About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 24, 2005

Grokster + Brand X = Issues of Openness? It's All About the Distribution, Baby!

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Posted by Ernest Miller

Prof. Michael Madison points to the debate over Brand X that is starting on Picker MobBlog (MobBlawg LiftOff). [Btw, Picker calls his site MobBlog. I like Madison's MobBlawg better.] Michael agrees with one of the MobBlawggers that Brand X may ultimately be a more important decision than Grokster. Furthermore, Michael points to a Dec 2004 post of his that looks at the conceptual connections between the two: they both are means of regulating communication (On Grokster and Brand X). Abso-posi-lutely! It's all about the distribution man! It's freedom of the press, it's telecomm, it's copyright. It's Network Law. It's All About the Distribution, Stupid. It's Freedom of the Press, Stupid. We're going to need analytic tools that work similarly in all these areas of law and treat them as one whole system of regulating communication.

Anyway, for a very nice discussion of how to frame some of these issues, see Randy Picker's post, Framing Openness and the response from Phil Weiser here: Making Sense of Openness.

In response to, or perhaps, just going off on my own tangent I would like to bring in the traditional concept of common carriage as part of the openness conversation, as that is yet another way we've framed openness issues in the past.

For example, Picker makes an interesting comment:

I am comfortably in the camp of those who believe that an author should have some rights associated with her work and indeed don’t believe that even most of the copyright left favor eliminating all of the attributes associated with copyright.
Well, airlines are common carriers. But advocating common carriage for airlines doesn't necessarily mean that one wants to completely socialize airlines. I see the copyfight similarly.

Weiser notes:

Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.
Heck, yes. But I'll note in reply that in the case of common carriage, we apply it despite the fact that there are many alternatives. There may be many airlines servicing a particular airport, some even duplicating routes, but we still regulate them as common carriers. Furthermore, airlines have competition from trains and buses. One might say "there are alternative platforms" for airlines, so why regulate them as common carriers? Yet, we do. Interesting, that.

Just some random thoughts on a beautiful Friday afternoon.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm

June 15, 2005

Yes, Google is a 'Media Company'. So What?

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Posted by Ernest Miller

A little over a week ago, there was quite a lot of chatter regarding Google's stock market valuation. It culminated in the announcement that Google's stock valuation had passed Time Warner's thus making Google, briefly, the most valuable "media company" in the world (Google Most Valuable Media Company). A debate then ensued as to whether Google, which produces little original "content" in the traditional sense, was really a "media company". Digital Deliverance says they are (Yes, Google is a Media Company). The article points out that many other "media companies" don't produce much in the way of original content, but simply distribute others' content.

For examples, how many American radio stations generates original content? Very few. Most of the hourly news programs aired by American AM and FM radio stations aren't created by those stations but are audio from wire services or networks. Although stations in the top markets do have news reporters on air, the bald fact is that most of the 6,000 radio stations in America no longer have any reporters either on air or even on staff. Most air nothing but content that originates elsewhere. Nevertheless, pundits consider those companies to be media companies despite their lack of any original content. [emphasis in original]

Although I'm not really sure what a "media" company is. There are companies that produce content. There are companies that distribute content. Often, companies do both.

Even though many companies perform both functions, these functions should often be analytically distinct for a variety of legal, regulatory, market and social purposes. Calling all these companies "media companies" does not emphasize this distinction and frequently obscures more than it reveals.

So, yes, Google is a media company. But that doesn't mean that "media company" is a useful category.

via Online News Squared

Comments (0) + TrackBacks (0) | Category: Network Law

June 09, 2005

June 07, 2005

In Search Of: A Positive Agenda for the Copyfight

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Posted by Ernest Miller

My friend, Prof. Beth Noveck, has written (not for the first time) about the need for a progressive political agenda with regard to cyberlaw on her Cairns Blog (Positive Cyber-Progressivism).

I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values.
Part of this is, of course, because even negative liberty has been under constant attack for the past decade. We copyfighters have barely fought off things like the INDUCE Act and Broadcast Flag, which doesn't leave much time for focusing on positive goals.

Which isn't to say that there haven't been a number of positive goals put forward. In the copyright realm there have been several alternative compensation schemes for filesharing put forth, from prominent law professors (Neil Netanel and William Fisher among others) and organizations such as EFF. I keep deluding myself that it's all about the distribution, and copyright reform should follow along those lines, most recently: A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright. Larry Lessig has called for shorter terms and a return to some copyright formality. There are other examples. Unfortunately, however, none has really caught on for a variety of reasons, not least that there is much disagreement.

And, actually, I'm not even sure what "negative liberty" means in the context of copyright law. Most copyfighters, myself included, are intent on finding the right level of copyright, not freeing us from it entirely. That seems to me a very progressive goal itself.

The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing.

The issue of free speech, which Beth also raises, is also an interesting one. Free speech is a funny sort of negative liberty. It is a negative liberty that is, in part, justified by its positive purposes. According to Mill, the best way to approach truth is by allowing, almost encouraging, error. Accepted truths will be strengthened through battle with error. Error will be overthrown by truth. And, as is most likely the case, both sides have a little bit of truth to them and we move to a better synthesis. Free speech may be a negative liberty we cherish, but even were it not, it would be a progressive policy goal.

Be that as it may, there are also a number of progressive free speech policies out there - particularly for what I call "freedom of the press", the role of government in regulating distribution of information. For example, there are those who want stricter control over media ownership and claim a progressive mantle. I disagree with them (as I disagree with Netanel and Fisher), but it is a positive platform. There are many in the copyfight who argue for open access and open standards in order to free distribution. This seems to me a positive, progressive goal. Unfortunately, these two groups seems somewhat opposed and, among other reasons, very little is accomplished along these lines.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | News

A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright

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Posted by Ernest Miller

Corante's Between Lawyers has an questioning post by Dennis Kennedy about the problems with current copyright law in handling typical consumer uses of copyrighted works (iPods and Time-shifting: Fair Use, Personal Use and the Digital Copyright Morass).

We now live in an amazing time when I can listen to a song on a variety of players, indoors, outdoors, in the car, on a network, wirelessly, and many other ways. Increasingly, especially after I own an iPod, I want to listen to my music where I am, in the most convenient way possible. I do not to become a licensing or copyright specialist.

Here’s where the difficulty lies. I believe that what I am doing is playing my music and listening to it. Unfortunately, in our digital world, what is also happening is that we (or our computers, other hardware and software) are making many, many copies of the digital information carrying the song as we listen to our music in many ways and in many places.

And thus, we enter the realm of copyright law, and how it doesn't seem to make a lot of sense quite often. Leading Kennedy to conclude:
My thought, and what prompted the title of this post, is that we are overdue for a reconsideration of the practical meaning of copyright law for real people in a digital world and that the subject of defining a “personal use” exception to copyright infringement that reflects the way people normally behave that would be separate from “fair use” should be considered and debated, while leaving the “fair use” doctrine in place to cover what it was intended to cover. In a sense, I’m advocating something in the spirit of what my friends at rethink(ip) raise in the title of their blog.
Welcome to the discussion, Kennedy! This is something that we copyfighters have been talking about for quite some time.

Others have different views, but I'll try to provide my perspective on how we should resolve some of these issues. First, as I've said time and time again, "copying" is no longer a meaningful (if it ever was) fundamental aspect of copyright. Kennedy:

Copyright law deals with reproductions and copies. What copying is allowed and what is not? Is automatic “copying” as part of the normal mechanical or computer process (e.g., your browser caching a copy or two of this page while you read it) an infringing kind of copying? There certainly have been court decisions that would lead you to that conclusion, even though that’s a very unexpected result.
Why in the world should we think that copyright is about copying? No one is harmed by mere copies. It is only when those copies are distributed that there is an issue. One million bootlegs at the bottom of the ocean cause no harm; it is only when they are distributed that the copyright holder has any cognizable right to complain. Trying to figure out whether copies cached on a hard drive, or stored in RAM (is that persistant or nonpersistant RAM?) is only asking for trouble. What does it mean to say that something is an exclusive right and then carve out so many exemptions in the "exclusive right" that more copies are exempt than are actually infringing?

If we focus on the question of distributions, many of these problems simply go away.

Most of the questions Kennedy raises about personal use copying would never even come up under a distribution-focused regime because copying, by itself, would no longer be an exclusive right of the copyright holder. If the copy is for personal use, there is no distribution, and copyright doesn't become an issue.

Kennedy also discusses the typical fair use defenses to personal use copying under the current regime.

Historically, we have looked at “fair use” to cover the normal, expected ways that someone might make use of a creative work without infringing the copyright. There’s a well-known four-part test for determining whether a use is a fair use. One of them is the extent of the copying. .In a digital copy of a song, you have a perfect copy of 100% of the work. You fail that part of the fair use test every time and you have to make your stand on the other factors, which, frankly, don’t relate to playing your favorite music wherever you want to play it.
Well, actually, that isn't really the history of fair use. Fair use was an outgrowth of fair competition law and governed whether one might use parts of one work in another, such as for review and commentary. Uses by the consumer were considered "normal uses" since they didn't involve competition with the copyright holder publisher. This actually illuminates that the original understanding of copyright as involving distributions to the public, not private uses. Of course, with the codification of fair use as well as the right of reproduction, we suddenly find fair use attempting to do things it was never meant to protect.
I’ve lately started to feel, as have others, that there is a certain common sense approach to the use of digital copyrighted materials that (1) reflects our normal expectations about what we should be able to do with a copyrighted work just to use it in ordinary ways that do not seem to hurt the author of the work and (2) recognizes that the more we try to stretch the notion of fair use to cover these normal uses, the more we risk fracturing the protections that the fair use doctrine does provide.

These are points I've been harping on for years. Michael Madison wonders if they're really all that helpful (Currency):

Ernie is down on Julie Hilden for focusing on last century’s theme – copying – and overlooking the meme of the new century – information distribution and circulation. I’m not persuaded that copyright-in-information-as-current-that-flows is superior to copyright-in-work-that-gets-reproduced as an organizing theme. “Information” becomes the analytic fiction of the 21st century, just as “the work” was the analytic fiction of the 2oth century. We still have to look inside the thing – dynamic or static as it may be – and work out what we’re trying to do, or say, via the law.
Ultimately, copyright is about controlling information. We can debate what we're trying to do with copyright til the cows come home, but we're still dealing with controls over information. It makes sense to apply analytic tools that are consistent with this fact.

Furthermore, there are other areas of law that also deal with the flow of information, for example the First Amendment and telecommunications law. One of the great problems we are having today in copyright law is reconciling First Amendment interests and copyright. Might be handy if we could use a similar analytic framework (it's all about the distribution). The same goes for telecommunication law and its intersection with the First Amendment and copyright.

Finally, analytic frameworks make a difference in trying to decide what it is "we're trying to do, or say, via the law." Our view of the what the law should be is inevitably shaped by our view of what analytic tools are available to law. Setting legal goals does not take place in a vacuum that ignores the analytic tools at our disposal. Personally, I think my framework will help us achieve a better understanding of what it is we are trying to do: spur creation and distribution of information. If what we are trying to do is ensure better distribution of information, makes sense to think in terms of distribution, does it not?

The above also answers, I think, Marty Schwimmer's question to Dennis (iPods and Timeshifting):

Why do you worry about this sort of stuff?
Because it is important to a proper understanding of copyright law.


Kennedy, ahem, Dennis, has a few additional comments (Dennis Re Marty on iPods and Time-shifting).

Comments (1) + TrackBacks (0) | Category: Copyright | Network Law

June 05, 2005

Journalism's Coming Age of Enlightenment

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Posted by Ernest Miller

Jay Rosen has written another of his insightful pieces on the state of modern journalism, today finding the connections between J-School reform and the press mythology of Watergate (Deep Throat, J-School and Newsroom Religion). Read the whole thing, but the following passage was particularly striking to me:

In his excellent book, Watergate and American Memory (1992, Basic) Michael Schudson distinguishes between the scandal, which didn't change the world very much, and the myth of Watergate in journalism. It did change journalism by giving the warrant of history (and the mandate of heaven) to the adversarial press and the Fourth Estate model, where the press is an essential check on government, a modern addition to the balance of powers.
In many ways, this gets to the heart of the problems with the ways that the mass institutional press views itself. The picture the mass institutional press has of itself is that of the Fourth Estate, another branch of the governing structure, albeit unelected. They are adversarial because they seek to check and balance the other powers, which, presumably, do not represent the interests of the people. The mass institutional press has arrogated unto itself the voice of the absent people.

Much of this comes, I think, from a fundamental misunderstanding of "freedom of speech, or of the press".

Let me make this clear:

The interests and purposes of the First Amendment are not identical with the interests and purposes of the mass institutional press. For the purposes of the First Amendment, the mass institutional press is sometimes a means, not an end.

Freedom of speech and of the press is the principle; the mass institutional press is merely one expression of this principle and, as we are learning, is a historically contingent and flawed one at that. The error has come in thinking that the mass institutional press is the only possible means for expressing this principle, and that what the mass institutional press expresses is also an expression of this principle.

This wouldn't be so bad, if the mass institutional press hadn't gotten the underlying principle so darn wrong.

Deans of Journalism, scribble a note: Investigative reporting, exposing public corruption, and carrying the mantle of the downtrodden were taught to McGrath not as political acts in themselves--which they are--and not as a continuation of the progressive movement of the 1920s, in which the cleansing light of publicity was a weapon of reform--which they are--but just as a way of being idealistic, a non-political truthteller in the job of journalist. (Which is bunk.) [emphasis in original]
These two means are expressions of the interests and purposes of the First Amendment, though I would not emphasize that the cleansing light of publicity is not only part of the progressive movement of the 1920s. Political is not synonymous with partisan.

There are other purposes of free speech, but clearly, one of the most important is that of persuasion in service to what we can know of truth. This is inevitably, if not definitionally political. However, the mass institutional press eschews persuasion for a recitation of facts and "he said, she said," in order to avoid persusasion and, thus they think, politics. But gathering and organizing facts is still a persuasive and political act. It is fairly explicit when exposing public corruption. And it exists even in "he said, she said" reporting when it gives one implausible argument greater weight through equal stature with the superior argument. This is particularly insidious in its effects upon the journalists themselves, who seek only arguments on both sides of an issue, rather than the persuasive arguments, and may thus eventually become blind to the difference.

The biggest blindness was, of course, to the reality that fact-gathering and reporting are inevitably political. And, thus,

This kind of instruction is guaranteed to leave future journalists baffled by the culture wars, and in fact the press has been baffled to find that it has political opponents. Well, jeez louise, so did the progressives of the 1920s! As far as the religion knows, none of this is happening. And J-schools--by passing the faith along but making little room for non-believers--are part of the problem.
And so, at least partly, the mass institutional press comes to its present crisis. And what is the solution?
But maybe it should be crashed. Maybe what we need is not funding for a new church, but a breakaway church, or two, or three of them. (And what is Fox News Channel, but that?)
Well, actually, Fox News is a bunch of recreants. They still worship in the church of objectivity, but that is only lip service.

But why new churches? Tear down the church and let a diversity of schools of thought bloom.


Jay Rosen has updated the paragraph I cited above. Here is the new version:

In his excellent book, Watergate and American Memory (1992, Basic) Michael Schudson distinguishes between the scandal, which didn't change the world very much, and the myth of Watergate in journalism. By giving the warrant of history, and the mandate of heaven, to the adversarial press, and the Fourth Estate model (where the press is an essential check on government, a modern addition to the balance of powers); by telling each new crop of journalists how to be heroes and how do good; by glamorizing the underworld of confidential sources, the mythos of Watergate had very definite effects in journalism.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression | Journalism | Network Law

May 28, 2005

Issues of Future Copyright

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Posted by Ernest Miller

Findlaw's Julie Hilden looks through a mirror, darkly, at copyright law issues of the future (Will the Future Bring Even More Important Copyright Issues Than The Ones Raised by Online File-Swapping?). Hilden is writing in response to the 8-minute web presentation, Evolving Personalized Information Construct. If you haven't seen this bit of futurism, please do.

In any case, Hilden is responding to this (Summary of the World: Googlezon snd the Newsmasters EPIC):

Googlezon finally checkmates Microsoft with features the software giant cannot match. Using a new algorithm, Googlezon’s computers construct news stories dynamically, stripping sentences and facts from all content sources and recombining them. The computer writes a news story for every user. [emphasis in original]
The question is whether such a service would violate copyright. The fact-stripping is clearly legal under Feist, but I'm not really sure why this technology would have to strip sentences. If the system is smart enough to recognize facts, likely it'll be smart enough to produce rudimentary text in which to embed those facts. After all, isn't that the promise of the semantic web? Frankly, I don't think this will be a big concern.

Heck, you could probably do something pretty sophisticated with weather data today. I propose a variation on the Turing Test for weatherpeople. How long before virtual weatherpeople can produce what seems to be a live weathercast, based solely on the data fed to the system from the National Weather Service?

But Hilden is right that copyright law is still on a collision course with the internet. I'll say it again. Google Print is now giving us complete access to every book in the public domain, fully searchable, fully linkable, what we always imagined the Heavenly Library would be like. Unfortunately, everything in the public domain means everything published before 1923, because there is no easy and efficient way to figure out whether something published in 1923 or later is out of copyright. The transaction costs are too high and will remain incredibly high, especially for those works in the long tail (which doesn't mean they aren't valuable, and certainly are quite valuable in the aggregate). Anything except fixed copyright terms, or some sort of formalization will be necessary to resolve this god awful mess, so that we can continue to input the work of humanity in to Google Print and all the archive family.

Hilden focuses on copying, the right of reproduction:

The issues are as simple and fundamental as they are troubling: Exactly how much content may be copied on the Internet - and of what kind -- before copyright is infringed? And more deeply, when is content "copied" in the first place when it comes to the Internet? Does the fact that the copying is done via a machine editor - not a human editor - make a difference?
Copies, copies, copies. That is sooo 20th century. Computers make copies, that is what they do. I imagine, but don't know the technical details, that Google's ginormous database of books has numerous complete copies of the works stored, and not just as backups, either. So what?

We can waste all our time trying to figure out how many angels dance on the head of a pin as develop archane rules on when copies are made and whether those particular copies violate copyright, or we can think about information as a flow, as a transfer, as a distribution. The question shouldn't be whether particular "copies" are illicit, but whether particular distributions of information are illicit. Information exists in a transfer or potential transfer, not as a static thing. "Copies" are static things. "Distribution" is about transfer or potential transfer of information.

We can imagine copyright as voltage and current. When thinking about electricity, we don't think about static electricity, we think about circuits, about regulating the flow of current, arranging for particular potential differences. We don't think of current as a thing to be copied.

Does information want to be free? Yes, but only in the same way that all potential differences want to be in balance. We can get some work out of this fact.

Hilden is completely right in her conclusion, however:

Copyright is meant, in large part, to protect the market for a given work, and thus to protect incentives to create new works. Yet allowing people to read (for free) a fact-stripping bot's compilation of news might undermine the market for newspapers and their online outposts. And that may lead newspapers to fight back in Congress for a broader version of copyright that would end, or limit, the reign of fact-stripping bots.
Copyright holders are going to fight any rationalization of copyright tooth and nail, if it hurts their interests.

via Copyfight

Comments (1) + TrackBacks (0) | Category: Copyright | Network Law

May 27, 2005

The Opening of the Frontier

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Posted by Ernest Miller

Ben Compaine, author of Who Owns the Media?, analogizes citizens media to the frontier, as in Frederick Jackson Turner's The Frontier In American History (Peercasting as the New Western Frontier).

[I]n 1893 [Turner] presented his view that the key component to the unique American character of democracy was the settlement of the American West. That is, the availability of vast stretches of free land away from the initial settlements of the East Coast provided a safety value for those who were dissatisfied with their circumstances. The seemingly endless western frontier offered anyone an opportunity to acquire a farm and become an independent member of society. Free land thus tended to relieve poverty in the Eastern cities while on the frontier it fostered greater economic equality.

What does this have to do with the media? Here’s what: Though it may be a tad premature, in the equally unlimited expanses of information available through the Internet and its related ecosystem I see the makings of a similar safety value for expression and communication. Today it is Blogs, Live365 streaming radio and Podcasts. Tomorrow it is likely to be the video version of streaming radio and Vodcasting [PDF]. Better than a soapbox at Hyde Park Corner, reaching further than leaflets handed out in Times Square, more user-controlled than letters to the editor, “peercasting” may be for the Information Age what free land was for the late Agricultural/early Industrial Age....

Most Americans did not head West, though all knew that they could. The free land of the American West enabled those who were most motivated and most dissatisfied with the opportunities where they were to have hope. They did not see themselves as being stuck. Not every city slicker who headed West prospered. But it was the opportunity that helped shape them and the spirit of this country for over two centuries. And today’s dissatified or motivated knew that, for the first time, they too will be heard.

Blogging and podding and vodding or whatever else these formats might be called should not be viewed as a veneer or a Potemkin Village of phantom access to the world stage. The move to the Western frontier was real. Similarly this digital outlet that gives voice to the leafleteer, corner orator or anyone with a point of view or a story to be told is real and meaningful. We saw in Howard Dean’s meteoric rise the power of the Internet is getting the word out and in raising money. It happened for the most part under the radar of the mainstream media.

In the next decades peercasting will be become the norm to one degree or another. It will not replace mass media but will add a significant dimension to what and how the media is viewed. And, I believe, peercasting will have an overall positive effect on the American -- and no reason why not the rest of the world’s – experience with the expanded boundaries of this new frontier. I think that’s how Frederick Jackson Turner would describe it.


I've copied a significant chunk of Compaine's posting (go read the rest!) because I think he has really hit on something important. There is really a lot going on here, just as there was in Turner's original frontier thesis.

We've often heard the internet analogized to the Wild West, but I've never really liked the metaphor of place. In many ways, I think it is misleading. Here, I believe, is the better metaphor: frontier. A frontier isn't a place, it is a process. Ever-changing, ever-growing, never tamed, the frontier is always just at the edge of "civilization". You can't pin down the frontier because as soon as you do, it has moved on.

The American frontier shaped people and institutions; it formulated a unique American character. I think citizens media may do something similar, though this time it won't be as restricted geographically. What changes, if any, might this new frontier have on the American character? How might the concept of "frontier" impact other nations?

If the internet is a frontier, it is an incredibly fast moving one. Where parts of the American frontier took years to settle, internet frontiers are settled much quicker. What effect does this have on the frontier thesis?

By the time Turner wrote his famous thesis, the frontier had officially closed. Will an electronic frontier close? How might we seek to prevent it?

Does the open source movement also play a role in this frontier? I would think so, yes.

Lots of questions, I know, but I now have a lot to think about and chew over. I leave this post with a passage Turner quoted from Peck's New Guide to the West:

Generally, in all the western settlements, three classes, like the waves of the ocean, have rolled one after the other. First comes the pioneer, who depends for the subsistence of his family chiefly upon the natural growth of vegetation, called the "range," and the proceeds of hunting. His implements of agriculture are rude, chiefly of his own make, and his efforts directed mainly to a crop of corn and a "truck patch." The last is a rude garden for growing cabbage, beans, corn for roasting ears, cucumbers, and potatoes. A log cabin, and, occasionally, a stable and corn-crib, and a field of a dozen acres, the timber girdled or "deadened," and fenced, are enough for his occupancy. It is quite immaterial whether he ever becomes the owner of the soil. He is the occupant for the time being, pays no rent, and feels as independent as the " lord of the manor." With a horse, cow, and one or two breeders of swine, he strikes into the woods with his family, and becomes the founder of a new county, or perhaps state. He builds his cabin, gathers around him a few other families of similar tastes and habits, and occupies till the range is somewhat subdued, and hunting a little precarious, or, which is more frequently the case, till the neighbors crowd around, roads, bridges, and fields annoy him, and he lacks elbow room. The preëmption law enables him to dispose of his cabin and cornfield to the next class of emigrants; and, to employ his own figures, he "breaks for the high timber," "clears out for the New Purchase," or migrates to Arkansas or Texas, to work the same process over.

The next class of emigrants purchase the lands, add field to field, clear out the roads, throw rough bridges over the streams, put up hewn log houses with glass windows and brick or stone chimneys, occasionally plant orchards, build mills, school-houses, court-houses, etc., and exhibit the picture and forms of plain, frugal, civilized life.

Another wave rolls on. The men of capital and enterprise come. The settler is ready to sell out and take the advantage of the rise in property, push farther into the interior and become, himself, a man of capital and enterprise in turn. The small village rises to a spacious town or city; substantial edifices of brick, extensive fields, orchards, gardens, colleges, and churches are seen. Broad-cloths, silks, leghorns, crepes, and all the refinements, luxuries, elegancies, frivolities, and fashions are in vogue. Thus wave after wave is rolling westward; the real Eldorado is still farther on.

A portion of the two first classes remain stationary amidst the general movement, improve their habits and condition, and rise in the scale of society.


Comments (10) + TrackBacks (0) | Category: Blogging and Journalism | Broadcatching/Podcasting | Culture | Freedom of Expression | Internet | Journalism | Network Law

May 24, 2005

Building the Bottom Up from the Top Down

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Posted by Ernest Miller

Prof. Michael Froomkin has published the introduction and final section of the conference draft of "Building the Bottom Up from the Top Down," a paper that he'll be giving at a seminar in Paris this weekend. As the title implies, Froomkin is looking at what top-down orgainzations, particularly governments, can do in order to stimulate bottom-up self-organization:

The government's role should be facilitative yet entirely content-neutral. Even ostensibly non-political rules such as one that limited subsidies to non-political activities should be avoided. Human time and energy is limited. thus, even if one could craft a program that had no class-based discrimination, any rule subsidizing gardening but not community organizing would inevitably cause a shift of time and energy away from politics towards the subsidized activities. If, as Habermas persuasively argues, public engagement is already too weak then it makes no sense to discriminate against it.

Thus, the state's ideal role is primarily in creating a climate in which groups can form, and resources that they can use to organize themselves, govern themselves, and achieve their aims. Given the speed at which communities such as Slashdot (with more than half a million members) and the so-called blogisphere are forming, much may be achievable without much in the way of direct state intervention. There are, nonetheless, some areas where government action would be helpful and appropriate.

Froomkin seeks comments here: Building the Bottom Up from the Top Down.

Read the whole thing.

Comments (0) + TrackBacks (0) | Category: Culture | Freedom of Expression | Internet | Network Law | Open Access

May 17, 2005

May 16, 2005

Brand X Transcript and Thoughts on Common Carriage

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Posted by Ernest Miller

Prof. Susan Crawford recommends the oral argument transcript for the "Brand X" case regarding classification of cable modem service by the FCC, which wanted to exempt cable modems from the common carrier obligations telephony DSL providers had to meet (Brand X Argument). As she notes, it is a bit of a slog, but amusing at times if you like that sort of thing. Read the 55-page (double-spaced) transcript here: Brand X v. National Cable and Telecommunication Association - Oral Argument [PDF].

Crawford provides her vision for a solution to the problem raised by Brand X, which stems from the poorly drafted Telecommunications Act of 1996. Whatever the Supreme Court does (and I'm betting they uphold the ruling against the FCC's rules), real reform is going to take congressional action. Crawford's brief comments:

So now that we know that everyone in the chain is potentially a common carrier, the thing to do is to take a Netcom-like approach to this issue. Rather than make everyone liable for the traditional regulatory burdens of common-carrier-dom, let's dismantle the whole edifice. As in Netcom, let's say that direct, physical access to the consumer/business (in the Netcom context, direct infringement) is the thing we'll regulate. We'll turn it into a public utility. And we'll leave everything above that alone. We did this with energy -- we can do it with online access. Sure, there will be a few takings cases -- but that will be entertaining (and lucrative) for everyone.
This is a potential solution, but I'm not sure it would be the best one. I think that we can craft common carriage regulations based on particular layers of the protocol stack and network design. Common carriage would apply to layers 1-3 of the OSI Model, layer 4 would be potentially common carriage, and layers 5-7 would not be common carriage (at least for the purposes of general telecommunication regulation).

Can the transportation mechanisms be public utilities? Sure, but not necessarily so. There are many ways for bits to travel. Some might be public utilities (community WiFi), while others would not (satellite broadband). That doesn't mean that common carrier regulations should not apply to both. Cities have government-funded transportation (buses) as well as private transportation (taxis), both of which can be common carriers.

Me, I'm a big fan of common carriage and separating transport and content.

Comments (2) + TrackBacks (0) | Category: Network Law

The New GateKeepers

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Posted by Ernest Miller

There ia an absolutely fascinating series about the market for attention on Civilities. The summary would be a good place to start (The NewGatekeepers, Part 6: A Summary). I don't nessarily agree with everything said, particularly in Part 7, Solutions, but it is excellent reading.

I also want to note one further disagreement with a quote from Seth Finkelstein that is approvingly cited, "What I am saying is that bloggerdom is as gatekeeper-constricted as other Big Media. It's a gatekeeper of audience, not a gatekeeper of production, but this makes no difference in the final result." That isn't true. Would you rather have a gatekeeper of production, of distribution, or of audience? It does, ultimately, make a difference. If a law is passed does it matter if it was passed by a democracy or a dictator? It may be the same law, but process matters.

via Infothought

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May 10, 2005

If the Content is Free, Why Use Cable?

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Posted by Ernest Miller

MediaDailyNews has an interesting article explaining why video-on-demand services aren't thriving (Users Don't Want VOD To Be C.O.D., Want It Free):

THE LACK OF FREE CONTENT appears to be supressing demand for video-on-demand (VOD) television services, suggests new research from Forrester Research. VOD is now available to nearly 19 million homes--or about 75 percent of the U.S. digital cable universe, Forrester's Josh Bernoff notes in his report on the various ad models for VOD. While movie buys and usage of subscription content such as HBO On-Demand are increasing, the model is languishing to some degree, largely because of the reluctance of cable operators to pay for quality programming. [emphasis in original]
Here's a question. Why the heck would cable be the platform of choice for distributing free video content anyway? Does such centralization of distribution (and the attendant gatekeeping function) really make sense? Why not skip the cable company and deliver the VOD content via IP?

One interesting fact from the article is that VOD use is greatest among households with TiVos, since they are already used to the idea of timeshifting television viewing. So where is my internet enabled TiVo that will let me download programming and not worry about this cable-controlled VOD business?

via PaidContent

Comments (1) + TrackBacks (0) | Category: Broadcatching/Podcasting | Network Law

May 09, 2005

February 08, 2005

One Way the Right of Reproduction Screws Things Up

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Posted by Ernest Miller

I am not a fan of 17 USC 106(1), aka the exclusive right of reproduction, aka the right to make copies. I've written that copyright should be exclusively concerned with two things: 1) The scope of the copyright (what can be copyrighted, how far the copyright extends, such as derivative works); and, 2) The breadth of copyright (the exclusive rights at issue). For the breadth of copyright, I argue that what we are really concerned with is the public distribution of works and everything else is unimportant. Of course, I classify public performance, public display, etc., as form of public distribution. See, Taking the Copy Out of Copyright [PDF].

One of the problems with the right of reproduction is that it gives too much control over how a work can be used and inhibits many otherwise excellent and beneficial business models.

Case in point, Google's plan to digitize libraries and make them subject to search. According to the Chronicle of Higher Education, many publishers are planning on putting Google into legal hotwater over this plan (Publishing Groups Say Google's Library-Scanning Effort May Violate Copyright Laws):

But the company also plans to scan copyrighted books in some of the libraries. The search engine will not give users the full texts of those volumes, but will provide up to three short excerpts, each consisting of only a few lines of text in which a search term appears. Google officials say that such limited use will not violate copyright law.

But some publishing-industry officials say that even scanning a book and offering brief excerpts without the publishers' permission could violate copyright because scanning the book would represent a reproduction of the work, and the copying would have been done by a commercial entity rather than the library that purchased the book.

The publishers aren't claiming that Google is distributing too much from the books it scans, but that mere reproduction is enough to trigger copyright law. They're right, of course. Whether Google can successfully raise a fair use defense is a question, but I wouldn't bet on it.

Is the purpose of copyright law to prevent the creation of really efficient indexes without paying a licensing fee? What part of "promote the Progress of Science and useful Arts" does this really help? Sure, one might claim the copyright owner will make more money, but it isn't clear to me that such arguments take into account all the positive externalities good, cheap indexes create. Finding information is a critically important aspect of making sure information is disseminated (which seems to be the point of the copyright clause).

This post also inaugurates a new section for this blog: network law. These are posts that deal with what I consider to be the law of distribution of information: copyright, telecomm and freedom of the press.

Comments (2) + TrackBacks (0) | Category: Network Law