Prof. Susan Crawford has been breaking and following some monumentally important stories recently. Her latest regards one of my favorite federal agencies, the FCC, and the huge power grab it is considering exercising with regard to the internet. This is no joke, the FCC is considering regulating everything that uses the IP protocol (Nethead/Bellhead -- Noticing DHS). If you think this is just about the big telecoms, you're wrong:
"[National Security/Emergency Preparedness] NS/EP considerations provide a compelling rationale for applying a certain amount of regulation to IP-enabled services. The purpose of such regulation would be to ensure the prioritized availability of certain communication services to Federal, state, and local officials and first responders in times of emergency or national crisis."Crawford is quoting from the Department of Homeland Security filing in the IP-related services proceeding (In the Matter of FCC Review of Regulatory Requirements for IP-Enabled Services: Comments of the Department of Homeland Security [PDF] The fun part of this document is that it won't let you copy/paste).
How much regulation is necessary?
"In the event of crisis, NS/EP national leadership must receive end-to-end priority treatment over other users. . . . NS/EP traffic must be identified with its own class of service -- above and beyond "best effort."This, of course, would mean the end of end-to-end as IP providers would have to check packets to see if they were specially marked by the government (which would require all sorts of checks so that we could be sure the packets hadn't been spoofed and what not). Basically, we would have to build into the internet a smart network. Once you've done that, all sorts of other regulations become possible.
As Crawford notes, all of this would be done in the name of national security. You're not against national security, are you?
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Yesterday, the 4th Circuit Court of Appeals issued a decision that upheld a district court ruling invalidating a Virginia law aimed at curbing speech on the Internet. Read the decision: PSINet vs. Chapman [PDF]. Read a press release from People for the American Way: Free Speech Victory In Virginia Internet Case. Two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit.
Basically, the Virginia law,
in its present form makes it unlawful to "sell, rent or loan to a juvenile" or to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse: [material harmful to juveniles]
This is a pretty darn broad law. It would require any media on the internet considered harmful to juveniles in Virginia be locked behind some sort of age authentication system, such as an adult PIN. Thank goodness it has been challenged successfully, so far.
Analysis
The first argument in the case was whether or not a previous, failed facial challenge back in 1989 precludes any facial challenge in 2002. The arguments in favor of allowing the challenge include the fact that the law had been amended a couple of times since the original challenge, in particular, language was added to include electronic files and to exempt from liability ISPs who merely host such materials. Additionally, the original law contemplated physical bookstores, not virtual ones. One argument that wasn't raised with regard to the earlier challenge was that the original challenging party was unable (because the internet had not become widespread) adequately represent the interests of cyber businesses. Even if a speech regulating law could be constitutionally applied to a particular party, that party can bring a facial challenge to the whole of the law. This is based on the assumption that the challenging party will vigorously and adequately represent the interests of all to whom the law applies. I don't see how this assumption can remain valid when the industry which is being regulated didn't exist when the law was challenged.
In any case, the district judges permitted the facial challenge, while Judge Niemeyer viewed the original law as much more expansive and, consequently, saw the change in technology as legally irrelevant.
The second major line of arguments dealt with statutory construction. Virginia wanted the broadly-drafted law narrowly construed, otherwise there would be no way it could pass constitutional muster. Read the decision if you want to know more.
The reason I don't spend too much time on the statutory construction issues is because even if you allow Virginia its narrow construction of the law, it still fails constitutional muster. One of the main reasons is that there is no way in heck that a ban on freely available material on commercial websites located in Virginia that is harmful to juveniles will prevent juveniles in Virginia from getting access to harmful materials through the internet. So maybe the law shuts down a few thousand websites. There are a million more still out there. The burdens the law creates on free speech will accomplish virtually nothing, which means there is no real reason to permit the law to remain on the books. Here is the key graph from the opinion:
Even if the Court completely construed section 18.2-391 in the manner that the Commonwealth requests, such a construction would leave the Act virtually powerless. When the government defends a regulation of speech as a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 664 (1994) (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). "It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 624; see also Edenfield v. Fane, 507 U.S. 761, 770-71 (1993)(explaining that the burden is on the party seeking to uphold a restriction on commercial speech to "demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree"); Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) (explaining that a "[c]ourt may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity"). Where strict scrutiny applies, a statute that "leaves appreciable damage to th[e] supposedly [compelling] interest" uncorrected is invalid. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal citations omitted). Even commercial speech regulation "may not be sustained if it provides only ineffective or remote support for the government’s purpose." Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N.Y., 447 U.S. 557, 564 (1980).
Good stuff. Here is the singularly unpersuasive dissent:
Finally, the majority falls back on the notion that if the statute operates as Virginia suggests, the statute would be rendered "power-less." Ante at 16. This effect, however, is a legislative judgment that must be left to the Virginia legislature. Certainly by creating adult zones for commercial websites that distribute pornography, the legislation reduces the range and quantity of materials accessible to juveniles. It has been often stated that a legislature need not solve the entire problem; it is free to take steps to solve only part of the problem. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
New Orleans v. Dukes is a case about exempting (through a grandfather clause) otherwise banned push carts in New Orleans. Yeah, that's a case on point.
The rest of the decision deals with whether the law violates the Commerce Clause. The opinion holds "yes."
That's pretty much it for the case as far as I'm concerned.
via How Appealing
Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.
I'll continue to post here, of course, especially my longer pieces.
LawMeme briefly summarizes and collects a number of articles on several law enforcement agencies' (FBI, DOJ and DEA) recent petition to the FCC to expand government wiretap capability (FBI seek to expand the system-formerly-known-as-Carnivore).
C|Net News reports that the petition "aims to give police ready access to any form of Internet-based communications" (FBI adds to wiretap wish list):
Legal experts said the 85-page filing includes language that could be interpreted as forcing companies to build back doors into everything from instant messaging and voice over Internet Protocol (VoIP) programs to Microsoft's Xbox Live game service. The introduction of new services that did not support a back door for police would be outlawed, and companies would be given 15 months to make sure that existing services comply.
That's just wonderful. And I suppose only the US government will have access to these backdoors?
The Washington Post (reg. req.) talks to one of the leading experts on wiretapping, CDT's James X. Dempsey (Easier Internet Wiretaps Sought):
But privacy and technology experts said the proposal is overly broad and raises serious privacy and business concerns. James X. Dempsey, executive director of the Center for Democracy & Technology, a public interest group, said the FBI is attempting to dictate how the Internet should be engineered to permit whatever level of surveillance law enforcement deems necessary.
"The breadth of what they are asking for is a little breathtaking," Dempsey said. "The question is, how deeply should the government be able to control the design of the Internet? . . . If you want to bring the economy to a halt, put the FBI in charge of deploying new Internet and communications services."
Dempsey is right. The amount of intervention in technology development necessary for the FBI and DOJ to accomplish what they want with regard to wiretapping is enormous. The costs will be both direct (money out of consumer's pockets) and indirect (loss of innovation). However, that is only half the picture. Unfortunately for the FBI, the costs to defeat the wiretapping are relatively small and will continue to decrease. We have here an asymmetric situation that will only grow more asymmetric as time goes on.
The problem is with the underlying architecture of the internet. Advances in technology along with the end-to-end/layers principle mean that it will always be cheaper to add encryption to the edges of the network than to increase the amount of surveillance at the center of the network. How much does it cost to write an encrypted VoIP app? Not much. How much does it cost to build the surveillance mechanism and conduct the surveillance across all possible ISPs? A heck of a lot more.
Ok. Now that the first encrypted VoIP app is compromised ... how much will it cost to build another encrypted layer on top of the first one? How much will it cost to conduct surveillance on this new layer? Hmmmm, if this progression continues, as we add additional layers of encryption and surveillance, the costs will increasingly diverge. Not a game you can win ultimately. In fact, it doesn't make much sense to even start. The FBI should be happy with what they've got.
Nor should we forget how darn cheap computing is getting. I wish my first computer had the power of a Treo 600. How hard is it to write voice encryption software for Treos and all the follow-on smart phones? How hard will be to add additional layers to the communications stack especially given all the various options for communication being made available through ubiquitous grid-network wireless?
If I were the FBI, I wouldn't waste my time on a battle I ultimately couldn't win and instead would concentrate my efforts on the place where I could still achieve my goals - the ends. You want to know what someone is up to online? I would recommend, for example, key loggers, "real" spyware, and social engineering. It ain't gonna be easy, but you have a chance of winning in the long term. The sooner you quit a race you can't win, the faster you can enter a race where you have a chance.
Bonus FBI Inanity: Sunday, March 14th was the 54th birthday of the FBI's "Top Ten Most Wanted Fugitive List." What better way to celebrate than with a humorous quiz? For example,
5. What Bible-carrying female impersonator was captured in 1964 while working as "Bobo the Clown" with a traveling carnival?
ANSWER: Leslie Douglas Ashley. And for extra credit, Isaie Aldy Beausoleil [apparently another man] was arrested in 1953 dressed as a woman...acting v-e-r-y suspiciously in a Chicago ladies' restroom.
7. Who was arrested in Japan, extradited to the U.S., and in Honolulu presented FBI Agents--in all seriousness--with [sic] a Monopoly "Get Out of Jail Free" card?
ANSWER: James Robert Ringrose, arrested in 1967.
And this one is really a laugh riot, har-d-har-har:
4. What Top Ten terrorist who was apprehended in 1995 said at his trial in New York City, "I am a terrorist, and I am proud of it"?
ANSWER: Ramzi Ahmed Yousef, who masterminded the 1993 World Trade Center bombing in New York and planned the bombing of an American airplane in the Far East, an act that was prevented. Judge Kevin Thomas Duffy of Manhattan's Federal District Court called him "an apostle of evil [who] wanted to kill for the thrill of killing human beings."
Bonus FBI Inanity 2: A Strengthened Partnership to Protect Children: Name that Sexual Predator! - That's the real name for the page - no foolin'. Frankly, I am somewhat disturbed when law enforcement agencies turn child abuse into a game.
UPDATE
Brother Dana has some observations here: Following The Chinese Way
ICANNWatch has the best coverage of the important Verisign vs. ICANN lawsuit: VeriSign Sues ICANN and Links to VeriSign Complaint Against ICANN. However, I think James Grimmelmann has the best metaphor for the legal action in his LawMeme post (SiteFinder's Revenge: VeriSign Sues ICANN).
James analogizes the lawsuit to the mythological Norse battle known as Ragnarok:
On one side, there are the forces of ICANNgard, once wise and haughty, but made impotent by their own foolishness. And on the other, VeriSoki, trickster and bringer of chaos, leads the frost giants bent on destruction. None shall survive.
That is a pretty good summary of where ICANN and Verisign have led us.
C|Net News reports that Major League Baseball is having difficulty getting a premium for internet "broadcast" rights (MLB throws high heat at Web portals). I put the term "broadcast" in quotes, because the internet doesn't really support broadcast. As Dana Blankenhorn writes on Corante blog Moore's Lore, MLB wrongly expects the internet to recapitulate television broadcast (Prove It).
The problem for MLB is not simply that broadband adoption rates aren't great and streaming video is pretty weak, but that the internet reduces (though it has not yet eliminated) distribution bottlenecks. Under today's regime, each of the television networks is a government telecomm regulations created portal. Because there is such a limited number of these television portals, they receive more traffic than they would in a more open distribution system. Consequently, the networks are willing to pay MLB more than they would otherwise be willing to pay under an efficient, open system.
On the internet there are portals, of course, but there are many fewer limitations on distribution. Thus, there aren't "networks" and most attempts to create them have pretty much failed. Remember go.com? Sure, MSN and AOL still have network-like elements, but as tools that help people aggregrate their preferred content (such as RSS) develop, the idea of a network of content determined from the top down begins to look a bit silly. MLB will be able to charge for their content (how much I'm not sure), but they won't be able to get subsidies from a top down network. If MLB is smart they will work on ways to ease the aggregation of their content with other content their audience will like.
However, I'm not really all that interested in how the MLB can thrive on the internet. What strikes me in this story is how inefficient broadcast television is. The lesson here is not that MLB doesn't get it. The lesson is that we have massive ineffiencies in our telecommunication regulation policies when it comes to broadcast television. The strange (though not unexpected) thing is, the FCC seems blind to them. In a recent speech, FCC Chairman Michael Powell came out strongly against regulating the internet and protecting the open nature of the network (Preserving Internet Freedom: Guiding Principles for the Industry [PDF]).
There is much to praise in these principles. Too bad there is no mention of applying them to broadcast television.
Here are some of the principles:
The broadband providers argue that without the ability to control access as well as determine what applications and personal devices may be used, they will be unable to make sufficient profit to continue rolling out broadband. Indeed, they won't roll it out. However, these arguments are bogus, and Powell is right to reject them. Of course, these are the same arguments used by the broadcasting industry with regard to HDTV. There, apparently, these arguments make sense. Of course, it would have been nice to call the bluff of the existing broadcast networks. If they didn't want to use the HDTV frequencies (afeard o' piracy), the FCC should have offered to transfer the frequencies to someone who would use them without forcing additional ineffiencies on the market.
It is great the Powell wants to preserve freedom on the internet. Too bad he is not consistent when it comes to broadcast television.
Last week, Prof. Susan Crawford challenged her readers to send her "samples of what a real cyberlaw course should cover" (What is cyberlaw?). This is truly a fascinating question and one I've thought much about. I've been meaning to write a significant bit on this subject, but just haven't had the time to do it justice. So, herewith are some brief, jumbled and confused thoughts on the subject.
I would take a look at cyberlaw as the law of networks, in the electronic realm. As I've frequently said, I believe that telecomm regulation, many freedom of expression issues and copyright are issues concerning the distribution of information. Distribution is about the network. This is the core of cyberlaw, as far as I am concerned. Therefore, I would study networking and the law, from a technological, economic, social and legal point of view.
Technology would be a major factor shaping all of these other aspects, so I would start with it and sprinkle it throughout the course. I would study the protocol stack, the end-to-end principle, circuit-switching vs. packet-switching, spread spectrum vs. standard broadcast, information theory and similar topics.
There is much that has been written on network economics, such as issues of positive externalities, tipping points, and etc.
Social networks are increasingly an element of study. It is social networks that shape and are shaped by technical, economic and legal networks.
Legally, I would start with some of the history of network law, such as the origin of common carriage for transportation and provision of government networks (such as highways, railroads and the postal service). Telecomm law is obvious, but then one can reimagine much of First Amendment law (particularly, but not limited to time, place and manner issues) as the law of networks. Finally, is not copyright more about distribution and networks of distribution, then copying?
Just a few brief comments on what I think a cyberlaw course should cover.
O'Reilly Network writer Andy Oram, inspired by Dave Winer's piece on candidates taking stands on internet regulation, makes a plea for a global approach towards information law (Time for a data transmission summit). I couldn't agree more with Oram that we should view many of the issues involved with regard to cyberlaw as an interconnected whole. It is interesting that Oram frames this issue as one of "data transmission." This echoes my viewpoint. As I am wont to say, "It's all about the distribution."
For example, when we discuss copyright reform, it is almost always in the context of existing telecommunications regulation. However, what if existing telecom regulations are part of the copyright problem? If, for example, there is a near monopoly on the primary means of music distribution, such as radio, won't that seriously distort the market that copyright is supposed to create?
Really, isn't telecom about the distribution of information (subject to the First Amendment, as I note here: It's Freedom of the Press, Stupid). Isn't copyright really about how copyrighted information is distributed? An argument that I make here: Taking the Copy Out of Copyright [PDF].
Of course, I'm completely onboard with a summit dealing with issues of "data transmission" taken from a broad point of view. However, I'm not sure if a summit is a good idea right now, since there isn't really a consensus yet that all these elements are actually related and what the nature of that relationship is. My concepts may be wrong, but I am convinced that there is a relationship among these issues. Perhaps the nature of that relationship is what a summit should address.
There has been a lot of discussion on the net recently about making internet regulation a major political issue, starting with Dave Winer's post on getting presidential candidates to "make an impassioned plea to keep the Internet free of interference from the entertainment industry" (An issue in 2004: Keeping the Internet free from the Media Companies). I'm not going to attempt to follow the whole discussion, but Mary Hodder has a good post on the bIPlog (Dave Winer on Media Companies, Control of the Internet and the Election).
However, there is one post on this issue that particularly struck me. Telepocalypse makes the bold claim that End-to-end is a political statement. He's right. But it is not political in the sense of Democrats and Republicans, or even elections. It is political in a far more fundamental sense, that of the proper ordering of a free society. It is fundamental in the sense that the Bill of Rights is fundamental or the Declaration of the Rights of Man is fundamental.
You may think that I am being hyperbolic, but I would disagree.
I'm going to make a radical claim here: End-to-end is a critical element of freedom of expression and is, in fact, built into the First Amendment.
In my view, there are two traditional concerns regarding freedom of expression: the question of content and the question of distribution. Traditionally, in existing First Amendment jurisprudence, the phrase "the freedom of speech, or of the press" isn't distinct; there is no practical difference between freedom of speech and freedom of the press. I disagree, I believe that freedom of speech refers to the concerns that the founders had with seditious libel, that is, restraints on the content of speech. This is the tradition in our law that deals with issues of defamation, obscenity and other elements dealing with the content of the speech.
What then, does the freedom of the press refer to? I contend that freedom of the press is about how the government may regulate the distribution of speech. The freedom of the press refers to and deals with the concerns the founders had with questions of licensing and prior restraint (the other major element that is traditionally a concern of freedom of expression). How is this related to distribution?
In this case, "press" does not refer to journalists (that is a more modern interpretation) but to publishers, those with printing presses. Publishers in general, not journalists. And what do publishers do? Frequently, the don't write what they publish ... they publish the works of others, so the publisher's speech isn't really in question. More important than any editorial function a publisher may entertain, what publishers mainly do, and what the printing press allows for, is the widespread distribution of information. In the age of print media, a "press" was a necessary element of mass distribution.
Thus, in the age of print media, if you wanted to control distribution of information, you regulated the presses. You required licenses and you tried to stop distribution before it occured. Indeed, what is prior restraint other than a direct attack on the distribution of information? Thus, my contention that "freedom of the press" is concerned with the proper scope of government regulation with regard to the distribution of information.
One might simply stop there and conclude that government may not, for example, create distribution monopolies. However, the analysis doesn't end there. There is quite a lot of history indicating that the government can create distribution monopolies, such as the postal service. But there is a limit: such distribution monopolies may not discriminate in what they will or will not carry. I would phrase it this way:
The government shall neither create nor sustain a monopoly carrier in the distribution of speech that discriminates in what it will or will not carry.
Sounds suspiciously similar to the end-to-end principle, don't you think?
Two of the presenters at The State of Play conference, demonstrating their wide-ranging interests, are finding trouble regarding ICANN.
Michael Froomkin is writing about the negotiations regarding the Free Trade Area of the Americas (FTAA) treaty, in particular, the issue of domain names on the internet (Domain Names and the FTAA: A Bad Mix). Some of the problems with the FTAA as regards intellectual property have been noted here previously (IP Justice on IP in the Free Trade Area of the Americas Treaty). Froomkin is rightly critical of the mandate that countries adopt the Uniform Domain-Name Dispute-Resolution Policy (UDRP) already used by ICANN for ".com" (among others) for use with regard to each countries' top level domain name, such as .ca for Canada. If you are interested in this issue, Froomkin's post is quite informative.
Susan Crawford post is bluntly entitled, Things are getting worse at ICANN. Crawford is rightly disparaging of ICANN's report that justifies a decision to amend contracts between ICANN and the registries: Staff Manager's Issue Report on the Need for a Predictable Procedure for Changes in the Operation of TLD Registries.
The information design site Boxes and Arrows has published a fascinating story on Paul Otlet, who they call "the forgotten forefather of information architecture" (Forgotten Forefather: Paul Otlet). Apparently, he foresaw much of what we know as the World Wide Web in 1934. His system used millions of mechanically stored 3x5 cards to create a "universal book" or "web" of human knowledge that could be accessed by "electric telescope" and was interconnected through "links." Great stuff.
Perhaps some enterprising authors will write some alternate history stories involving Otlet. Not Victorian-era Steampunk, but rather, 1930's "Pulppunk".
via Smart Mobs
I found this C|Net News story a little disturbing (Search engines face drug test). Apparently, the National Association of Boards of Pharmacy (NABP) is meeting with search engine providers in order to encourage the search engines to "clean up" ads for prescription drugs - by running only ads from those certified by, surprise, the NABP. This seems to be yet another move by major companies to control search engine results to favor their interests, following in the wake of eBay (Google ads a threat to eBay trademark?) and Netflix (Trademarks cast shadow on paid search), not to mention countries like France setting some unfortunate trademark precedent (Google France fined for trademark violation).
Of course, this issue is a little more complicated, since there are safety issues involved. However, isn't that why we have an FDA? Well, yes we do, but the FTC sounds a warning note about private lawsuits:
"I'm not convinced that they [search engines] won't (face private lawsuits) if some minor purchases a controlled substance through facilities based on ads they've allowed to run," Cleland [the FTC's assistant director for the division of advertising practices] said."
No doubt some attorney will try to run with that ball, but we can only hope the lawsuit fails. After all, do we allow billboard owners to be sued when minors buy alcohol advertised on billboards?
Commercial speech, though subject to different levels of protection than other speech, is still important from a freedom of expression point of view. Advertising via search engines is going to be an important aspect of this speech on the internet. We should be concerned about how search engines restrict this form of speech.
Newsday runs an AP wirestory on the demise of the printed pornographic magazine in the age of the internet (With Internet competition, adult magazines see circulation woes). Obviously, the availability of porn via the internet is having an effect on the availability of printed porn - though Larry Flynt's quote "I'm not going to say it's going to become extinct because some people will always want to feel that magazine in their hands" brings up some disturbing imagery.
Techdirt makes the good point that pornographers often lead the way in adopting and adapting to new technologies - perhaps this is another example of such evolution in progress (Internet Competition Killing Off Adult Magazines). Videotape, of course, essentially killed off the adult theater - though it didn't kill off movie theaters in general, so the analogy isn't inexact.
One thing the article doesn't go into is the prevalence of pornographic piracy, which is likely as prevalent as music file sharing. No blaming the failure of Screw Magazine on piracy from Al Goldstein, for example. Instead, Goldstein says, "we [porn magazine publishers] are an anachronism; we are dinosaurs; we are elephants going to the bone cemetery to die. ... The delivery system has changed, and we have to change with it if we want to survive."
Of course, there is still old media thinking in the case of some internet pornographers. According to an AP wirestory in USA Today, a pornographic website is suing two models for violating a non-compete agreement when the models quit one website to pose for another (Internet adult business in legal battle with former models).
Whoah. The New York Times (reg. req.) has a nice summary of many of the issues involved in Google's upcoming IPO (Microsoft and Google: Partners or Rivals?). The most interesting bit of news is that a couple of months ago Microsoft approached Google about a partnership or even a takeover. Although Google rejected the offer, "Microsoft may still be interested in pursuing Google at a later date, according to an executive briefed on the discussions." The article also notes the possibility of Microsoft attempting to rival Google as Microsoft rivaled (and subsequently defeated) Netscape.
As noted yesterday (FCC to Regulate Whole Internet?), there was an extremely disturbing quote from an FCC official in the New York Times:
An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.
The mystery sentence looks like a very confused attempt to explain the fact that DTCP-over-IP sets the Time-To-Live field on its IP packets equal to three.
I'm too lazy to do the math myself, so just go read Andrew McLaughlin's latest posting on his blog debunking shoddy claims that we will soon be running out of IPv4 addresses (Math is Hard! - Bad Journalism, IPv6, and the BBC).
