Practically anyone can start a website and get software that snags fresh online news from those who originate it. Website owners pluck the freshest, most interesting reports and quickly post condensed rewrites. That costs them little, and they then surround the rewrites with cut-rate ads. … Usually we all benefit when more efficient competitors enter the market and drive inefficient competitors out of business. But the Internet has not made “new media” publishers more efficient at gathering news than their print counterparts. It has made them more efficient at taking news from their print counterparts and using it to compete while the news is fresh.

I love the little linguistic touches here: snags, fresh, cut-rate ads, “new media” in scare quotes, and, of course, free-riding. There are more in the article, but ironically, I cannot link to the Marburgers’ full piece because it is behind an archives paywall. Fortunately, the Madison, Wisconsin newspaper ran essentially the same article. (Apparently, I am ruining the newspaper business by quoting, linking, and discussing in this fashion…)

I later learned from Techdirt that the Brothers Marburger have been on a little crusade on this subject. Their solution, no surprise, is to resuscitate the “hot news” rule under the 1918 INS v. AP decision. That would allow newspapers to prevent others from linking to their original reporting content. (Technical detail for lawyers: There has been some confusion about exactly what the Marburgers support. The op-ed proposes lifting federal copyright law’s preemption of state unfair competition and unjust enrichment claims. They assume, I think correctly, that this would open the door to INS-style claims. I am, just responding to what they wrote.).

In their op-ed, they seemed unconcerned about the way this would devastate fair use and shut down all the vibrant discussion in the blogosphere. But since no less an eminence than Richard Posner has mused along the same lines, this strikes me as an idea to which a forceful and rapid response is necessary. As more papers begin to fold, there may be a sentimental rush to impose some kind of radical solution like this. I am very sad and worried about the threat to journalism too, but this certainly is a cure worse than the disease.

So I did what any blogging law professor does in response: I wrote a “Taking Exception” reply for the Opinion page. They ran it, but of course it is behind that paywall too. So I’ve reprinted it below. (Does that make me a parasite?) I talk a little about the law in very general terms (even simplistic, you might say), but I also try to respond to their panicked rewrite of journalism history:

In their argument for a sweeping and unwise expansion of copyright law to protect newspapers from online “free riders,” David and Dan Marburger make several unjustified assumptions. I understand and share their concern that competition from digital sources may cut ad revenue for traditional outlets. But they seem to blame the whole problem on web sites like Newser.com or the Huffington Post that link to stories in many newspapers. This diagnosis is flawed, and their proposal would be a disastrous limit on free speech.

For starters, they ignore all the other long-term challenges facing newspapers, including changing reading habits, the arrival of 24-hour cable news, poor labor relations, and the movement of readers from traditional old cities to the suburbs and the Sun Belt. As television news matured in the mid-20th century, numerous dailies nationwide folded or merged (New York City went from eight to three), yet the authors baldly and incorrectly state that broadcast news did not depress newspaper circulation.

In light of this history, it is comical to blame aggregation web sites or blogs for all newspapers’ current woes. Copyright law already forbids reprinting the whole article or anything close to it. Usually, sites adhere to copyright’s fair use doctrine by posting only short blurbs and hyperlinks that highlight newspaper reports. Many readers will learn of stories they never would have found, and follow those links to the original publication. Anyone satisfied with just these little blurbs was never going to buy a regular newspaper subscription anyhow.

The Marburgers’ dangerous proposal would expand copyright and related unfair competition law to ban web sites (and presumably anyone else) from saying “The Daily Bugle ran a story this morning about the Mayor’s new budget” and quoting a paragraph of the article. Contrary to the authors’ assertions, a 1918 Supreme Court case about the Associated Press did allow news agencies to claim unacceptable monopolies over the facts they reported. Congress wisely abolished such special rights for media companies in 1976. Bringing them back would destroy the vibrant discussion found every day on countless blogs. (And perversely, it might prevent other traditional newspapers from giving credit to the original scoop when they write follow-up stories!)

Like the record industry, some newspaper publishers want to reshape copyright law so they can keep doing business exactly the same way, despite seismic societal and technological changes happening all around them. Special exclusive rights for media conglomerates will impoverish public discourse, and they won’t work anyhow.

The Associate Director of Research & Education for the Consortium on Law and Values in Health, Environment & the Life Sciences and the Joint Degree Program in Law, Health & the Life Sciences conducts research relating to law, biomedicine, the life sciences, and bioethics; collaborates on grants; generates original scholarship; teaches graduate and professional students; and helps lead the Minnesota Journal of Law, Science & Technology.

Our previous Associate Director, the very talented Jordan Paradise, is leaving to take a tenure-track faculty position at Seton Hall Law School. Please spread the word about this great opportunity!

So it’s interesting to speculate what the judge might make of the damages a jury just awarded to the record label plaintiffs in the Jammie Thomas retrial: $1.92 million — more than 8 times the amount awarded in the first trial, or $80,000 (based on the jury’s finding of willfulness) for each of the 24 works Thomas infringed.  Remittitur motion, anyone?

With a seemingly impecunious litigant like Thomas, it probably makes little difference whether the jury awarded $1,920,000, or $222,000, or “a bazillion kajillion dollars”; I know of nobody who seriously expects the record labels to see more than a tiny fraction of the recompense from Thomas they claim they are owed.  And, as I’ve noted before, if you want to campaign for reducing the maximum statutory damage awards for copyright infringement, Thomas is probably not the most sympathetic candidate to make that argument.

It’s certainly an extraordinary number, however, and it just shows how quickly individual acts of file-sharing can pile up into multi-million-dollar liability under current law.

UPDATE: EFF’s Fred von Lohmann ably tees up the constitutional excessiveness issue also raised by Derek following my earlier post. Not a topic upon which I feel qualified to opine, but see Fred’s post and judge for yourself.

You got to know when to hold em, know when to fold em,
Know when to walk away and know when to run.

The department wisely ran.

The complaint in the lawsuit makes for interesting reading. First, I’m depressed that a complaint still has to describe the Internet. Second, iMEGA rightly argues that ISPs are not common carriers, and hence not subject to the Wire Act’s demands about leasing, furnishing, or maintaining a facility whereby gambling information is transmitted. (See 18 U.S.C. 1084(d).) Third, I think it’s undesirable to have states making content blocking decisions, especially ones that apply to national and international carriers – it has the risk of increasing access costs, and of leading to overblocking if providers want to reduce those costs. (Cheaper and simpler to block a site for everyone than to differentiate by geographic location.)

But the neatest, and most brilliant, part of the complaint is that it throws Minnesota between Scylla and Charybdis: if ISPs block gambling sites by fully-qualified domain name or IP address, they’ll prevent access to lawful information (such as a history of blackjack) protected by the First Amendment – but if they block at a deeper level, such as individual URLs, it’ll be under-inclusive. This is clever, probably accurate, and diabolical. It points out the flaws in filtering: either it’s easily evaded, or it’s going to sweep up content that is permissible. The First Amendment frowns on both.

I don’t know why Minnesota started down this path. My intuition is that there’s either a norms-based goal, or a political one. The norms-based goal would be to signal Minnesota’s disapproval of on-line gambling. The political one would be to advance someone’s career by appearing to tackle (mostly out-of-state) gambling interests, even in a losing battle. (Battle of Thermopylae metaphor, anyone?)

Prediction: there will be more state-based filtering efforts, and soon. Pick your targeted material: a) child porn, b) terrorism materials, c) gambling, or d) “obscene” content. Any bets?

Hat tip, and serious props, to my colleague Karen Schneiderman for great research following this case…

When any common carrier, subject to the jurisdiction of the Federal Communications Commission, is notified in writing by a Federal, State, or local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal, State or local law, it shall discontinue or refuse, the leasing, furnishing, or maintaining of such facility

There are at least three reasons why this won’t fly (or float? Need to work in a “Land of 10,000 Lakes” joke here). First, ISPs aren’t common carriers. Second, the Minnesota order is likely unconstitutionally overbroad. Third, there’s a serious dormant Commerce Clause problem given the financial repercussions for ISPs. In short, this attempt is like Brett Favre’s career: dead no matter how hard interested Minnesota parties try to revive it.

First, the common carrier problem: in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), the Supreme Court deferred to the Federal Communications Commission’s ruling that, under the Communications Act of 1934, cable broadband providers are “information service providers” and not “telecommunications carriers.” Hence, cable broadband isn’t subject to common carrier regulation. The case doesn’t directly address DSL broadband, but the FCC’s logic likely applies there as well. So, the basis for Minnesota’s invocation of the Wire Act – that ISPs are common carriers – seems to run counter to both the Supreme Court’s holding and the FCC’s rulemaking. But what do they know?

Second, this situation looks a lot like Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004). There, a Pennsylvania law required ISPs to block access to sites pinpointed by the state Attorney General (that allegedly contained child pornography). The ISPs responded by blocking the IP addresses of the offending sites. Result: massive overblocking – the ISPs filtered about 1.1 million innocent sites to squash 400 bad ones. Minnesota ISPs might use IP blocking also, since URL filtering is expensive (see next point). Declan McCullagh notes that GetMinted.com, a blacklisted site, shares an IP address with Cashcade, a corporate site. The blacklist is underinclusive – does anyone think the Dept. of Public Safety has found all of the Internet gambling sites? – and overinclusive – because gambling companies will migrate away from blocked URLs, and because IP blocking always catches up unrelated sites.

Finally, the Wire Act itself, and the burden URL filtering would place on ISPs, creates a major dormant Commerce Clause problem. The Constitution’s Commerce Clause gives Congress power to regulate interstate and international commerce; importantly, it also keeps individual states from doing things that overly burden this commerce. The Wire Act shows that Congress is already regulating interstate gambling issues, meaning that states are likely pre-empted from tackling the same problem. Moreover, as the Pappert court noted, it’s quite expensive for ISPs to install URL filtering technology (at 629-34). There’s rarely a single “choke” point in the network where one can put a filter in place, and effective filtering usually slows network transfer speeds. (Australia is grappling with exactly these problems.) Thus, if Minnesota forces ISPs to adopt costly technology to meet its local gaming preferences, that’s clearly a burden on interstate commerce. (See Pappert at 645-46.) Since blocking doesn’t fall within Congressional authorization under the Wire Act, it probably runs afoul of the Commerce Clause.

I think this is bad law and benighted policy. If it gets to a court challenge, I’d be delighted to collaborate with other cyber-folks on an amicus brief explaining exactly why this is. So, I’ll give odds: 2:1 says the Department quietly drops this plan; 1:1 the ISPs politely refuse to comply; 1:2 Brett Favre signs with the Vikings, whose fans quickly come to appreciate Tavaris Jackson…

[Oh no! Now they're filtering Info/Law!]

Update (5 May 1:00PM): I thought it might be helpful to list the 11 ISPs: Charter Communications, Comcast Cable, Direct TV, Dish Network, EMBARQ, Qwest, Sprint/Nextel, Verizon Wireless, AT&T Internet Services, Wildblue, and Frontier all received notices; the FCC received a copy as well.

Oliar and Sprigman show how the clubby world of nightclub comics (an estimated 3000 members nationwide) generated an informal system of copyright-like protection for jokes. In the earlier days of post-vaudeville comedy, where rapid-fire one-liners were the key and stand-up was performed live to purely local audiences, originality was not that important and people bought, copied, and stole jokes all the time, more or less with impunity. But as originality and personality-infused humor became more important in modern comedy (they credit Mort Sahl and Lenny Bruce as the transitional figures), and acts were shown to the whole world at one time through mass media, the harm of joke-stealing increased. Now, comics informally enforce a norm of authorial protection much stricter than anything copyright law allows. Yet they never go to court — the authors could not locate a single copyright case involving comics over joke theft.

Great paper. Larry Solum liked it too. So “download it while it’s hot.”

The Fix: I am an extreme political junkie and I have a giant folder of links to related blogs. But Chris Cillizzas’s thoughtful analysis is the best general-interest national political blog. This time of year I visit several times daily. (Here locally there is a rich collection of independent, meaning non-MSM, political blogs, including MNPublius, Minnesota Campaign Report, and the usually wrong but often interesting Minnesota Democrats Exposed.)

My Heart’s in Accra: Ethan Zuckerman, the co-founder of Global Voices Online (another great blog) and a fellow at the Berkman Center, writes lovely prose about computers and the internet, the developing world and particularly Africa, life in the Berkshire Mountains, and the links between them all.

The Current Music Blog: One of the great things about the Twin Cities is the very high quality of public radio here. Minnesota Public Radio boasts three excellent stations here, including an especially good news station, a classical music outlet, and The Current, an eclectic mix of popular contemporary music, leaning mostly toward “alternative rock” but also extending to jazz, hip hop, folk, and some unclassifiable stuff. It’s all selected by the DJs rather than corporate executives at Clear Channel. And they have figured out, more than most radio stations, how to integrate their audio content with online content, as this blog demonstrates. (You can also click to listen at the top of the page even if you are not privileged enough to live in Minnesota…)

New York Observer Daily: As a displaced New Yorker I regularly used to read the Observer’s snarky coverage of the city’s political, media, fashion, and publishing worlds long before there were blogs. I still subscribe, but blog-sized tidbits often make an even better forum for this sort of news. Plus, not coincidentally, my brother Tom is an editor there.

Unit Structures: At the moment I am writing about social networking in general and Facebook in particular, so I rely on a number of blogs that focus on aspects of this complex subculture, including Allfacebook, Inside Facebook, Terra Nova, and Apophenia. But I am highlighting this blog by Fred Stutzman for its thoughtful analysis, readable and concise posts, and just-right combination of explaining context for newcomers without boring veterans. I strive for that in my blogging, and sometimes succeed, but Fred does better.

(Check out some other lists of 5 in this meme from Frank Pasquale, Mike Madison, and Ann Bartow.)

I am now supposed to tag five other legal bloggers to further broaden our horizons past the law. I’ll start with my co-bloggers here, Derek Bambauer and Tim Armstrong. Then how about Jim Chen, Christine Hurt, and Susan Scafidi?

By the way, this is the 400th post on Info/Law, quite a milestone for something that started as a lark. Thanks for reading, for your patience when real life makes posting too infrequent, and for your thoughtful comments. I hope you enjoy some of these selections to use even more of your time reading other interesting blogs.

According to the Newark Star-Ledger, this is the first time a state Supreme Court has ruled that ISP records are private. Nevada and Minnesota both have statutes to that effect, however. And, as Ars Technica warns, changing technology may undermine the logic of the New Jersey ruling:

The justices say that IP addresses are sufficiently anonymous to justify privacy protection because, theoretically, only the Internet service provider can identify who is associated with a specific IP address. … [T]hat could change if the technology ever evolves in a manner that makes it easy for individuals to identify who is associated with an IP address.

Moreover, the effect is limited in two significant respects: it will not apply in federal court, and it isn’t difficult for the police to meet the requirements to get a warrant. That may be the right balance, however: enough judicial supervision to constitute a speed bump and prevent irresponsible dragnet investigations, but not so much that it really impedes criminal investigations.

According to the local paper, the problem, as so often the case, is bots. Apparently, some resellers use automated software, including a bot made by RMG Technologies, to flood Ticketmaster and similar sites with orders, and also jump in front of other purchasers in the queue. According to the Wall Street Journal:

[T]he software allows users, among other things, to search for tickets at specific price levels for particular events and to generate requests for tickets much more quickly than a human at a typical home computer could. For instance, companies like Ticketmaster require customers searching for tickets online to replicate a set of the squiggly letters and numbers, known as a “Captcha.” Theoretically, only human customers can correctly identify the characters despite the odd fonts, screening out automated purchasing programs. But RMG’s software, according to [a ticket broker who settled a lawsuit with Ticketmaster], can also “figure out the randomly generated characters and retype them automatically.” [The broker] said RMG employees also gave him advice on fooling Ticketmaster’s computers into thinking his requests were coming from different Internet addresses.

The new bill aims to make the use of such software illegal. While normally I am a little wary about laws that forbid a particular technological application, this one seems like it might be narrow enough and also aimed at counterbalancing an innovation that gives some people an unfair advantage over others. Am I missing something?

Not surprisingly, Ticketmaster and major local sports teams support the measure. (Ticketmaster already filed an eleven-count federal civil suit in Los Angeles against RMG last year. The arguments include claims that RMG’s bot violates copyright law, the DMCA, the Computer Fraud and Abuse Act, and Ticketmaster’s terms of service.) It will be interesting to see if such legislation begins to sweep the country. OMG MN Leg — UR2 CSA!!!

UPDATE: The Minnesota bill has now become law.