Protect Your Wireless!

Wow, check out this article!  This seems crazy to me, not just the barbaric response of the police, but the fact that you can steal Internet by using a field expedient Pringles can antenna!

Use Defenses Hollow Promise After Safe Harbor!

The traditional copyright used defenses of de minimis use and Fair use are left a hollow promise in the wake of the DMCA safe harbor provision.  Although these defenses are still valid and relevant defenses in a court of law the problem is the vast majority of information removed from the internet in accordance with take-down notices never reaches the inside of a courtroom.  The moving parties are acutely aware of this statistic and as such they are none-too-shy in sending out take-down notices, and why should they be?  From their prospective the goal is the removal of the information which can be achieved by sending the notice to which the ISPs will almost certainly acquiesce.  That means to assert the defense the posting individual would have to drag themselves into the courtroom, but of course their confusion as to the extent of these defenses since they are judged on a balancing test without a bright line rule, is likely to exacerbate their fear of potentially serious criminal and civil penalties which will outweigh the intrinsic value they are likely to attach to the speech in the first place.  Thus, without a procedural safe guard against censorship by proxy the defenses are only available to a very narrow field of potential defendants and the protection they promise is gutted for all others.

What do Sarah Palin, Monty Python, and the DMCA have in common? The Masked Analyst!

This video is a must see for all students of the First Amendment!  Not only does the masked analyst provide relevant information and analysis of the DMCA and Safe Harbor Take-Downs, it is also probably the only place you will see Sarah Palin and Monty Python in the same video.  Additionally it raises the question of whether or not wearing a mask realistically provides any increased expectation of anonymity.

The "No Law" Constitutional Contradiction

An absolutist interpretation of the First Amendment would reconcile speech regulation with its fundamental meaning, that “Congress shall make no law abridging freedom of speech” or of the press by conferring monopolies in expression that otherwise would belong to the universe of discourses in which all are free to share.   Of course this is a direct contradiction of the Intellectual Property clause of the Constitution but it may help inform our analysis.  The application would then necessarily begin with the rebuttable presumption that any regulation of speech is unconstitutional.   Of course, this is an inversion in thinking when compared to the DMCA safe harbor provision, because it completely shifts the presumption of illegality from the challenged speaker to the moving party. Certainly, this is not how the law, nor the courts, have viewed and interpreted speech rights to date.  However, this type of inverted presumption might benefit future decisions if considered as a framework for internet speech rather than awkwardly overlaying common law doctrines of real world origin on the rather new and ever-changing phenomenon of the internet.

Outdated Traditional Doctrine Strained On-line?

The DMCA is a classic example of traditional copyright regulation being broadly applied to the internet world.  The problem as I see it is that the traditional nature of communication, the nature of piracy, business relationships, and avenues of profit; have all changed dramatically on the internet.  Still it seems Congress, as spurred on by the lobbying industries, is attempting an awkward marriage of traditional copyright doctrine and contemporary internet communications.  In my opinion the result is a gross misevaluation of the underlying principles that informed copyright in the first place, the “advancement of useful arts and sciences.”  It seems those interests might be better served on the contemporary internet by deregulation whereas in the traditional sense they may have been better served by regulation.  I think that when viewed in terms of the contemporary internet environment and the resulting change in how communication is conducted devalues traditional copyright doctrine and aggrandizes First Amendment doctrine because the nature of internet communication would be better served by deregulation than by an awkward statutory overlay of antiquated copyright doctrine.

First Amendment Scrutiny in the DMCA's Future?

Although traditional First Amendment protections do not apply in the private context, thus according copyrights a historic exemption from the First Amendment.  However, in Eldred v. Ashcroft,  the Supreme Court “majority conceded that lower courts have spoken too broadly when declaring copyrights categorically immune from First Amendment challenges.”   The petitioners “maintained that copywrite law is a content-neutral speech regulation and … should, therefore, be subject to intermediate scrutiny.”   Although the challenge in Eldred was rejected, the Supreme Court narrowed copyright’s sweeping immunity from First Amendment scrutiny.  In this way, Eldred may have opened the door for future First Amendment scrutiny of copyright based statutes.   Perhaps since Congress has taken an affirmative step to enter the otherwise private arena in advancing both civil and criminal sanctions under the DMCA the Court should apply the First Amendment prophylactically to the statute, or even apply intermediate scrutiny.   

Did the Internet Shatter Our Notions of Traditional Dyadic Communication?

The traditional First Amendment battlefield is framed in terms of dyadic communication, a speaker conveys a message to a listener, the press transmits a message to a listener, and a publisher distributes a message to a reader.    In the vast majority of situation any government action will be focused on the originator of the message.   At times focusing civil or criminal penalties on the speaker based on the content or content neutral regulation, sometimes based on the location,  sometimes it is even based on conduct which may be construed as speech .  In rare cases the government will focus its regulatory attention on the receiver by punishing possession or receipt of communicative materials deemed to be illegal.   Traditional copyright regulation is also framed in terms of dyadic communication, and until recently the two distinct legal theories seemed to coexist without much friction, until the internet introduced a new multilayered, multimedia form of communication.  By its very nature the internet has changed the traditional dynamic of dyadic communication by embedding several layers of private actors between the speaker and the receiver.   It will be one of this century’s great governmental challenges to regulate speech in the absence of dyadic simplicity.  One of the government’s early attempts at both regulating speech in the absence of traditional dyadic communication and addressing the free-speech/copyright paradox is the Digital Millennium Copyright Act of 1998 (DMCA).   Within the DMCA is a safe harbor provision designed to protect Internet Service Providers (ISP) from secondary liability if they comply with the statute