Category Archives: bad law

So it you want to read a story about extremists, here’s one that’s hard to beat. These people are looking for help, so anyone in New York who can help should follow up. I have permission to post this, but I haven’t verified the facts. Continue reading →

Mr. Gates has proposed his solution to spam. Unfortunately, it is yet another idea that will not work.

The problem the MSFT solution aims to solve is the problem of distinguishing good spam from bad. The proposal has a clever (though I think dangerous) safe harbor provision to “create incentives for email marketers to adopt best practices, and to certify themselves as trusted senders who can be more easily identified by consumers and filters alike.” Presumably, if we know which marketers are “trusted senders” we can accept their mail, and block all the rest — spam and non-spam alike. Thus, email would become a more effective channel for trusted marketing — but little else.

The safe harbor provision could make sense if there were a background requirement that all spam be labeled. There’s a hint of that requirement in the letter Mr. Gates wrote to the Senate Commerce Committee (“participants would be entitled to avoid the burden of additional labeling requirements (such as “ADV:” )”). But the proposal doesn’t actually endorse a labeling requirement. And without it, the proposal does nothing to distinguish real email from HGH sellers. The proposal would help distinguish HGH sellers from, say, Amazon. Wonderful, but I didn’t know that was the problem.

The proposal does say lots about making sure ISPs and state attorneys general have the power to sue — again, like most (but not all) solutions, centralizing the enforcement function. But all such solutions will fail because a centralized system for enforcing spam regulations will never be enforced. ISPs and state attorneys general have better things to do than enforce spam regulations. They always have; they always will.

This is the key point: the enforcement problem. Whatever the requirement, if it is not effectively enforced — meaning that most spammers do not fear that they will be caught and punished for failing to obey a requirement — then it will fail. And if it is effectively enforced, then it will work even if its penalties are not harsh. Solve the enforcement problem, and a slap on the wrist will work. Fail to solve the enforcement problem, and even the death penalty would be ineffective.

It’s no surprise that Congress doesn’t get this. Congress gets points for “seeming” tough. If you seem tough, it doesn’t matter if your ideas work. So puffed-up “get tough” rhetoric tied to totally ineffective legislation is the norm.

But it is a surprise that a company as skilled as MSFT would make the same Washington (DC) mistakes. Mr. Gates has done extremely well in world where mistakes hurt profits. He is doing extraordinary good in the world where generosity (indeed, astonishing generosity) corrects for policymakers’ mistakes. But as a policymaker himself, he is still MSFT v1.0.

Let’s hope he gets to MSFT v3.1 soon. Continue reading →

This is a great piece about the mistake in the administration’s recent trade agreement with Singapore — requiring it (and us) to stick to the DMCA. Less noticed is article 16.4.4 which increases the term of copyright from 50 pma to 70 pma. (Remember, we had to increase our term to harmonize with the rest of the world; now the administration is pushing the rest of the world to increase its term to harmonize with us).

The frustration in all this is the total disconnect between criticism and governmental response. It is the form of a democracy, but with none of the substance. We make mistakes, and we force them on the rest of the world. The world then simply adopts the mistakes we make — in the face of overwhelming criticism.

For example, has anyone explained why, if a country needs a DMCA law, it can’t pass a law that respects fair-use like exceptions? Or if a country needs to extend copyright terms, it can’t limit the extension to works with commercial value?

The world loves to criticize the US, and criticize they often should. Yet the criticism would look a bit more credible if critics didn’t dress like puppets. Continue reading →

Bruce Lehman — the Clinton Administration’s IP czar and a debate no-show (he’s scheduled and not shown at at least two debates that I know of — one with Jamie Boyle, and one with me) — has been doing more good in the world. As reported in Technology Review and commented upon at TeleRead, when a Cairo consortium called WIPO to ask for advice about images of Egyptian artifacts that they wanted to place on the web, Lehman’s new international organization sent a lawyer to Cairo to advise them against spreading such knowledge freely. Better to copyright and control access to such knowledge. The images, he is reported to have said, “should be licensed.”

We’d suggest a Creative Commons license, or at least some way to keep Mr. Lehman at home. Continue reading →

Bob McChesney has been studying concentration in media for a long time. His challenge is worth reading. Continue reading →

This story is beginning to walk. Donna launched it. JD Lasica has collected a bunch of links on his page. JD points to a great little piece by Jesse Walker of Reason. And Amy from the Harvard blog has been writing about this for a while.

It is a month till D(eregulation) Day. We’ve given them the language (how is it “deregulation” when it will produce 3 companies owning everything?); there’s much more to do if the call mediageek has echoed is to have any effect. Continue reading →

There’s a standard dance that the IP extremists do well: When they lose in Congress, they go overseas and negotiate a treaty that imposes on the US the same obligation they just lost in Congress; then they come back and say, “we must do this to live up to our international obligations.”

So here we go again: The US Trade Representative is negotiating trade agreements with Chile and Singapore. The agreements essentially require these two countries to adopt the DMCA, and make it a violation of “our international obligations” if we were to change the DMCA. Representatives Lofgren and Boucher — who both have bills introduced to amend the DMCA — have written a strongly worded letter to the USTR asking for clarification. For consistent with this policy making process, just what is being promised is never made clear — until it is too late. Here’s the letter. Continue reading →

An interesting mix of Senators has written a strongly worded letter to Chairman Powell about his apparent decision to revise media ownership rules without public hearings. This does seem a curious way to launch profound changes of media policy — in a democracy at least. Continue reading →

Two articles from The Hindu suggest the interesting world we’ve entered. In the first, India’s Union Minister for Civil Aviation says that the doctrine of “pre-emptive war” (relied upon by the United States to justify its war in Iraq) should be used to justify a war against Pakistan to counter its allegged support for “terrorism.” In the second article, Pakistan says that there is “ample proof that India possesses biological, chemical and other weapons of mass destruction” and of the “massacre of innocent civilians in Ahmedabad and Kashmir” and therefore is a fit case for “pre-emptive strike.” Continue reading →

So this story continues to amaze me. Pennsylvania has a law that gives the Pennsylvania Attorney General the power to order an ISP serving Pennsylvania citizens (read: any ISP anywhere) to block a site which the Pennsylvania Attorney General says serves child porn. There is no judicial review of the order, and as no ISP is likely to resist the order, the law results in unreviewed censorship of internet content. According to this report, the AG is now refusing to even reveal the list of sites his secret orders have blocked.

There are hard cases in the law of cyberspace, no doubt. But this should be a slamdunk easy case — if anyone would have the courage to challenge it. CDT is exploring a challenge. Good for them. If the First Amendment means anything, it must mean that the government can’t order the censoring of a publication without any judicial review at all. You might want to tell the Pennsylvania AG what you think. Here’s a form. Continue reading →