Netanel on Eldred

SSRN-Copyright and the First Amendment; What Edlred [sic] Misses – and Portends [via L. Solum]

This chapter, to be published as part of an anthology about copyright and free speech in the U.S., U.K. and Continental Europe, critically assesses the First Amendment portion of the U.S. Supreme Court’s decision in Eldred v. Ashcroft. In rejecting Eldred’s challenge to the Copyright Term Extension Act, the Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court put to rest the D.C. Circuit’s sweeping suggestion that “copyrights are categorically immune from challenges under the First Amendment.” But the Court largely (although not entirely) closed the door to First Amendment challenges to “traditional” copyright, thus perpetuating courts’ persistent and anomalous refusal to apply to copyright the First Amendment scrutiny regularly applied to other speech burdening private rights.

No less disappointing than the Court’s holding is its reasoning. Eldred shows remarkably little understanding of, or appreciation for, the First Amendment values at stake in copyright’s burdening of speech. And the majority’s opinion gives further credence to lower court justifications for exonerating copyright from First Amendment review, some of them no less doctrinally and logically unsound than the broad statement that copyrights are categorically immune from First Amendment challenge.

Yet, despite the Court’s abjuration of First Amendment scrutiny for traditional copyright, the decision leaves room for the First Amendment both to inform copyright jurisprudence and oversee some Copyright Act amendments. […]

[…] Courts are understandably disinclined to adopt rules that would require them to entertain First Amendment defenses to individual copyright infringement actions. But taking Eldred as a starting point, I suggest some ways in which courts could bring the First Amendment to bear on copyright doctrine by implementing specific and tightly-focused substantive and remedial rules and evidentiary presumptions designed to protect free speech without requiring a case-by-case adjudication of First Amendment principles.

Creepy Marketing from MS

Microsoft to back customers in infringement cases (see the very worrisome Frontline show on marketing, The Persuaders)

Of course, it’s not just altruism that motivates the software maker. The company plans to make indemnity a new plank in its “Get the Facts” campaign, which touts the advantages of Windows over Linux.

Chief Executive Steve Ballmer talked about indemnity as a key differentiator during Tuesday’s shareholder meeting.

“We enhance the intellectual-property indemnifications we give our customers,” Ballmer said at the meeting. “We can stand behind our products in a way that open source can’t because they have no one standing behind them.”

Slashdot: MS Indemnifies Customers Against IP Threats

BBC: Put Up or Shut Up

Media CIOs: ‘Time to deliver on broadband’ [via TechDirt]

Media companies must now keep their side of the bargain and deliver content which justifies consumers’ switch to broadband, according to Keith Little, head of IT at the BBC.

Little said the emergence of technologies such as TiVo and Sky+ show consumers now want TV on demand – broadcasters, he said, must embrace the ability of the internet to deliver on that demand.

[…] Little said the BBC is on the verge of releasing an “internet media player” which will enable online viewers “to go back over the last seven to 14 days of BBC content and watch whatever they like”.

Bruce Perens on S/W Patents & Standards

The Problem of Software Patents in Standards

Within the last century, electronic communications have increasingly become the vehicle of democratic discourse. Because radio and television broadcasting are expensive with limited frequencies available, the wealthy have dominated broadcasting. The Internet and World Wide Web place into the common man’s hands the capability of global electronic broadcasting. Clearly, the Internet is the most important tool of democracy since Gutenberg developed movable type.

In order to protect democratic discourse in the future, the Internet must remain a fair and level playing field for the distribution of political speech. The full capability of the Internet must remain available to all, without restriction by religious, business, or political interests.

[…] Standards are essential to the Internet because there can be no connections unless the parties agree on the way we will connect, the protocols we will use to communicate, the file formats we will use to exchange information. Unfortunately, because patent holders have absolute control over who implements their patented principle and how they do so, industry standards that embed patents can be used to restrict the Internet to the benefit of a particular company or group of companies. That company or companies will have significant control over the conduct and content of the Internet. Because of the discrimination factors explained above, the largest companies will be the ones likely to gain control over the Internet, and thus the trend is toward plutocratic domination of the future Internet.

[…] The problems presented by software patents are numerous and must be addressed on many levels. Standards setting organizations can partially resolve this problem by following the W3C’s model in which the intellectual property policy is clearly stated and members are required to adhere to that policy. New legislation providing protection from patent-farming and submarine patents is necessary. In addition, governments should recognize the importance of interoperability to any free market for computer software, and should legislate to allow the royalty-free use of patented principles for interoperability purposes. Developers can perform due diligence, but no strategy is available to a software developer that will be fully protective against the risk of patent prosecution. Thus, developers should investigate whether adequate insurance coverage is available, and should continue to agitate for protective legislation.

Worldwide government organizations can also impact this problem by scrutinizing the purpose and process of software patenting. Is software patenting really promoting innovation and contributing to the vigor of free markets? If governments are to award software patents at all, they must drastically increase the diligence carried out before those patents are awarded, and the opportunity to challenge those patents both pre and post-award.

A Look at the RIAA’s Joe Doe Suit Process

From Anita Ramasastry: Privacy, Piracy and Due Process in Peer-to-Peer File Swapping Suits

On one hand, there are important First Amendment rights implicated by file swapping and other communications on the Internet. A fear that online speech is not truly anonymous could stifle multiple types of expression and investigation – many of them very valuable. (For instance, a teen abuse victim who is not ready to go to the police, might at least be ready to seek help anonymously in an online chatroom, or to search online for possible resources to help her.) Anonymity has encouraged candor throughout American history — even since the Founders used pseudonyms to communicate their views on the U.S. Constitution.

On the other hand, complete anonymity in cyberspace could allow Internet users to violate copyright laws with impunity. Worse, it could also make far worse crimes – such as terrorist acts – far easier.

The trick is to try to allow free speech to flourish, without making the Internet a safe harbor for terrorism. In the end, some balance is necessary.

That question isn’t likely to go away anytime soon. But hopefully, the P2P question will someday.

With 60 million Americans using file-sharing software, despite the RIAA lawsuits, P2P sharing doesn’t appear to be going away anytime soon more. The record industry may do better talking to file sharers, than suing them. It is time for a truce.

OT: A Great Name, But, Really….

A cute story from Wired News, and almost certainly a classic consequence of the hacker ethos: Patron Saint of the Nerds

Here in the oldest church building in New Orleans, tucked into a dark corner by the door as far away from the main altar as possible, stands the statue of St. Expedite — the unofficial patron saint of hackers.

Unofficial because the Roman Catholic Church doesn’t know what to do about St. Expedite. He’s too pagan to be a proper saint, and too popular for his statues to be simply tossed out the door.

Statues of St. Expedite seem to appear at some churches, a puzzling phenomenon. Where do the statues come from? Who sends them? No one really seems to know who St. Expedite was in life or even if he ever existed.

But whatever St. Expedite may or may not be, geeks, hackers, repentant slackers, folks who run e-commerce sites and those who rely on brains and sheer luck to survive have all claimed the saint as their own.

Free Culture Groups on Campus

Students Fight Copyright Hoarders

While copyright law might seem like a dull topic to ponder on campuses, Free Culture groups say it is a critical time for students and young people to pay attention. Large copyright holders — namely Hollywood studios and record companies — are gaining veto power over technology at a time when digital technology and the internet allow more people than ever to film, record, edit and distribute their own movies and music, among other forms of expression.

“If the technology is not locked down and the (copyright) laws don’t stop us, we can build a democratic, free culture in which everyone can participate, in which you don’t have to have the major backing of a studio to make a movie,” said Nelson Pavlosky, co-founder of Free Culture Swarthmore, which launched the national movement in April and is hosting a Free Culture Fest this week to promote the organization.

[…] One of the speakers at the Free Culture Fest, Wayne State University law professor Jessica Litman, said the Free Culture movement is a terrific idea. Historically, copyright law has been crafted by lobbyists for powerful copyright owners who represent the software, music and movie industries, she said. Consumers have not had a place at the bargaining table, and that will continue until they demand a seat.

“I’m hoping that awareness (about copyright law) spreads like a virus and infects the rest of the country,” Litman said. “Consumers ought to have a significant say in what the law says is legal and illegal.”

An NBER Paper To Read

When the server comes back: Piracy on the High C’s: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students; Rafael Rob and Joel Waldfogel [p2pnet’s posting]. Note that Ed Felten’s been able to read the paper, and he comments here: New Study on Filesharing Effects

In the interim, there’s this: The Beat Goes On: This Recording Industry Bill Would Trap More than Just Illegal File-sharers, a Wharton paper on the INDUCE/IICA Act that cites some of Waldfogel’s thoughts, including something that’s going to give the RIAA and many other industries serious heartburn:

According to Waldfogel, the current vulnerability of the recording and film industries does not arise from a radical new innovation. “What’s different here is that instead of the new threat being a substitute technology, or some other entertainment content, it’s a complementary technology – technologies for either playing or distributing this content.”

He, too, suggests the music industry must come up with new business models. For example, the Internet could allow the industry to slash its distribution costs. “Instead of putting out CDs and shipping them on trucks, they can send them directly at a very low cost. That does suggest a very different business model than charging $15 or $20 for a CD. It might be a much more attractive way to do things. Stuff that is easy to distribute wants to be free. [emphasis added] Given that force, I think [the recording industry] needs to come up with a new model for generating revenue.”

FCC on VoIP: Not Quite As “Unanimous” As Described

The NYTimes’ F.C.C. Takes on Oversight of Internet Phone Services paints a rosy picture

[F]ederal officials said that they hoped the commission’s order, which was announced just a few days before a federal appeals court is scheduled to hear oral arguments in the Minnesota case, would cut short the legal skirmishing and leave the field largely in the hands of the F.C.C. and Congress, should it decide to rewrite the telecommunications laws next year. Some senior lawmakers, like Representative Joe Barton, the Texas Republican who is chairman of the House Energy and Commerce Committee, praised the decision.

The Washington Post takes a more measured view in FCC Asserts Role as Internet Phone Regulator

But the FCC’s unanimous decision did not resolve the broader question of whether Internet phone services will be treated as information services or as traditional phone providers. As traditional providers, they could be required to contribute to federal universal service programs that subsidize phone service in poor and rural areas, and they could have to pay whenever they connected with the networks owned by traditional phone providers to complete calls.

The FCC also will take up separately a debate about whether law enforcement agencies should be able to tap Internet-phone lines under the same terms as traditional phone lines.

Everyone’s statement — see Michael Copp’s, in particular:

  • Michael Powell

    Today’s decision lays a jurisdictional foundation for what consumers already know – that the Internet is global in scope. The genius of the Internet is that it knows no boundaries. In cyberspace, distance is dead. Communication and information can race around the planet and back with ease. The Order recognizes that several technical factors demonstrate that VoIP services are unquestionably interstate in nature. VoIP services are nomadic and presence-oriented, making identification of the end points of any given communications session completely impractical and, frankly, unwise. In this sense, Internet applications such as VoIP are more border-busting than either long distance or mobile telephony– each inherently, and properly classified, interstate services.

    To subject a global network to disparate local regulatory treatment by 51 different jurisdictions would be to destroy the very qualities that embody the technological marvel that is the Internet. The founding fathers understood the danger of crushing interstate commerce and enshrined the principle of federal jurisdiction over interstate services in the commerce clause of the U.S. Constitution. In the same vein, Congress rightly recognized the borderless nature of mobile telephone service and classified it an interstate communication. VOIP properly stands in this category and the Commission is merely affirming the obvious in reaching today’s jurisdictional decision.

    This is not to say that there is no governmental interest in VOIP. There will remain very important questions about emergency services, consumer protections from waste, fraud and abuse and recovering the fair costs of the network. It is not true that states are or should be complete bystanders with regard to these issues. Indeed, there is a long tradition of federal/state partnership in addressing such issues, even with regard to interstate services.

  • Kathleen Abernathy

    Looking ahead, I agree that the Commission should proceed with the rulemaking on IP-enabled services as expeditiously as possible. We should adopt rules to the extent necessary to ensure the fulfillment of our core policy goals, including access to E911, the ability of law enforcement to conduct lawful surveillance, access for persons with disabilities, and the preservation of universal service. And we should provide a thorough and careful analysis of whether IP-enabled services are information services or telecommunications services, given the potentially far-reaching implications of that classification.

    Finally, by the same token, I sympathize with parties who contend that the Commission should conclusively resolve the jurisdictional status of all VoIP services, rather than limiting our analysis to a subset of VoIP. I have endeavored to make our jurisdictional analysis as inclusive as possible, given the state of the record and the scope of the Declaratory Ruling Petition. This Order should make clear the Commission’s view that all VoIP services that integrate voice communications capabilities with enhanced

  • Michael Copps

    So I can only concur in today’s decision. While I agree that traditional jurisdictional boundaries are eroding in our new Internet-centric world, we need a clear and comprehensive framework for addressing this new reality. Instead the Commission moves bit-by-bit through individual company petitions, in effect checking off business plans as they walk through the door. This is not the way we should be proceeding. We need a framework for all carriers and all services, not a stream of incremental decisions based on the needs of individual companies. We need a framework to explain the consequences for homeland security, public safety and 911. We need a framework for consumer protection. We need a framework to address intercarrier compensation, state and federal universal service, and the impact on rural America. But all I see coming out of this particular decision is … more questions.

  • Jonathan Adelstein

    While this Order rightly acknowledges the importance and unique qualities of Internet-based services, including Voice over Internet Protocol (VoIP) services, I am concerned that the Commission overlooks important public policy issues that will impact consumers across our country, and particularly in Rural America.

    […] Where this Order falls short is its failure to account in a meaningful way for essential policy issues, including universal service, public safety, law enforcement, consumer privacy, disabilities access, and intercarrier compensation, and the effect of our preemption here.

  • The Press Release