Mar 242015

A few months ago an advisory committee for the California State Bar promulgated an interim ethics opinion addressing when lawyers’ blogs should be subject to applicable bar rules governing lawyer advertising.

The impetus behind having bar rules addressing lawyer advertising is generally a reasonable one. The nature of the lawyer-client relationship, the relative imbalance in their respective expertise, and the stress inherent with the sort of situation that would require a lawyer’s assistance makes it important to ensure that lawyers are not misleading or overly aggressive in their solicitation of business. The applicable bar rule regarding lawyer advertising in California is also not especially onerous (although the same may not necessarily be said about similar rules in other jurisdictions).

But a blog is speech, and applying regulation to speech is something that constitutionally can only be done in very limited ways and in very limited circumstances. Yet there is nothing limited about this recommendation. It promulgates a standard that would ultimately catch many, if not most, legal blogs in the California bar’s regulatory net, despite it being unnecessary and chilling to speech that should be beyond government’s reach.

It’s also simply not a good idea that serves the public interest.
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Copyright’s Not Getting its Job Done (cross-post)

 Analysis/commentary, Criminal IP Enforcement  Comments Off on Copyright’s Not Getting its Job Done (cross-post)
Jan 182014

I wrote the following for the Electronic Frontier Foundation’s blog as part of “Copyright Week” – a push to raise awareness of the key principles that should guide a healthy, constructive, and effective copyright policy.

People sometimes treat copyright law as though it’s a fixed constant in the universe, like gravity. First the Earth cooled, then the dinosaurs came, and then we got copyright. But that’s not the case at all, and it’s important to remember this when we think about what’s gone wrong with the law and how to make it right. Copyright is a relatively recent invention, born out of a particular cultural background and designed to solve a specific problem at a particular point in history. While we might continue to value what it purports to do we aren’t slaves to its precepts: when copyright law no longer ably solves the original problem, or, indeed, when it creates new ones, we need not wring our hands in frustrated woe. If a law has turned into something that no longer works for us then we should feel free to come up with something else that does.

In order to figure out how to move forward it helps to look to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the “Statute of Anne,” a law passed in the early 18th Century England to replace an earlier law that gave the government complete control over everything that was published. Naturally this earlier law led to a great deal of censorship, and the push for democratic reform near the end of the 17th Century led to demands that it be changed to something less stifling to the marketplace of ideas.

The result was the Statute of Anne, a law described as “[a]n Act for the Encouragement of Learning.” While the law it replaced had been designed to limit what knowledge was available to the public by giving permission to publish to just a few publishers approved by the king, this new law was designed to stimulate the dissemination of knowledge by giving everyone the ability to control how what they wrote was published themselves.

The statute did this by granting authors a “copy right” so that they could have first crack at exploiting the market for the works they created and not be at the mercy of publishers who might otherwise help themselves to these works and keep all the profit for themselves. A common rationale for copyright is that people won’t create if it won’t ever be worth their while to, so if we want to make sure we do get a lot of creative output we need a system that makes it at least theoretically economically viable to create.

But as we look at our modern copyright law, the distant progeny of the Statute of Anne, it is worth questioning the assumptions wrapped up in it. For one thing, it’s worth questioning whether and to what extent people create only when there is a profit motive. The reality is people create all the time, even when there’s no guarantee or expectation of ever being paid for it, and often these works can be just as good, if not better, than the ones created by people who are being paid. Furthermore, despite what some advocates for stricter copyright law suggest, copyright has never been a promise of financial success. In fact it’s sometimes been a barrier to it, and there are many authors and artists whose influence and commercial appeal took off only after the copyrights on their works had expired and the public could finally get affordable access to them.

It’s also important to recognize that the Statute of Anne sought to achieve its stated goal of encouraging learning in a way that very much reflected the Western European tradition of disseminating knowledge through the written word, and in response to the monopolistic power publishers had at the time to be gatekeepers over that knowledge. But it’s not the only way to skin this particular cat: in other parts of the world oral traditions and norms that encourage copying have allowed cultures to flourish in their own local idiom, without the need for copyright. So when we think about this law we need to recognize how much it reflects the unique time and place from where it arose and not deprive ourselves of the lessons of openness these other approaches teach us. Copyright is not the only solution to promoting the progress of arts and sciences, and it should not be treated as sacrosanct and immune to reform of its increasingly rigid rules, particularly when its current form is no longer reliably achieving its desired end.

The idea behind the Statute of Anne, which was echoed in the US Constitution a few decades later, is that society is better off when it has access to as many works of authorship as possible. But as EFF and many others have described this week, the monopolies copyright law grants have gotten broader in their scope and application, longer in their duration, and ultimately less effective, if not completely counter-productive, in encouraging more creativity and enabling the public’s access to the fruits of that creation. The irony is that as a result, like with the period before the Statute of Anne, we find ourselves in a time when government regulation is actually constricting dissemination of knowledge, rather than enhancing it.

But law is not immutable; indeed, the very existence of the Statute of Anne shows how much it can change when it needs to. When, as now, a law no longer fulfills its objectives, it’s time to reshape it into something that does. It’s time to fix copyright law so that it can finally get the job done that it was always intended to do.

Feb 292012

PayPal recently made news for implementing a policy denying its payment processing services to publications including obscene content.  There are several things objectionable about this policy, including the lack of any clear way of delineating what content would qualify as “obscene,” and its overall censorious impact.

But I’m not entirely sure that PayPal is necessarily the appropriate target for criticism of this policy.  It may be, to the extent that it is a truly discretionary policy PayPal has voluntarily chosen to pursue.  If it could just as easily chosen not to pursue it it can be fairly criticized for the choice it did make.  For this policy is not as simple as banning certain objectively horrible content 100% of all people would agree should be stricken from the face of the earth.  After all, there *is* no objectively horrible content 100% of all people would agree is objectionable.  Instead this policy has the effect of denying market opportunities to all sorts of writers producing all sorts of valid content, even if some people may not happen to like it.  And it does this not just by denying particular publications access to its services but by forcing electronic publishers to overcensor all the works they publish lest PayPal services be shut off to their entire businesses. Continue reading »

Bangladeshi faces sedition charge over Facebook post

 Examples, Regulating speech  Comments Off on Bangladeshi faces sedition charge over Facebook post
Jan 232012

Agence-France Press is reporting that a Bangladeshi high court has ordered police to prosecute Jahangirnagar University teacher Ruhul Khandakar for sedition as a result of a comment made on Facebook. The comment, since deleted, was “[Famous Bangladeshi filmmaker] Tareq Masud died as a result of government giving licence to unqualified drivers. Many die, why does not [Prime Minister] Sheikh Hasina die?”

He was also sentenced to six months in jail for contempt of court after he failed to respond to repeated summonses to explain a Facebook posting. The article reports Khandakar has been studying in Australia and these proceedings happened without him.

It also cites a local lawyer saying that this is the first time a Bangladeshi has been ordered to be jailed and tried for sedition over comments made on a social networking site.

Quicklinks 1/21/2012

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Jan 212012

Various recent news:

India continues to flirt with web censorship

 Examples, Intermediary liability, Regulating speech  Comments Off on India continues to flirt with web censorship
Jan 132012

Last month Kapil Sibal, acting telecommunications minister for India, floated the proposition that social networks actively filter all content appearing on their systems.  Now comes news that a judge in New Delhi also thinks web censorship appropriate.  From the New York Times:

The comments of the judge, Suresh Kait, came in response to a lawsuit, filed by a private citizen in the capital, New Delhi. The suit demands that Internet companies screen content before it is posted on sites like Facebook, Google or Yahoo, that might offend the religious sentiments of Indians. A related criminal case accuses the companies — 21 in all — of violating an Indian law that applies to books, pamphlets and other material that is deemed to “deprave or corrupt.”

A trial court in New Delhi on Friday ordered that summons be served in the criminal case to officials at all 21 companies at their foreign headquarters’ addresses.

Google and Facebook refused to comment on the case, except to say they had filed a motion in the New Delhi High Court to dismiss the criminal case.

Their motion will be considered on Monday. Continue reading »

Quicklinks 1/7/2012

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Jan 072012

Other interesting items from this past week (or so):

Watching the watchers

 Examples, Regulating speech  Comments Off on Watching the watchers
Jan 062012

Public photography is an issue that frequently appears on this site because it’s a real example of technology-enabled speech that all too often authorities try to prevent.  These attempts are often egregious and never balanced out by whatever policy reasons are ostensibly behind them.  But they are particularly odorous when these prohibitions are enforced on people using photography to record the power of the police.

What’s especially insidious is the logic so often used for it, that recording people acting in public — or, more specifically, agents of the state acting in public under the color of the authority granted by the state — might somehow violate a privacy interest. Continue reading »

Canada creating “spam reporting centre”

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Jan 062012

The Vancouver Sun is reporting that the Canadian government is setting up a $700,000 annual-operating budget “spam reporting centre” for people to report their unsolicited communications.

Dubbed “The Freezer,” the new centre will accept unsolicited electronic messages forwarded by individuals, businesses and organizations in Canada, including spam, malware (malicious software), spyware, short message services (SMS), and false and misleading representations involving the use of any means of telecommunications, according to Industry Canada.

The Freezer is to field reports and complaints of spam and related electronic threats and collect information that’s either voluntarily provided or publicly available. The information could then be used as evidence of potential violations and assist enforcement agencies in levying fines or other penalties.

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Quicklinks 12/31/11

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Dec 312011

From this past week:

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