Informationoverlord

“So fuck the FCC / Fuck the FBI /Fuck the CIA / Livin in the motherfuckin USA” - Steve Earle – F the CC

The U.S. Court of Appeals for the 2nd Circuit in New York has ruled that the U.S. Federal Communications Commission’s (FCC) indecency policy is unconstitutionally vague and could create a chilling effect beyond “fleeting expletives” heard on broadcasts.

The case deals with an appeal by Fox (and several other broadcasters) against the FCC’s expansion of its rules – made in March 2004 - to deal with obscenity and indecency in Television (and the special addition of profanity as a separate category of proscribed speech under the law)

The same court, in 2005, ruled by 2-1 that that “the FCC’s new policy regarding “fleeting expletives” represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion”.

At that time the Court first pointed to the Supreme Court decision in Pacifica (1978) that the FCC could, consistent with the first amendment’s right to free speech, regulate indecent material, but emphasised the limited nature of the ruling saying it did not ’speak to cases involving the isolated use of a potentially offensive word in the course of a [radio] broadcast ‘

When the FCC reversed its initial decision not to sanction NBC for the broadcast of Bono saying “really fucking brilliant” at the 2003 Golden Globes the Commission it moved away from this position stating: “While prior Commission and staff have indicated that isolated or fleeting broadcasts of the “F-Word” such as that here are not indecent or would not be acted upon, consistent with our decision today we concluded that any such interpretation is no longer good law”

The 2nd Circuit argued ruled the FCC had failed to show why this was no longer good law and what had changed to warrant this new position on ’single’ fleeting expletives. The case was appealed to the Supreme Court who reversed this decision by a 5-4 margin stating that: “None of the Second Circuit’s grounds for finding the FCC’s action arbitrary and capricious is valid.
First, the FCC did not need empirical evidence proving that fleeting expletives constitute harmful “first blows” to children; it suffices to know that children mimic behaviour they observe. Second, the court of appeals’ finding that fidelity to the FCC’s “first blow” theory would require a categorical ban on all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensiveness of words and statements in relation to the context in which they were broadcast. The FCC’s decision to retain some discretion in less egregious cases does not invalidate its regulation of the broadcasts under review. Third, the FCC’s prediction that a per se exemption for fleeting expletives would lead to their increased use merits deference and makes entire sense.”

The Supreme Court however, refused to rule on the constitutionality of the rules, absent a ruling on that subject by the Second Circuit, so sent the case back to New York for examination of the constitutional issues. The 3 Judge panel has now done so an unanimously concluded “We now hold that the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here”.

What is an unconstitutionally vague law/rule? According to US law something is impermissibly vague if it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited” In this case the broadcaster argued the FCC’s indecency test was not one that made clear what was prohibited. They pointed to the Supreme Court’s decision to cut down the Communications Decency Act in Reno v ACLU where the law was found unconstitutionally vague with its use of general undefined terms such as ‘indecent’ and ‘patently offensive’, must also apply here where the identically used terms are applied.

The Court found there was additional guidance that meant the Reno decision in and of itself didn’t mean they should find against the FCC. However it did find the indecency policy impermissibly vague, pointing out that according the FCC ‘Bullshit’ – as used in an episode of NYPD Blue is indecent because it is ‘vulgar, graphic and explicit’, but ‘dickhead’ was not indecent because it was ‘not sufficiently vulgar, explicit, or graphic.’ No explanation is provided as to why, for example multiple occurrences of variants of the word ‘Fuck’ are not indecent and profane in Saving Private Ryan, but were in musical documentary The Blues.

The Court summed its vagueness argument by pointing to the FCC’s own lawyer during oral arguments whose answer to a question on whether a discussion programme dealing with the dangers of pre-matital sex aimed at teenagers would be permitted under the FCC rules replied ‘I suspect it would’. It followed this observation by listing programmes that had not been broadcast or rebroadcast and scripts that had been changed in fear of failing foul of the FCC rules.

The court concluded: ” the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

The FCC can appeal the ruling to either the full court of the 2nd Circuit or take the case back to the Supreme Court. It could also just choose the rewrite its indecency rules, and then – in all likihood – end up starting this process again with new challenges to its constitutionality. I feel it is unlikely to do the latter until a decision is handed down in a loosely related case being played out in the 3rd Circuit court in Philadelphia over the infamous 2004 Super Bowl halftime show, in which CBS broadcast the ‘wardrobe malfunction’ which saw one of Janet Jackson’s breasts was exposed for about half a millisecond. An appeal to the full 2nd Circuit and/or Supreme Court seems more likely, although in both cases I think the broadcasters will succeed.

For the second World Cup running Dutch beer company Bavaria have succeeded in becoming the brand everyone is talking about at the tournament. It seems this time around the company gave out lots of free tight fitting orange dresses to female Dutch fans prior to the game with Denmark and also allegedly paid 36 very attractive women to wear the dresses and stand together during the match cheering on the Dutch team. Unbelievably the Cameramen (and yes they still pretty much all are still men) found these attractive women in the crowd and cut to them on several occasions.

I saw it with my own eyes and besides admiring the young ladies talents, didn’t think anything of it. Bunch of woman dressed in Orange - the colour the natonal team play in - at a Dutch football game? I expect to see that. If you were a serious Dutch beer fan you might have picked up on the beer angle, though even that’s doubtful, but anyone else?

FIFA however also saw something totally different. They obviously cast their mind back to the last World Cup in Germany when Bavaria had handed out lots of orange lederhosen to fans – resulting in one set of fans being forced to either miss the game or stand in their underwear after being told they could not enter the ground in the lederhosen. Also it appeared that the tickets the ladies were using – which were close to pitch side - had come from an allocation given to ITV pundit Robbie Earle for friends and family. Earle has been sacked by ITV over the issue.

FIFA would be taking their action on behalf of the official beer sponsor Budweiser, who are the only beer brand allowed to advertise within FIFA venues.

The question of Ambush Marketing has been a major IP issue over the last decade or so, and understandably so. Big sporting events such as the Olympics, and the World Cup get much valued sponsorship money from big brand owners to be associated with such events – these rights do not come cheaply, and it is hard to argue that these sponsors should not be given some level of protection for that financial outlay which is often key financing in allowing the events to actually take place. However the manner in which this is achieved is often seem as heavy handed or misplaced.

In South Africa, there has been legislation covering ambush marketing since before the 2003 cricket World Cup took place. I particular, the South African Trade Practices Act (as amended) prohibits ambush marketing by association, and article 15a of the South African Merchandise Marks Act (as Amended) stipulates that:

“For the period during which an event is protected, no person may use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.
…the use of a trade mark includes( a) any visual representation of the trade mark upon or in relation to goods or in relation to the rendering of services; (b) any audible reproduction of the trade mark in relation to goods or the rendering of services; or (c) the use of the trade mark in promotional activities, which in any way, directly or indirectly, is intended to be brought into association with or to allude to an event.”

However, for the most part it is left to the Advertising Standards Authority to regulate, through their Advertising Code and Sponsorship Code.

Section 3.7 of the Sponsorship code states:
“The attempt of an organisation, product or brand to create the impression of being an official sponsor of an event or activity by affiliating itself with that event or activity without having paid the sponsorship rights-fee or being a party to the sponsorship contract.”

Additionally under the Sponsorship rules and provisions in Section 10 which “apply to all categories of sponsorship, parties to sponsorship and sponsorship practices, without exception” is adds that “A product or logo that is not directly associated with the sponsor of the event, activity, team, individual or organisation may not be visibly used or displayed during the [sponsored] event.”

In the current case this is particularly interesting as Peer Swinkels, Marketing Director of Bavaria beer, denying his company had done anything wrong stated that “The Dutch people are a little crazy about orange and we wear it on public holidays and events like the World Cup. We put no branding on the dress and FIFA don’t have a monopoly over orange.” This contrasts to the position in Germany, where their logo was visible on the orange lederhosen.

Which brings us to the question of who has won. Whilst I am sure FIFA feels the need to be vigorous in being seen to defend its official sponsors, whether the arresting of some of the ladies involved does anything to enhance the brands you’re protecting is another question. Meanwhile, the people at Bavaria beer must be sat with huge smiles on their faces as FIFA’s actions have brought global press coverage to something that should frankly have just been ignored.  Add to that the question of did Bavaria actually break the law, which seems at best questionable and we get:

Final Result: It’s Germany all over again: Bavaria Beer 1 FIFA World Cup 0.

UPDATE:  According to euFootball.biz, two of the women have now been charged with breaching the Merchandise Marks Act and FIFA’s head of media Nicolas Maingot has said: “FIFA has filed charges against the organisers of the ambush marketing stunt.”

And the prize for giving the story yet more oxygen? Anyone talking about the ‘official’ beer of the tournament? Nope.

Bavaria Beer 2 FIFA World Cup 0

Ofcom is consulting on a request by the BBC to amend to its digital multiplex licence (Multiplex B), to allow the BBC to restrict the availability of programme listing information for HDTV services only to digital receivers (digi-boxes) that implement content management technology.

The BBC first punted this idea back in September 2009 and was sent packing by Ofcom who told it – following a lot on negative response from a first consultation – that it needed more information about why this would be good for consumers if it were to stand any chance of approval.

It seems to have worked.

Ofcom states that it is now minded to approve the request finding that content management is a justified objective and that the ability to restrict the availability of EPG data to receivers which implement content management, represents the most appropriate means for securing the benefits of a wider range of HD content for citizens and consumers. The proposals also call licence holders for Multiplexes C and D, which carry a similar requirement to Multiplex B to provide EPG data in an open format, be also granted a similar licence amendment to allow EPG data to be broadcast in a closed format.

Before allowing the BBC to broadcast EPG data in a closed format under a licence amendment, Ofcom would require that the BBC implements: commitments to establishing an “appeals” process whereby viewers who believe their lawful usage is being impinged by the BBC’s use of content management can raise their concerns to the BBC; to work with the other public service broadcasters to create a ‘user friendly’ consumer guide to content management; to facilitate discussions between broadcasters, manufacturers, relevant industry bodies and consumer groups to develop and implement a good practice framework for the use of content management on the HD Freeview platform; and to give an undertaking that it will respect current usage protections under copyright law and any future extension of these protections, such as those recommended by the Gower’s Review of Intellectual Property – such as format shifting.

So what would this mean in practice?

Under the BBC’s proposals, broadcasters would be allowed to allocate one of three content management states to individual HD programmes:

Unrestricted copy: the digital receiver output is unencrypted and unrestricted copies of HD content can be made onto any digital device. There are no restrictions imposed on internet distribution.

Multiple copy: the digital receiver output is encrypted and unrestricted copies of the content can be made onto digital devices that are compatible with the copy management technology. Internet distribution is not permitted.

Managed copy: the digital receiver output is encrypted and only one copy of the content can be made onto a DVR and one external digital device which is compatible with the copy management technology. Internet distribution is not permitted

In all three content management states:

Ofcom’s current intention is also to make a requirement of the BBC being able to broadcast EPG data in a closed format under a licence amendment, that the free to air HD broadcasters on Multiplex B must only apply the minimum level of content management needed to secure content from rights holders.

This sounds good , but if the minimum level of content management that all broadcaster demand is ‘Managed Copy’ then that will be the minimum level of content management needed to secure content from rights holders – so, this is a fairly worthless statement.

Ofcom is clear that that content management cannot be applied to Standard Definition (SD) content, or HD content that has been converted down to SD, and that no restrictions are placed on the recording of HD content onto an DVR which is integrated with a receiver.

For digi-box/receiver manufactures what this means it that they would have to sign licensing deals with the BBC to gain access to Huffman Code look-up tables, to be able to ’see’ the HD content. This will be licensed on a royalty-free basis and on fair, reasonable and non-discriminatory (FRND) terms to any party who undertakes to comply with the content management standards agreed and specified by the Digital TV Group (DTG), and the BBC will be only be able to require content management technologies in receivers that form part of the DTG specification

Why the whole idea should be binned.

It’s all about piracy, right? Just as it was when DRM was stuck on CDs - and that worked SO well. Rights holders don’t want their HD content appearing online (unless they put it there of course) hence why ‘Internet distribution is not permitted.’ In the only option above that rights holder would choose. Very nice. The reality is that if someone want to put your content online on a bit-torrent site they will, and it only takes one person to do it. What this proposal does is wastes time and money for no net benefit to the consumer – nor in reality the rights holder – all for the sake of what exactly?

Also, when you look at, for example the Multiple Copy and Managed Copy options what is are “digital devices that are compatible with the copy management technology” ? Is a blank DVD covered by this? Is an iPod? Or are we, as I suspect, just going to do things that piss off the consumer?

The Rights Holders may say, look most people just want to record something and maybe watch in on a mobile digital device or burn a copy to disc – we’re not going to stop them doing that (although I’m sure they want to stop you doing either of these things), but if they say this – which could fit the description of ‘Managed Copy’ – the questions would be, well, they can already do that now. If that’s what the average person is going to do, then you don’t need any of this DRM in place at all. If instead you’re after the few who will burn off and sell or upload to the internet and share, then they’re going to do that whether or not your output is encrypted or not.

DRM applied in this way is, as it has been every time it has been applied, is a means of saying ‘we are going to treat you all like you’re potential criminals. …because that’s how we like to think of your our valued customers.’ This proposal is merely the latest example of it.

Sadly it is now a done deal. Once Ofcom is ‘minded’ it means it has ‘decided’.

The Lawyers for the US Federal Communications Commission (FCC) got a rough ride this week as they returned to the Second Circuit Federal appeals court to argue, once again that their rules to deal with obscenity and indecency in Television and in particular the use of ‘fleeting expletives’ should stand.

The case deals with an appeal by Fox (and several other broadcasters) against the FCC’s expansion of its rules – made in March 2004 - to deal with obscenity and indecency in Television (and the special addition of profanity as a separate category of proscribed speech under the law)

In June 2005, the same court ruled by 2-1 that that “the FCC’s new policy regarding “fleeting expletives” represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion”.

At that time the Court first pointed to the Supreme Court decision in Pacifica (1978) that the FCC could, consistent with the first amendment’s right to free speech, regulate indecent material, but emphasised the limited nature of the ruling saying it did not ’speak to cases involving the isolated use of a potentially offensive word in the course of a [radio] broadcast ‘

When the FCC reversed its initial decision not to sanction NBC for the broadcast of Bono saying “really fucking brilliant” at the 2003 Golden Globes the Commission it moved away from this position stating: “While prior Commission and staff have indicated that isolated or fleeting broadcasts of the “F-Word” such as that here are not indecent or would not be acted upon, consistent with our decision today we concluded that any such interpretation is no longer good law”

According to the court the FCC has failed to show what has changed to warrant their change in position. The FCC claims they are still following Pacifica, but the court found that there was no question that the FCC had changed its policy regarding the treatment of ‘fleeting expletives’ and that it had done so without providing reasoned opinion for doing so. The Court says it cannot find any reasoning why a single expletive now fits within the Commission’s ‘indecency test’ and that the Commission decision is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishing that it is harmful enough to warrant government regulation.

The Court also rejected the FCC position that even non-literal uses of expletives fall within its indecency definition because it is “difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.” According to the court Bono’s exclamation that his victory at the Golden Globe Awards was “really, really fucking brilliant” is a prime example of a non-literal use of the “F-Word” that has no sexual connotation.

The FCC’s order also introduced a new approach to profanity - introducing a new definition (at odds with traditional understanding of the meaning of profanity) - and again failed to provide evidence as to why a separate ban on profanity is necessary.

The U.S. Supreme Court reversed this decision by a 5-4 margin stating that: “None of the Second Circuit’s grounds for finding the FCC’s action arbitrary and capricious is valid. First, the FCC did not need empirical evidence proving that fleeting expletives constitute harmful “first blows” to children; it suffices to know that children mimic behavior they observe. Second, the court of appeals’ finding that fidelity to the FCC’s “first blow” theory would require a categorical ban on all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensiveness of words and statements in relation to the context in which they were broadcast. The FCC’s decision to retain some discretion in less egregious cases does not invalidate its regulation of the broadcasts under review. Third, the FCC’s prediction that a per se exemption for fleeting expletives would lead to their increased use merits deference and makes entire sense.”

The Supremes however, refused to rule on the constitutionality of the rules, absent a ruling on that subject by the Second Circuit, so sent the case back to New York for examination of the constitutional issues.

Judges Rosemary Pooler, Pierre Level and Peter Hall the same three judges that heard the case the first time around at the second Circuit all seemed pretty clear during oral arguments which side of the argument they were on, and few in the courtroom expect anything other than a unanimous ruling that the FCC rules are unconstitutionally vague.

When an FCC lawyer argued that the FCC’s policy was designed to “protect children” and that ratings and scheduling were ineffective in doing so, one judge, Pierre Leval – the one judge who had sided with the FCC in the first round of this case - asked, “What are you protecting children from?” A point followed up by Judge Hall who asked how the FCC could justify this stance whilst at the same time admitting it had a different rule for news programming, and Judge Pooler who questioned whether or not the first amendment allowed the FCC scope to –in their own words - “bend over backwards” to respect the sanctity of news and editorial judgment.

Hall, getting to the crux of the issue asked “How do the children figure this out? They are still hearing the same words.”

The Judges were also less than reassured by the FCC lawyers of just what would be allowable on TV. Judge Leval asked if he, as a broadcaster, could run a show about preserving virginity until marriage that included explicit references to sex, and was less than reassured by the response from the FCC’s lawyer of “I suspect you can,” leading Judge Pooler to intervene, commenting “You know what a good lawyer will say — ‘When in doubt, don’t run it.’ That’s the chill.”

It looks like the Supreme Court could be seeing this case again very soon – if they decide to take it – and I would expect this time they will side with the Second circuit and hand victory, rightly, in my view, to the broadcasters.

“…there’s something about being ticketed… and numbered that gives the man the feeling of being a piece of baggage or a convict. One can’t help thinking wistfully of our father’s day, when the world hadn’t grown so small. But one could move about in it without being watched so closely. Nowadays, we’re treated like demented or delinquent children. And the eyes are always on us.”

As we roll into 2010 and face another year of the slow creep of the Surveillance state (don’t forget if you’re in Manchester you can run out and get one of those nice ID Cards to prove who you are, and go on the government’s nice database) I was lucky enough over the Christmas period to watch a few episodes of the Orson Welles Sketchbook. The one that came as the biggest surprise, dates from 1955, and had Welles talking about Officialdom, and its infringement on our privacy.

Welles would no doubt have been interested in a situation where – in the UK – we allegedly have around 20% of the world’s CCTV cameras watching 1% of the world’s population; where a government wants to take DNA of all the population – just in case you ever commit a crime; where the government wants to create an ID database – with associated ID card – containing lots of information that has little or nothing to do with identifying who you are; and where the Police feel it’s their job to stop people taking photographs of them, buildings, and indeed just about anything else. We keep being told we live in a different world now and that means that the State and Officialdom are therefore no longer there to serve us, but to control us for our own safety. It’s funny that 45 years ago Welles hit the nail on the head when he said of the Police:

” I’m willing to admit that the policeman has a difficult job, a very hard job, but it’s the essence of our society that the policeman’s job should be hard. He’s there to protect, protect the free citizen, not to chase criminals, that’s an incidental part of his job. The free citizen is always more of a nuisance to the policeman that the criminal. He knows what to do about the criminal.”

Orson’s solution was to have an ID card – government rejoice – but not in the way the government envision it – government still rejoice and still try and spin it. He called for the creation of big international organization for the protection of the individual, to be called “I.S..[sic].P.I.A.O. That would be the International Association for the Protection of the Individual Against Officialdom.”

” The card itself should look rather like a union card, I should think, a card of an automobile club. And since its purpose is to impress and control officialdom, well, obviously, it should be as official looking as possible. With a lot of seals and things like that on it. And it might read something as follows:

This is to certify that the bearer is a member of the human race. All relevant information is to be found in his passport. And except when there is good reason for suspecting him of some crime, he will refuse to submit to police interrogation, on the grounds that any such interrogation is an intolerable nuisance. And life being as short as it is, a waste of time. Any infringement on his privacy, or interference with his liberty, any assault, however petty, against his dignity as a human being, will be rigorously prosecuted by the undersigned, I.S.[sic].P.I.A.O. That would be the International Association for the Protection of the Individual Against Officialdom. ”

Clever man that Orson Welles.

ESPN and Discovery Channel are both launching 3-D networks in the US, BskyB is planning the same in the UK, does that mean 3DTV has arrived? I hope not.

Seriously, why would I want a channel of 3D TV? I can’t even be arsed to see films in 3D at the cinema – which itself seem like more of a ploy to cut down on piracy than it does to enhance the cinematic experience. This is not to say that I am dismissing it out of hand or ignoring that in some spheres it may prove successful – sport immediately springs to mind. I can see that watching a football game in a pub in 3D might be fun, but in my own home? Do I want to watch the news in 3D? Eastenders? Spooks? Question Time?

One sticking point (and not just for me) is the silly glasses – which if you already have to wear glasses is glasses over glasses - although Philips have a prototype TV – WOWvx – that creates the effect without the need for glasses. As the cost for a ‘normal’ 3DTV with glasses is expected to start at around 2-3 times the cost of a current LCD/Plasma TV, you can imagine what something like this would retail at. Of course costs will come down, but only if people start to buy these things at full wack. Are they really going to?

History has also shown us that there are likely to be competing standards and when it comes to buying your HD3D DVDs - it’s going to be a mess. Yes, you’ll need yet another TV, yet another DVDlike player, etc etc.

Nick Bilton at the NY Times is also asking if we really need 3DTV and whilst he things it could be great for gaming (and I agree) but he concludes ‘ I can’t recall a single geeky friend saying anything, with any excitement, about 3-D televisions.’ He’s right. Even with the success of Avatar at the cinema the only people I hear talking about 3D is gamers.

Of course in 10 years time I may be eating my words and writing about how I can not imagine how we could have survived with just 2DTV. I could be, but I doubt it.

The Digital Economy Bill was debated for the first time in the UK’s House of Lords this week.

As is the case with the bill as a whole the main points of discussion centred around the provisions to deal with copyright and p2p filesharing, indeed it even offered an opportunity for Peter Mandelson to practice his stand-up comedy routine: ” I recognise that this House is probably the one place in Britain where peer-to-peer file-sharing is associated more with passing notes in the Lords’ tea room than with piracy”

He hit out at critics who have suggested that the government’s policy to tackle the problem of illegal filesharing focuses on coercion, saying this “is quite wrong” and that “there is a primary role for education about the value of copyright, and a very clear obligation on the creative industries to get their act together and build business models that provide access to content at a cost that makes the risk of breaking the law an unattractive option.”

It seemed that some of the critics he referred to were in the Lords. Lord Lucas seemed to sum up the views of many when he questioned where was the stick for the entertainment industries to go with the truck load of carrots the government were providing: ” We also need to bear in mind that the problems now facing the industry are, to quite a large extent, of their own creation. The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better. It has taken a decade for the industry to produce sensible alternatives to illegal file-sharing, and the fact that a generation of people have become used to an illegality comes down to the industry’s sluggishness. It is still slow. The football people have complained that there are sites where people can download streaming video of premier division matches. All that the companies offer is an annual contract for several hundred pounds. They do not offer per match deals at a reasonable price. If companies treat their customers in that way, they really should not be surprised that their customers try to get round the system.”

The presumption of innocence and due process where also high on the minds of some Lords, with Lord Whitty making the comparison with the theft of a physical product: ” the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage.”

Many of the Lords criticised the government for not delivering a draft of the code which would set out how the process for alerting people about alleged infringement and the appeals process would function. This, the Lords said, was the critical part of the provisions they were being asked to approve. Lord Clement-Jones expressed the views of several Lords when he said “the terms of the all-important initial obligations code must make it clear what those thresholds are. The thresholds must be proportionate and must not be set too low. We should know what they are before the Bill goes through the House.”

Other Lords questioned whether the internet provisions in the bill would actually do more to stifle the growth of a digital economy rather than growing it. Baroness Miller pointed to the potential effect on free wi-fi networks, pointing to the planned town-wide network due to launch in Swindon. She also agreed with Lord Lucas and questioned why the bill choose not to encourage new models but to protect the old models and why it “seeks to make one industry that has seen phenomenal growth, investment and innovation-the internet service providers-pay for the protection of another sector.”

One issue, however, united the Lords more than any other and that was Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 in future, to reflect fast-changing technology.” Lord Razzall summed up the feeling on the clause – called a Henry VIII clause by Lord Clement-Jones - by stating:”Clause 17, which effectively gives the Government power to alter copyright law by statutory instrument, should be rejected. .. I just think that if we are going to alter copyright law it has to be done by primary legislation, rather than by statutory instrument.”

This is a view echoed by Google, eBay, Facebook and Yahoo who have written a joint letter to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law.

According to the four “Clause 17 – which gives any future Secretary of State unprecedented and sweeping powers to amend the Copyright, Design and Patent Act – opens the way for arbitrary measures. This power could be used, for example, to introduce additional technical measures or increase monitoring of user data even where no illegal practice has taken place…This clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments. We all acknowledge that new business models need to emerge to support creative content. They are inherently risky and entrepreneurs rely heavily on there being a consistent and stable approach to copyright enforcement. This clause would inject an unprecedented level of uncertainty in this regard. The industry as a whole had hoped that the outcome of Digital Britain would be a clear, workable set of principles by which the industry could operate. On the contrary, Clause 17 creates uncertainty for consumers and businesses and puts at risk the UK’s leading position in a digital Europe.”

The Bill itself has now goes into a Committee of the whole House of Lords where the first amendments to the bill will appear, and hoefully Clause 17 - for starters - will disappear.

I have had enough of Tesco. Whilst other companies such as Waitrose and drinks giant Diageo make the decision to pull their advertising from appearing during Fox News commentator Glenn Beck’s show (which is also broadcast on the Sky TV platform in Britain) Tesco continue
This issue relates to the presenter’s accusation that President Barack Obama was racist, claiming that the US President has a “deep-seated hatred for white people”. Yes, that man who had a white mother hates white people. It has all become clear now. Thank you Glen.

Beck is one of a number of rightwing fuckwits that appear on Fox, who love the sound of their own voice and being controversial and sowing the seeds of hate rather than love. He’s very popular. Indeed he is a fine example of why James Murdock reckons that the shackles should be taken of the British Media landscape, so we can get us some of this quality journalism.

According to Tesco “[we] buy advertising space, often as a package, across a range of channels and time slot,” and that “the placing of our advertising is not a statement of support or otherwise for the programming content.”

Tesco just look stupid. Tesco’s comment’s imply that they have no control over where there ads are placed, which is, of course, utter bollocks. Part of the point is to get your ads in programmes where your ‘target audience’ are. Also, can you see them coming out with the same argument if a BNP party political broadcast was sandwiched between two of its ads? I think not.

I have no doubt Tesco will pull their ads eventually, if for nothing else, just due to PR pressure. Yes, they wont even be able to stand by their own flawed logic for not removing their ads. If they’d have come out with more robust arguments – whether it be free speech or whatever - I’d have had a lot more respect for the current decision not to pull the ads.

And speaking of fuckwits, the BBC unearthed another one this week, when it came to light that Strictly Come Dancing star Anton Du Beke (or plain ol’ Anthony Beke or BURK as I prefer to call him) exchanged some harmless ‘banter’ with his dance partner, Laila Rouass, (who apparently was in Footballers’ Wives) when he told her “Oh my God, you look like a Paki.” (she has an an Indian mother and Moroccan father).

Just so we’re clear though, Anton was a pains to say that he had apologised. He also added: “I am not a racist and that I do not use racist language” (well, except for that time when I called someone a Paki obviously, he seemed to forget to add to the statement).

The BBC – who have high hopes for Anton as a presenter (some even mentioning him as a replacement for Brucie himself) – are standing by him. Bless. Expect to see Mr De Burk leave the show sooner rather than later.

A mixed week for ITV this week. News that the Competition Commission’s provisional view
was that the Contract Rights Renewal (CRR) Undertakings, given to protect advertisers from the loss of competition in the sale of TV advertising, following the merger of Carlton and Granada in 2003/4 should stay in place, would have been a big blow. The purpose of the CRR is intended to protect the advertising market by putting in place an automatic ‘ratchet’ which reduces the amount advertisers have to commit if ITV’s audience shrinks, and giving advertisers and media buyers the right to renew their contracts on a rolling annual basis, adjusted for changes in ITV’s audiences, with no reduction in the discounts they receive.

The CC’s Provisional Decision is that the CRR needs to be retained – because with double the market of Channel 4 (for example) ITV is still the place advertisers want to be advertising, even in a shirking market. It remains the only commercial channel were an advertiser can potentially reach audiences over 6 million.

The CC accepted ITV’s argument that the CRR had affected ITV’s incentives to some extent – being more risk averse in programming choices/over-investing in daytime programming etc – but at the same time wasn’t buying ITV’s argument that these were largely or wholly attributable to the CRR.

The CC did however concede that some variations might be justified including widening the definition of ITV1 to include any ITV+1 or ITV1 High Definition channel that ITV decides to launch.

The CC is now seeking views on possible variations, which would:

(a) take into account the decline in ITV1’s market share and the increase in the ability of media buyers to run campaigns effectively without ITV1; or

(b) mitigate the unintended effects of the CRR Undertakings, while addressing effectively the continuing adverse effects identified in the 2003 report.

These variations include:

a) Limiting the scope of CRR to address only ITV1’s advantage in delivering large audiences;
b) Removing elements of CRR while maintaining protection of media buyers through a requirement on ITV to offer airtime on fair and reasonable terms.
c) changing the definition of ITV1 in the CRR Undertakings;
d) incentives for ITV to focus primarily on maximizing ITV1’s share of commercial impacts (SOCI); and
e) the difficulties for ITV in reacting to changing demand.

I think the CC’s preferred option of changing the definition of ITV1 in the CRR Undertakings is probably the correct one. It recognises that ITV is still the dominant force in terrestrial TV advertising. Yes, the market has splintered and there are more and more commercial channels out there for advertisers to attempt to sell their wares on, but viewing figures for most of the programmes on these channels is still tiny compared to the potential and actual audiences available on ITV1. In that sense nothing has changed since the CRR was imposed. A variation to Limit the scope of CRR to address only ITV1’s advantage in delivering large audiences would be great, but it is hard for me to see how this could be done in a satisfactory way at the moment.

Views on the possible variations are requested by 6 October 2009.

There was better news for ITV spouting from the lips of Culture Secretary Ben Bradshaw. Not six months since the government ruled out any relaxation of rules surrounding product placement in TV programmes, they have reversed that view and are now all for it (a bit like their Volte-face on cutting off internet access to alleged repeat illegal downloaders). Back in the early 2009, when Andy Burham was in charge of the DCMS, he said allowing product placement would destroy UK viewers trust in TV and in broadcasters in the wake of the various TV cheating and phone voting scandals. Who knew, we’d get over it so quickly. Why didn’t Andy just say that whilst that was true then it would probably only take another 6 months or so for us all to get over such feelings?

The reason for this change of heart? According to Ben Bradshaw’s speech to the Royal Television Society yesterday it is because the government are not ‘interested in regulation for regulation’s sake.’ They apparently were six months ago, but not anymore. The Government will consult on its proposals shortly with any changes in place by the new year.

The UK is looking at the issue because of having to implement the EU Audiovisual Media Services Directive. The Directive which updates and replaces the Television Without Frontiers Directive ( as amended) defines product placement as “any form of audiovisual commercial communication consisting of the including of or reference to a product, service or trade mark in return for payment or similar consideration”.

The Directive actually prohibits product placement but allows for certain permitted derogations for:

It also adds that goods provided free of charge or at less than full cost will constitute product placement where goods are of “significant value” (although it doesn’t say what would constitute significant value)

I think relaxing the rules on product placement actually makes sense. It is an issue that people do tend to get their knickers ( theknickermafia recommends Seduction Lingerie ) in a twist about. No one wants their programmes filled with crass, obvious, product placements that are there for no reason other than to plug a product – the Cups of Coke in front of the American Idol judges for example – however most of us watch US produced TV drama and comedy, which already contain product placement. Ask yourself – do you find yourself endlessly distracted by all that product placement? No? It’s there. And that’s the point. It doesn’t have to be intrusive, and when done right, it isn’t. It can be as simple as The Queen Vic or the Rovers Return having Summer Lightning, Guinness and Stella on tap instead of ‘made up’ beer brands.

Some people, such as Richard Lindley, chairman of Voice of the Listener & Viewer, fear that opening this door means that we’ll have programs written for advertisers and not viewers. Were ‘The Wire’, ‘The West Wing’, ‘Frazier’, ‘Battlestar Gallactica’, ‘House’, written for advertisers and not viewers? If so, bring it on. The fact is, if the product placement is too obvious and too overwhelming, viewers will just stop watching those programmes that get it wrong – and I’m sure initially there will be some that do; but we shouldn’t fear product placement. To be fair to Lindley, he is probably worried about this kind of less than subtle – and read from autocue? – placement from US daytime TV

However, programme makers will still have to abide by rules, and I’m not sure this US example would pass muster under EU/UK law. The derogations in the AVMS Directive – which will have to be followed by the UK – will be subject to the following conditions:

Failure to abide by these rules will result in potential fines from Ofcom and in extreme cases could lead to the loss of a broadcasting licence by the broadcaster responsible for broadcasting the programme.

My prediction is two years from now we’ll all be wondering what the fuss was all about.

Further viewing pleasure:

David Lynch on Product Placement in Films http://www.youtube.com/watch?v=F4wh_mc8hRE

In the course of searching for some information on a company yesterday I came across as presentation sharing site I was not previously aware of called Bloobble. According to the site “Bloobble is offering a new service for professionals of the electronic sector to watch and share presentations through a web experience”.

It’s a French run site targeting the telecom, media and tech sectors and one that well worth a look, if you need presentations in these sectors. The presentations are divided into the following categories : - DTT, VOD, Satellite, Cable, IPTV, Mobile, Internet, Security
There is an rss option to get updated with the latest uploaded items. This is for all content. I would prefer if this was done by either top level topics or by tag to make it a more useful tool.

Whilst much smaller than sites such as Slideshare, Scribd and Slideboom, its business focus makes it of more use to me.