Legal, Laws, and Regs

A busy Supreme Court

The Supreme Court issued four significant rulings today, before taking their summer break.

The first, which has been getting most of the attention, is the Grokster ruling. Though I’m not quite as complacent as Don Park about the ruling, I don’t believe it is, in actuality, the death of openness and innovation. After all, we’re still capable of generating and consuming RSS feeds; what other technology could we possibly need or want?

From the BBC report it would seem that the originators of a technology will be liable primarily if they promote the technology as a way of infringing on copyright. How this is to be interpreted is going to be a challenge, and will most likely bog down many a court system, but I don’t think anyone is really and truly surprised the courts made this decision–even with the reliance on the old Sony Betamax ruling used by Grokster in defense. From my admittedly limited knowledge of the Supreme Court, their task seems less a job of defining black and white, as much as it is delimiting various shades of gray; sometimes the difference between the shades of gray is hard for the untrained eye to detect.

On the one hand you had the old betamax technology and Sony not being held liable for copyright infringement, as Sony shows that the majority of use of the technology is for legal purposes. On the other hand, you have Grokster, where most users spend much of their time thumbing their noses at Hollywood and bragging about how they got such and such song, movie, and/or television show for free.

Regardless, this isn’t the death of P2P; this isn’t the end to innovation. You sell us all too short when you say that.

The second ruling was on the use of cable for broadband internet access. In this, the Court sided with the cable companies and the FCC and said they do not have to allow competitors to use their wires. This is a disappointment, as opening the wires would open up competition, and hopefully drive down prices.

However, David Weinberger points to Susan Crawford’s analysis of this ruling, where she says that the ruling does give the FCC control over most of the bits that flow on the Net:

This is very very big. This means that even though information services like IM and email don’t have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules — all the subjects of the FCC’s IP-enabled services NPRM. I’ve blogged about this a good deal, and now it’s coming true: the FCC is now squarely in charge of all internet-protocol enabled services.

Susan’s reasoning is that because net access now falls under an “information service” it falls under the FCC jurisdiction and, …the FCC can make rules about these information services under its broad “ancillary jurisdiction”.. Does anyone else see this?

From the publications I’ve read on this, this isn’t seen as an issue. What is, is the power given to the cable companies to control services such as VoIP. More, I’m concerned about what happens if DSL and cable work together to limit wireless access. For instance, the entire St. Louis downtown is wired for free use. Could this eventually be limited as somehow anti-competitive and therefore ‘harmful to innovation”, as the FCC would define it?

All I can say is: shop your beliefs. Not happy with this ruling and cable? Turn it off, and let them know why you’re turning it off. You can still download Stargate through BitTorrent.

Though both these items are getting wide play in weblogging, it is actually the two other ruling that concern me the most, and both have to do with the Ten Commandments.

The Court, in two separate rulings, stated that posting the Ten Commandments in Kentucky was unconstitutional, but a display in Texas was not. Why the contradiction? The Court decided the latter was part of a historical and political display that de-emphasized the religious nature of the monument. According to Reuters:

In the Texas case, Rehnquist said for the majority that the state has treated the monuments on the capitol grounds as representing several strands in the state’s political and legal history.

Justice Stevens, in minority dissent, :

…argued it was an improper government endorsement of religion. “The monument is not a work of art and does not refer to any event in the history of the state,” Stevens wrote. “The message transmitted by Texas’ chosen display is quite plain: This state endorses the divine code of the Judeo-Christian God.”

This opened a big ole hole into where religion ends and government begins. Now, when a religious artifact can be displayed, and when not, is going to be difficult to determine.

I didn’t now this but Missouri had one of the same statues in our state’s Capitol grounds. No one had ever complained about it. But from the story, it would seem that most people just ignored it. It is, after all, not art.

The point is, this is a crack. And its a scary crack. Of the rulings, the Texas one is the one that will disturb my sleep tonight. What good is open file sharing if you can’t share the Quran? And what good is it to have cheap broadband, if all that flows through it is what the American Majority wants to read, see, and hear?


May 12, 2012: And today’s hot download is a video of a popular purple dinosaur, you know who, singing “Jesus loves me, this I know, cause the Bible tells me so…”

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