DISQUS

While a TPM is not a contract, I think it could be looked at as a technical measure to enforce a contract. I think that Patrick Ross's article goes to the fear that a consumer, thinking he or she has fair use rights (rightly or wrongly), will circumvent the TPM in a way that abrogates the contract that the TPM was designed to enforce.

I think the main issue is whether we want to proceed down the road of treating copyright law as a default protection provided by government that can be made either less or more restrictive through contract. Creative Commons provides flexible, less restrictive ways for copyright owners to license their content. Should we allow more restrictive arrangements through TPM? I think so, but consumer awareness and expectation will be the defining market response as to whether a TPM succeeds (with or without a DMCA). Maybe this means that like computer software, all digital media will have shrinkwrap licenses in which purchase equals acceptance, and circumvention of DRM means breach of contract.

I like this quote from the page you linked: "nearly 50% of bloggers see the activity as a form of therapy."

So we here at TLF need to get in touch with our inner blog - the more we blog, the less need for Zoloft.

Thanks for your comment, enigma_foundry. Congress utilizes statutory damages in legislation when it thinks actual damages would be too hard to calculate. Statutory damages also serve as a deterrent effect (higher damages apply for "willful" copyright infringement). Is all this necessary in copyright today?

In the case of digital copyright, statutory damages can admittedly become very high, very fast. Remember mp3.com? But with the advent of legal downloading, and with all the economic studies conducted to place a value on the amount of $ the recording industry has lost (or not last, depending on the study), perhaps actual damages or lost profits would be easy to calculate, negating the need for statutory damages.

I'm going to hold true to my libertarian convictions and say I'm against this FCC order. But you don't need to be a libertarian to understand that this was a knee-jerk reaction by the FCC. I think it sets a bad precedent for future technologies, because it is of a mindset that once a service begins to establish a sizable customer base it is ripe for burdensome regulations. Such a belief ignores the reasons why such services are popular in the first place. Low cost and new features exist because the market, not government, was the driver of the new service. Instead of forcing a one-size-fits-all emergency contact system onto each new technology, let's revisit how communications providers can achieve social goals like 911 in ways that provide consumers with options and the ability to decide for themselves what is important.

Yet the FCC told consumers that they have no option but to have 911 service bundled with VoIP. 911 is an important service, but it should not be a legal prerequisite for offering new communications services. Any government action that mandates the inclusion of features from legacy networks threatens the growth of new services. The FCC, while trying to help current VoIP consumers, may be hindering the future development of new, more advanced VoIP emergency service solutions.

And the pathetic display of "victims" of VoIP not having 911...the rhetoric of the statements from each FCC Commissioner make it seem that VoIP itself caused that poor mother's child to stop breathing, or that Texas couple to be held at gunpoint. So now any smart entrepreneur that comes up with a great new way to communicate will be blamed for not offering legacy services? There are those people that look at a new technology and say "hey, that's great, look at the neat things that I can do with it at such a great price" and those that say "but it can't do that, or that, and what about this social obligation?" The market could've and should've worked this out.

Chris - thank you for raising some interesting points. The answer to why contract is not good enough for securing "fair use" rights for criticism, etc. well, the short answer is the free speech rights of the U.S. Constitution. Usually courts express the free speech principle under the language of the Copyright & Patent Clause iteslf: "promote the Progress of Science and Useful Arts." Promotion obviously entails some limited copying to debate the "marketplace of ideas." As copyright is a creation of government, to restrict some copying would be to restrict free speech.

I'll let the fact that "iPod" is fast entering the lexicon of generic trademarks (like Xerox or Band-Aid) speak for itself. I think iTunes will be looked upon as a positive revolutionary force in technology history.

Your point about subsets of purchasers - the libraries, etc. - will they not have the same bargaining power as the consuming public at large? No, I don't think so. Libraries and other educational institutions will always have privileged access to content - it's good from a business goodwill perspective. And as for copying after the expiration of the copyright, DRM should only secure copyrightable portions of public domain works - (indeed, not that this is the preferable solution, but it it is legal to hack DRM to gain access to public domain works, is it not)?

Ed - Yes, DRM is a technological enforcement measure of some limit on usage. I apologize for any sloppy short-hand in this blog entry. It is the the limitations on usage that I want examined in terms of contract, not property law. And I want DRM to be the technological enforcer, the self-help, of the contract. And I think that the law should encourage this self-help.

If DRM were to be the contract itself, then I would agree that the DMCA would be a problem in any "meeting of the minds" needed for a binding legal contract.

I share Jessamyn's concerns about not wanting to "screw" rural America. But I don't understand how if we stopped taking taxpayer money from those that live in urban environments and giving it to people in rural areas, that this somehow is dissing rural residents.

The disconnect here is one that affects all government welfare programs - it breeds a sense of entitlement. By removing an entitlement program, we're not extracting a cost from the receiver of the entitlement, we're just stopping the benefit. We need to dismantle universal service taxes entirely, or risk the sort of mission creep of any government program - "basic services" become high-speed broadband, cable TV, etc.

At the very least, we should draw a line right now and say that subsidies will only go to basic telephone service so that one can call 911 in an emergency. Any service above and beyond a dial tone may very well be needed to stay competitive in the workforce, etc. (such as internet access) but is not the kind of service that government should subsidize. After all, we need cars to get to work and nice clothes to look professional at an interview and a host of other things to find and keep work but we don't have a universal service tax on these items and a subsidy program to distribute it.

Cell phone service is rapidly approaching the price of basic wireline connectivity, at least in urban and suburban areas. And wireless is the technology of choice in developing countries. Which highlights the problem with our current universal service fund - for too long it has been locked-in to one technology, wires, due to the regulatory capture of the USAC by the phone companies that receive the subsidy (remember - it's companies that receive the universal service subsidy that then pass on the savings to consumers). This is why it's unwise for any kind of "corporate welfare" - even that which portends to be doing a good social service - because it's a roundabout means to achieving an end result. Absent this specific subsidy program, we'd have more competition in rural America for communications technology then we do right now (interestingly, it's the $100 phone bill that would drive entrepreneurs and other smart people to thinking about ways to reduce this amount, and we'd have new technologies and ways of communicating entering the market - but subsidies that keep prices artifically low remove this incentive).

Frankly, I'd prefer to have people be more mobile with where they live so that they can change life's "station." But I honestly don't see how having a special tax on phone bills that goes to companies that serve rural customers (some poor, most not-so-poor, and some well-off) helps.

Of course the underlying problem here is the "public interest" standard and the network's continuous citation thereof in favor of "free" spectrum. If the major networks know that there are major strings attached that will hurt their business, perhaps they will be more inclined to do without government handouts. Or, will they just cite the disparities between subscriber-based media and "free" media and favor censorship of satellite and cable?

Brand X is less about telecom and is more of a case concerning the doctrine of stare decisis, or the practice of following precedent.

Sometimes a judicial outcome can be summed up by the aphorism "hard cases make bad law." At other times, perhaps, it is bad law that makes hard cases. Brand X Internet Services v. FCC is an example of an easy case making bad policy.

Here we're talking about horizontal stare decisis. Simply put, the Court ruled that cable modem service is a form of telecommunications service to be consistent with its own ruling in a prior case. The previous case involved a suit against the city of Portland, Oregon, whereby the city had placed forced access conditions on the sale of a cable franchise. The court held that cable modem service had telecommunications service components. As such, the city of Portland could not regulate the cable modem services -- only the FCC had the legal authority to do so.

So should a court remain consistent for consistency-sake, recognizing that there is a value to predictability in the law? Or should the court be more policy results-oriented? See my comments from last October at http://cei.org/gencon/016,03716.cfm