A call for insights & authors.
We’re calling on you, our blog’s readers to help select the top online law issues you face today, and to describe what you see ahead.  Dave Wieneke fills in the details in video above.

We’d like to hear from you by email at “strategy2.0″ at “gmail.com“. Starting next week we’ll start sharing what you and your colleagues have told us, along with original research and perspectives on our readers’ top themes.  Hey, thanks for reading UsefulArts, and sharing your ideas!

Mark the date. This announcement is the start of an effort by the FCC to regulate both Internet operations and content just as the Commission does in broadcast channels.  After an earlier effort to regulate bloggers as lobbyists failed, this appears to set the stage for another attempt for regulation of Internet content.

In a speech to the Federal Communications Bar Association on February 22, acting chairman Michael Copps said it was time to think “more rigorously” about the impact of the migration of communications to the Internet.

“Open access issues are important, but so too is how to ensure that as the Internet becomes our primary vehicle for communicating with one another, it protects the public interest and informs the civic dialogue that America depends on.”

The term “public interest” is what the FCC was created to protect in broadcast communications. Commissioner Copps’ use of this term signals an intent to attach the FCC to regulation of the Internet. And when the FCC regulates, it will not limit itself to operational issues, as “content” is where public interest in fact originates. The incoming FCC chairman seeks to remake the organization, so this statement connecting “the public interest” with Internet communication signals a potential sea change.

Of course, the Internet exists on private infrastructure. Your blog or website is a private asset.  I can think of no actual nexus for government control, other than that this medium is influential. And that makes it attractive for government agencies to try to control.

The Technology Liberation Front explored claims of “public interest” in governing communications last year:

The problem with all this “public interest” thinking, as Ben Compaine aptly notes, is that “In democracies, there is no universal ‘public interest.’ Rather there are numerous and changing ‘interested publics.’” The viewing public is likely to have a broad array of interests and desires that cannot be adequately gauged by what five FCC commissioners believe to be in the public interest.

Conservative reactionaries have predicted that under Democrats the FCC would resurrect the Fairness Doctrine to regulate talk radio and blogging. This connection of “public interest” to the Inertet certainly fits the scenario. We may find that the line between “reactionary” and “visionary” may only be that reactionaries are a little ahead of the visionaries.

It seems that only natural disasters happen suddenly. Man-made ones begin small. The EU is adopting policies that secretly allow the police to hack into personal computers anywhere, at any time, for any reason – all without any judicial oversight, which would be the start of a man-made disaster.

According to the TimesOnline:

The hacking is known as “remote searching”. It allows police or MI5 officers who may be hundreds of miles away to examine covertly the hard drive of someone’s PC at his home, office or hotel room.

Material gathered in this way includes the content of all e-mails, web-browsing habits and instant messaging.

Under the Brussels edict, police across the EU have been given the green light to expand the implementation of a rarely used power involving warrantless intrusive surveillance of private property. The strategy will allow French, German and other EU forces to ask British officers to hack into someone’s UK computer and pass over any material gleaned.

Make no mistake – this is the equivalent of the police knocking down your door and entering your house at any time.
Continued

The sky is falling on ICANN’s ill-considered gTLD policy.

I’ve been a skeptic of ICANN due to its incredibly slow response to fixing its own rules enable domain tasting.Also, last year its own domain was hacked, which didn’t increase anyone’s opinion of its chops as the world’s domain authority.

I’ve read in disbelief as this slow moving body has proposed supporting nearly unlimited new top level domains, in a near endless variety of languages, all done at light speed and at great expenses to customers.

The Cosmic Slap-Down Begins
Part of ICANN’s gTLD proposal is to allow any word to potentially be its own domain.  So, instead of “coke.com” it would be “anything.coke”. Domains would be very expensive, and if brands didn’t claim them quickly, competitors could.  Not unexpectedly, most brand holders I know consider this more a threat than an opportunity, and an expensive threat at that.  Last month several big brands called ICANN’s gTLD policy as a train wreck driven by greed.

This wave of negative response is gaining momentum both among businesses, registrars, and with the agency which charters ICANN, the US Department of Commerce.  The Commerce Department sent ICANN a scathing letter essentially telling them to rethink their plan. ICANN manages domains under an agreement with Commerce, which the department can reconsider or revoke at will, so such scathing letters carry significant weight at ICANN.

Microsoft, who some consider nearly a governmental force themselves, raised substantial legal and technical concerns about ICANN’s gTLD proposal.

The Best Summary of Reaction to ICANN’s gTLD Proposal is from PPF
Mike Palage, an Adjunct Fellow at the Progress & Freedom Foundation, has an expert analysis of the growing business and government pressures against ICANN’s gTLD proposal. It shows the scale of opposition this policy has inspired.  In my opinion, this will put ICANN’s mid-2009 launch schedule off track, and sideline the organization’s reported goal to relocate its operations to Switzerland.

I had imagined that ICANN would simply miss its deadline. But instead, it seems a storm is brewing that could simply quash its ambitious plans, even before the deadlines approach.

I simply didn’t expect this.

INTA, The World Intellectual Property Review, and TelNic hosted a webinar to discuss the “revolutionary” landscape ICANN has proposed by opening up top-level domain ownership. There was real dissension against ICANN’s vision, and at best, muted support.

You may view the recorded program for free.
<Use IE, there seems to be a Firefox issue.>

What was striking was the fear that an onslaught of new top-level domains would create confusion, expense, and technical difficulties.  Participants repeatedly referred to ICANN’s ambition to gain over $80 million from this offering, which would be used to establish themselves as a “domain college” in Switzerland. There was broad concern that this has caused a drive to popularize an expensive gTLD scheme that is of little use to brands.

Legal staff from Yahoo and Verizon voiced strong concerns, starting with the fact that no research suggests there was a market demand among brands from TLD expansion; quite the opposite.

Sarah Deutsch of Verizon observed that during the worst financial crisis in recent history, ICANN is opening a “fire hydrant” of new domain names.  Many brands may be compelled to become registries to claim their own marks as domains, which means paying perhaps $185,000 to register, and annual ICANN tax consultants to uphold the security and technical responsibility of a registry.

She noted that many brands may sit out the initial bidding and save their money to legally challenge those who bid on infringing names, or perhaps to sue ICANN directly. Participants noted that a requirement to “check trademarks at the door,” and abide by ICANN findings as part of the domain assignment process, absolutely must change.

The Positive Case for Brands to Get TLDs Was Lacking
What’s striking is the absolute lack of a compelling case for brands to move speedily in this direction. Several members pointed out there are marginal advantages. Paul McGrady, Jr. of Greenberg Traurig noted that companies that are registries directly own their own domains. Though few registrars have gone bankrupt, he pointed out there is a chance that company domains could be resold by a trustee holding the registrar.

Continued

With the approach of the the December 3rd sunrise period for owners of trademarks to register .tel domains, brand owners have a decision to make. The .tel domain is innovative, but is a domain named after the phone really going to be a hot new innovation?

.Tel: A Domain with no Websites, Just Contact Data
Most domains exist to route traffic to specific types of websites.  But not .tel. Instead of using domain name servers to store IP addresses to route traffic to websites, .tel uses the servers to store contact information such as phone numbers, links to official web pages, and even social networking links. These may be viewed through web browsers and smart phones, or consumed as data by other applications, such as Outlook.

Business Week describes how Telnic, the start-up that manages the domain, will revolutionize dialing. The Telnic site has a brief demo on how individuals would use this service. (As a designer, I’d encourage you to go see this just to see this, as it’s an example of what a lot of euro-marketing I see look like; which is to say, five years behind best practices.)

Anyway, having a directory of data makes sense, and doing it through DNS is a cool idea.

So What’s Wrong With .Tel?
The problem is that the notoriously slow-moving ICANN took eight years to approve this idea. It made a ton of sense back before social networking sites such as Facebook made hosting a business card website simple and easy. Web services such as Sweetcron are making it possible for applications to leverage data across these free applications.

Many brand holders will probably scoop up their names in the .tel sunrise period as defensive plays. However, for these to ever be useful, there would need to be a network effect of millions of people paying to add their contact information which, given the plethora of free social networking sites, doesn’t seem likely.

Further, ICANN’s approval came after their announcement that pretty soon anyone will be able to declare and manage any domain if they pay and get approval from ICANN. That deprives .tel from the competitive advantage of exclusivity. If their model starts to take root, competitors can easily enter their space using TLDs based on something hipper than .tel, such as .contact or .me.

Our friends at Domain Name Wire describe how Telnic has raised $35 million for this idea, and why it’s a long shot.

It’s a cool idea, but I don’t think it will ever be higher on the hype-cycle than it is this year. It’s great to see innovation; it’s just too bad that ICANN waited until others had taken the initiative.  .Tel…. bah, humbug!

I’d encourage you to steal Girl Talk’s breakthrough fourth album, but you can’t. It’s pay-what-you-like, so if you like, pay $0.00 to start listening and return to toss in a payment later. Start your download during this golden time before DMCA takedown notices and TROs make this a coveted, though still free, file.

Under the name Girl Talk, Greg Gillis creates music out of dozens of songs mashed together on each of his tracks. His fourth album, Feed the Animals, uses over 300 samples, much of it easily recognizable pop music which is recontextualized into 3-4 minutes musical cultural reference montages. He releases his work under a creative commons license on a “pay what you like basis.”

A biomedical engineer in Pittsburgh by day, Gillis is now making the charts in Rolling Stone and accumulating praise for integrity and creativity, both in his art and in his approach to copyright from unusual sources. The Wall Street Journal, not the usual source for breaking music news, describes Girl Talk’s work as “propulsive dance music” in a lengthy and enthusiastic article.

Then there’s his Congressman, Mike Doyle, who offered perhaps the coolest congressional testimoney, referencing Paul McCartney’s admission that he nicked the Chuck Berry bass riff for the Beatles’ hit “I Saw Her Standing There” in testimony about RIAA’s over-reaching tactics to enforce copyright. While established artists have used their popularity to bypass labels and offer works on a “pay what you like” basis, this may be the first case where a totally new artist will use this model to gain fame and substantial sales.

Some days, following online copyright law is both cool and fun. Enjoy the tunes!

Slydial is a free voice message service that directly connects you to someone else’s mobile voicemail. Their phone never rings, and you get to leave a message without actually speaking with them. (Wait for the legal angle; it’s coming.)

Their wonderfully written weasely website spells it right out. There are people you must phone: bosses, significant others, or your aunt for example. And while you might not want to talk to them at the moment, you still want the credit of calling. Now you can Slydial them.

Yep, it’s still in beta and already the product name is a verb.

Continued

On the day Microsoft announced its plan to acquire Yahoo back in February, I posted my doubts that Microhoo would be established within a year, which was then the media and company line.

While supporting Carl Icahn’s proxy fight and pressuring Yahoo’s board may get a Yahoo deal on the table, this will also underscore the anti-competitive concerns of regulators in both markets. The EU is still phobic about Microsoft’s domination of the desktop, and US courts are still supervising the firm for anti-competitive activities.

Yahoo’s sounds of capitulation moved its market valuation by about 12% yesterday, even without a specific proposal on the table. However, the street would be wise to price in the increased risk and delay of regulatory approval, which based on these week’s strong-arm tactics is likely to further increase.

Three months ago, on the day when this offer was announced, I made the post Microsoft Purchase of Yahoo Won’t Happen as Predicted.  

Over the weekend, Steve Ballmer withdrew MSFT’s offer. Yahoo stock is trading about 20% below where it closed Friday; Microsoft is up.

The Wall Street Journal’s Deal Blog dissects Ballmer’s letter to Yang line by line.  Microhoo could happen in the future, but it sure didn’t happen as most of the US media said it would when they echoed Microsoft’s press release.