Tales of the Sausage Factory

*Packingham* And The Public Forum Doctrine Part I: Implications For Copyright.

On Monday June 19, the Supreme Court issued two significant First Amendment decisions. Most of the press attention went to Matal v. Tam aka “The Slants'” case. But the far more significant case for my little neck of the woods was Packingham v. North CarolinaBecause Packingham focused on criminal law, and did not have anything to do with the Washington Redskins keeping or changing their name, it garnered relatively little attention. But Packingham has much more importance for the future of the First Amendment online by recognizing the primary First Amendment right of subscribers to access broadband platforms and content. Indeed, Justice Kennedy’s paean to the Internet as the modern public square echoes themes from the more “Madisonian” view of the First Amendment expounded by scholars such as Cass Sunstein (and prompted alarm from Alito, Roberts and Thomas in concurrence).

 

This has significant implications for all the crap the Digital Millenium Copyright Act (DMCA) has done to make it easy to kick users offline (and the whole future of “graduated response”/”3 strikes”) and the existing and fairly abusive notice and takedown regime (and efforts to extend it further). It may also have significant implications for the First Amendment argument over broadband, net neutrality and the future of regulation of online platforms such as Facebook, but I will save that for Part II.

 

I unpack all this below . . .

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Posted in Censorship Public and Private, Fighting the IP Mafia, Tales of the Sausage Factory | Also tagged , , , , , | 2 Comments (Comments closed)

Tales of the Sausage Factory

Comcast & AT&T Apparently Smart Enough To Resist RIAA Invitation to Slit Own Throats.

As I’ve observed before, the IP Mafia have absolutely the worst judgment imaginable when it comes to their agenda. Now, the people who tried to kill the VCR, have just about killed internet radio, and who have sued dead people and sick children, have hit on another winning plan — using ISPs as enforcers.

Once upon a time and long ago, ISPs understood why it was important to be a common carrier and have no liability for this. That was why Congress included Section 230 and the “Good Samaritan” provision in the 1996 Telecom Act. It boils down to “when you act like a dumb pipe and just pass stuff from one place to another, we will not hold you liable for what happens.” For the same reason (as Bob Cannon explains over here on Cybertelecom), Congress generally immunized ISPs and created the whole “notice and take down” scheme in the Digital Millenium Copyright Act.

But all that was before our ISP industry boiled down to a handful of companies that were also either big content producers or video distributors dependent on the good will of big content producers. Suddenly, from the perspective of the IP Mafia, a whole new world of possible backroom dealings opened up. A world in which a few companies could make policies that would cover nearly the entire high-speed access market, and where they either shared common interest with the IP Mafia or could be “persuaded” to do so by threatening to withhold needed video content.

And so, the MPAA and RIAA walked right into my cunning trap, the fools! Alas, turns out Comcast and AT&T were too clever for me.

More below . . . .

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Posted in Fighting the IP Mafia, Tales of the Sausage Factory | Also tagged , , , , , , | 1 Comment (Comments closed)

Tales of the Sausage Factory

Tales of the Sausage Factory: Congress Giveth, Congress Taketh Away

Good news: The House Commerce Committee had a hearing on the Digital Media Consumers’ Rights Act, which would undo the more obnoxious provisions of the Digital Millenium Copyright Act.

Bad news: The House Judiciary Committee (which handles intellectual property issues) approved the Fraudulent Online Identity Sanctions Act, a bill to criminalize the use of false information in WHOIS registrations. This wouldn’t be so bad if you weren’t required to divulge a boatload of personal information under the “thick” WHOIS requirements in order to register a domain name. Folks who hate getting beaten up by their governments over free speech issues or just hate the way spammers use the WHOIS database often try to defnd themselves by submitting false information.

More on the merits of the bills below. But also of relevance (and what makes the Sausage Factory so much fun) is to note the difference a change in committee makes.

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Tales of the Sausage Factory

Tales of the Sausage Factory: Feeding the RIAA Pig at the Regulatory Trough

I wish *I* could change the criminal law of the United States to make it a crime to compete with me, and jack up the punishment to huge fines and more jail time than any Enron exec will ever serve. I wish *I* could persuade a regulatory agency and Congress to make everyone else in the universe personally responsible for watching all my stuff. Oh,and then I’d make everyone give me the keys to their house so I could look inside whenever I want.

Sadly for me, *I* am not the RIAA. The introduction of HR4077, a bill which makes the FBI the RIAA’s personal police force for monitoring peer-to-peer networks and says all sorts of nasty things about peer-to-peer generally, and the FCC’s,Notice of Inquiry on whether it should mandate content controls on digital radio certainly give credence to the accusations that big money owns Washington lock, stock ‘n barrel. Interested in helping my ongoing experiment to prove if democracy still works and reminding your Senator and Representative that they really work for you? Read below . . .

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Tales of the Sausage Factory

A good week for civil liberties — mostly

Three opinions came out last week that made a nice little Chanukah gift for civil liberties buffs. Two related to Ashcroft’s attempts to circumvent the Constitution in the name fo security, one cuts short the RIAA’s efforts to gut the Constitution in the name of copyright. But the opinions still leave a lot of room for concern.

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