Update: A spokesman from the FCC Chairman’s office declined to comment on the Journal story.

Genachowski replaced Kevin Martin (and interim FCC chairman Michael Copps) in 2009 after being nominated by Obama. Genachowski worked on Obama’s first presidential campaign as chairperson of his Technology, Media and Telecommunications Policy Working Group. The working group germinated the seeds of Obama’s National Broadband Plan, which Genachowski oversaw when he took over the reins of the commission.

Since then Genachowski has been in the spotlight on many occasions, advocating the need for more cellular spectrum and proposing the reallocation of TV airwaves for mobile broadband use. Some of those spectrum proposals, however, landed Genachowski and the commission in hot water, such as the conditional waiver -– later retracted — they granted LightSquared to use its satellite spectrum for a terrestrial LTE network.

Perhaps the most controversial period of his tenure, though, was the nearly one year that the FCC weighed and eventually quashed AT&T’s planned acquisition of T-Mobile. The decision is considered a victory for the competitive market and consumer choice after a long period of unfettered consolidation in the telecom industry.

Not all of the commission’s decisions have been so consumer friendly under Genachowski. The commission let pass Verizon’s spectrum deal with the cable operators, which has big implications for competition in the residential broadband market.

Genachowski’s retirement, if true, doesn’t come as a huge surprise. News reports have indicated that the forthcoming departure of Republican FCC Commissioner Robert McDowell clears the way for Genachowski’s departure as well, as it leaves the commission with a 2-1 Democratic majority.

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Why did the law change?

Congress decided to adopt the first-to-file system as part of a larger 2011 patent reform law known as the America Invents Act. The first-to-file system, which is used by every other country in the world, took effect on March 18.

What does it mean for inventors?

In the past, the Patent Office granted a patent to whoever invented it first. Now, the patent will go to whoever filed the application first.

Isn’t that unfair?

In the past, if someone stole your idea and obtained a patent for it, you could start an “interference proceeding” with the Patent Office. If you could show proof that you were the real inventor, the office would hand the patent to you. That won’t happen in the new system.

So, yes, in theory the old system was more fair. But in reality, interference proceedings were very rare — one report says that in 2007, they arose in fewer than one percent of all patent applications. And, of these, the patent was given to the second-to-file a grand total of 7 times. In addition to being rare, the proceedings were also expensive: a 2005 survey said the average cost was over $650,000.

Finally, America has a special rule that will help inventors in many cases. The rule says that if you disclose the invention at a conference or elsewhere, you have a one year grace period to file a patent for it. This means that your disclosure will prevent someone else from getting a patent on your invention (but it could also harm your chances to get patents in other countries).

What does first-to-file mean for small inventors?

One criticism of the U.S. patent system is that it favors big companies like Apple and Google who have the budget and the lawyers to file patent applications all day long. The new system won’t change this and could benefit the big companies even more. But, ultimately, it’s unlikely to make things much different than they are right now.

The bigger problem with patents is that too many are being issued in the first place. This leads to companies abusing 20-year monopolies over basic technology — often with no net benefit to society.

Where can I learn more about the first-to-file rules?

PatentlyO has the relevant text of the statute and a detailed description of what it does here.

Thumbnail photo courtesy Flickr user opensourceway

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In the world of technology, especially, the legislative progress is just too slow, too confining and, ultimately, too shortsighted. For proof, one need look no further than all the hubbub on Thursday about a forthcoming amendment to the Video Privacy Protection Act allowing video providers to share data regarding customers’ viewing habits. In this case, the amendment was spurred by Netflix’s desire to enable “frictionless sharing” between itself and Facebook.

More than a year later, an amendment, which just awaits a signature from the president, will give Netflix and Facebook what they want — no more, no less. (Congress didn’t even bother to change the term “video tape provider” to something more current and all-encompassing (although, in its defense, the term is defined broadly).) And, as my colleague Jeff Roberts has noted, now that Facebook doesn’t appear to be the kingmaker it once was, it’s probably too late for this bill to matter.

But the VPPA situation is just a microcosm of the bigger problem facing a technology industry that’s moving at a speed Congress and federal agencies can never hope to match. Laws can no longer address a single technology or a single practice at a single point in time, but must be visionary enough to remain relevant as technologies, social norms and business models evolve.

Technologically speaking, what’s popular today might be unrecognizable five years from now, so it’s the ideas that really matter. The bigger issue behind frictionless sharing isn’t just video data, it’s the social sharing of data among web applications in general. The bigger issue behind email privacy isn’t just email, it’s about the perception of private communications whether they’re done via SMS, Twitter or some yet-to-be-developed platform. The bigger issue around file-sharing isn’t so much copyright as it is entirely new methods for consuming content.

Sen. Al Franken (D-MN) is at least pushing the discussion of new privacy concerns

But issues such as web privacy and intellectual property are actually relatively easy to wrap our minds around. We’re headed down a path toward some real science-fiction stuff, though — driverless cars, facial recognition, connected glasses, $1,000 genomes, nanotechnology, etc. – and one has to wonder how the legal system will keep up. They’re novel enough individually, even more so when you consider the possibilities of combining data from all these sources to try and uncover some never-before-detectable insights.

Who knows what life-altering technologies will pop up that we don’t want stifled by archaic laws — or what scary use cases will pop up that we will want to regulate even if we don’t have laws to do it. Who will be able to draw the connections between technology and other cultural realms or personal liberties, and to extrapolate the potentially complex relationships between tech laws and these areas?

Even if some of its members weren’t seemingly out of touch and reactionary when it comes to technology, Congress can’t even pass a budget on time. Now we’re supposed to trust it to regulate a largely digital technology future that’s evolving at breakneck speed and disrupting every business model, communication medium and biological process in its path? Maybe Ray Kurzweil’s next gig should have been in the House of Representatives rather than at Google .

Feature image courtesy of Shutterstock user Everett Collection.

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The bloc’s digital agenda commissioner on Monday published a number of ideas under which existing license holders would have to share some of their spectrum…

“Innovators could … apply for access,” according to Neelie Kroes’ communication (release). “Incumbent spectrum holders could use their resources more efficiently by sharing them on a contractual basis.”

She wants national communication regulators to draw up an inventory of “beneficial sharing opportunities” (BSOs) in spectrum bands.

The idea appears to center on encouraging license holders to sub-let their spectrum – a practise which operators in some, though not all, countries already undertake. Kroes is keen for a continent-wide approach, and says the idea is “based on the need to provide economic incentives for innovators and incumbents alike”.

“The growing demand for wireless connectivity is coming up against limits in the available radio spectrum to meet it,” Kroes says. “There is, for example, no vacant spectrum left and the cost of re-allocating spectrum to new uses is high, in particular if current users have to switch off.

“Through advances in technology, shared spectrum access makes additional resources available without compromising the incumbent license holder’s rights to use the frequencies. To maximise the benefits of such approaches to share spectrum, regulatory barriers need to be removed and incentives provided at EU level.”

In countries including the UK, dis-used spectrum used by switched-off analogue TV will be auctioned to mobile carriers for 4G use in 2013. But we have also seen national regulator Ofcom intervene to grant Everything Everywhere and Three spectrum usable for 4G early, in advance of the auction.

Kroes says the EC’s approach will differ from America’s – which is trying, separately, to free up unused spectrum “white” spaces between TV frequencies and other spectrum bands – in that it will take a holistic view of all possible bands.

The idea is, as yet, nascent – and could alarm operators who are preparing to shell out billions on 4G licenses they had assumed they would have all to themselves.

The goal could resemble the “functional separation” arrangement in land line telecommunications, in which large European telcos like BT had to split their infrastructure and consumer businesses – the former of which are now compelled to provide access to their lines to rivals on a wholesale basis.

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On copyright

Paul seems to understand the problems surrounding copyright enforcement online, right down to his reasons for opposing SOPA. It wasn’t so much what SOPA was trying to do in terms of shutting down pirate sites or forcing companies such as Google to act in some cases, as much as it was about the lack of due process in making these things happen. “There almost needs to be a trial …” he said. “It shouldn’t be just one person complaining to another website and all of a sudden the web site is shut down.”

Paul even suggested the idea of a federal court process through which copyright-holders could go to ask for fast adjudication on their claims of infringement, presumably to balance out concerns over high legal costs with the need for due process. I’ll assume, then, his defense of the YouTube model for content removal (and, by proxy, the Digital Millenium Copyright Act) is just a matter of not really understanding that law. Under the DMCA, complaints lead directly to takedowns or, in some cases, expensive trials that destroy companies and business models that end up being on the right side of the law.

In response to an audience question, Paul noted there’s room for debate over the length of copyrights and patents to balance out innovation and consumer protection with creators’ needs to monetize their inventions. The real question, however, which Paul didn’t address, is how we amend copyright and patent law to address new technologies and modes of delivering content.

On privacy

If the recently defeated Cybersecurity Act of 2012 really was problematic privacy-wise, as even Sen. Ron Wyden (D-OR) thinks it was, Paul was right to vote against it. He’s also right to stand up for consumer rights, claiming that any bill offering immunity against lawsuits to companies that share user data with the government will essentially protect those companies should they decide to breach contractual terms about data sharing. Consumers make considered choices when selecting service providers, he said, but “you don’t have a choice to make a contractual arrangement with our government.”

However, because signing up for services from companies such as Google, Facebook or any other web company requires voluntarily agreeing to its terms of service and privacy policies, Paul said they have access to whatever you grant them. I’m not for obtrusive privacy regulations that will unduly limit innovation and perhaps drive up the costs of services, but some rules and regulations laying out what companies can do with user data — and how they explain those uses in their privacy policies — probably aren’t the worst things in the world.

On the legislative process

Paul doesn’t think expansive legislation is the best way to address certain technological issues, such as cybersecurity, and I tend to agree. The process is slow, often reactionary to the known threats of the day, and potentially stifling to new approaches and technologies. “By the 24 months it may take to write the rules on cybersecurity, it’s already changed. It changes every day,” Paul said. “[O]ne of the things government is not is agile.”

Rather, on cybersecurity, at least, he suggests facilitating open exchanges between the government and companies around information exchange, and granting companies certain narrow rights to fight cybercrime (although I’m not sure his idea of offering freedom from certain antitrust laws is wise). Maybe they can create a working group dedicated to identifying and stopping the types of attacks everyone is seeing. This, Paul said, would attack problems in lightweight, narrow ways rather than always having  to “open Pandora’s box.”

Another of Paul’s ideas is just to let the courts resolve certain technology problems relatively quickly as they arise rather than trying to draft future-proof legislation and regulations. It’s not an ideal solution — courts deal in the specific facts of each case, their precedent is geographically limited and legal contracts could theoretically allow for some rather unethical practices — but it’s not entirely without merit.

On net neutrality

OK, Paul didn’t address net neutrality at the event, but Rep. Marsha Blackburn (R-TN) and Heritage Foundation Senior Research Fellow in Regulatory Policy James Gattuso, who emceed the event, did. And Paul has discussed net neutrality before, as detailed here by TechDirt’s Mike Masnick. I’d argue they’re all flat wrong in the idea that government-mandated net neutrality will somehow stifle innovation and consumer choice more than will letting large carriers decide what data gets a free ride on their networks.

The idea of net neutrality actually ties into the recent hoopla over who invented the internet, something Paul did chime in on at the Heritage Foundation event, touting the individuals who took part in it over the government’s involvement. This argument falls short because it ignores the government funding involved in creating the internet, including to those individuals’ employers. As Masnick notes in his post on Paul’s net neutrality stance, the senator also conveniently ignores the government subsidies and rights of way necessary to build the internet’s infrastructure when characterizing it as privately owned infrastructure.

Boiled down to their core, Paul’s views on technology are kind of like an iron fist in a velvet glove (although whether that’s intentional or not is up for debate). They appear to have innovation and consumer rights in mind — and in some cases they do — but giving free rein to large companies with lots of control over the world’s internet experience probably means both causes will suffer in the end.

Image courtesy of Shutterstock user Nomad_Soul.

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Such a policy would allow federal agencies to keep using their airwaves, divvying up access at different times and places to commercial users. It’s an ambitious proposal, but it’s one carriers aren’t going to like very much. Carrier trade group CTIA has already expressed skepticism that the National Telecommunications and Information Administration’s proposal for shared spectrum would work. PCAST’s recommendations are far more sweeping. From the report, which you can find here (pdf):

In just two years, the astonishing growth of mobile information technology–exemplified by smartphones, tablets, and many other devices–has only made the demands on access to spectrum more urgent. This report by the President’s Council of Advisors on Science and Technology (PCAST) responds to the challenges and opportunities that have arisen since your earlier Memorandum was issued. It concludes that the traditional practice of clearing government-held spectrum of Federal users and auctioning it for commercial use is not sustainable. In light of changes made possible by modern technology, we recommend that you issue a new Memorandum that states it is the policy of the U.S. government to share underutilized spectrum to the maximum extent consistent with the Federal mission, and requires the Secretary of Commerce to identify 1,000 MHz of Federal spectrum in which to implement shared-use spectrum pilot projects.

The clearing of government spectrum the report refers to is the old practice of removing incumbent government agencies from spectrum and then selling it in blocks to the highest bidding carrier, giving them exclusive rights to use it. Those auctions put billions upon billions of dollars in government coffers, so PCAST’s proposal won’t just encounter opposition for the mobile industry, but also from politicians.

Sharing could take the form of unlicensed airwaves such as those used by Wi-Fi or the proposed TV white spaces spectrum, or it could sold to operators as semi-exclusives licenses, allowing them sole access to the frequencies when and where government systems are offline. The former would raise no money, and the latter would raise only a fraction of the revenue of a full-bore auction.

It’s a bold and enlightened plan from the council, which in addition to many academics includes Google chairman Eric Schmidt and Microsoft chief research and strategy officer Craig Mundie. But it’s also going to be a tough sell to both the wireless industry and Congress.

Photo courtesy of Shutterstock user fotographic1980

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In a recently released report on unlicensed spectrum, wireless consultant and former Ofcom economist Richard Thanki argues that the wireless industry and its regulators have their priorities all wrong. If the idea is to build ubiquitous networks offering plentiful and cheap data, then carriers and governments should pursue the cheapest and most efficient technologies, which in most cases isn’t cellular infrastructure. That report will be one of the key topics of Center for Internet and Society conference held Wednesday at Stanford University (Our own Stacey Higginbotham will be moderating one of the panels). You can watch the live stream here.

Thanki argues that the ‘spectrum crunch’ is a misnomer. Carriers can support far more capacity if they deploy smaller cells, reusing the spectrum it already has to nth degree. What the mobile industry faces, Thanki says, is an “infrastructure crunch”: It hasn’t built out the density of cells necessary to support the demands for mobile data.

Nokia Siemens Networks’ conception of a heterogeneous network

This isn’t a new concept by any means – operators like AT&T, Verizon Wireless and Sprint are now planning their first small cell deployments with an aim of implementing multitechnology heterogeneous networks in the future. But while their plans include Wi-Fi to varying degrees, those operators are still leaning heavily on small cells built over licensed spectrum they own and control, which to Thanki makes absolutely no sense.

“For example a cellular picocell costs from $7,500 to $15,000 whereas a much higher capacity carrier-grade Wi-Fi access point costs around $2,000,” Thanki wrote. “The cost of a Wi-Fi chipset for a consumer device is around $5, whereas 3G cellular chipsets costs around $30.

Thanki said that the insistence on licensed airwaves isn’t a function of efficiency or utility, rather it’s one of control:

Cellular operators are calling for ever more exclusive-use spectrum, in some cases up to 1,000MHz of additional bandwidth. Fulfilling these requests will lead to a substantial concentration in the ownership of the most valuable spectrum, risking both decreased competition and innovation. As part  of a balanced approach to meeting the growing demands for data, policy makers should also enable more dynamic spectrum sharing and licence-exempt access  across the spectrum.  As shown in this report, licence-exemption promotes methods of broadband delivery that are overwhelmingly more efficient in their use of spectrum than their licensed counterparts. In addition, the licence-exempt ecosystem has been notable for creating contestable and competitive markets, characterised by disruptive innovation.

Standards like Wi-Fi, Bluetooth and emerging “super Wi-Fi” technologies can not only support more capacity at a much lower cost, they will be key to connecting rural and underserved areas as well as creating the Internet of Things, in which not just our phones, tablets and laptops are connected but also our homes, cars and appliances. The high costs of mobile data carriage and cellular hardware have already made Wi-Fi a much preferable alternative to mobile broadband, according to Thanki:

Another way of understanding the scale of global Wi-Fi deployments is to compare the aggregate capacity of Wi-Fi networks to global cellular networks. The aggregate capacity of the world’s Wi-Fi networks can be conservatively estimated to be well over 16,500 terabits per second. In comparison, the total capacity of the world’s 3G and 4G radio networks is probably no more 600 terabits per second.

Unlicensed spectrum is already the way the world is heading. Instead of trying to overcome their dependence on Wi-Fi and other unlicensed technologies, Thanki said, carriers and regulators need to embrace them. In his report he doesn’t say that the industry should do away with spectrum ownership completely, but he does recommend that regulators quash their bias for carrier-owned frequencies and strike a balance between licensed and unlicensed. Specifically Thanki recommends that regulators throw open TV white spaces spectrum for unlicensed use, which would trigger the next wave of wireless broadband innovation.

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Earlier this month some of the proposed rules associated with the UN’s plans surfaced on a blog and since then other leaks have given us a sense of what’s on the negotiating table at the UN. The one seeking to gut network neutrality is submitted by ETNO — the European Telecommunications Network Operators Association. Now, this proposal may never make it to the final ITU version of the rules and the ITU itself may never get the authority it wants in terms of being able to dictate how packets travel on the Internet, but its worth understanding what regulators are considering in this fairly secret process.

Glyn Moody at TechDirt has read those documents and clips the relevant segments to argue that these proposals would effectively make network neutrality illegal. As he writes as TechDirt:

That may sound innocuous enough, but “supporting innovation to provide a value-added service” is a coded way of saying that the telcos should be allowed to abandon net neutrality, something confirmed in one of the accompanying proposals…

The key sentence in that proposal is “Nothing shall preclude commercial agreements with differentiated quality of service delivery to develop.”

Ironically, to see what allowing a value-added service can mean to an ISP (or consumers) one only has to look at Comcast’s decision to exempt its Xfinity traffic delivered via the Xbox from its broadband cap. Consumers, competitors and maybe even regulators can perceive those actions to be unfair. The U.S. version of network neutrality regulations allows Comcast to exempt that traffic because it doesn’t travel over the public Internet, and because the FCC didn’t want to deal with the concept of value-added services on an ISP’s network when it made its network neutrality regulations.

So if the ITU is entertaining similar proposals, then it’s time to open up the process more so the parties involved can learn from the actions of our own FCC or ISPs. Maybe then member countries will think twice about the types of rules they want to enshrine. Or maybe they’ll keep listening to the people who run the networks instead of the people who use them and depend on them for their businesses.

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The Disruptive Competition Project. DisCo (short for Disruptive Competition) debuted Monday morning with a Web page and some blog posts that help outline its mission. The site, and the concept of a think tank to discuss companies that are changing established industries, are part of the CCIA, the association for the computing industry. However, the site will feature its own staff on a variety of topics, from Web TV to privacy.

The goal is to help regulators understand the other side of the story, so when a company such as Aereo, which lets subscribers record broadcast television to a DVR, pops up, the established industry doesn’t have the only say in Washington. The benefits of DisCo might mostly accrue to startups, but even established companies could benefit. For example, Dish’s ad-skipping DVR technology is something DisCo hopes to address on its site.

Engine Advocacy. Sometimes a startup, be it in Silicon Valley or in the middle of America, needs information and an understanding about how Congressional politics will affect them. They also need a voice in the process, but few entrepreneurs have the time or inclination to call their representative or organize a lobbying effort. Engine Advocacy, created by a Democrat and Republican in San Francisco, aims to fill this niche, helping startups understand and take action early on issues relevant to them.

Engine rose to prominence by building a calling tool that was featured on several websites during the SOPA and PIPA protests. It uses the Internet to help aggregate voices and disseminate information, but it also has the technical know-how to build tools that will amplify the voices of its members and participants. In the same way that hooking up Twilio to a Web front end and a database made it easy for individuals to find and call their representatives during the SOPA protest, Engine provides both a stance and Web tools to broadcast that stance. See our video with Engine Advocacy co-founder Michael McGeary below:

TestPAC. Think tanks and a lobbying organization are all well and good, but money is a surefire way to influence candidates and get your issues on the front burner. And because the Internet is great at bringing together people with ideas and asking them for money, TestPAC, the first Internet political action committee, was born. It has a Reddit subgroup and a democratic structure, with people able to vote on the issues it wants to focus on as well as campaigns it plans to run.

Unfortunately, TestPAC didn’t get the funding it needed to buy all the advertising it wanted. Plus, its uber-democratic methods and lack of knowledge around election laws have led to some stumbles, documented in this profile of TestPAC in Mother Jones. The net result was that TestPAC’s first goal, to keep SOPA sponsor Rep. Lamar Smith (R-Texas) from getting 50 percent or more of the vote, failed in the May 29 Texas primaries.

The Internet Defense League. Taking the idea of rallying people to the next extreme is Reddit founder Alex OTK’s idea of creating a distress call for the Internet. People and companies can sign up their websites and will then be able to broadcast a code notifying visitors to that site of an action that Congress is planning to take that will affect the Web.

It’s modeled on the SOPA blackout that occurred in January, and it has Reddit, the Cheezburger network and a few other big-name sites signed up. The League says it will work with groups like the Electronic Frontier Foundation and Public Knowledge to detect threats to the Web, but I do wonder how effective this will be, given the overall nuances associated with most legislation. It’s rare to get a bill so bad that the entire (or even a significant portion) of the Internet will oppose it.

Will the Internet eat Washington or will Washington eat the Internet?

Taken together each of these efforts contain elements that other political alliances and organizations should note. Because they were born from the Internet, they are adept at using the tools of the Web to educate, disseminate information, encourage action and raise money. But because the Internet is a huge contingency and still isn’t as well-organized as other special-interest groups, it will be worth watching to see how much of an effect these groups can have on politics.

Can they change the game, or will their best tactics just get subsumed by the larger lobbying and political organizations? I don’t know, but it’s good to see the wider Web trying to get involved.

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For the first quarter of 2012, Apple has spent a mere $500,000 on lobbying efforts, which, as Politico points out, is pennies compared to what oft-targeted Google and Microsoft have spent during the same time: $7 million combined. And Apple, despite its current entanglement with the Department of Justice over its role in the e-books market, has actually spent less this year than last year.

This is just not how things are done in D.C. Here’s a sampling of what Washington insiders told Politico:

• “I never once had a meeting with anybody representing Apple,” said Jeff Miller, who served as a senior aide on the Senate Judiciary Committee’s Antitrust Subcommittee for eight years. “There have been other tech companies who chose not to engage in Washington, and for the most part that strategy did not benefit them.”
• “There’s a difference between being quiet and uncooperative,” said a congressional aide who has dealt with Apple. “Part of the problem being behind the scenes is they have no identity. They have no corporate identity in this town because nobody knows them.”
• “What’s happened in Washington more and more is that companies spend money dealing with the regulators even in the absence of pending investigations. … These are de-biasing visits,” said Bill Kovacic, a George Washington University law professor who was a commissioner at the Federal Trade Commission from 2006 to 2011. “I don’t remember Apple making a visit.”

While this may surprise political folks, this will come as a shock to few people in tech or who follow Apple. The company’s secrecy and reticence to telegraph what it’s thinking is legendary. So it’s no surprise Apple isn’t visibly mixing it up in Washington when, as Adam Lashinsky noted in his “Inside Apple” book released earlier this year, Apple doesn’t even mingle freely in its own backyard: employees aren’t visible at Silicon Valley mixers or events, executives don’t sit on other companies’ boards, and they don’t make a show of going out of their way to make any potential friends or gain partners.

Some get it. As one unnamed source told Politico, it could look really bad if they weren’t subtle about trying to gain political influence: “‘It wouldn’t take much to hit the tripwire’ to launch the narrative that ‘Apple has problems and is trying to buy the town.’”

This is not to say Apple won’t step up its lobbying game. It does have a small office for that purpose in D.C., but the way it tries to gain sway over politicians certainly won’t follow any pre-defined script established by other companies — even other tech companies.

And you could say Steve Jobs was plenty savvy about wielding influence in Washington: he just went straight to the top. Sending the president the world’s most anticipated new gadget before it was available to the public is a pretty decent way of making friends.

Thumbnail courtesy of Flickr user Mr. T in DC

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