Monthly Archives: September 2005

Battle Lines being Drawn – Law Enforcement v. Internet Freedoms

I was referred to a nice article by Declan McCullagh outlining the implications of a new “Policy Document” released by the FCC late last Friday, Sept. 23rd.

The FCC has come up with the following four pronged set of principles that will govern any new Internet policy it develops:

Moreover, to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

Pay close attention to the end of #2 – Consumers can use whatever software and Internet services they want, provided that law enforcement has a back door into that software that it can use as needed. Wow.

At the same time, the FCC announced its rule implementing a longstanding request (from law enforcement) to extend the Federal wiretapping rules from telephones to the Internet. When Congress last touched the issue, it had expressly *NOT* extended the rule to broadband providers. Now, the FCC is trying to do it without Congress’ help.

Declan’s not the only one to notice this obscure little pronouncement from the FCC. The Electronic Frontier Foundation (EFF) has announced its plans to sue when the final rules are officially published.

“A tech mandate requiring backdoors in the Internet endangers the privacy of innocent people, stifles innovation, and risks the Internet as a forum for free and open expression,” said Kurt Opsahl, EFF staff attorney.

I couldn’t have said it better myself.

New Case: Google Print Snafu

The recent filing of a lawsuit over Google’s new planned Google Print program has raised the bar from an academic discussion of whether the program violates copyright into a full-fledged dispute.

There has been some interesting and well-reasoned discussion about it. Fred Von Lohmann of the EFF analyzed it from a fair-use point of view. Eric Goldman also has a good post on it. I fully agree with his comments about the weakness of relying on fair use in your business model. It’s not a fully fleshed-out doctrine, so your business plan may come into conflict with a new legal development faster than you can react by changing your business model.

I also can’t miss citing William Patry’s excellent discussion of the issues involved with the mere scanning and creation of the database Google will be working from. I wish I had the time to write as deeply and thoroughly about issues as he does on a regular basis.

The questions I have now are as follows:
1) Is Google’s entire business plan faulty, even for the search engine side of its business?
2) Do publishing companies have the proper rights to agree to the full-text indexing of its author’s books? Even if it is opt-in for works still protected under copyright, Google will need to make sure that the right people are providing the consent.
3) Will this case settle?

Stay tuned!

Case Summary: Davidson v. Internet Gateway

An interesting decision from the 8th Circuit, Davidson involves an appeal from the grant of summary judgment to the plaintiffs. Davidson does business as Blizzard Entertainment, Inc., creator of popular online cooperative games like Warcraft II. In order to play a game like Warcraft II online, Blizzard’s game connects to its Battle.net servers with a… Continue Reading