July 31, 2009
Tenenbaum Admits To Downloading TunesAfter Joel Tenenbaum admitted on the stand to downloading and distributing copyrighted tunes, the judge in the case ruled that all that is left for the jury to decide is whether he willfully infringed those copyrights and what the damages are. Read more here in an AP story and here from ZDnet. Here's Eric Bangeman's post for Ars Technica.
Celebrate Daniel Defoe
On this day in 1703, the famed English satirist was condemned to the pillory for his pamphlet The Shortest Way With Dissenters, which neither the government nor the dissenters initially understood. When they did, they really got mad. The public, however, was on Defoe's side, and pelted him with flowers.
Defamation Lawsuits in Britain
Roy Greenslade notes that defamation lawsuits in Britain have increased by a third compared to the same period last year.
The overall increase - from 59 to 78 - was driven by a rise in libel cases launched by businesses, which more than trebled from five to 16...."New media" cases more than doubled, from three to eight, while actions taken by celebrities, though accounting for 23% of all cases, were about the same as in the previous year (down from 19 to 18).
Read more here.
Online Safety & Free Speech
Berin Michael Szoka and Adam D. Theirer, Progress & Freedom Foundation, have published "Online Safety & Free Speech," as Progress & Freedom Foundation Progress on Point Paper No. 16.11. Here is the abstract.
Online privacy, child safety, free speech and anonymity are on a collision course. The 1998 Children’s Online Privacy Protection Act (COPPA) already mandates certain online privacy protections for children under 13, but many advocate expanding online privacy protections for both adolescents and adults. Furthermore, efforts continue at both the federal and state levels to institute new regulations, such as age verification mandates, aimed at ensuring the safety of children online. There is an inherent tension between these objectives: Attempts to achieve perfectly “safe” online environments will likely require the surrender of some privacy and speech rights, including the right to speak anonymously.
These tensions are coming to a head with state-based efforts to expand COPPA, which requires “verifiable parental consent” before certain sites or services may collect, or enable the sharing of, personal information from children under the age of 13. Several proposed state laws would extend COPPA’s parental-consent framework to cover all adolescents under 18. This seemingly small change would require age verification of not only adolescents and their parents, but - for the first time - large numbers of adults, thus raising grave First Amendment concerns. Such broad age verification mandates would, ironically, reduce online privacy by requiring more information to be collected from both adolescents and adults for age verification purposes, while doing little to make adolescents safer. In practical terms, the increased scale of “COPPA 2.0” efforts would present significant implementation and enforcement challenges. Finally, state-level COPPA 2.0 proposals would likely conflict with the Constitution’s Commerce Clause.
Despite these profound problems, COPPA expansion has great rhetorical appeal and seems likely to be at the heart of future child safety debates - especially efforts to require mandatory age verification. There are, however, many better ways to protect children online than by expanding COPPA beyond its original, limited purpose.
Download the paper from SSRN here.
July 30, 2009
After it discovered that the publisher of its version of the ebooks 1984 and Animal Farm did not have the rights to either version, Amazon remotely deleted the ebooks from their customers' Kindles. The zapped consumers "lit up [the Internet] with blogs and forum posts" according to CNN. Among others, Information Week and Slate criticized Amazon's actions. Finally Amazon CEO Jeff Bezos weighed in with an apology.
This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our "solution" to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we've received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.
Of Kookaburras and Gum Drops and Men at WorkThe Australian group Men at Work is facing a plagiarism accusation over a riff in its hit "Down Under." The popular song, says Larrikin Music, uses part of the tune "Kookaburra" (remember "Kookaburra sits in the old gum tree/Merry, merry king of the bush is he) which is copyrighted (Oh, yes). It's not a folk song. Men at Work claimed to have bought the rights in 1990 but an Australian judge has ruled that the author, Marion Sinclair, who wrote the work for the Girl Guides (as Girl Scouts as called Down Under) never actually completed the transfer of the rights. Read more here.
Equal Access For Online Journalism
Since March 2007, dozens of newspapers have gone out of business entirely, and still others, like the Seattle Post-Intelligencer, the Capital Times, and the Christian Science Monitor have moved to the internet to stay afloat. Since 1990, a quarter of all American newspaper jobs have disappeared. Despite its three hundred year existence, the American newspaper is being devastated in the span of a decade. Meanwhile, the internet is becoming the go-to source for news, information, weather, movie reviews, and classified advertisements. Congress and the courts can no longer afford to relegate internet journalism to a second-class news medium. In Consumers Union v. Periodical Correspondence Association, the question arose as to the constitutionality of certain rules governing the issuance of press credentials to the congressional press galleries. In that case, based on separation of powers concerns, the court avoided the issue with the political question doctrine. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility. Given the switch from traditional print media to websites and Kindles, the question of who has access to the news becomes extremely important. This article will address several issues relating to the freedom of access to the Periodical Press Gallery. The first part of the article will briefly describe the history of the press and the history of congressional reporting leading up to the passage of the Periodical Press Gallery Rules. Part two of the article will describe the rules that govern admission to the Periodical Press Gallery as they exist today. Part three will describe the nature of the right afforded to journalists to access government buildings which have already been opened up to the press. Cases within this section challenge the denial of access to the White House, the Periodical Press Galley, and the Guantanamo Bay detention facility. Discussion in this section will reveal how the D.C. Circuit Court has used the political question doctrine to avoid deciding these press gallery cases on their merits, while taking a deferential approach to denials from other established press pools. Because I believe that Consumers Union was wrongly decided, the final section will address how the courts should decide cases which stem from a denial of admission to the galleries. If the courts still refuse to decide these cases on nonjusticiability grounds, I will argue why Congress should unilaterally refine its rules to cabin the discretion of the Executive Committee and permit more online journalists to enter the Periodical Press Gallery. This section will describe how the current Press Gallery Rules act as an unconstitutional obstacle to the First Amendment rights of online journalists, as well as a Fifth Amendment violation of Due Process. Lastly, I will detail a few substantive amendments to the existing Rules which would provide for a fairer review of an online-journalist’s application.
Dealing With Cyberbullying
Cyberbullying is a rising online safety concern. Compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests that cyberbullying is on the rise and can have profoundly damaging consequences for children.
In the wake of a handful of high-profile cyberbullying incidents that resulted in teen suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal felony to punish cyberbullying, which would include fines and jail time for violators. The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities.
Criminalizing what is mostly child-on-child behavior will not likely solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. Moreover, criminalization could raise thorny free speech and due process issues related to legal definitions of harassing or intimidating speech. To the extent criminal sanctions are pursued as a solution, it may be preferable to defer to state experimentation with varying models at this time.
By contrast, education and awareness-based approaches have a chance of effectively reducing truly harmful behavior, especially over the long haul. Such approaches would have the added benefit of avoiding constitutional pitfalls and subsequent court challenges. Thus, if lawmakers feel the need to address cyberbullying concerns at this time, it is clear that regulation is, at best, premature and that education is the better approach. If federal criminal law has a role to play, it is in punishing clear cases of harassment of minors by adults in ways that do not chill free speech protected by the First Amendment.
Download the paper from SSRN here.
July 29, 2009
Landlord Sues Former Tenant Over TweetLandlord Horizon Group Management is suing former tenant Amanda Bonnen over her tweet, "Who said sleeping in a moldy apartment was bad for you? Horizon really thinks it's okay." The company says Ms. Bonnen's tweet defamed it, injuring its reputation, and wants $50,000. But at the time, only twenty people follwed Ms. Bonnen's tweets. Now, many more would like to follow her, but alas, she tweets no more. Read more here and here.
New Staff At the FCC Media Bureau, Wireline Competition Bureau
From the FCC, announcement of new staff:
Today, Federal Communications Commission Chairman Julius Genachowski announced senior staff in the Media Bureau, Enforcement Bureau, and Wireline Competition Bureau including: Media Bureau Chief William Lake and Wireline Competition Bureau Chief Sharon Gillett. Other appointments announced today include Media Bureau Deputy Chiefs Robert Ratcliffe and Kris Monteith and Enforcement Bureau Deputy Chief Suzanne Tetreault, who will join the other senior staff in those bureaus.
“This extraordinarily talented senior staff has extensive experience in the private sector, the academy, and the public sector, including here at the FCC and in state government,” said Chairman Genachowski. “With their help, the agency will pursue policies that advance a vibrant media sector, unleash innovation and job creation, protect consumers, and promote competition.”
Chief, Media Bureau, William Lake: Mr. Lake most recently served as the head of the DTV task force at the FCC. Previously, Mr. Lake was a partner at WilmerHale in Washington, D.C., where he led the communications regulatory practice for many years. In government, Mr. Lake has previously held positions at the Department of State, EPA, and the Council on Environmental Quality. He began his legal career as a law clerk to the Honorable John M. Harlan of the U.S Supreme Court and the Honorable Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit.
Deputy Chief, Media Bureau, Robert Ratcliffe: Mr. Ratcliffe most recently served as the Acting Chief of the Media Bureau. Previously, he was a Deputy Chief of the Enforcement Bureau, where he was responsible for media enforcement matters. Prior to his assignment to the Enforcement Bureau, Mr. Ratcliffe spent more than 20 years in various positions in the Media Bureau and its predecessors, including Deputy Chief of the Bureau, senior legal advisor to the Bureau Chief and Assistant Chief of the Video Services Division and the Policy and Rules Division. He also served as interim legal advisor on media issues to former Chairman Alfred Sikes in 1989. Mr. Ratcliffe began his career at the FCC in the original Cable Television Bureau, where he served as Chief of the Policy Review and Development Division and the Research Division before the bureau was combined with the Broadcast Bureau in the early 1980s.
Is the Google Books Settlement Good For Readers? Authors?Commentary on the Google books deal, from the New York Times.
Bans on Prisoner Ads Asking For Pen Pals Under FireFlorida, like several other states, prohibits prisoners from creating and posting ads for penpals on the website www.writeaprisoner.com. The states say that such ads may contribute to fraud and abuse. But lawsuits filed by various groups including the ACLU are challenging such restrictions. Read more here in an AP story.
The Dual Nature of the ISP As Speaker and Conduit
Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.
While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.
For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.
Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.
This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.
Download the paper from SSRN here.
Using IP Laws To Quash Freedom of Speech
This thesis analyzes an alarming trend among large media companies to use copyright laws to censor news and news related websites using takedown notices, cease and desist letters and other legal threats. The paper examines the origins of takedown problem and the copyright, fair use and First Amendment concerns surrounding the issue. In addition, the paper identifies recent examples of takedowns and related censorship in an effort to explain the takedown problem and lessen its occurrence in the future. The goal of this paper is to provide concrete suggestions for dealing with the takedown problem to better protect the free speech and free press guarantees of the First Amendment. These suggestions include educating online journalists about their legal rights, fighting back against unfounded takedowns, getting added protection with insurance, publicizing wrongful takedowns, and most important, revising current copyright law.
July 28, 2009
Racial and Religious Hate Speech Under the Singaporean Constitution
In this essay, I argue that the rationales offered by the Singapore Government for restricting racial and religious hate speech are not only constitutionally unsound, but also not without serious moral and social costs. I start off identifying two main rationales offered for the existing restrictions, namely (1) the maintenance of public order, and (2) the promotion of an ethic of intercultural tolerance. These twin rationales are buttressed by a literalist (and flawed) judicial interpretation of the right of free speech under Article 14 of the Singapore Constitution. Drawing on hate speech decisions from the U.S., Canada and Europe, I advance a more faithful reading of Article 14 which affords greater constitutional protection for hate speech as 'political speech'. I next trace how the Singapore Government's regulation of hate speech is rooted in its avowedly Asian-style 'communitarianism'. The 'public order' and 'tolerance' rationales, however, fail to recognize that race and religion are constitutive aspects of our individual flourishing and self-respect, which hate speech attacks. The present legislative regime is therefore guilty of self-contradiction. Lastly, I sketch a different, victim-centred justification for Singapore's hate speech laws which is responsive to the profound injury inflicted upon individuals targeted by racial and religious vilification. This victim-centred perspective, it is suggested, finds a comfortable textual home in Article 152(1) of the Singapore Constitution, which requires the Government to care for the interests of racial and religious minorities in Singapore.
Download the article from SSRN here.
Tenenbaum Trial Underway
Ben Sheffner has coverage of the Joel Tenenbaum (P2P copyright infringement) case here at Copyrights & Campaigns blog. The trial began yesterday. Judge Nancy Gertner ruled against allowing the biggest part of attorney (and Harvard Law Prof) Charles Nesson's proposed defense--fair use. See discussion of her order here. What'd she say in her pretrial order? In part:
To be sure, this Court can envision certain circumstances in which a defendant sued for file-sharing could assert a plausible fair use defense. Indeed, an amicus brief previously filed in this consolidated action by the Berkman Center at the Harvard Law School (on which Defendant's counsel was a signatory) outlined some of those circumstances—for example, the defendant who 'deleted the MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased.' The Court can also envision a fair use defense for a defendant who shared files during a period of time before the law concerning file-sharing was clear and paid outlets were readily available.
The advent of the internet in the late 1990s threw a number of norms into disarray, offering sudden access to a wealth of digitized media and giving the veneer of privacy or anonymity to acts that had public consequences. At the beginning of this period, both law and technology were unsettled. A defendant who shared files online during this interregnum but later shifted to paid outlets once the law became clear and authorized sources available would present a strong case for fair use. It might matter, too, who the defendant shared files with—his friends, or the world—as well as how many copyrighted works, and for how long.
But the Defendant has offered no facts to suggest that he fits within these categories. He is accused of sharing hundreds of songs over a number of years, far beyond the infancy of this new technology or any legal uncertainty.
Criminalizing Speech After 2001
Since the 9/11 attacks in 2001, the United States and many European states have sought ways to disrupt the radicalization process that leads individuals to join the call to Islamic jihad. This strategy has included attempts to prosecute individuals who post or help to circulate calls to jihad that appear on the internet. While this speech is unpopular, it is an open question whether the speech, standing alone, incites violence. More importantly, these prosecutions may both chill speech and open the door to wider governmental efforts to regulate unpopular speech. To explore the tension between security and civil liberties triggered by such strategies, I analyze three recent criminal cases in Germany, the United Kingdom, and the United States. I examine the prosecution strategies and the legal hurdles that prosecutors faced in securing convictions. I show that, in an effort to surmount the legal problems inherent in prosecuting these cases, prosecutors have broadly branded the defendants as terrorists and evil-doers. The broader impact of these strategies, risks shaking a core element of democratic governance.