Battle lines are drawn and Congress is girding for war. Almost all House Republicans signed a letter to FCC Chairman Julius Genachowski asking him to wait for instructions from Congress, instead of changing broadband’s current classification from an “information service” to a “telecommunications service.” However, across the battlefield are the chairmen of the committees with oversight responsibility over the FCC: Senator Jay Rockefeller (D-WV), Chairman of the Senate Commerce Committee, and Representative Henry Waxman (D-CA), Chairman of the House Energy and Commerce Committee. Senator Rockefeller and Rep. Waxman sent a letter to Chairmen Genachowski supporting the FCC’s reclassification plan and announcing that Congress will work to amend the Communications Act (the “Act”) to accommodate the modern telecommunications industry.

The FCC chose to reclassify broadband after the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC’s “ancillary authority,” derived from Title I of the Act, does not allow it to rebuke Comcast for interfering with peer-to-peer file transfers or to regulate Internet Service Providers’ network management practices. By reclassifying broadband as a “telecommunications service,” under Title II of the Act, the FCC hopes place its regulation of broadband on solid legal footing. If the FCC fails to reclassify broadband, or if Congress fails to grant the FCC specific authority over broadband, then much of the National Broadband Plan as well as the U.S.’ ability to regulate broadband will be jeopardized.

So what’s next? As stated in Chairmen Rockefeller and Waxman’s letter, Congress is starting the process for amending the Communications Act. However as with any legislation, any amendments to the Act may take years to pass. In the mean time, the FCC is going ahead with its plan to reclassify broadband by voting to open the reclassification proceeding in its June meeting.  As the FCC moves ahead, neither side seems to be letting up since the future of U.S. communications policy hangs in the balance.

The Attorney General of South Carolina, Henry McMaster, recently targeted online message board service Craigslist in response to recent cases such as the killings by Boston-area student Philip Markoff dubbed the “Craiglist Killer”. Most of the scandal came from the now-removed Erotic Services section, which has been accused of being a repository for people who use the service for prostitution, in violation of the site’s terms of service. McMaster demanded in an open letter that Craigslist remove the sections of the site containing “categories for and functions allowing for the solicitation of prostitution”, or for the distribution of pornography, by May 15th, or face criminal prosecution. In response, Craigslist has filed suit in South Carolina court, seeing a declaratory judgment and restraining order against South Carolina. Myspace claims both Section 230 immunity under the Communications Decency act as a service provider, and further asserts that the only way to comply with McMaster’s demand would be to shut down access to the site entirely within South Carolina. Craigslist has now recieved a temporary restraining order preventing charges from being filed until the current case is resolved.

The recent case of US v. Dove invloved a former administrator of a group known as Elite Torrents, a distribution site for free copyrighted music and movies. The admin was found guilty of criminal copyright infringement as well as conspiracy, and was sentenced to two concurrent eighteen month terms in jail and $20,200 in fines. After the conviction, the RIAA and Lion’s Gate Entertainment, one of the groups whose movies were distributed on the site, submitted requests for restitution.
Under the restitution statute in question, 18 U.S.C.A. § 3664(e), the victim’s recovery is limited to the losses provable by a preponderance of the evidence standard. The RIAA‘s formula — the number of file transfers, multiplied by the wholesale price of the album at time of transfer — produced a figure of $124,000. Lion’s Gate’s formula was based even more in conjecture: assuming an arbitrary number of total downloads (“over one million units”), and multiplying by the average price of the film ($19), they produced a number of $22 million in total losses.  Because Lion’s Gate only owned 4% of the movies that were illegally distributed, they only requested 4% of the loss calculation: $880,000.
However, the Judge rejected both requests for restitution for failure to show evidence of actual losses from the downloads. The court noted that there were multiple alternative methods of obtaining the media in question and that “Customers who download music and movies for free would not necessarily spend money to acquire the same product. ” The court rejected the theory of diverted losses (that every illegal download represented a lost sale to the RIAA and Lion’s Gate). Without an alternative theory, the restitution request was denied.
It remains to be seen whether decision will have influence on the remaining civil ”John Doe” RIAA lawsuits, or on future internet infringement cases. It is, however, a significant example of what can happen when loss calculations from internet piracy are carefully analyzed.

Additional Links

Link to the Judge’s decision Re: Restitution

Yes, this is the real deal.  According to the National Counterterroism center’s website, “[t]his edition, like others since the Calendar was first published in a daily planner format in 2003, contains useful information across a wide range of terrorism-related topics: terrorist groups, wanted terrorists, and technical pages on various threat-related issues. The Calendar marks dates according to the Gregorian and Islamic calendars, and contains significant dates in terrorism history, as well as dates that terrorists may believe are important when planning ‘commemoration-style” attacks.’

Intellectual property policy is about access to information.  But what is “information?”   Information policy scholarship tends to focus on pragmatic questions about “access” without addressing the philosophy of information. My draft essay “Deconstructing Jefferson’s Candle: Towards a Critical Realist Approach to Cultural Environmentalism and Information Policy is an effort to apply a theory of information drawn from critical realism to information policy. If we wish to develop a firmer normative basis for information policy, I think it’s important that we explore the nature of the res we’re regulating — the ontology of information.

Some resources on the philosohpy of information and critical realism:

• Luciano Floridi’s Philosophy of Information blog.
• Blackwell Guide to Philosophy of Computing and Information
• The Journal of Critical Realism
• Critical Realism Wiki
• The Polanyi Society