With the controversy surrounding the International Telecommunications Union (a UN treaty organization) just recently subsiding, it is time to take a look at Internet governance from a different perspective. We all know that laws and legal principles differ among countries. What many do not realize is that these laws — most completely non-tech oriented — are having a massive and negative impact on Internet innovation.
In America we proudly have the First Amendment, the fair use doctrine and the DMCA. The first limits the reach of liability for libel (defamation) at least to cases, for non-celebrities, where a publisher is at fault (i.e., negligent). Section 230 of the last allows ISPs, websites and Internet hosts a legal safe harbor from copyright and other legal offenses resulting from user-generated content or any other content that a customer, client or some third-party has published. These landmark legal regimes are hallowed in the U.S., for instance used to strike down overreaching Web censorship efforts by federal government. Fair use, in turn, permits non-commercial or transformative use of a portion of copyrighted content. Think Google image search thumbnails or blockquotes from a news source in someone’s blog or a movie clip in a televised review.
Things are very different elsewhere. Three cases in point.
- In Germany and perhaps soon other EU nations, search engines that display snippets of indexed Web pages in response to user queries are now by statute responsible for paying copyright royalties to the original publisher, regardless of whether the content owner charges for its stories with a paywall.
- In France, Italy, Ireland, Australia and now Japan, courts permit individuals to recover for libel based on autocomplete and search results that return incorrect or harmful personal information, but against the search provider, not the writer or content publisher.
- A Denmark court ruled deep linking illegal, as did Germany, leading some to believe that linking to a website other than the front page was illegal throughout Europe. While the German courts overturned that decision, it was Agence France Presse (AFP) which eventually sued Google News for brazenly daring to send search traffic to the organization’s news articles.
These results are foreign, literally, to U.S. jurisprudence. But they also illustrate a vitally important point. Legal regimes that have nothing to do with the Web are being applied in ways which upset existing services users take for granted and that threaten to impede future innovation. Linking is inherent in HTML and represents the essence of the Web. No one in America would argue seriously today that a hypertext URL link represents copyright violation. Search “autocomplete,” in turn, is not a creative activity, but a very useful technical advancement; it applies computer algorithms based on past searches to predict what the current user wants to see, speeding the retrieval of information from the Web.
Permitting autocomplete defamation suits against Google or Bing because other Web users have searched for information that damages an individual’s reputation is alien to our American way of thinking. It’s censoring completely accurate factual information about stuff on the Web, although that stuff may itself be factually wrong. The augmentation of liability is also just plain silly, because both autocomplete queries and search results themselves merely return an indexed link to something someone else has posted on the Web.
Continue reading Defamation, Autocomplete And Search Royalties: How Not To Govern the Internet
This is the brief I just prepared for the Consumer Federation of America to the U.S. Supreme Court on the issue of whether the so-called Red Lion doctrine of First Amendment regulation of broadcasters should be re-examined. My favorite passage is:
[T]he presumption of invalidity inherent in petitioners’ argument is flawed. Broadcasters do not remain “singularly constrained,” Pet. at 16, on the ground that there were few speakers 45 years ago. When Red Lion was decided there were hundreds more newspapers in America, half a dozen or more in major cities like New York, national, weekly news and cultural magazines (Life, Look, etc.) and many other sources of information and entertainment that are no longer available in today’s marketplace. Therefore, the “undeniably large increase in the number of broadcast stations and other media outlets” on which the D.C. Circuit and petitioners rely, id. at 18, is immaterial to the economic regulation of broadcast licensees unless — as petitioners dare not suggest, because it is untrue — the increase has lessened the technical need for governmental entry and interference regulation.
Whether there are three or six or ten television stations in a local market, however, does not at all mean there is enough spectrum to accommodate everyone who would like to use the airwaves. What some judges have called “the indefensible notion of spectrum scarcity,” Action For Children?’s Television v. FCC, 105 F.3d 723, 724 n.2 (D.C. Cir. 1997) (Edwards, J., dissenting), is therefore totally true and completely defensible.
Yesterday a federal district judge ruled the “National Day of Prayer” unconstitutional. But observing such a commemorative occasion involved no compulsion, discrimination or penalty on or against any observer of any religious doctrine. So what’s the rub?
Lots of Americans realize the First Amendment protects freedom of religion. It actually has two parts. The 1st guarantees the “free exercise” of religious beliefs. The 2nd prohibits any “establishment of religion” by the government. It’s the second clause — known unoriginally as the “establishment clause” — that is in play when debating invocations at public events, schools and the like.
“A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant, or undeserving of dissemination,” she said. “Rather it is part of the effort to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.”
Personally I think there’s a difference between making all elementary school students recite the Lord’s Prayer and ordaining a national day, really just an honorific, to recognize the role of prayer in American society. The former was declared unconstitutional in the early 1960s and few citizens today would object to that significant step toward religious tolerance and diversity. But as a constitutional matter, it is simply not the case that the US Constitution’s protections for religious freedom mean the government can support or promote either specific denominations (e.g., Anglicans over Baptists) or movements (e.g., Christianity over all the rest). At the margin, things like a National Prayer Day have little relevance except to those who stand on principle and refuse to compromise, which in US constitutional jurisprudence has always been a discrete and insular minority.
There has been a lot of talk, debate and criticism — leveled at Google, Microsoft and other major Internet content providers — about censorship of Internet content by the government of China. Google v. China: Principled, Brave, or Business As Usual? [Huffington Post]. The assumption most of these pundits make is that mandatory filtering and blocking of the Internet is a policy embraced only by repressive or authoritarian regimes. That’s not at all correct.
Iran's Green Revolution
Western nations are just as bad; worse in some ways. “Enemies of the Internet”: Not Just For Dictators Anymore [ReadWriteWeb]. As a few for instances:
Reporters Without Borders recently released a penetrating study of government Internet censorship, titled “Enemies of the Internet 2010.” It cogently observes:
Western democracies are not immune from the Net regulation trend. In the name of the fight against child pornography or the theft of intellectual property, laws and decrees have been adopted, or are being deliberated, notably in Australia, France, Italy and Great Britain. On a global scale, the Anti-Counterfeiting Trade Agreement (ACTA), whose aim is to fight counterfeiting, is being negotiated behind closed doors, without consulting NGOs and civil society. It could possibly introduce potentially liberticidal measures such as the option to implement a filtering system without a court decision.
So Internet censorship is alive and well in the world’s “progressive” industrialized nations. The liberating technology of the Web is under assault because, as in 2009’s “green revolution” in Iran via Twitter, it can catalyze viral growth in political opposition and tends to harbor folks, like pedophiles, who’s activities are politically disfavored (even repulsive). No one lobbies for child pornographers, after all.
Just do not operate under the misimpression that it is only Saudi Arabia, Syria, North Korea, Vietnam, China and the like that censor Internet content. Almost all governments do it. The United States, with its constitutional First Amendment protection for free speech, and the Scandinavian countries — where the Pirate Party was victorious in Swedish parliamentary elections — which have classified Internet access as a fundamental human right, are the exceptions. This blogger, for one, hopes the exception swallows the rule. One can always hope.