History of Telephony
For an entire generation after the telephone was introduced, the Bell system managers resisted its use for social purposes. Yes, there are memos and reports from the early years saying that managers were trying to get people to stop gossiping on the telephone. The president of Bell Canada, in 1890, complained he couldn't stop trivial conversations, and a manager in Seattle in 1909 wanted to limit use of the telephone for purely idle gossip.
By 1928, a frustrated advertising guy said that this approach of treating the telephone seriously “is about as commercial as if the automobile people should advertise: ‘Please do not take out this car unless you are going on a serious errand. . . . ‘ We are faced, I think, with a state of public consciousness that the telephone is a necessity and not to be trifled with, certainly in the home.” In other words, the telephone was being sold as something necessary and serious, rather than conversational.
The Bell System felt that the need for telephones should be created by focusing on emergency uses, not sociability. (These managers weren't at all confident that people actually needed these magnificent instruments, and wanted the surest sales pitch they could find — particularly one that would be effective on anxious parents and farmers.) Sales manuals from the 1920s to 1935 focused on emergencies. Not until the late 1920s did advertising begin to even mention sociability.
Why did it take an entire generation for a shift to advertising sociability to occur? Not, according to Claude Fischer's terrific essay “Touch Someone: The Telephone Industry Discovers Sociability,” because of economics. Many of the big cities were pay-by-calling-volume from the beginning. And many of the flat rate rural areas stayed flat rate, even after sociability was recognized. Nope — this lag can only be explained because of the cultural background of the telephone men.
The first telephone men, you see, had been telegraph men. They thought of telephones as just like the telegraph — something you used for urgent business messages and alarms, never for chatting. Only when the telegraph tradition loosened its grip on management did sociability become a selling point for the telephone.
Now we live in a world where some very powerful companies with connections to sell to the internet are made up of telephone men. Or cable men. They see the internet as just another network, and they're used to a world of competing proprietary networks that sell packaged services to passive subscribers. They think of the internet as just like the telephone. In the meantime, in a span of years far shorter than a generation, some other people have shown up who don't have this mindset.
And now we're having a tussle. Not only are these new non-telephone men used to a lot of sociability, they're also used to helping themselves (who needs E911?) and building resources collaboratively. A new kind of consumer is online, with different expectations and different abilities.
Unfortunately, the telephone men and the cable men have a pretty strong hold on policymakers.
Changing times
We've finally gotten to the point at which the idea of “professional” fact-filtering no longer makes sense. Adam Liptak noted yesterday in the Times that blogging culture may be undermining the idea that reporters are specially privileged. Lawrence, Kansas, is now the home of an all-community online paper — the Newspaper of the Future.
Meanwhile, Yahoo! is launching a “social” search engine that allows you to cooperate with people you know in pinning down information you — and they — care about. David Weinberger dreams about collaboratively filtering news. Dreamcard (from Runtime Revolution) lets people who can't code write software that brings objects alive.
If we can just stay insatiably curious for a few more years (long enough to get past the bumpy parts and get to the point where real tools work really well and really simply) the pros will become amateurs, the amateurs will become pros, and we'll all be handling information much more effectively. Just a few more years to go.
Good Things Also Happened Yesterday
Largely unnoticed (except by Eric Goldman) in the parade of pontification yesterday about Grokster and BrandX was a very nice decision by the Second Circuit about trademark “use in commerce.” The decision is 1-800 Contacts, Inc. v. WhenU.com, Inc, 04-0026-cv(L), 2d Cir. June 27, 2005.
Although, as Eric points out, there are some strange things in this opinion (most notably its attempts to avoid dealing with the legality of search engine keyword sales generally), the bottom line is truly commonsensical and laudable: listing a keyword in a directory that the public doesn't see is not “use in commerce” of a trademark for purposes of an infringement claim.
There's also some nice language in the opinion about the pop-up ads triggered by WhenU's software. The court understands that these ads don't alter or affect the underlying web site at all.
This opinion is a good thing to have around, because several states have taken to calling things “spyware” that are simply keyword-triggered-applications. At least from now on we can put a stop to the ridiculous argument that listing a company's name in a set of keywords is in itself “use in commerce” of a trademark that can form the basis of an infringement claim.
Another very important good thing that happened yesterday: CDT proudly unveiled its Congressional Research Report database. (Post story is here.) This is a huge, life-affirming event, made possible by the hard work of CDT staffer Joshua Ruihley.
These very useful CRS reports are usually hidden from public view unless a member of Congress releases them. Now everyone can see them, and everyone can add to the collection. Great news.
If Someone Asks You About BrandX…
[Cross-posted to SCOTUSblog]
If someone asks you what the Supreme Court thinks about the internet today, you've got a couple of responses.
1. In Grokster, the Court seems to understand that the case before it isn't just about P2P, and that the development of technology is really at issue. It doesn't want to let one industry — the content industry — use its statutory copyright monopoly to control the growth of another industry. On the other hand, the Court also recognizes that going after individual filesharers is very difficult, and that it may be necessary to go after intermediaries where sufficient evidence of intent is present. (This could be called the “There Must Be Liability In Here Somewhere” argument.) Result: some risk of liability for copyright infringement by technology providers, and a roadmap for what evidence is relevant when those cases come up.
2. In BrandX, the Court takes an entirely different approach. Using homespun analogies to pizza and dogs, and based on some fundamental misunderstandings about technology, the Court defers to the FCC's determinations about internet services. (This could be called the “This is Really Hard And We Want Out” tack.) Result: unfettered discretion lodged in the FCC to do what it wants with all internet services.
Now, the BrandX case is about a classification question. Should cable modem services be classified as “telecommunications services” or “information services”? If cable modem internet access is a telecommunications service, then many common-carrier obligations kick in — like the obligation to allow others to plug into your network, to charge only set rates, and to contribute to the costs of rural telephone systems. The FCC didn't want to impose all of those costs on the cable industry, and so they said that cable internet access is really an “information service.” This means that the FCC can apply “social policies” to the service (which can be very onerous and costly — just as costly as the common-carrier rules), but won't set prices or require interconnection.
The problem with this classification by the FCC is that the statutory definition of “information service” doesn't fit with what internet access actually is. Information services are supposed to be things that generate, acquire, store, transform, process, retrieve, or make available information across telecommunications connections. The FCC reasoned that cable modem service is an information service because it gives people the ability to manipulate information using the internet across high-speed telecommunications. But that's not really right. Cable modem service allows people to reach online information, but doesn't necessarily allow them to manipulate it.
Your browser software allows you to see graphical online pages. Your email program allows you to receive and send email. Your IM client allows you to chat with friends. None of these things are necessarily provided by your cable service company. The 1996 telecom act, which contained these definitions, didn't foresee what the internet would become or how it would be used.
The Court defers to the FCC's classification, and along the way drops some very powerful dicta that gets ahead of the rewrite of the telecom act that is now in progress. Federal telecommunications policy, the Court says, should be set by the Commission. Everything accessed online is an information service. The Court says “the Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications.”
The opinion has no limiting principles. The FCC can call anything that processes information an “information service,” including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.
That should be good cocktail-party banter.
[UPDATE: In response to emails and comments — I agree with the Court's holding to the extent that it will result in freeing both naked DSL and cable modem access from Title II obligations. What I'm arguing about here is the FCC 's assumption that the world is divided neatly into two things — information services and telecommunications services — that it has jurisdiction over all of 'em (including web sites), and that it can impose “social policies” without limit. The Court's dicta in BrandX supports this FCC adventurousness. I understand that many people believe the 1996 Act did this in the first place, but I don't agree with that assumption for reasons I've explained in Shortness of Vision.]
Footnote 12
[Cross-posted to SCOTUSblog]
Ed Felten is right to focus on Footnote 12. That's the key footnote that technologists will be waving to say “don't allow the content industry to get into the business of designing our products and services.” If there is no other evidence of intent and the device is capable of substantial noninfringing uses, you can't tag a technology with secondary infringement liability based on mere reluctance to filter.
Another legal-beagle point on this “don't design” argument is that the Court specifically says it is not talking about vicarious infringement. Vicarious infringement is based on “profiting from direct infringement while declining to exercise a right to stop or limit it,” according to the Court. Vicarious liability doesn't require intent.
But we're in the contributory infringement box, which is based on “intentionally inducing or encouraging direct infringement.” So the Court focuses on evidence showing an “affirmative intent” that the product be used to infringe. Contributory infringement looks at active steps evidencing intent, while liability for vicarious infringement might only require a failure to act (such as failure to filter). The classic example given by the Court of active steps is advertisement — which is a corporate message encouraging infringement.
I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.
Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.
Painful analogies
[Cross-posted to SCOTUSblog]
Humble metaphors make for bad internet policy. The Grokster 9-0 opinion doesn't use them.
But the BrandX guys — my, all that talk about pizzas v. pizza delivery and dogs v. leashes. Just painful. And the use of this simplifying (but really obfuscating) set of metaphors indicates that the Court really didn't know what it was talking about when it started defining everything online as “information services” provided by the access provider.
So I'm hoping that we can categorize everything said about “information services” other than cable modem access as “dog dicta.”
In my next entry, I'll go back to musing about Grokster, and, in particular, the meaning and import of fn. 12. We may have another fn. 4 of Carolene Products in the making.
It's More Important Than Grokster
[Cross-posted to scotusblog.]
The consequences of BrandX (also decided today) are more important than those of Grokster. Grokster keeps the status quo in place. BrandX opens up a whole new world of regulatory power.
“What?” you ask. “I thought BrandX was just about the access of little ISPs to big mean cable systems.”
No. In fact, both opinions are the reverse of what they purport to be. The Grokster opinion gives certainty to tech companies. And the BrandX opinion takes it away again.
In BrandX, Justice Thomas gets very confused about the internet and ends up essentially announcing that everything a user does online is an “information service” being offered by the access provider. DNS, email (even if some other provider is making it available), applications, you name it — they're all included in this package. And the FCC can make rules about these information services under its broad “ancillary jurisdiction.”
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.
The implications of all this are staggering. This is the real news from today. After the DC Circuit's ruling in the broadcast flag case, people may have thought that the FCC's “ancillary jurisdiction” was in trouble. No longer — the FCC has been given an enormous jurisdictional surge in power. Even though its statute — in my view, at least — doesn't really give it this authority.
Whoof.
A Balanced View
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined — and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys — and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's “substantial noninfringing use” standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation — we're done.
Now, that's not to say that there aren't some clouds here for technology companies. If you've got a stated intent to help others infringe, and a bunch of “bad” ads, and lots of other evidence of culpable intent, and THEN someone writes to you and encourages you to adopt their filtering technology, and you don't — well, then you might be liable for inducement. There are certainly ways that this opinion might spark litigation.
But for the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision. Happy summer vacation, Justices.
[Cross-posted to SCOTUSblog]
[I'm proud to have been part of the team that worked on an amicus brief arguing for the same middle ground adopted by the Court today in Grokster. The brief was filed by the Digital Media Association, Netcoalition, CDT, and the ITAA.]
FCC wins; Grokster loses
Still waiting for the opinions. A big day for the future of the internet.
FCC's victory in BrandX means that it will be pushing ahead with classifying IP-enabled services as “information services” over which it has jurisdiction for “social policies” purposes.
And the content industry's victory in Grokster means that inducement is officially recognized as part of contributory infringement. I'm hopeful that the test for inducement is straightforward enough that technology innovators have some certainty.
But we really need those opinions to say more.
We're Keeping Guard Over Your Loved Ones
In advertisements spanning the years between 1907 and 1958, the Bell System used emergencies as a key sales point to get people to buy telephones. Much of the usefulness of the telephone, as advertised, was that it was there, that it was watching over you. You weren't so much interacting as being guarded. The telephone, that magnificent instrument, was silently keeping you safe.
But it is in a dangerous crisis, when safety seems to hang upon a second, that the telephone is at its best. It is the instrument of emergencies, a sort of ubiquitous watchman. . . . And it is at such moments, if ever, that the users of a telephone can appreciate its insurance value. No doubt, if a King Richard III were worsted on a modern battlefield, his instinctive cry would be, “My Kingdom for a telephone!'
An advertisement from the 1910s has a drawing of a maiden in a nightdress nervously clutching her throat and looking anxiously out the windw. The text reads:
When You Need a Neighbor – or a doctor or assistance of any sort at any time, a reliable telephone is a friend in need.It is a time-saver when time is most valuable; often a life-saver in illness – a property-saver in fire or theft..But you cannot get the full service, value and benefit of a telephone unless you have a reliable telephone – buy and use only Standard “Bell” Apparatus and Equipment.
From the 1930s, there's an ad showing a picture of a little blond girl, arms innocently flung out in sleep. The narrative:
Sleep Soundly, Little Lady…Mother and Daddy are near and the telephone is always close by. It doesn’t go to sleep. All through the night it stands guard over you and millions of other little girls and boys.
There's much more of this. Fear sells. More to the point, this idea of the telephone guarding you is fascinating. You'd better get one, because you just … might … need it tonight.
The ties to the E911 controversy I've been focusing on are obvious. An important part of joining the telephony network was gaining the ability to tell other people when you were in trouble.
Here's the question: when someone uses an online application that doesn't look like a phone or (only) act like a phone but that does use telephone numbers, do they think they're being guarded?
Maybe not. Unless, of course, they're TOLD they're using a 'phone.'
I can't resist telling you that the word “phony” implies that a thing so qualified has no more substance than a telephone talk with a supposititious friend.
While you look up “supposititious,” I'm going to go buy another phone to watch over me.