The Volokh Conspiracy

A gold rush.  A wide-open anything-goes frontier.  Prostitution.  Gambling.  Drugs.  Lax law enforcement. Vigilantism and mob justice.  Petty scammers at every turn.

The subject?  Not the dusty Wild West of American history, but instead the Internet of just 10 years ago.

In the last decade, the Internet has gone from open frontier populated by a select few, to a regular part of life for a majority of Americans and Europeans.   Predictably, the change from sparse frontier to societal integration has caused rather significant cultural clashes between early adopters and latecomers.  Disputes rage about whether we should view and regulate the Internet like an open frontier or like the rest of “offline” society.

This week, I will try to answer that question by exploring the similarities between the Internet and the original Wild West frontier.  I’ll examine what the close of the Wild West frontier teaches us about the next 10 years of the Internet.  As an example, I’ll focus on what the frontier experience tells us about online privacy and laws like Section 230 of the Communications Decency Act.  On Friday, I also hope to take a quick look at the broad impact of the Internet on the future of privac.

I look forward to discussing these issues with readers; this site has managed to consistently attract some of the brightest and most civilized commenters online.  I’m happy to take questions, comments, and suggestions.  And thank you, Eugene, for the kind introduction; I’m proud to be able to contribute to such an important community.

The Internet as Frontier Experience

The history of the Internet echoes the history of the American West.  We go into much greater detail in the book (Amazon), but even at a glance the parallels between Wild West 1.0 (1800s America) and Wild West 2.0 (the Internet of the 1990s and early 2000s) are clear:

• In the case of the original Wild West, a few early pioneers cleared the way for the (literal) gold rush of the 1840s.  Online, the pioneers of ARPANET cleared the way for the NASDAQ gold rush of the late 1990s.  Millions of dollars were made (and lost) in just a few years.
• The early Internet and Wild West were both populated only by a small, self-selected group of pioneers who sought out adventure and fortune.
• Both started with dramatically gender-skewed populations, with more than five men for every woman at times–and as the frontier closed the gender ratio drifted back toward 50/50.
• Both the Internet and the original Wild West developed their own culture and manners.  A sense of self-reliance and libertarian beliefs dominated in both places—a sense that any group could make their own fortune if they simply pulled hard enough on their bootstraps.  In both places, the freedom to experiment was considered important enough to justify discarding many old laws and morals.
• Even the forms of vice on both frontiers are similar: sex, drugs, and gambling.  In the Old West, prostitution was readily available, despite some nominal prohibitions.  Online it was possible to find prostitution openly advertised on relatively mainstream sites like Craigslist.  Gambling halls are rightfully a western movie cliché, and the early 2000s boom in Texas Hold ‘Em poker was largely attributed to online gambling.  Even the drug of choice has not changed in 150 years—the old west was notorious for the availability of opium, and in the early days of eBay it was easy to buy opium for recreational use.

The Moment of Transition from Open Frontier to Integrated Part of Society

In the Old West, the lawless days of the “Wild” West frontier eventually came to an end.  As eastern society caught up to the original Old West pioneers, a culture clash ensued.  The gambling halls were shut down, prostitution was gradually regulated away in all but one state, and vigilantism was slowly replaced by formal law enforcement.  Old-timers bemoaned the loss of the wild frontier; newcomers welcomed the stability of formal laws and familiar law enforcement.

Online, we are in the midst of the same transition from lawless frontier to integration with society.  It has become routine to talk about government regulation of the Internet—ranging from “net neutrality” to Facebook privacy.

Looking again at vice, the government has started to shut down the most serious sex, drugs, and gambling.  To take just a handful of examples, online gambling in the United States was curtailed in 2006 when the CEO of online gambling site BetOnSports was arrested as he changed planes in Texas, and the SAFE Port Act effectively banned online gambling by U.S. residents.   The online sale of narcotics was deterred in 2003 when the DOJ cracked down on eBay opium sales.  And online prostitution went at least somewhat underground in 2008 when 40 state attorneys general demanded that Craigslist remove its “erotic services” section (the practical effect of this move has been limited, but there are already renewed calls for further regulation).

This transition in the way the Internet is viewed and regulated–from a place frequented only by self-selected pioneers to part of everyday life for almost all of the West–creates a natural time to reexamine existing laws and consider whether they still fit the new reality of the Internet.  Different countries have had the chance to experiment with different legal regimes online, and we’ve been able to watch how law shaped the growth of the Internet.

In particular, it’s a time to consider the difference between the legal regimes of open and closed frontiers.   Open frontiers are often characterized by self-reliance, self-defense, exploration of new norms, and informal law enforcement.  But the lax regulation of the Internet often comes at a great price: spam, scams, fraudsters, online lynch mobs, and more.  Closed frontiers are often characterized by increasing similarity to the “old” society (often formed by combining elements of old and new), increasing formality, and active law enforcement.

We’re at a tipping point for the Internet.  It started as a classic open frontier, with no almost no law and complete freedom to experiment. But society has caught up, and is demanding changes to make the Internet more like the rest of the world.  For scholars and activists, the question is simple: how to keep the best parts of the Internet while while successfully integrating with offline society?

Ultimately, the lesson from the original Wild West is clear: in the end, the Internet will not stay wild forever.  Instead, “offline” society and the Internet will meet somewhere in the middle, each taking something from the other.  Now is the time to consider how we can best shape the future of the Internet using what we’ve learned by watching the close of other frontiers.

Tomorrow: Why Section 230 of the Communications Decency Act of 1996 doesn’t work in 2010.

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

I have hesitated to jump into the “Is the Internet making us stupid?” debate, because it seems, well, stupid – the debate, that is. (Indeed, the attention being paid to the debate is itself evidence that maybe the Internet is making us stupid . . .). It seems stupid because the underlying premises are so obvious as to be hardly worth arguing about. Is the Internet changing the way we think? Well, duh. Of course it is, in any number of ways. All significant changes in the means we use to communicate with our fellow human beings change the way we think – the book did, the telephone did, radio did, and TV did, and the Internet did/is/will. [Clay Shirky makes this point quite well in his essay here]. It’s interesting and amusing, I suppose, to sit around and catalogue the various ways in which that is true (though personally I don’t find that kind of navel-gazing terribly interesting).

Are those changes making us “stupider”? Depends what you mean — obvious point #2. Last I looked, there was no objective and universal definition of “smart,” (or “stupid”), other than the ability to navigate through and understand the world in which you live; as the world changes, smart and stupid necessarily change with it. Every one of those earlier shifts in communications technologies was accompanied by claims that it would make us all stupider (interestingly, the person making the claim rarely asserts that he or she has been made stupid; it’s all about the children — oh, our poor children!! How stupid they are becoming!! They could be studying Horace’s Odes instead of wasting so much of their time on the telephone!!). Books made people much stupider — if you define smart to include the ability to carry on an oral tradition of literature (and of course, many people did define it that way, because that ability was of deep importance in a world without books). If “the ability to navigate through and understand the world of 1950″ is the definition of “smart,” then yes, the Internet is making us stupider. But it seems awfully silly to me to suggest that the Internet is making us stupider in our interactions with the world that includes the Internet in it. I must be missing something here, because people seem to think there’s some profound kernal lurking in all this, but I just don’t see it.

If you’re interested, Jerry Brito over at SurprisinglyFree.com, has been doing a series of interviews with legal thinkers and entrepreneurs focusing on a variety of tech issues, and he’s posted a podcast of an interview he did with me a couple of weeks ago on Net governance issues - it turned out pretty well, I think, and those of you who find those issues of interest might find it useful and/or thought-provoking.

Bernard Kouchner, the Foreign Minister of France and a founder of Doctors Without Borders, has an interesting but somewhat unsettling op-ed in today’s New York Times. Entitled “The Battle for the Internet,” it’s a call to arms in

the battle of ideas . . . between the advocates of a universal and open Internet — based on freedom of expression, tolerance and respect for privacy — against those who want to transform the Internet into a multitude of closed-off spaces that serve the purposes of repressive regimes, propaganda and fanaticism.

It’s a subject dear to my heart, as you probably know; I, too, believe that preserving what the Center for Democracy and Technology aptly calls the “free, open, and innovative Internet” is of the deepest importance for the future — literally — of human society on the planet. I like where Kouchner’s coming from:

The Internet is above all the most fantastic means of breaking down the walls that close us off from one another. For the oppressed peoples of the world, the Internet provides power beyond their wildest hopes. It is increasingly difficult to hide a public protest, an act of repression or a violation of human rights. In authoritarian and repressive countries, mobile telephones and the Internet have given citizens a critical means of expression, despite all the restrictions.

He’s right about that – at least, I agree wholeheartedly. (Libertarian blogger Adam Thierer called my book about the Net “an extended love letter to both cyberspace and Jefferson,” and though I’m not entirely sure he meant it as one, I took it as a compliment. Though we academics are supposed to take the posture of ironic detachment from pretty much everything we encounter, I happen to think, and I’m happy to say to whomever is listening, that the Net is an astonishing achievement with the potential, only partly but tantalizingly realized to date, to become a true milestone in the history of human communication and a possibly unstoppable force for the spread of liberty and freedom around the globe. I realize (see Evgeny Morozov’s rather peevish piece in Foreign Policy, denying that the Net has been (or can be) a force for good in the world) that it has not instantly transformed everything it touches into the Earthly Paradise – but that’s a pretty high standard to hold it to.

And I’m certainly with him when he writes:

However, the number of countries that censor the Internet and monitor Web users is increasing at an alarming rate. The Internet can be a formidable intelligence-gathering tool for spotting potential dissidents. Some regimes are already acquiring increasingly sophisticated surveillance technology. If all of those who are attached to human rights and democracy refused to compromise their principles and used the Internet to defend freedom of expression, this kind of repression would be much more difficult.

The Net is under siege, and will require some serious work to keep it free and open. But somehow, I can’t work up much enthusiasm for Kouchner’s call to action:

Multilateral institutions like the Council of Europe, and nongovernmental organizations like Reporters Without Borders, along with thousands of individuals around the world, have made a strong commitment to these issues. No fewer than 180 countries meeting for the World Summit on the Information Society have acknowledged that the Universal Declaration of Human Rights applies fully to the Internet, especially Article 19, which establishes freedom of expression and opinion. And yet, some 50 countries fail to live up to their commitments.

We should create an international instrument for monitoring such commitments and for calling governments to task when they fail to live up to them. We should provide support to cyber-dissidents — the same support as other victims of political repression. We should also discuss the wisdom of adopting a code of conduct regarding the export of technologies for censoring the Internet and tracking Web users.

These issues, along with others, like the protection of personal data, should be addressed within a framework that brings together government, civil society and international experts.

It sounds a bit, to my ears, too much like asking the UN to run the Net (which, as readers of my work know, we tried once before, with notable lack of success).

Kouchner also makes me nervous when he begins his list of what the “enemies of the Internet” are up to this way:

Extremist, racist and defamatory Web sites and blogs disseminate odious opinions in real time. They have made the Internet a weapon of war and hate. . . . Violent movements spread propaganda and false information.

There are many threats out there to the free and open Internet, but I don’t regard “extremist, racist, and defamatory Web sites,” or “blogs disseminating odious opinions,” as among them. Although Kouchner has ringing words for freedom of expression — “Freedom of expression, said Voltaire, ‘is the foundation of all other freedoms.’ Without it, there are no ‘free nations.’” — somehow I think that his agenda is to the contrary. Freedom of expression without “extremist, racist, and defamatory web sites” and “odious opinions” is not freedom of expression — not in my book, anyway. Something tells me that when the “World Summit on the Information Society” gets its hands on the Net, true freedom of expression on the Net will not be high on their list of preferred outcomes.

So, on the one hand, I’m glad Kouchner has sounded the alarm; he ends his piece by declaring that “the defense of fundamental freedoms and human rights must be the priority for governance of the Internet. It is everyone’s business” and I think he’s right — importantly right — about that. But I think we need — rather desperately — alternate governance models to deal with this problem, alternate models that move in a direction away from the UN and towards something that better reflects the wishes and desires of the world’s people, not the world’s governments. It’s not going to be easy, though I’m working on it . . .

Yesterday, as you are probably aware, the DC Circuit, in a unanimous opinion, held that the FCC’s action in 2008 — ordering an Internet Service Provider (Comcast) to stop interfering with its customers’ use of peer-to-peer networking applications — was ultra vires and unsupported by any statutory grant of authority to the agency. The decision has been greeted with a veritable explosion of commentary — in the NY Times, the Washington Post, and all over the blogosphere — e.g., here, here, and here – mostly in connection with questions about the implications of the decision for the FCC’s overall regulation of Internet services and, more specifically, for it’s announced intention to formulate “net neutrality” (or “open Internet”) rules.

Now, telecommunications law is, generally speaking, not for the faint of heart. The Communications Act, and its 1996 successor the Telecomm Reform Act of 1996, set forth as complicated a statutory regime as can be imagined — added on to which are the numerous FCC interpretive actions (sometimes contradictory of one another), court interpretations of agency interpretations, and on and on. I’m no specialist in the area, but I know enough about it to know what I know and what I don’t know, and I have enough friends who are specialists to understand the broad outlines, in most cases, of what people are fighting about.

Fortunately, the opinion in this case — authored by Judge David Tatel — is a particular terrific example of judicial exposition. It’s not an easy read, to be sure, but that’s because it’s complicated stuff; but Judge Tatel does a wonderful job of making the complicated as simple as possible (heeding Einstein’s famous admonition — make things as simple as possible, but no simpler). My guess is that anyone with an interest (but no background) in the area could sit down with Tatel’s opinion and get through to the end with a pretty decent understanding of what the court is saying — a significant achievement in this area of the law.

What is the court saying? Here’s my take on that, and what it means for net neutrality regulation. The 2008 FCC Order that was under review ruled that Comcast had “significantly impeded consumers’ ability to access the content, and use the applications, of their choice” and that its method of bandwidth management “contravened federal policy.” Comcast had, by the time the Order was issued, already abandoned its discriminatory practices against peer-to-peer users, so the Order merely required it to disclose certain details of its network management policies and the company’s progress towards implementing those policies. The question presented here was: What provision of law gives the FCC the authority to regulate Comcast’s network management practices?

There are two possible sources of express statutory authority in the 1934 Communications Act: Title II (which gives the FCC authority to regulate “telecommunications services”) and Title VI (authority over “cable services”). The FCC, however, relied on neither of those to support its actions here — in (large) part probably because it had earlier taken the position that cable Internet services are neither “telecommunications services” OR “cable services,” but rather “information services” subject to much less stringent regulatory review. [The FCC's earlier decision was upheld by the Supreme Court in the 2005 Brand X decision]. Instead, the agency relied on its “ancilllary jurisdiction,” set forth in sec. 4(i) of the Communications Act: “The Commission may perform any and all acts, . . . and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”

The bottom line in the court’s decision is that this “ancillary jurisdiction” has to be truly “ancillary” to be lawful – that is, that the agency has to point to some express authority in the statute to which its actions are indeed “ancillary” in order to have jurisdiction to proceed, and that it was unable to do so here (in light of its earlier and still-binding decision to cast Internet service as niether a “telecommunications” nor a “cable” service).

So what does this portend for net neutrality rules? Can the Commission proceed with its rulemaking efforts along those lines, or does it need some additional statutory authorization from Congress before it can do so? That’s the million dollar question, and I’m not sure that anyone can say for sure at this point what the answer is. There are (at least) two good arguments the agency might rely on to support that rulemaking. First, it can change its mind about the classification of Internet services. If Internet service were classified as a “telecomm service,” there would be no doubts about the FCC’s regulatory authority. The Supreme Court has just recently endorsed the view that the agency can change its mind in matters such as this (FCC v. Fox), as long as it does so in a reasonable manner and explains why it has done so. The other possibilities are discussed in part IV(B) of the Court’s opinion. There are a number of statutory provisions that might well have supported the FCC’s actions here: sec. 706 (which provides that the Commission “shall encourage the depoloyment on a reasonable and timely basis of advanced telecommunications capability to all Americans . . .”), sec. 201(b) (which allows the commission to regulate common carrier charges, which plausibly could have been affected by Comcast’s actions insofar as they might have shifted traffic to other carriers). But in both cases, the Court found that the FCC had waived those arguments by not presenting them in the Comcast Order itself. That, of course, may provide an opening, in any future proceeding, for the Commission to be a little more careful about finding, citing, and explaining its authority before acting, and might provide the agency a way out of this apparent jurisdictional conundrum

I’ve been remiss, as the VC’s (sort-of) copyright/Internet law guy, in not commenting previously about a truly outrageous bit of executive branch over-reaching on Hollywood’s behalf. I am referring to the ongoing negotiations about ACTA, the multilateral “Anti-Counterfeiting Trade Agreement.” [See Jonathan Adler's posting earlier today about ACTA here] The US Trade Representative’s office has been conducting these negotiations entirely in secret (on some ridiculous trumped-up ‘national security’ rationale) for several years now on this Agreement; a current draft was recently leaked to the press, and it confirms many peoples’ worst fears. Here’s my attempt at a summary of what’s going on — if you’re interested in more details (and I hope you are), I’ve listed at the end of this posting some excellent sources of further information.

ACTA’s goal is to tighten up global intellectual property enforcement. Though it’s labeled an “anti-counterfeiting” agreement, which might make you think that it’s about international trade in counterfeit goods (fake Louis Vuitton handbags, unauthorized Viagra tablets, and the like), it covers much, much more than this; what it is really about is the tighter enforcement of copyright law on the Net. It is outrageous in substance, and in process.

Process first. There are many divergent views, of course, about what should be done about international copyright law and copyright enforcement in the Internet age. Some reasonable people believe that copyright needs strengthening; other reasonable people (like me) disagree. But that’s just the normal give-and-take of debate over a contentious issue, and it can only (and should only) be resolved the way such debates are always resolved in a democratic society — i.e., openly and with full public comment and discussion. It’s hard to know, then, which is more appalling: the fact that the Obama Administration has conducted the ACTA negotiations in secret, or that it has indicated that it plans to adopt the final Agreement as an “Executive Order,” one that does not require submission to or ratification by the Senate (or any Congressional action whatsoever) to become effective.

I cannot imagine what justifications the Administration might proffer for this affront to our constitutional law-making schemes. [Larry Lessig and Jack Goldsmith have an op-ed in today's Washington Post about this, which was the subject of Jonathan's earlier posting]. Those of us who follow copyright law have been here before, and we know what’s coming: the President signs the Agreement, and then changes to US Copyright law are introduced into the Congress and supporters will say something to the effect that the changes are required in order to bring our law into harmony with international norms and with our international obligations. It happened during the run-up to the 1998 Digital Millennium Copyright Act, and it will, I promise you, happen again here. It amounts, in effect, to presidential law-making, and if it isn’t (as Lessig and Goldsmith argue) unconstitutional, it damn well should be.

None of this would be of too much concern were the Agreement — as far as we can tell, given the veil of secrecy the Administration has thrown around it — full of substantively bad ideas and lousy law. Margot Kaminsky, over on Balkinization, has a good summary of the major points of the Agreement. Among them:

1) Paragraphs 2 and 3 mandate a statutory damages provision in civil copyright law, as under US law — so that copyright holders, even without the need to demonstrate any measurable harm whatsoever, can recover awards thousands of times greater than any possible damage they may have suffered.

2) ACTA Art. 2.5 mandates an especially swift response from courts in copyright infringement cases — nice for Hollywood, not so nice for everyone else.

3) IP Enforcement at the Border. The current draft contains a number of provisions that will allow – and in some cases mandate — more vigorous searching (of laptops, iPods, etc.) and seizing of devices containing copyright infringing material. The de minimis threshold for the quantity of goods that can be seized at the border, as set forthin the the TRIPS Agreement (the “Trade-Related Intellectual Property” treaty that became part of the GATT Trade Agreement) will be lowered; a potentially injured party may apply for the suspension of the release of potentially infringing goods for one year from the date of application; the Agreement also permits Ex Officio action at border crossing (i.e., seizure of goods by customs officials without any complaint being filed); mandating the release of “personally identifying information” of suspected infringers to copyright holders, even without any finding of actual infringement.

4) Expanding the definition of Criminal Copyright Infringement. ACTA expands the international definition of criminal copyright infringement to explicitly include Internet “piracy” done for personal benefit alone. Under TRIPS, countries must hold a person to have committed an act of criminal copyright infringement if he or she has willfully infringed on a “commercial scale”, which was understood to mean involving sale to others. ACTA expands the international definition of “commercial scale” to include “private financial gain,” and explicitly includes “significant willful infringements that have no direct or indirect motivation of financial gain.” Insofar as it is VIRTUALLY IMPOSSIBLE TO DO ANYTHING ON THE INTERNET WITHOUT INFRINGING SOMEONE’S COPYRIGHT, this will play serious havoc with the international legal system. Oh yes — and it mandates that “penalties that include actual sentences of imprisonment as well as monetary fines.”

5) ACTA member countries will be required to provide for third-party (Internet Intermediary) liability. This is not required by any of the major international IP treaties – not by TRIPS, nor the WIPO Copyright and WIPO Performances and Phonograms Treaty. However, US copyright owners have long sought this. (For instance, see page 19 of the Industry Functional Advisory Committee report on the 2003 US- Singapore Free Trade Agreement noting the need for introducing a system of ISP liability). (Previously available at http://www.ustr.gov/new/fta/Singapore/advisor_reports.htm.)

Second and more importantly, ACTA will include some limitations on Internet Intermediary liability. Many ACTA negotiating countries already have these regimes in place: the US, EU, Australia, Japan, South Korea. To get the benefit of the ACTA safe harbors, Internet intermediaries will need to follow notice and takedown regimes, and put in place policies to deter unauthorized storage and transmission of allegedly copyright infringing content. However, contrary to current US law and practice, the US text apparently conditions the safe harbors on Internet intermediaries adopting a Graduated Response or Three Strikes policy — disabling Internet access for anyone found to have been infringing three times (whether or not that was a judicial finding or merely in an administrative proceeding)

There’s more (see below). But even this summary makes it clear that, once again (see Clinton Administration) the Democratic Party has caved in to Hollywood’s demands regarding intellectual property enforcement. As David Fewer of the Canadian Internet Policy and Public Interest Clinic and the University of Ottawa noted, “if Hollywood could order intellectual property laws for Christmas what would they look like? This is pretty close.”

It’s time to fight back. There are some wonderful resources out there coordinating what one hopes will become a global effort to beat this monster back. Here are some of the better sites I’ve found:

AU’s Program on Information Justice and Intellectual Property has a major collection of papers, reports, and other ACTA-related items here

Michael Geist, up in Canada, has been following the ACTA debates for some time and has a number of useful contributions on his blog, e.g. here and here

Public Knowledge’s ACTA Page

Electronic Frontier Foundation’s ACTA page

Harvard’s Jack Goldsmith and Lawrence Lessig have an interesting op-ed in today’s Washington Post arguing that it woudl be constitutionally dubious for President Obama to adopt the Anti-Counterfeiting Trade Agreement (ACTA) as an executive agreement. Here’s a taste:

The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president’s own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

Daniel Henninger, over on WSJ.com, has some interesting observations on “the scrum inside the [Citizens United] decision between Justices Stevens and Scalia, over the status of corporations in America.” I think he’s on target in suggesting that the decision, and the debate swirling around the issues raised (both in the warring opinions and in the court of public opinion) do reveal a rather profound difference of opinion about the meaning, and status, of corporate persons.

“In the universe inhabited by Justice Stevens and President Obama, corporations—the private sector—are a suspect abstraction, ever tending toward “the worst urges” which have to be “comprehensively regulated.” The saints regulate the sinners. . . .”

On the other hand, in what Henninger calls Scalia’s “crack-back concurrence,” Scalia

. . . ridicules ‘the corporation-hating quotations the dissent has dredged up’ . . . and ends with a conservative belief: ‘To exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.’”

It’s clearly (and of course Henninger is hardly the first to suggest it, as he candidly acknowledges) a substantial and possibly critical fault line in our politics and in our law. What are these things we call corporations? How should we think about them? Are they merely creatures created by the State (and subject to whatever conditions the State may wish to impose upon them)? Or are they simply reflections of the natural right (and propensity) of individuals to band together to accomplish some task? Or – horrors! — are they both simultaneously? What then?

I’ve written (somewhat tentatively) about this on the VC before, and I’m starting to think more and more about the question. In part, this is because my good friend and colleague David Johnson is (slowly) persuading me that the question of “corporate personhood” is of the deepest importance for understanding the issues surrounding something closer to the bulls-eye of my interest, viz. the health and future development of the Internet. His argument, very crudely put, is that what make the Net a fundamentally important development in the history of human communication are the possibilities it opens up for collaborative endeavors among large numbers of widely-scattered individuals — it’s ability to foster group-formation on an unprecedented scale. If that’s true — and I think it’s hard to argue that it doesn’t have some grain of truth in it — then the question “what rights and obligations do these newly-formed groups have?” becomes a central question for Internet law.

Some of our readers are probably already aware of it, but I only recently found out about Norman Geras’ interesting archive of interviews with prominent political bloggers. Among many others, there is a recent interview with the VC’s own David Bernstein, and earlier ones with Jonathan Adler and Eugene Volokh. In reading the interviews with bloggers of widely differing political ideologies, I found it interesting that such a high percentage chose the spread of weapons of mass destruction as “the main threat to the future peace and security of the world.” There seems to be a cross-ideological consensus on this point, which is perhaps noteworthy. WMD proliferation would also be high on my list of dangers, especially if it becomes easy for individuals or small groups to acquire them.

As part of my continuing efforts to explain — both to myself, and to others — why it is that copyright law as we know it is so grotesquely unsuited to the global network, I gave a talk recently at a joint meeting of the NYC chapters of the Copyright Society of the US and the Internet Society (and interesting combination for this purpose) on the subject, and the folks at ISOC have posted the video of the talk here. FYI, in case you’re interested (and with all the usual self-abnegating apologies for shameless self-promotion — hey, buy my book!)

[PS - if you want to see the Larry Lessig video that I displayed at the talk - the video within the video, as it were -- it's available here]

I got tired of hauling so many books around on plane flights, and decided to try downloading some Kindle books to my Ipod Touch.  I don’t yet have a Kindle, although apparently if I am very, very good …  I know that Glenn Reynolds prefers the Ipod to read Kindle over the Kindle, but then he is a Known Geek.  However, I downloaded Nick Hornby’s Juliet, Naked for Kindle, and have been reading it more than I should on the Ipod.  Including late at night in bed, and my wife informs me she likes not having a reading light on and I should do all my late night reading this way.  At least when reading Hornby – many quick, humorous asides and cuts, light and easily picked up and put down – the small screen is okay.  However, reading on planes is one thing, but I’ve been sitting on the porch taking in the sun and reading on my Ipod.  Sublime ahead of the curveness or terminal geekiness?

This week’s National Journal poll of political bloggers started off by asking them to rank the importance of various media that the political blogger himself uses to stay informed. On both the Right and the Left, “websites/blogs” came in first. However, on the Left, daily print newspapers were second, while on the Right, they were fifth. Print magazines were third on the Left, and last on the Right. For me, the web comes first, and print newspapers (Wall St. Journal, NY Times, Denver Post, and Boulder Daily Camera) are second.

The next question was to give a grade to White House Press Secretary Robert Gibbs. The Left gave him a B-, while the Right voted for D+. I gave him a B, and explained, “He’s said some silly things, but some missteps are inevitable when one talks to the media that much. Overall, he comes across as a likable guy. The failed policies he has to defend aren’t his fault.”

The final question was “Do think it’s a good idea for struggling newspapers to become nonprofits in order to receive tax breaks?” Sixty-nine percent of the Left, but only 16 percent of the Right liked the idea. I thought it was a fine idea, as long as a particular newspaper meets the legal standards to be a non-profit: “Why not? The country is better off with daily print newspapers than without them.”

That was the subject of a recent symposium at Denver University’s law school. The DU Law Review’s online publication, DUProcess, published several short articles on the topic.  I wrote on Connecting Laypeople with the Law Through Blogs, and began: “Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.” I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter’s VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutrary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French.  After hundreds of years, the legal language had turned into something called “law French,” which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French.  In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above.  One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago.  By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU’s joint faculty-student blog on corporate governance.

If you’re interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson’s book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book’s ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at AFTExposed.com (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain AFTexposed.com or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the AFTexposed.com name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).

It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the AFTExposed.com folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as it’s tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT. [There have been a few cases that would appear to be contrary, but they involved website names that were identical to the trademark -- PETA.org, for instance, or PlannedParenthood.com; in those cases courts held that there was a likelihood of confusion because the domain name itself would be taken by a reasonable consumer to represent the "official" site. Not the case here.] Plus, there is a well-known defense in trademark law for so-called “nominative use” — the use of a trademark to identify the trademark owner. I can’t talk about the Microsoft Corporation without using the trademark “Microsoft,” I can’t talk about the Ford Motor Company without using its trademark, and I can’t talk about the AFT without using its trademark, and courts have recognized that such uses must be permitted less the trademark holders be granted complete control over the ability to comment on a company’s policies or products.

Finally, the assertion that this violated ICANN’s UDRP is flawed as well. The requirement that a domain name be registered or used “in bad faith” before a violation can be found does not cover registration for the purpose of criticism — it was meant to disallow registrations where, in the words of the UDRP itself, there are

“circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or to a competitor of that complainant,” or the registration was undertaken

“to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name,” or the domain name registrant

“intentionally attempted to attract, for commercial gain, Internet users to its web site . . . by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site . . . ”

There doesn’t seem to be the slightest chance that the AFT could prove any of these conditions.

Let me add that my distaste for the AFT (which runs pretty deep) does not really drive my conclusion that they’re just blowing their trumpets here. They’re not the first, nor will they be the last, organization to engage in this kind of domain name bullying; the good folks at chillingeffects.org have been documenting dozens and dozens of cases just like this for years. But that doesn’t make it any more palatable.

[Thanks to Todd Kellert for the link]

VC readers in New York City might be interested in this talk I’m going to be giving at lunchtime this coming Thursday, Oct. 22. It’s co-sponsored by the Copyright Society of the US and the Internet Society’s NYC chapter, and is my (latest) attempt to get people to think about how we might fashion a copyright law for the Internet age that actually makes some sense (as opposed to the copyright law we actually have, which doesn’t). [Oh yeah, it's about my book, too - and why Jefferson sent a moose to Paris, and how we find a "moose" for the Net that will do for us what Jefferson's moose did for him]. I gave a version of this talk last week at the University of Virginia Law School, and I think I can guarantee you a pretty lively discussion — in fact, I’ll be a tad disappointed if fisticuffs do not break out in the audience as a result of some of the ideas I propound.

One of the odd things about the website for the U.S. Supreme Court is that it’s not the place to go to get briefs, new opinions, and oral argument audio of the Court’s own cases. [See update velow.]

If you’re one of the many Supreme Court geeks that needs to read the opinions as soon as possible after they are handed down, you visit SCOTUSblog, as it usually posts the opinions a few minutes before everyone else. If you want older opinions free off the web, you probably google the case and end up at Findlaw or the Cornell site. If you want to read the briefs in pending cases, you might visit the ABA’s site or SCOTUSwiki. And if you want to hear oral argument audio when they are released, you go to Oyez.org.

I love these sites. They’re terrific. But isn’t it sort of weird that these sites, rather than the Supreme Court’s own website, are the primary source for information about the Supreme Court’s pending and recently-decided cases? Perhaps the private sector can do a better job at such things than the government can. Or perhaps the thinking is that it’s better for the taxpayer to let a private firm (for sites like SCOTUSblog) or a non-profit (for sites like Oyez) provide the bandwidth. Perhaps it’s just too much trouble to maintain such a site for other reasons. Perhaps — I really don’t know.

Still, it strikes me as sort of a surprising that the Supreme Court’s own website isn’t the primary source of publicly available information about the Court’s cases. It posts the transcripts first, which is very useful, and it has all the docket pages publicly available, both of which are great. But I would think it a good idea for the Court to remake its website to be the first place new opinions are made available; the first place filed briefs are available online; and the first place oral argument audios are posted.

I should add that I don’t favor a remaking of the Supreme Court’s website along the lines of that proposed by the Sunlight Foundation a few months ago. The Sunlight Foundation proposed a new Supreme Court website designed to maximize traffic and seem “newsy” without first asking whether a Supreme Court website should try to maximize traffic and seem “newsy.” (In my view, it shouldn’t.) My point is just that there are a lot of people trying to get briefs and fresh opinions off the web, and it would seem to make sense for the Supreme Court’s own website to be the place for that sort of thing.

Why does it matter? Maybe it doesn’t. If you know the best places to find these items, it doesn’t matter very much at all. But I suspect there are folks who don’t know where to find them who would benefit from the one-stop shopping at the obvious place — the Court’s own website.

UPDATE: Soon after posting this, I more carefully read the Sunlight Foundation page linked to above that may explain the problem: The Supreme Court site is presently hosted by the Government Printing Office, not the staff at the Supreme Court itself. It seems that the Court has sought funding to take over hosting of the site, which I suspect would lead to major improvements.

On January 1, 1983, not a single one of us noted a very important thing happening: the DoD’s “ArpaNet” network was implementing the switchover to the TCP/IP inter-networking protocols for the then-quasi-experimental “Internet.” You would have had to be awfully prescient to recognize what we recognize today — that the transformative global network was as of that date in place. Something similar might — or might not — have happened this past Thursday, when the US Department of Commerce and ICANN, the Internet Corporation for Assigned Names and Numbers, executed a strangely-titled “Affirmation of Commitments.”

Unfortunately, this more recent event involved mostly lawyers, rather than systems engineers, and it is therefore almost impossible to know exactly what’s going on. But the gist of it can be summarized as follows (and if you want more detail about the background here, which is really quite extraordinary, have a look at Chap. 10 of my Jefferson’s Moose book). ICANN, a private non-profit corporation, was formed in 1998, and the US government handed over responsibility to it for management of the Net’s “domain name system” — the complex global network of registration services and databases and nameservers that allow the net to accomplish the remarkable task of resolving domain names (“Volokh.com”) into IP addresses (necessary for the correct routing of messages). In the original “Memorandum of Understanding” between DoC and ICANN, the government retained some “oversight” over ICANN — basically, a kind of “If you act in some way we really don’t like, we’ll take it all back” clause. The government also retained final authority to make any changes in the “Root Zone file” — the little file that resides on 13 “Root Servers” around the world that sits at the apex of the millions and millions of interlocking databases that comprise the DNS.

This new “Affirmation of Commitments” appears to be a US government hand-over of its retained authority over the DNS — although the document is phrased in such a way that it is in fact impossible to tell if that is precisely the case. No mention, for example, is made of the Root Zone Files, and whether ICANN is now in charge. But if in fact the government is handing over its legal claim to control the DNS (which I suspect we won’t know for several months or even years), it’s a (small) moment in the history of the Internet that will be noted by future historians.

Small, because the US government’s authority to control the Root Zone files, and the DNS in general, was itself deeply problematic – so it’s never been clear exactly what authority it retained under the MOU (or transferred to ICANN).

But whatever else may be said about it, ICANN is a strange new kind of international organization — nothing quite like it exists anywhere. It’s not the UN, or the Internet Engineering Task Force, or the International Chamber of Commerce, though it takes some features (possibly the worst) from each. And while claims that ICANN “runs the Internet” are wildly off-the-mark — the DNS is not “the Internet,” and ICANN’s power over “the Internet” is constrained by many technical and administrative features of the current system — it is a critical resource on which current operation of the net depends. So if Oct. 1, 2009 turns out to be the day that the US government in fact relinquished its claims to authority to manage the DNS and turned it over to ICANN for good, it’s a pretty big day.