Category: Mass Communication Law

EU ACTA Analysis Leaks: Confirms Plans For Global DMCA

Michael Geist – EU ACTA Analysis Leaks: Confirms Plans For Global DMCA, Encourage 3 Strikes Model

Michael Geist has posted a summary of the leaked EU ACTA analysis. Some highlights:

  • Third party liability
  • Limitations on 3rd Party Liability
  • Anti-circumvention Provisions
  • Civil and Criminal Enforcement of Anti-Circumvention
  • Rights Management Information protection
  • Limitations to Rights Management Information protection

The anti-circumvention provisions, while not entirely out of line with U.S. law, are a bit troubling as it’s not yet clear whether circumvention for established fair use (such as education) would be allowed.

Even more troubling are the limitations on 3rd party liability. If service providers (like YouTube) no longer enjoy “safe harbor,” or legal protection from copyright infringement lawsuits for materials their users upload, the entire landscape of “user generated content” or “remix culture” may drastically change.

Perhaps more transparency would bring much needed balance to this treaty!

Reporting Net Neutrality’s context

Ars Technical reports today about a report produced by Havard Law’s Berkman Center for the FCC.

The thing I like most about it is how the problems of today are traced to the (arguably failed) Brand X Supreme Court decision, which classified internet providers as information services. This allowed cable (and eventually phone) companies to keep their pipes as their own, as opposed to opening them to competing services.

Remember dial-up? We’re comparing that model (where your phone company couldn’t discriminate between AOL or Compuserve) with the oligopoly we have today. When you consider the difference between these two models, the debate over Net Neutrality suddenly becomes more salient–open neutral pipes up to competition, or subject yourself to regulation to ensure unencumbered carriage of the public’s bits.

The telecos, however, are crying foul and declaring the report as biased. However, in the historical and international context it’s hard to claim that the system we currently have is working well. I’ll admit I need to read the report, but a comparison to other countries that have not traveled the same regulatory path as us hardly seems biased.

No need for anecdotes

Ars Technica narrates a fictitious script between Nancy Regulator and Freddy Freemarket, whereby the two debate whether there is ’cause for action’ on the part of the FCC in Internet neutrality. The entire argument turns on whether service providers’ previous efforts to shape or alter traffic count as “anecdotes” or evidence for the need for regulation.

I’ve said before that I felt there was a misunderstanding about the regulation–that it simply is trying to maintain the status quo of the “End to End” principle. I know realize that those who disagree with me likely were arguing that businesses should be free to innovate and change their product however they see fit. Yet, the problem with this argument, I still feel, is that the “Internet” isn’t a product at all–it’s a service.  Regulations are needed to make sure that the service works in a uniform way across all providers. In my mind, that’s just a cost of doing business in this area. Naturally, providers are free to innovate on the end as the regulations only impact their ability to shape what flows through their pipes.

GPL Enforcement: Don’t Jump to Conclusions

GPL Enforcement: Don’t Jump to Conclusions, But Do Report Violations – Bradley M. Kuhn

Brad Kuhn has an interesting post on the interplay between law, norms, and negotiation in GPL (a particular type of open source license) violations. He suggests that, when a violation is found, start with an assumption that there was no malicious intent and not to publicly “out” the violator.

I think a lot of geeks get religious about freedom in the open source movement.  Usually this is for good reason, but occasionally the mob mentality can turn into something like a witch trial. With so few lawyers, they are a group that’s perhaps not as used to negotiation. It’s good to have even keeled people around to remind us (Slashdotters) to “remember that the primary goal of the GPL is encourage more software freedom in the world.”