I usually agree with Larry Lessig about copyright issues, but I found his op-ed on Grokster and Viacom to be rather off. I’ve been meaning to do a post about that, but Randy Picker has made the point better than I could:
[The Sony] case addresses two issues, whether home users engaged in fair use when they time-shifted free over-the-air broadcast television—the Court concluded that they did—and whether Sony could be held secondarily liable for copying done with the VCR. Just reading statutes, we might have thought the answer to that question was easy. As the majority opinion noted, the Patent Act expressly addressed secondary liability, setting forth in 35 USC 271(b) liability for one who “actively induces infringement of a patent” and in 35 USC 271(c) liability for contributory infringement. Congress obviously knew how to create secondary liability in intellectual property cases when it wanted to, and therefore chose not to do so in copyright when it failed to include comparable language to that of the 1952 patent act in the 1976 copyright statute. Case closed.
Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. This week we took the podcast on the road and recorded live at our Alcohol Liberation Front happy hour at the Science Club in Washington, DC. Voices on the show this week include Jim Harper of the Cato Institute, David Robinson of The American, Tim Lee of the Show Me Institute, PJ Doland of PJ Doland Web Design, James Gattuso of the Heritage Foundation, Jerry Brito of the Mercatus Center, and Adam Thierer of PFF. Topics include,
Scholars bypass established journals and publishing their research online
The growth of the breadth of patents
The government’s plan to give everyone a free digital TV converter box
The future of physical media in a digital age
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
Today’s decision in the U.S. District Court for the Eastern District of Pennsylvania again striking down the Child Online Protection Act of 1998 has important implications for the ongoing debate over age verification for social networking websites.
As I mentioned in an essay earlier this week, several state attorneys general (AGs) are currently pushing legislation to mandate age verification of minors before they would be allowed access to social networking sites. Already, age verification proposals have been introduced in Connecticut, Georgia and North Carolina. More proposals are likely on the way. AGs and other policy makers argue that age verification is necessary to protect kids from cyber-predators and other online dangers.
In my new paper, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions“ I find that proposals to impose age verification mandates on social networking websites raise many sensitive questions with potentially profound implications for individual privacy and online freedom of speech and expression. That’s especially the case in light of the definitional ambiguities associated with “social networking.”
Today’s COPA decision bolsters many of the findings in my paper. “Requiring users to go through an age verification process would lead to a distinct loss of personal privacy,” Judge Lowell Reed Jr. says on page 55 of the decision. And his other conclusions are also relevant to the debate over social networking regulation.
As I noted in the first part of this essay, The Child Online Protection Act of 1998, which was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites, has again been struck down in the courts. The decision is fairly devastating for the government, which had been hoping to prove to the court that private Internet filtering technologies are ineffective in blocking objectionable material. The government had also hoped to prove that age verification technologies were available that might be used to block access by minors to various websites. The court rejected both of these arguments.
Here’s a quick summary of the court’s major findings on these two important issues:
The Child Online Protection Act of 1998, which was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites, has again been struck down in the courts. (Decision here) Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, ruled that:
COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA.
This decision perpetuates the unbroken chain of Internet censorship cases that the government has lost since the Communications Decency Act of 1996 was overturned over ten years ago. After the CDA was rejected by a lower court and the Supreme Court, Congress passed COPA in 1998. COPA provided an affirmative defense to prosecution if a website operator could show that it had made a good faith effort to restrict site access by requiring a credit card, adult personal identification number, or some other type of age-verifying certificate or technology. But COPA was immediately challenged and has gone to the Supreme Court for review twice and, most recently, it has been stuck in the U.S. District Court where the government was again defending its constitutionality in a 4-week trial last Fall.
Thus, almost 10 years after its initial passage, the legislation remains stuck in jurisprudential limbo after endless legal wrangling about its constitutionality. Untold millions have been spent by the government litigating this decision, and they may not be done yet. If the Department of Justice appeals this latest ruling, the law might again be considered by the Third Circuit Court of Appeals and then make another return trip to the Supreme Court for an unprecedented third review by the highest court in the land.
If all the money that has been spent litigating this case had instead been spent on media literacy and online safety campaigns, it could have produced concrete, lasting results. But our government appears obsessed with pursuing regulatory mandates and legal appeals instead.
Bob Pepper, the senior managing director of global advanced technology policy at Cisco Systems, has penned an outstanding editorial on Net neutrality regulation in TechNewsWorld.com. When Bob served as the FCC’s chief of policy development he was, in my opinion, the most brilliant and thoughtful regulator I ever had the chance to work with in my life. He had an appreciation of the benefits of markets that is still on display in this excellent editorial:
Looking ahead, Internet users and content/applications providers will continue to require more choice and flexibility in terms of service selection, service quality and price points. In contrast, new net neutrality regulation could have the perverse effect of degrading all levels of service or freezing in place the current state of providers and services. Companies would find it more difficult to differentiate themselves, offer new services, and enter new markets, a situation that would be anti-competitive and counterproductive for consumers.
Perhaps even worse, greater regulation would almost certainly squelch risk-taking, investment and inventiveness over the long term, as companies would lose incentives to form new ventures, alliances and services and explore new ways to create value consumers would want. Indeed, net neutrality regulation takes us down the wrong path of reduced competition, less consumer choice and greater government involvement and oversight.
To a large extent, the Internet has become so popular, successful and useful because it enriches and empowers people at the individual level. That spirit must not be jeopardized by ill-advised, untimely government regulations. Instead, it must be preserved as we go ever deeper into a new era of high-bandwidth applications and exciting new broadband services.
I hope Bob’s old colleagues over at the FCC are listening!
An insightful post by Don Marti on the economics of peer production:
Linux started as a peer production project in 1991, and got its first vendor-supported device driver in 1994 and its first full-time paid contributor (Leonard Zubkoff, VA Research) in 1997. Leonard started off writing SCSI drivers in his spare time, then got a job doing RAID support — so that VA could sell high-margin boxes with RAID, not just the commodity one-processor, one-drive machines they started with.
Today, there’s a flexible and socially connected interface between the kernel team and the hardware companies. A driver developer has to be part of both organizations. The payoffs for plugging into both your company’s management structure and a peer production project include that you get to eliminate a lot of duplication of effort by having other people help with the infrastructure that supports your driver, and you get free code reviews and developer training. Greg says that at one company, one person maintains the Linux driver, and 150 are needed to maintain the driver for a common proprietary OS.
Drew Clark is hard to beat to the punch on anything. By the time I had finished reading Google’s lastest explanation of its position on net neutrality, he was up and posted with an excellent commentary on its meaning. Now that’s competition.
As Drew reported, Google’s new Washington Telecom and Media Counsel Rick Whitt, tried to clarify Google’s net neutrality position yesterday, which had been muddled after comments by his Google colleague Andy McLaughlin. Whitt explained that nothing had changed. Yes, the issue will ultimately be solved by competition, but that’s a long-run solution, maybe 20 years out. Until then, strong rules are needed.
But Google’s support of net neutrality rules was never in doubt. What I find more interesting is what Whitt did not address: Andy McLaughlin’s statement that the FCC should not be have a role in enforcing any such regulations, and that this should be seen as “an attorney general or FTC problem.” That would be a significant shift, putting Google at odds with most of its colleagues on the net neutrality bandwagon, as well as the leading bills on the subject.
I have some sympathy for Rick Whitt’s complaint that it’s hard to have a debate when anything that’s slightly off-message becomes an ad in the Wall Street Journal. (If there’s any concern on this point, I’ll promise not to run a Wall Street Journal ad on any this). But Whitt’s statement still leaves open more questions than answers. And nothing has been heard of late from McLaughlin himself to explain all this.
In any case, welcome to Google, Rick. You’ve joined the company at an interesting time.
A few weeks ago, I was discussing “Campaign Finance Laws in the You Tube Age” and was wondering aloud whether current campaign finance regulations were sustainable in an age of user-generated content and viral videos. The Washington Postponders that same question today in highlighting the impact of clever mock campaign ad mash-ups like this one about “Big Sister” Hillary Clinton, which already has roughly 1.5 million hits:
The Post story notes that “this ad’s reach really blows up any notion that candidates and mainstream media outlets can control the campaign dialogue. Especially online.” That’s exactly right, but they don’t go on to ask the next logical question about how Congress and the FEC are going to deal with the growing flood of online campaign ads and commentary during coming election cycles. Remember, stuff like this can be regulated when aired on traditional television and radio outlets in the days leading up to an election. I just don’t see how current campaign finance regs and the Internet can co-exist in the long run. There’s just no way regulators are going to be able to keep pace with all the activity out there.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.