consumers. Apple was invited to testify today, but that they chose not to appear. Generally speaking, companies with 75% market share of any business, in this case the digital download market, need to step up to the plate when it comes to testifying on policy issues that impact their industry. Failure to do so is a mistake.

As a result of disputes like the one between Apple and Real, some have suggested that efforts to boost digital music interoperability should be encouraged by regulation or legislation. Others have urged Congress to leave the issue to the marketplace and let consumers decide what it best for them.

The hearing is clearly meant to send a “we’re watching you” message to Apple and others, urging them not to block interoperability.

Of course, if full interoperability is really the goal, we already have a solution that is hugely popular. It’s called MP3. More likely, what the subcommittee really wants to see is a kind of pseudo-interoperability that allows products from a limited set of companies to work together, while excluding everyone else. It’s hard to see how this could happen without a further reduction in competition, amounting to a cartelization of the market for digital music services.

The right public policy in this area is to foster robust competition among digital music services of all kinds. A good start would be to remove existing barriers to competition, for example by repealing or narrowing the DMCA, and to ensure that the record companies don’t act as a cartel in negotiating with music services.

A bill in the California state senate (SB 96), previously dubbed the “Cal-Induce Act,” has now morphed via amendment into a requirement that copyright and porn filters be included in many network software programs.

Here’s the heart of the bill:

Any person or entity that [sells, advertises, or distributes] peer-to-peer file sharing software that enables its user to electronically disseminate commercial recordings or audiovisual works via the Internet or any other digital network, and who fails to incorporate available filtering technology into that software to prevent use of that software to commit an unlawful act with respect to a commercial recording or audiovisual work, or a violation of [state obscenity or computer intrusion statutes] is punishable … by a fine not exceeding [$2500], imprisonment … for a period not to exceed one year, or by both …

This section shall not apply to the following:
(A) Computer operating system or Internet browser software.
(B) An electronic mail service or Internet service provider.
(C) Transmissions via a [home network] or [LAN]. [Note: The bill uses an odd definition of “LAN” that would exclude almost all of the real LANs I know. – EF]

As used in this section, “peer to peer file sharing software” means software … the primary purpose of which … is to enable the user to connect his or her computer to a network of other computers on which the users of these computers have made available recordings or audiovisual works for electronic dissemination to other users who are connected to the network. When a transaction is complete, the user has an identical copy of the file on his or her computer and may also then disseminate the file to other users connected to the network.

The main change from the previous version of the bill is the requirement to include filtering technologies; the previous version had required instead that the person “take reasonable care in preventing” bad uses of the software. This part of the bill is odd in several ways.

First, if the system in question uses a client-server architecture (as in the original Napster system), the bill applies only to the client-side software, since only the client software meets the bill’s definition of P2P. Since the bill requires that a filter be incorporated into the P2P software, a provider could not protect itself by doing server-side filtering, even if that filtering were perfectly effective. This bill doesn’t just mandate filtering, it mandates client-side filtering.

Second, the bill apparently requires anyone who advertises or distributes P2P software to incorporate filters into it. This seems a bit odd; normally advertisers and distributors don’t control the design of the products they advertise. Typically, third party advertisers and distributors aren’t allowed to inspect a software product’s design.

Third, the “primary purpose” language is pretty hard to apply. A program’s author may have one purpose in mind; a distributor may have another purpose in mind; and users may have a variety of purposes in using the software. Of course, the software itself can’t properly be said to have a purpose, other than doing what it is programmed to do. Most P2P software is programmed to distribute whatever files its users ask it to distribute. Is purpose to be inferred from the intent of the designer, or from the design of the software itself, or from the actual use of the software by users? Each of these alternatives leads to problems of one sort or another.

Note also the clever construction of the P2P definition, which requires only that the primary purpose be to connect the user to a network where some other people are offering files to share. It does not seem to require that the primary purpose of the network be to share files, or that the primary purpose of the software be to share files, but only that the software connects the user to a network where some people are sharing files. Note also that the purpose language refers only to the transfer of audio or video files, not to the infringing transfer of such files; so even a system that did only authorized transfers would seem to be covered by the definition. Finally, note that the bill apparently requires the filters to apply to all uses of the software in question, not just uses that involve networking or file transfer.

Fourth, it’s not clear what the bill says about situations where there is no workable filtering software, or where the only available filtering software is seriously flawed. Is there an obligation to install some filtering software, even if doesn’t work very well, and even if it makes the P2P software unusable in practice? The bill’s language seems to assume that there is available filtering software that is known to work well, which is not necessarily the case.

The new version of the bill also adds enumerated exceptions for operating system or web browser software, email services, ISPs, home networks, and LANs (though the bill’s quirky definition of “LAN” would exclude most LANs I know of). As usual, it’s not a good sign when you have to create explicit exceptions for commonly used products like these. The definition still seems likely to ensnare new legitimate communication technologies.

(Thanks to Morgan Woodson (creator of an amusing Induce Act Hearing mashup) for bringing this to my attention.)