The inimitable Susan Crawford warns us against Net regulation tunnel vision. Overreaction to perceived problems can open the door to harms worse than the original problems — the “solutions” can bite back. If, for example, we want to regulate Internet providers to stop them from blocking Voice-Over-IP, does that mean we have also acknowledged the power to regulate them for other ends, such as to demand that they enable wiretapping? How rapidly does anti-spyware legislation become full-blown software regulation? Instead of asking government to step in with small-fix regulations, we should take a bigger-picture view, looking for how we can re-open the network to resist these threats on our own.
One limited place we might ask for government help is antitrust — breaking up monopoly control of connectivity resources lets us solve many problems by our own choices by helping ensure the market provides those choices. I’m not sure I share Susan’s optimism — bad regulation comes at us from too many sources and could stop many of our “route-around” opportunities — but I do think that if we disregard her advice, the situation looks even worse.
At David Isenberg’s Freedom to Connect (F2C). Live audio feed available. Lee Rainie, Pew Internet & American Life has started us off with some interesting analysis of what Internet connectivity means for social connections. Are we almost ready to update Bowling Alone?
Declan catches me Grokster blogging from the Supreme Court steps, in a photo, along with Annalee and Gwen.
Click for the full-size version on Declan’s blog.
While I was napping, lots of others have been doing a great job reporting on the arguments. I’ll have more of a recap later, but with the caution never to read too much into an oral argument, I was encouraged. The Justices seemed to be asking the right questions — wondering how they’d impact innovation if they changed the Sony rule. Scalia, for example: “How much time do I get to bring lawful use to outweigh unlawful use [in a proportionality test]? I’m going to get sued right away.” or Souter: “Why isn’t it a forseeable conclusion that the iPod developer loses his shirt?”
Justices also seemed puzzled by what alternative test the entertainment companies were proposing to substitute, clearly disturbed by the consequences of a proportionality or “commercially significant” rule. It’s not clear they responded to Don Verrilli’s (petitioners’) argument, joined by the Acting Solicitor General, that these were “business models built on infringement.” They had probing questions for Richard Taranto (Morpheus and Streamcast) too, particularly on alleged willful blindness and on how the court should distinguish what “current” conduct was before it from the past conduct that hadn’t yet been subject of summary judgment rulings below.
With bated breath…
I can’t compare with Nick, Beatrice, and Kragen, who arrived around 2:30 p.m. yesterday to capture the first seats in the public line for entry to the Supreme Court, but I joined them around 11 p.m., and helped kick off the bar entrance line around 3 a.m. with the EFF gang of Kurt, Matt, Gwen, and Shari. After a DMZ, most of the line behind us was RIAA and MPAA lawyers.
Though they’re vigorous opponents in court, the entertainment company lawyers were friendly line-sharers, helping us to save our places in line, and even fortifying us with Krispy Kreme. It’s a good thing we were there early, because the line later swelled to more than 150, of whom fewer than 50 bar members got into the courthouse itself.
Next Friday, I’ll be talking about music and the law from a different angle at Harvard’s Berkman Center’s second Signal or Noise? conference. The first helped kick off the study of music and the law five years ago. Join us to see what we’ve learned (and not yet learned) since.
Thanks to Southwest Airlines for excellent service. Even when misinformation from their codeshare partners threatened my plans, Southwest made sure I got to DC on time.
I’m sitting in front of the Supreme Court of the United States at midnight, with a crowd of about 50 lined up already for spots at tomorrow’s MGM v. Grokster argument. I’ve done this before for concerts (OK, opera), but never for a legal argument. It’s great to see the copyfight generating this much interest (and great that there’s open wifi in front of SCOTUS).
Mark Cuban is a content owner. A content owner who understands that “bits are bits” and wants the customer to get those bits “in the way the customer wants to receive” them. A content owner who’s exploring a range of digital content creation and distribution options. That’s why, he says, he’s funding the defense of MGM v. Grokster at the Supreme Court.
It won’t be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them.
That’s what is ahead of us if Grokster loses.
With Cuban’s help, we hope content owners and technology companies won’t have to face that future. Thanks Mark!