Mediactive

Ars Technica: Court: FCC had no right to sanction Comcast for P2P blocking. The FCC’s decision to sanction Comcast for its 2007 P2P blocking was overruled today by the US Court of Appeals for the DC Circuit. The question before the court was whether the FCC had the legal authority to ‘regulate an Internet service provider’s network management practice.’ According to a three-judge panel, ‘the Commission has failed to make that showing’ and the FCC’s order against Comcast is tossed.

We’re in scary territory, but it’s not a big surprise that we are.

Comcast and the other carriers will be emboldened to continue what they’ve started: the subjugation of America’s broadband future to their interests and those of their entertainment industry partners and subsidiaries. Our second-class status in broadband will soon be even worse if they get what they want: turning the Internet to a television-on-steroids system where control is in the middle, where the edges of the networks — that is you and me — do what the center tells us we may do.

The cable and phone companies have built networks from the favored position of having been government-granted monopolies. They are an effective duopoly — wireless providers can’t provide the same bandwidth and they are trapped by the oligopoly (carrier owned, to a major extent) in the backbone networks — and they are going to use it for their benefit, not ours.

This isn’t just a free-speech issue at its core. It also raises some basic economic questions; America lags further and further behind the rest of the developed world in taking advantage of broadband’s potential, and the consequences of our inaction grow more serious every year.

While I’m skeptical of all of the specific network-neutrality fixes I’ve seen so far — unintended consequences worry me — I’m absolutely freaked out at the trend. We are turning over our fundamental rights to communicate and collaborate to companies that have not earned even a semblance of trust.

The FCC’s incoherent policy-making is only partly the issue here. More important is the refusal of Congress to do its job. If only that was surprising.

Network neutrality has always been the kind of issue requiring serious engagement from the lawmakers. As they do so often, they’ve ducked and dodged, leaving it to regulators to make vital policy decisions.

Will Congress wake up? And even if it does, given our pay-to-play lawmaking environment these days, will it do the right thing? My doubts keep growing, on both counts.

If you’re near Boston next Friday, consider attending the new Online Media Legal Network’s Spring Conference: Journalism’s Digital Transition. Great lineup, important topics.

The Berkman Center’s Citizen Media Law Project has launched the Online Media Legal Network (OMLN):

a new pro bono initiative that connects lawyers and law school clinics from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN will provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.

This is a valuable initiative. It will help many more people than the individuals who receive assistance from volunteer lawyers and law students in specific cases.

One of the common misconceptions in digital media over the past few years has been the notion that bloggers may be somehow exempt from the laws that apply to other forms of publishing. Nothing could be further from the truth.

The laws aren’t only about defamation, though that’s where the biggest threats to independent journalists can be found — in part because the independents don’t have legal teams at their disposal. Some plaintiffs have sued or threatened to sue largely to shut down criticism, not because they’ve actually been defamed, and just the threat of a lawsuit is often enough to shut down legitimate speech.

There are lots of other legal issues you need to think about if you publish on the Web, including fair use, freelance agreements, setting up businesses and the like. The new network will help with those issues, too, among others.

The CMLP has lined up an impressive collection of lawyers and law clinics for this initiative. They all deserve thanks as well.

(Note: I’m a CMLP co-founder and advisor.)

NY Times: Two German Killers Demanding Anonymity Sue Wikipedia’s Parent. Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.

The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.

Old laws are inadequate to new eras and technologies, and political boundaries have limited meaning in a networked world.

The German law balanced the rights of those who’d served their time against public knowledge, and came down, by any American First Amendment standard, absurdly far on the wrong side. But it is well-meaning, and was written in a time when it was possible to control what media did within a political jurisdiction, at least for widespread public attention, not in a time when anyone can publish for a global audience.

The networked-world element of the case is a reminder of an ongoing problem in the Digital Age. It’s bad enough that the Germans have such a law, but it’s their country. What’s clearly over the top is trying to pull this information from the English version. The Wikimedia Foundation has rightly refused. (This reminds me to make a donation to the project.)

I worry that the German lawyers — and authorities — will escalate. Even though Wikimedia has no assets in Germany, I’d be unsurprised if the case finds its way into American courts, for no other purpose than forcing the foundation to spend money defending itself. That’s a punishment in its own right.

And suppose the German lawyers persuade courts there to order the arrest of Wikimedia Foundation employees should they visit the country. This isn’t probable, no doubt, but if I were on the board I’d keep a close eye on the risks of stopping in Germany even to change planes.

The broader lessons are part of the changing nature of communications — and of changing norms. The Electronic Frontier Foundation’s Jennifer Grannick addresses the former, in context of this case, in this way:

At stake is the integrity of history itself. If all publications have to abide by the censorship laws of any and every jurisdiction just because they are accessible over the global internet, then we will not be able to believe what we read, whether about Falun Gong (censored by China), the Thai king (censored under lèse majesté) or German murders.

We’ll be fighting these fights for decades to come. People who would control what others can read (listen to, view, etc.) — in order to control what they think and, ultimately, do — will not stop trying to have such powers. (Reminder to self: Send EFF a donation, too.)

But the deeper, harder issue is changing norms, because we have to ask ourselves if we truly want permanent records of everything we’ve ever done — and if there’s no choice in that matter whether we want people only to know us for the worst of our actions, not the sum of ourselves.

The German murders, Werlé and Lauber, don’t get much sympathy in this regard. Nor should they: Murder strikes me as the central act of these men’s lives, though we should also note that they have paid the debt to their society that entitles them to re-enter that society with some respect from others, difficult as that may be. Do they really expect, however, that even a ban on publishing their names will expunge their deeds from people’s knowledge? Yet the motive behind the German law is a sound one: to help those who’ve transgressed restore their membership in society.

As the Wall Street Journal reported this week, job seekers are trying to get minor criminal offenses fully expunged from court records and online databases, especially ones where plea agreements promised such nullifying of the record. We are apparently so unforgiving as a society that even an arrest at some point in your life can be a job disqualification, even if you were totally innocent or if the charge was absurdly petty.

Here’s the problem. Databases will keep this stuff around, and on a Web where duplication is the nature of the system, there will ultimately be no way to fully get rid of anything — or at least we won’t be able to rely on its disappearance, whether through the obscurity of printed records in dusty courthouse basements or actual destruction of records as promised.

Which comes back to changing norms. Until we start weighing old acts against the totality of someone’s experiences and deeds, we’ll hold a sword over each others’ head. Is this really the way we want to live?

Tim McGuire: Let’s not let Medill Innocence Project be another Hazelwood. The bullies who want to hamstring great student journalism need to be stopped.

Amen.