It's early to definitively say how either presumptive Democratic presidential nominee Hillary Clinton or presumptive Republican presidential nominee Donald Trump would handle copyright issues as president. An early reading points to neither deviating from the status quo, copyright lobbyists told us. Clinton's tech policy agenda, released Tuesday (see 1606280071), mentions copyright policy. Trump's campaign pointed us to its existing policy statements, which reference intellectual property policy only in the context of U.S. trade relations with China.
Section 230
Backpage.com scored a victory last week when a federal court dismissed the case brought by three women in Massachusetts, saying that the online classified advertiser wasn't responsible for their appearance in prostitution advertisements posted by third parties. It faces a similar challenge in Washington state, and the company's troubles with Congress grew when the Senate unanimously held the company and its CEO in contempt for ignoring subpoenas to appear before an investigations subcommittee (see 1603170042). Some experts said Section 230 of the Communications Decency Act is doing what CDA was designed to do: protect website operators from lawsuits arising out of third-party content.
Net neutrality sparked familiar divisions but also some projections and legal analysis from attorneys on a Digital Policy Institute webinar Wednesday. While the FCC’s order faces many court challenges, Andrew Schwartzman, Georgetown Institute for Public Representation senior counselor, said he believes judges will likely focus on the commission’s authority to reclassify broadband as a Title II telecom service under the Communications Act and accord the agency’s view deference. But Brent Skorup, a George Mason University telecom research fellow, and Stuart Brotman, a University of Tennessee electronic media professor, questioned FCC deference in this case. Skorup suggested the commission was vulnerable on First Amendment grounds, but Schwartzman was skeptical. The three speakers did agree Congress is unlikely to pass a legislative compromise for now.
Critics of the FCC’s net neutrality order cited many reasons for believing it’s legally vulnerable, though none made a clear prediction on how the litigation would turn out. Speaking at a Phoenix Center teleforum, lawyers who helped file briefs against the order said the commission erred in reclassifying broadband as a telecom service under Title II of the Communications Act, failed to adequately explain its change in light of recent court precedent, ignored evidence it would harm investment, impermissibly set a “zero rate” for broadband traffic exchanges with edge providers, created an impermissibly vague Internet conduct standard and violated procedural requirements.
Some 1,997 public comments were filed with the FTC after its June workshop on competition, consumer protection and economic issues raised by the so-called "sharing economy." Most comments encouraged the FTC to regulate the sharing economy lightly and to end any practices that favor established companies. CEA, the Internet Association and other tech firms backed the sharing economy, which is often said to involve companies including Uber that have run into regulatory issues as they expand.
Congress should quickly take up, debate on and pass Rep. Jackie Speier’s, D-Calif., soon-to-be introduced revenge porn legislation, the Intimate Privacy Protection Act, said Information Technology and Innovation Foundation (ITIF) Vice President Daniel Castro and research assistant Alan McQuinn in a report Wednesday. While a number of states and private businesses have taken up the cause to reduce the online harassment known as revenge porn, Congress needs to take action because victims have inadequate means available to fight back, the report said. ITIF recommends Congress pass legislation criminalizing the nonconsensual distribution of sexually explicit images, create a special FBI unit to provide immediate assistance to victims of nonconsensual pornography, and direct the Justice Department to work with the private sector on developing best practices for online services to remove nonconsensual pornography quickly, the report said. To ensure the legislation doesn’t criminalize less malicious behavior or infringe on free speech it should include an intent clause and a knowledge standard, the report said. ITIF also recommended federal legislation not change Section 230 of Title 47 of the U.S. Code, which protects online providers from liability for the content posted by others, so law enforcement can focus on the perpetrators of the crime, and for “sexually explicit material” to be defined in a manner that can evolve over time. Nonconsensual pornography is an “egregious invasion of privacy” predominantly affecting women that “severely damages reputations, endangers safety, and inflicts unjust financial, emotional, and social costs,” Castro said in a news release. “While 24 states and some private companies have taken a stand to slow this insidious crime, we need a consistent, nation-wide policy that adequately brings remedy to the victims and dissuades future violations,” he said.
U.S. policies are continuing to aid the Internet’s exponential growth 20 years after the start of the commercial Internet, said John Morris, NTIA Office of Policy Analysis and Development director-Internet policy, in a Friday blog post. The National Science Foundation Network (NSFnet) was decommissioned April 30, 1995, ending the last restrictions on commercial traffic and “paving the way for the commercial use and private governance of the Internet,” Morris said. Key U.S. policies that have resulted in strong Internet growth include trusting in private sector innovation and a reliance on multistakeholder Internet governance, he said. NTIA and the Internet Policy Task Force have continually emphasized multistakeholder governance, including supporting ICANN’s ongoing process of spinning off its Internet Assigned Numbers Authority functions, Morris said. Other important U.S. policies have included “strong” IP rights policies, promoting high-speed broadband access and laws that protect against undue regulation like Communications Act Section 230, “which protects online platforms against claims arising from hosting information posted by users and other third parties,” Morris said.
Google was granted a preliminary injunction against Mississippi Attorney General Jim Hood by U.S. District Court in Jackson, Mississippi, said a Digital Citizens Alliance (DCA) news release. Hood’s supporters told us Monday's ruling highlights Judge Henry Wingate’s diligence in such a high-profile case. Google advocates said the decision points to a higher likelihood of its eventual success in the case. The order wasn’t available in docket no. 3:14-cv-00981, and the court clerk didn’t comment.
Public Knowledge filed a joint brief on behalf of Google's case against Mississippi Attorney General Jim Hood because “Section 230 is a critical part of letting us all communicate online,” said a PK spokeswoman Monday. Without that part of the Communications Act, it's “very easy for overbroad liability and procedural fishing expeditions to shut down intermediaries necessary for communication and encourage them to restrict and restrain their customers' communications even more,” she said. “We've criticized Google's restrictions of customer communications in the past -- restrictions put in place due to pressures applied in the absence of protections like section 230.” That responded to accusations by David Lowery, a music business lecturer at the University of Georgia and a songwriter, that PK is among many advocacy groups serving the exclusive interests of Google (see 1502020047).
Supporters of Google's case against Mississippi Attorney General Jim Hood want to ensure the viability of Communications Act Section 230, they said in interviews and statements Monday. But Google’s critics said the company and its allies are using disingenuous means to make a point about copyright where it doesn’t apply. CEA, the Computer and Communications Industry Association and Engine filed a joint brief on behalf of Google Friday, a CEA news release Monday said. The Center for Democracy and Technology, Electronic Frontier Foundation, New America Foundation's Open Technology Institute, Public Knowledge and R-Street Institute also filed a pro-Google brief Friday, an EFF news release said.