[opendtv] News: Does Open-Source Software Make The FCC Irrelevant?
- From: Craig Birkmaier <craig@xxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Thu, 20 Oct 2005 07:17:42 -0400
http://www.forbes.com/2005/10/18/open-source-software-FCC_cz_df_1018opensource.html?partner=media_newsletter
Broadcasting
Does Open-Source Software Make The FCC Irrelevant?
Daniel Fisher, 10.18.05, 10:00 AM ET
NEW YORK - Columbia Law School Professor Eben Moglen wants to
destroy the Federal Communications Commission. Not as some kind of
terrorist act, but because technology is rapidly making it irrelevant.
The agency might have made sense in the 1920s, Moglen says, when it
was formed to assign specific frequencies to broadcasters so they
wouldn't try to drown each other out by cranking up the transmitter
power. But a new generation of intelligent radios, combined with
equally clever computer networks, is making it possible for anybody
to use the airwaves without interfering with anybody else.
That raises the question of why Rupert Murdoch, say, needs exclusive
access to a slice of the radio spectrum for his Fox television
network when he could just as easily put his content out over the
Internet for customers to pick up using low-powered wi-fi receivers
hooked into the Web.
"My goal is to do all of the work it takes to be explaining to the
Supreme Court in 2025 why broadcasting is unconstitutional," says
Moglen, who speaks in perfect, rolling sentences. "We have a long
march to do, we have a lot of education to do, society has to catch
up with our vision of the future, but we are going someplace and the
only question is timing and skill in driving."
Moglen's comments would be easy to dismiss, except for the woe he's
already caused the software industry. For nearly a decade, Moglen has
been the chief legal officer at the Free Software Foundation, in
charge of defending the General Public License, a subversive bit of
lawyering that turns property law on its head by prohibiting the
users of open-source software from charging money for it.
A polymath who wrote code for IBM in the 1970s while he was earning a
law degree and a Ph.D in history at Yale, Moglen enjoys using the
tools of capitalism against itself. He's wrung significant
concessions out of software companies without filing a suit,
including forcing Cisco Systems to "open up" the code in Linksys
routers soon after it bought the company for $500 million in 2003.
"I was always able to begin that phone call with the magic words "I
don't want money,'" Moglen says, chuckling. "I only want you to play
by the rules."
Because open-source software is so easy to modify and use, businesses
have embraced it, and millions of people have installed the Linux
operating system on their computers. Now entire nations, including
Brazil and Venezuela, have committed themselves to using open-source
code. The majority of commercial Web servers run on open-source
Apache software.
The spread of open source is a threat to established broadcasters,
not to mention cellular telephone companies and other holders of FCC
licenses. By using open-source software and low-powered "mesh
networks" that can sniff out open frequencies and transmit over them,
Moglen says, "we can produce bandwidth in a very collaborative way,"
including transmitting video and telephone conversations that would
normally ride on commercial networks. The Linksys WRT54G wireless
router is for hackers what a Model A Ford was for hotrodders in an
earlier era--a highly adaptable platform for experimentation.
"We remove the proprietary software and install open source,'' says
Sascha Meinrath, co-founder of a group that is providing Urbana, Ill.
with free wireless Internet access. By "flashing" communications
chips with new instructions downloaded off the Internet, Meinrath
says, hackers can add sophisticated features to wireless routers such
as the ability to adjust frequency and signal power.
That allows more users to occupy the same crowded slice of radio
spectrum. But the same code can just as easily allow users to
transmit on frequencies the FCC has licensed to somebody else.
Should the FCC try to crack down, the hackers have a powerful weapon:
The First Amendment. An offshoot of the Free Software Foundation
called GNU Radio is developing a new generation of radios and TV
receivers that use software for just about everything except the
antenna and the power source. The FCC can prohibit manufacturers from
selling radios that transmit on illegal frequencies, but it would
have trouble shutting down a Web site distributing software that does
the same thing.
"You cannot regulate code without going through the First
Amendment-type balancing tests we have for any other type of speech,"
says Cindy Cohn, a lawyer at the Electronic Freedom Foundation in San
Francisco. "Code is speech."
Broadcasters fear that an unregulated community of hackers could
throw the airwaves into chaos.
"There's a reason there is the FCC--to protect the integrity of the
broadcast band," says Dan Wharton, spokesman for the National
Association of Broadcasters in Washington, D.C. "We're very concerned
about the potential for interference."
Techies assume they can solve such problems with better software. But
regulators have to anticipate that people will try to drown each
other out with transmitter power, says Gerald Faulhaber, a former
chief economist for the FCC who now teaches at the University of
Pennsylvania's Wharton School of Business.
"Engineers want people to be good," Faulhaber says. "Economists
assume everybody is bad. And guess what? We're right."
But Moglen believes his First Amendment arguments will trump such
objections. Not only will the government have difficulty prosecuting
millions of consumers using open-source radios to broadcast on
unauthorized frequencies, he says, but the very act of using the
airwaves in that manner will make it harder to defend the monopolies
granted broadcasters like Fox.
"We've known forever that licensing newspapers is against the rules,
so why should radio spectrum be any different?" he says.
Moglen's 20-year march to the Supreme Court may already have begun.
The FCC is in the midst of a proceeding to determine how it will
regulate so-called "cognitive radios," which use software to switch
power and frequency. Hackers are hard at work refining such devices
in the cooperative world of open source, where software writers post
their code on the Internet and others modify it or offer suggestions.
And companies like Cisco, IBM and Computer Associates are hastening
the process along, partly as a way of competing with Microsoft.
They've even put $4.3 million into a public interest law firm Moglen
installed in New York offices to enforce the GPL.
"It's really a mistake for capitalists to assume that in these
areas--software, information, data--that the best way of guaranteeing
the production of this valuable material is the old way [of selling
over government-authorized networks]," Moglen says. "There is
something different going on here."
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