Archive | Internet

The Internet and Stupidity:

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 [...]

Continue Reading 40

State of the Net:

If you’re interested, Jerry Brito over at, 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. [...]

Continue Reading 1

The Battle for the Internet:

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 [...]

Continue Reading 60

The FCC and the Internet:

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 [...]

Continue Reading 66

Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog

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 [...]

Continue Reading 70

Is the Anti-Counterfeiting Trade Agreement Unconstitutional?

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.

Continue Reading 31

On Corporate Personhood:

Daniel Henninger, over on, 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 [...]

Continue Reading 62

Normblog’s Interviews with Prominent Political Bloggers

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. [...]

Continue Reading 2

The Death of Copyright, con’t

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] [...]

Continue Reading 2

Reading Kindle Books on the Ipod Touch

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? [...]

Continue Reading 27

Poll on political bloggers and the media:

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.” [...]

Continue Reading 16

Legal Scholarship in the Internet Age

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,

Continue Reading 11

Domain Bullying

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at (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 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 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 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 —, for instance, or; 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 [...]

Continue Reading 32

And Speaking of Copyright

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. [...]

Continue Reading 2

Rethinking the Supreme Court’s Website

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

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 [...]

Continue Reading 28