NB: The following was prepared months ago after a copyright skeptic, Mr. Timothy Lee, had again insisted his blog post, Selective Quotations in the Sydnor Paper, had proven my all-purpose intellectual dishonesty by raising four objections to my paper on Professor Lawrence Lessig's book Free Culture (2004). Nevertheless, I again chose not to reply because I had hoped that the very explicit instructions that I had then provided might show Mr. Lee and others that his post was so flawed that they should do what I had long advocated, "agree to disagree" and move on.

Sadly, some "anonymous" comments on this post at Copyrights & Campaigns have now shown that Selective Quotations in the Sydnor Paper will be forever cited as conclusive proof of my presumptive duplicity--unless I expose it as the hypocritical work of a "libertarian" so unhinged by copyhate that he unwittingly defended the most indefensible claims made in Lessig's now-self-described "apology for regulation."

So be it. My reply to Mr. Lee's Selective Quotations follows.

Copyrights have helped to make the United States the world's most successful producer and exporter of expressive works. Consequently, persons skeptical of their utility might tend to be a humble, gosh-I-may-be-wrong crowd. But too many copyright skeptics are so morally certain about the injustice of requiring bilateral consent between producers and recipients of expression that they cannot even debate the matter rationally.

Make sure to read George Ou's two recent articles over at the Digital Society blog setting the record straight about broadband usage caps: "Putting American Bandwidth Caps into Context" and "We Need to be Reasonable about Broadband Usage Caps." George is one sharp cookie. I particularly like the way he takes apart Free Press for their hypocrisy on this issue, something I have commented on here before after George brought it to my attention. See:

• Free Press Hypocrisy over Metering & Internet Price Controls; and


• The (Un)Free Press Calls for Internet Price Controls: "The Broadband Internet Fairness Act"

... and here's some older material on the issue...

• Why Not Meter?


• Once Again, Why Not Meter Broadband Pipes?


• Bandwidth Cap Hysteria & the Alternative


• Bandwidth Cap Worries (by Tim Lee)


• Net Neutrality Rules = Price Controls (by Ryan Radia)


• The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation

In a post earlier this week, I discussed Randy Cohen's "guideline" for anonymous blogging. Specifically, Cohen argued in a recent New York Times piece that, "The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution. By posting openly, we support the conditions in which honest conversation can flourish." While sympathetic to that guideline, I noted I agreed with it as an ethical principle, not a legal matter. In others words, what might make sense as a "best practice" for the Internet and its users would not make sense as a regulatory standard. I prefer using social norms and public pressure to drive these standards, not regulation that could have an unintended chilling effect on beneficial forms of anonymous online speech.

Dan Gillmor of the Center for Citizen Media of the Harvard Berkman Center has a new column up at the UK Guardian in which he takes a slightly different cut at a new standard or social norm for dealing with some of the more caustic anonymous speech out there:

One of the norms we'd be wise to establish is this: People who don't stand behind their words deserve, in almost every case, no respect for what they say. In many cases, anonymity is a hiding place that harbours cowardice, not honour. The more we can encourage people to use their real names, the better. But if we try to force this, we'll create more trouble than we fix. But we don't want, in the end, to turn everything over to the lawyers. The rest of us -- the audience, if you will -- need to establish some new norms as well.

Specifically, Gillmor argues that, " We need to readjust our internal BS meters in a media-saturated age," because "We are far too prone to accepting what we see and hear." I think Gillmor has too little faith in most digital denizens; most of us take anonymous comments with a grain of salt and assume that the ugliest of those comments are often untrue. And that's generally the "principle" he recommends each of us adopt going forward:

Mediapost has published an interview I gave to Omar Tawakol, founder of the BlueKai registry entitled "User Empowerment, Not Regulation, Is The Answer to Privacy Concerns About Targeted Ads" in which I summarize the arguments Adam Thierer and I have been making since our "Principles to Guide the Debate" piece last September.

We argue for user empowerment over restrictive defaults (like "opt-in") for data use and collection because, as the Supreme Court held in 2000: "Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us."

We promote tools that let users make their own decisions about privacy, not only because those decisions are fundamentally subjective, but because regulatory mandates could stifle the development of online content and commerce.

I also note the parallels between speech controls and privacy regulation, and call for a consistent, principled approach to both:

Since 1997, the Supreme Court has struck down multiple legislative attempts to censor online and offline content [especially the CDA] because there were "less restrictive alternatives" that would not so heavily burden free speech rights. In a 2000 cable-related decision, the Court held that "targeted blocking [by users] is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests."

Courts have struck down other federal and state speech controls because parents had the tools to filter their kids' access to information online, in video games, etc., as described in my PFF colleague Adam Thierer's ongoing catalog of these tools...

Many who oppose industry self-regulation are not really "consumer advocates" because they don't recognize that consumers have many, competing values. Those regulatory advocates are more interested in their preferred one-size-fits-all mandates than in empowering users to determine their own privacy preferences.

Like advocates of censorship, privacy zealots assert great dangers to which citizens are supposedly oblivious but which urgently require government intervention-dismissing arguments to the contrary as either uninformed or irresponsible.

The comments on the interview are equally worth reading. Jeff Chester, who has made a career out of attacking advertising, quickly posted a comment dismissing, but ignoring, my arguments about consumer welfare as corporate propaganda--just as he did with his comment on the post Adam and I wrote in June about congressional hearings on the issue featuring Chester (and Scott Cleland, the right-wing "Bizarro Chester"). I've had it with Chester's ad hominem attacks on the motives of those who disagree with him, as I explained in my reply to Chester:

By Michael Palage & Berin Szoka

Over the next month, the ICANN Board will consider its options for ensuring that some framework is in place to ensure ICANN's accountability to the global Internet community after the approaching expiration of its Memorandum of Understanding and Joint Project Agreement (MOU/JPA) with the U.S. Department of Commerce. We analyze these options in our new paper, "Choosing the Right Path to a Permanent Accountability Framework for ICANN."

We urge the ICANN Board to allow the time necessary for the development of a permanent accountability framework in consultation with the global Internet community, as required by ICANN's Bylaws. The authors caution the ICANN Board against rubber-stamping a recent proposal to essentially make the MoU/JPA a permanent instrument as inadequate to ensure ICANN's long-term accountability. The alternative, simply ending ICANN's relationship with the U.S. Government, would raise serious legal questions concerning ICANN's ability to collect fees from registrars and registries and the transfer of property rights underlying the domain name system.

We conclude by calling on ICANN's new CEO Rod Beckstrom to exercise the kind of leadership he advocated in his 2005 book, The Starfish and the Spider: The Unstoppable Power of Leaderless Organizations, which explains the advantages of decentralized managerial "nervous systems" ("starfish") over top-down hierarchies ("spiders"):

Instead of focusing on 'spider'-esque permanent instruments with a single government, Beckstrom and the ICANN Board should focus on more 'starfish'-like solutions that both continue the USG's stewardship role and involve more governments that want to participate in the unique private-public partnership known as ICANN--without compromising ICANN's guiding principles and commitment to private sector leadership. Only this outcome will ensure the long-term viability of ICANN as a global trustee of the Internet's unique identifiers.

"When I use a word," Humpty Dumpty said in a rather a scornful tone, "it means just what I choose it to mean - neither more nor less." "The question is," said Alice, "whether you can make words mean different things." "The question is," said Humpty Dumpty, "which is to be master - that's all."

Lewis Carroll, Through the Looking Glass, and What Alice Found There (1871)

In my essay, "Good-Bye, Humpty Dumpty?", I discuss how a recent decision of the D.C. Circuit Court of Appeals in Cohen v. U.S., 2009 U.S. App. LEXIS 17677 (No. 08-5088)(D.C. Cir. Aug. 7, 2009) reaffirms that there is an important distinction between general statements of administrative agency policy and legislative rules. In making this determination, the court will look to the language of the administrative action, as well as its effect; subsequent attempts by agencies to "re-label" their actions as something other than what was originally intended will not stand. In Cohen, the D.C. Circuit rebuffed an attempt by the IRS to treat as a general statement of policy a Notice by which it both conceded its refund obligation for certain improperly collected telephone excise taxes and established a binding and exclusive refund process. The court found that the Notice created enforceable obligations and rights on the part of the IRS, the telephone service providers, and the taxpayers that effectively constrained the agency's discretion by establishing an administrative refund process. In short, it created a legally binding rule.

My friends Anne Collier and Larry Magid, two of America's leading experts on Internet safety matters, have just released a terrific new "Online Safety 3.0" manifesto. Anne is the editor of Net Family News, Larry pens the "Safe and Secure" blog for CNet News, and together they run ConnectSafely.org. Everything they do is must-reading for those of us who cover and care about the intersection of online child safety and free speech issues. [Disclosure: I am currently serving along with Anne and Larry on the new, government-appointed Online Safety Technology Working Group.]

In their new "Online Safety 3.0" essay, Anne and Larry argue that:

Both the Internet and the way young people use technology are constantly changing, but Internet safety messages change very slowly if at all. A few years ago, some of us in the Net safety community started talking about how to adjust our messaging for the much more interactive "Web 2.0." And we did so, based on the latest research as it emerged. But even those messages are starting to get a bit stale.

Their "Version 3.0" for online safety refocuses the discussion on "the positive reasons for safe use of social technology." They want to"enable[] youth enrichment and empowerment. Its main components -- new media literacy and digital citizenship - are both protective and enabling." They argue that "promoting critical thinking, mindful producing, and the ethics, responsibilities and rights of citizenship" is "empowering because it's protective. This is protection that lasts a lifetime." Amen to that.

What I like best about Anne and Larry's approach is that is fundamentally optimistic. Whereas so many supposed child safety experts talk down to both parents and kids and seem to suggest that both are completely oblivious to the world around them, Anne and Larry have a very different worldview and approach. They are positive about the potential of both parents and kids to take on new challenges and make the best of the new technologies they have at their disposal, even if there are some bumps along the way. The other thing I love about Anne and Larry is that they have done more than any two journalists I know to debunk the "technopanic" hysteria that others in the media world have propagated over the past 15 years.

Anyway, make sure to read their "Online Safety 3.0" manifesto. Best thing I've seen on the subject in a long time.

Just caught this LA Times editorial from a couple of days ago on the "Overreaction to Online Harassment." The piece makes many of the same points that Berin Szoka and I stress in our PFF paper on "Cyberbullying Legislation: Why Education is Preferable to Regulation." [Also, here's a video of a debate on these issues that I took part in up on Cap Hill this summer.]

The Times editorial notes that, "Because of a past tragedy, lawmakers and prosecutors are becoming overzealous in combating noxious behavior on the Web." Specifically, they are referring to the tragic case of Megan Meier, the teen who committed suicide after being harassed on MySpace. "Members of Congress often try to expand the powers of federal prosecutors and courts when state law doesn't produce the results they seek, especially when confronted with cases as heart-wrenching as Meier's," the Times noted. For example, in may 2008, Rep. Linda Sánchez (D-CA) introduced H.R. 1966 (originally H.R. 6123), the "Megan Meier Cyberbullying Prevention Act," which would create a new federal felony to deal with this concern.

But creating a federal crime for something that is mostly peer-on-peer activity seems like overkill. Moreover, the Times notes, "the bill is so vaguely written" that it "would have a hard time withstanding a 1st Amendment challenge if it ever became law." As you'll see in our paper, Berin and I agree, but we also point out that cyberbullying is a very serious matter since evidence suggests the cyberbullying is on the rise and that it can have profoundly damaging consequences for children.

[NB: Over at Copyrights & Campaigns, a "debate" has arisen in the comments to this post. This "debate" notes that the Computerworld magazine and website recently published an interview with Lime Group CEO Mark Gorton in which he attacked my most recent paper on inadvertent file sharing . I have thus attached, below, a slightly edited version of the reply that I provided to Computerworld weeks ago.]

I would like to thank Computerworld for asking Mr. Gorton to cite an example of what he called the "very tricky and deceptive" and "completely biased" analysis in my recent paper, Inadvertent File-Sharing Re-Invented: The Dangerous Design of LimeWire 5 ("Dangerous Design"). Predictably, only Mr. Gorton's example was "very tricky and deceptive": he misrepresented what my paper said and how his own program behaved.

I recently finished Tyler Cowen's latest book, Create Your Own Economy: The Path to Prosperity in a Disordered World. Like everything he writes, this book is worth reading and it will be of interest to those who follow technology policy debates since Cowen makes a passionate case for "Internet optimism" in the face of recent criticisms of the Internet and the Information Age in general.

Cowen is a Professor of Economics at George Mason University and the co-author, along with Alex Tabarrok, of the wonderful MarginalRevolution.com blog. And if you haven't read Cowen's In Praise of Commercial Culture, stop what you're doing and go get yourself a copy right now. Brilliant book. Compared to that book, Create Your Own Economy is a difficult book to summarize. Seriously, this book is all over the place... but in a good way. Even though it sometimes feels like "Tyler's Miscellaneous Ramblings," those ramblings will keep you engaged and entertained. Cord Blomquist did a pretty good job of summarizing the general themes of the book in this post two months ago when he noted that, "despite cultural reflexes that would have us do otherwise, we should embrace... new technologies as means to be more selective about what information we absorb and therefore welcome the increased volume of bytes into our lives. In his new book, [Cowen] explores technology as a vehicle to help you determine what you really value, not a series of a email-powered torture devices." That's a pretty good summation, but the book is about much more than that.

Instead of a full-blown review, I want to focus on some of passages from Cowen's book about coping with information overload, which I think readers here might find of interest. In doing so, I will contrast Cowen's views with those of John Freeman, who just penned "A Manifesto for Slow Communication" in The Wall Street Journal. As we will see, Cowen and Freeman's differences exemplify the heated ongoing debate taking place among "Internet optimists & pessimists," which I have discussed here many times before.