Thesis: Because first amendment protections and laws protecting Internet Service Providers impede a great deal of government regulation, the best way to ensure minors are protected from improper content online is to empower individuals, companies and organizations to take the intiative to self-regulate.

Citation: Jordan, Amy. "Children's Media Policy." Children and Electronic Media. Volume 18 No. 1. Spring 2008. 235-355. Annenberg Public Policy Center. 5 April 2009. http://www.futureofchildren.org/usr_doc/18_10_Jordan.pdf.

Jordan’s article gives an overview of how media policy concerning children is developed and shaped, and what is and is not effective about it.  The article begins by discussing how events and public opinion changes can motivate the government to enact policies protecting children, and how outside groups influence these policies. It outlines how the three branches of government work together to shape these policies, and what the role of the FCC and the FTC are in enforcing the laws. The article then describes motivations by media industries to self-regulate content, types of self-regulation, and how self-regulation and government regulation interact with each other. While a combination of legislation and self-regulation seems to be the inevitable and most logical way to regulate new media, according to Jordan, she thinks these actions are still largely ineffective; they are not enacted properly, little is known about media habits and production of material online is becoming increasingly decentralized.
 
 While much of the article discusses policies relating to media other than the Internet, the article is useful as an overview of the formation process for children’s media policy, especially because it contains useful charts. The similarities and differences between the Internet and older forms of media are important to note in order to figure out what types of regulations used on other forms of media could and could not be applicable to the Internet.  For example, ratings systems akin to the ones established for television shows and video games would likely not be a good way to regulate Internet content. So many websites are created on a regular basis that it would be impossible to assign ratings to all of them. This article supports my thesis because it describes issues relating to the regulation of Internet Service Providers. Jordan believes that the Internet cannot be fully regulated by the government because Congress and the courts treat ISPs like common carriers rather than media outlets. Perhaps it also provides a counterargument to my thesis, however, because the author does not think that self-regulation is necessarily effective.

 

Citation: Thierer, Adam and John Palfrey. "Dialogue: the Future of Online Obscenity and Social Networks." 5 March 2009. Ars Technica. 1 April 2009. <http://arstechnica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars/2>.

 

This source presents a discussion between Adam Thierer, Director of the Progress and Freedom Foundation's Center for Digital Media Freedom, and John Palfrey, Harvard law professor and Vice Dean, about the merits of Section 230 of the Communication Decency Act and the role online service providers, including social networking websites, should play in protecting children from obscene content.  Thierer has concerns about revisions to CDA 230; he does not think social networks should have extensive liability concerning objectionable material on their sites, and he thinks CDA 230 has been beneficial overall.  However, Palfrey believes that ISPs and social networking websites should not be immune from tort lawsuits claiming harm from the carriers’ negligence.  Instead, accusations should be allowed to be brought to court, where the plaintiffs will have to prove that the ISPs were in fact negligent.  Palfrey believes that CDA 230 should be amended in such a way because it will encourage online service providers to make more of an effort to protect minors and develop more innovative ways of protection. He added, however, that most ISPs would not be found negligent by a court, and a multi-faceted approach must be taken to achieve the goal of protecting children on the Internet.  Palfrey also acknowledges the merits of CDA 230, and said he would not want the goals of it to be drastically impeded.

 

            The dialogue presented is a good analysis of the issues concerning child protection and CDA 230.  The dialogue format enhances the analysis because it allows Palfrey to address the questions raised by a critic of his opinion.  Palfrey’s approach to modifying CDA 230 strikes a balance between the competing goals of shielding minors from harmful content and promoting the development of ISPs.  However, Palfrey is the first to admit that a change in the law would likely not make too much of a difference in increasing liability, especially among the larger ISPs who can afford to make some effort to protect children.  What is perhaps the most important element of Palfrey’s argument is that he stated that there needs to be an increase in efficacy for children to become more protected online.  Empowering people to protect children could achieve the same goal without having to navigate the complex legislative process.

Citation: "Communications Decency Act of 1996: Section 230" 1996. Cornell Law School. 4 April 2009. http://www4.law.cornell.edu/uscode/47/usc_sec_47_00000230----000-.html.

This source is a section of Congressional Legislation that plays an important role in regulating the filtering of online content, with some particulars relating to the filtering of such content to protect children. Titled “Protection for Private Blocking and Screening of Offensive Material,” Section 230 of the Communications Decency Act (CDA) of 1996 guarantees Internet Service Providers (ISPs) a great deal of legal protection.  The section of the law begins by describing the increasingly large role that the Internet was providing in people’s lives in 1996.  Congress then establishes broad principles that guide its policy concerning the Internet.  After that, Section 230 begins to lay out protections for ISPs, saying they are not the speakers or publishers of content provided to them by another service and guaranteeing civil protection for efforts made “in good faith” to filter obscene material. The law also requires ISPs to notify parents of parental control filtering programs that they can use to protect their children.  Section 230 concludes by describing the previously mentioned provisions relationships to other laws and by defining terminology used in the document.

          This document relates to my project because it has a large effect on the policy concerning the protection of children on the Internet.  If ISPs are not considered the author of any of the works people can access through them, they have less of an incentive to develop effective filtering software.  Section 230 of the CDA wants ISPs to act “in good faith” and try to restrict access to harmful material to children.  However, the term “in good faith” is ambiguous and could be interpreted loosely.  Despite the problems with the law when it comes to protecting children, it is understandable that Congress decided to take the approach of siding with the ISPs.  In 1996, when the law was written, the Internet was a relatively new development, and many people still did not have access to it.  As a result, the government wanted to prioritize helping ISPs, because it wanted the ISPs to expand and be able to give services to a greater number of people.  Over a decade later, the online landscape has changed significantly, with the vast majority of people in the United States having Internet access.  Perhaps Congress should now focus more on promoting the filtering of harmful content and less on supporting the legal and economic interests of the ISPs.  This would likely to be tricky to do, because the ISPs would likely continue to lobby for their position and fight back, and too much government regulation could be seen as violating the Constitution.

 

Citation: "Children's Internet Protection Act." 2000. Internet Free Expression Alliance. 4 April 2009. <http://ifea.net/cipa.pdf>.

 

The Children’s Internet Protection Act (CIPA) is a law passed by Congress that encourages filtering the Internet to protect minors by giving schools and libraries financial incentives to do so.  Throughout the text, the legislation defines terminology used in the remainder of the document.  It states that schools and libraries cannot use federal funds to buy computers or aid Internet access unless they have policies and softwares in place designed to filter visuals on the Internet that contain obscenity, child pornography and material harmful to minors.  There is also discussion of how the government plans to implement the law in schools and libraries and how groups can waive this requirement.  An exception to the filtering rule is also provided; schools can disable filtering softwares for research purposes.  The law concludes by discussing how schools and libraries need to document and enforce the policies outlined in CIPA, and what the legal ramifications for the schools and libraries are if they do not enforce the policies.

 

            CIPA is relevant to my paper because it demonstrates how the government can constitutionally play a role in protecting children online and it shows governmental support for self-regulation. CIPA, unlike parts of the CDA and COPA, has been ruled to be Constitutional and not in violation of the first amendment, because Congress is providing incentives for schools and libraries to regulate content on their own computers, rather than requiring regulation. Congress seemed to take the Supreme Court’s ruling concerning the CDA into consideration when drafting CIPA, because the law allows filtering of obscene and pornographic material but not indecent material.  Encouraging communities to enact regulations protecting children themselves is also a better strategy than governmental regulation because it allows communities to better apply their own standards regarding what is obscene and harmful to minors.  The government’s established definitions of obscenity and harm to minors involve applying community standards, so this law does a good job of following past legislative precedents, giving the law even greater validity.

This letter written on behalf of the Society of American Archivists expresses one group’s opposition to the CTEA and the need to oppose such a passing of an act. They argue that the law disrupts the balance between public and private interests and will have a negative impact on the public’s use of unpublished materials for teaching, scholarship and research. The point of the Society is to make things available to the public and they believe that such an extension will inhibit their ability to make things available and useable to the public. Maher on behalf of the society argues that there should be a vigorous public domain and protections for the rights of holders of intellectual property as well. They believe that too short of a copyright may discourage new works but too long of a period may limit the creation of new discoveries and Congress must maintain a balance between the interests of authors and the rights of the public. Maher argues that, “no extension of copyright term should be contemplated until there are available solid analysis of the likely impact of such an extension on the creation of new knowledge”. He goes on to say that the Society is troubles by the effect the extension may have on the use of unpublished material that is found in archives and that courts have continues to restrict the application of fair use, which applies, to archives. The final argument Maher makes is that the Society believes that only a few individuals of heirs and corporations would benefit from the extension of such an extension.
    This letter is important because it takes the perspective of an organization that finds the passing of the CTEA to be unbeneficial and detrimental to their work. It is important to my paper because it takes a different perspective, a more personal perspective in a sense. The argument they make is not just for the public domain but also rather for the balance which is something that has not been argued for in other articles.

Peter Yu writes that the Supreme Court, in its decision in Eldred v. Ashcroft cited the need to harmonize the United States copyright law with that if the European Union, which is a reason that the CTEA passed in the first place. He writes that Justice Stephen Breyer in his dissent in the case, writes about how the opposite is true even with the passing of the CTEA. Breyer points out that the US and the EU have different copyright terms for a large number of works including, “works made for hire, pre 1978 works and anonymous and pseudonymous works”.  Yu examines sound recordings and writes that in the US sound recordings are deemed works made for hire and are therefore protected for 95 years. However, in the EU, recordings are only protected for 50 years. In the US, if the recording is protected by copyright then it does not matter if it is in the public domain elsewhere and if the recoding is imported to the US, then it is considered piracy. Yu points out that harmonization has been held back due to the background of copyright law in different countries. He writes that European copyright law developed from an authors’ right (droit d’auteur) tradition, which includes personal and economic rights while US copyright law emerged from a utilitarian tradition which emphasizes economic rights over personal rights. The US and Europe also differ on moral rights as Yu writes. In Europe, an author, not a copyright holder, has a right to claim authorship and can prevent the use of the name as the author of any work not created by the author. The author also has the right to prevent any damage to his or her reputation. This protection as Yu notes is not available in the US except in instances of visual arts. Yu writes that the Court in Eldred embraced the idea and need to harmonize US copyright law with other countries’ copyright law but it deferred to Congress and Congress has a strong interest in intellectual property, causing it to grant stronger protection than other countries.
    This article that comes from a book that Yu is planning on publishing, helps oppose the reasons behind why Congress passed the CTEA. This is crucial to my argument because it questions the Congress and their desires to pass the CTEA. This article opposes a different argument that Congress made in support of harmonization, which is an argument that I make in my paper in support of the CTEA.

The Copyright Term Extension Act of 1998, which is also known as the Sonny Bono Copyright Term Extension Act as well as the Mickey Mouse Protection Act, extends the copyright terms in the United States by 20 years. Before this act, the law lasted for the life of an author plus fifty years or seventy-five years for corporations. Now, the copyright lasts for the life of an author plus seventy years of ninety-five years for corporations. In 1998, Disney representatives came to Washington looking for help in order to protect Mickey Mouse from going into the public domain in 2003.
This is the act in question for my argument. Disney wanted to protect their creation of Mickey Mouse and prohibit it from entering the public domain, so they called for the CTEA. Congress and President Clinton, who received lavish donations from Disney, signed the act in 1998. Whether or not the act should be upheld is the question I argue in my paper.

    These excerpts of the reasons why Congress extended the copyright term shows that these reasons are consistent with previous copyright extension acts that have been granted. One reason is that Congress recognized a number of public policy reasons for enacting such an act. It points out that Senator Orrin Hatch, pointed out that the reasons for passing the act “paralleled those that led Congress to adopt the life-plus-50 year copyright term in 1976”. These reasons include “harmonizing with the European Union and Strengthening the United States Balance of Payments”.  If United States copyright owners used works in Europe, it could only be protected if the US term was similar to that of the EU, which is the author’s life plus 70 years. Therefore this was a reason behind the CTEA. Other reasons include: to encourage investment in existing copyrighted works, fair provisions for authors’ descendants and encouragement for the creation of new works.
    The last reason given by Congress to pass CTEA holds important weight in my argument. Petitioners argue that the CTEA does not promote new creation, however, it was in the minds of Congress that the CTEA would indeed promote new creation. One creator in particular, Alan Menken testified that providing for one’s family is important during and after one’s life. If copyright would not help to provide for one’s family for an extended period of time, then a creator like Menken would have to stop creating and find employment elsewhere which would not promote creation of new works but actually inhibit it. This reason helps to argue why the CTEA should be supported rather than opposed. With regard to Mickey Mouse, protecting his creation can help Disney create new stories, images, and several ways of using Mickey Mouse.

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This document includes Clause 8 as it exists in the U.S. Constitution along with a discussion.  It states that “Congress shall have power to promote the progress of sciences and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  The document goes on to discuss the scope of Congress’ power as well as the power held in the courts, between which an interesting balance is formed. 

 

This Clause and document are clearly connected to the thesis as they form and discuss the entire basis of copyright law and who has the power to enforce it. It is important to remember and realize that much power does lie in the hands of the government as opposed to the view that the power rests in the gatekeepers, copyright owners and infringers.  In a sense, this document complicates my thesis in that much of my thesis is focused on the idea that most copyright law is handled below the government.

Curb Illegal Downloading on College Campuses Act of 2007

    The goal of this bill is to combat illegal downloading on university campuses.   In the ‘findings’ section of the bill, it states that illegal downloading of a variety of mediums are used and have been used increasingly on university and college campuses. It also claims that peer-to-peer file sharing puts a strain on the university and costs the university money. Congress also finds that illegal downloading puts the university networks at a higher risk of being infected with computer viruses. The last point made in congress’ findings is that programs that stop illegal downloading can do so without violating the privacy of students or their academics. The bill also amends the ‘Higher Education Act’ of 1965 by adding support for pilot programs and policies that reduce the amount of illegal downloading.

    This bill that was introduced in the House is valuable to my topic because it provides congress' standings on the relationship between universities and file sharing. The bill demonstrates that congress recognizes the downfalls of file sharing, not only from a legal standpoint but also from the effect it has on universities. Although the bill supports the fight against illegal downloading, it does not necessarily make universities responsible, nor does it directly support the RIAA.

 

This is a bill pending in the United States Senate that would broaden the already existing Copyright Act of 1976, extending copyright protection to fashion designs for a period of three years. Under this act, the rather ambiguous terms relating to fashion are clarified. For example, the bill extends protection to "the appearance as a whole of an article of apparel, including its ornamentation." Furthermore, the bill identifies what constitutes the term "apparel," including, "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear." If a designer wishes to receive the three-year protection, he or she would be required to register with the U.S. Copyright Office within three months of going public with the design. In addition, the bill lists the monetary penalties for any individual who is guilty of copyright infringement under these terms.

            I almost did not include this bill in my project, but I found it very noteworthy how many of my sources referred to this bill. Thus, I found it important to actually read and have in front of me the primary source of many of their arguments. I also think it is interesting to see how designers would be protected under law. I am planning on arguing whether or not designers should have protection under law for their designs, so it is helpful to see an example of how proponents of fashion copyright hope to protect fashion designs.

 

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Lawmakers' Profits Are Scrutinized
Hastert and Others Defend Land Gains

By Jonathan Weisman
Washington Post Staff Writer
Thursday, June 22, 2006; Page A01

House Speaker J. Dennis Hastert (R-Ill.) made a $2 million profit last year on the sale of land 5 1/2 miles from a highway project that he helped to finance with targeted federal funds. ...

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