I just read the latest Deep Thought from the editor of the blog TechDirt, Mike Masnick, who must be the only person, other than Her Majesty Queen Elizabeth II, who often uses the royal "we" when expressing a personal opinion. In Pushing for More Stringent Copyright Laws Is the Opposite of Allowing "Market Forces" to Act, Masnick rants that granting legally protected private exclusive rights, (a.k.a., "private property rights"), to private producers of socially valuable resources like expressive works will thwart what Masnick calls "market forces":

[I]t's flat out wrong to say that copyright (or patents, for that matter) are about "allowing market forces" to act. By definition, copyright and patent laws are the opposite of allowing market forces. It's the government stepping up and providing monopoly rights because they believe (rightly or wrongly) that basic market forces don't work in those areas and, thus, the government needs to step in and "correct" some sort of imbalance.

This is all--as Masnick might put it--"flat out wrong...." Economists and the economically literate know that if we want "market forces" to encourage the consumer-driven private production of any resource (including expressive works) then we must grant exclusive rights to private producers of that socially valuable resource. In other words, property rights---government-granted, legally protected exclusive rights--are required to use "market forces" to encourage the production of any resource.

I've been so busy trying to cover breaking developments related to Washington's new efforts to "save journalism" (FTC) and steer the "future of media" (FCC) -- see all my recent essays & papers here -- that I forgot to do a formal book review of the book that is partially responsible for whipping policymakers into a lather about this issue: The Death and Life of American Journalism, the media-takeover manifesto by the neo-Marxist media scholar Robert W. McChesney and Nation editor John Nichols. Their book is horrifying in its imperial ambitions since it invites the government become the High Lord and Protector of the Fourth Estate. [For an in-depth look at all of McChesney's disturbing views on these issues, see: "Free Press, Robert McChesney & the "Struggle" for Media."] Anyway, I put together a formal review of the book for City Journal. It's online here and I've also pasted it down below.

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A Media Welfare State?

Imagine a world of "post-corporate" newsrooms, where the state serves as the primary benefactor of the Fourth Estate. Billions flow from bureaucracies to media entities and individual journalists in the name of sustaining a "free press." And this new media welfare state is funded by steep taxes on our mobile phones, broadband connections, and digital gadgets.

Sound Orwellian? Well, it's the blueprint for a press takeover drawn up by Robert W. McChesney and John Nichols in their new book, The Death and Life of American Journalism. McChesney, the prolific neo-Marxist media scholar who teaches at the University of Illinois at Urbana-Champaign, and Nichols, a journalist with The Nation, aren't shy about their intentions. Along with Free Press, the absurdly misnamed regulatory activist group they co-founded, McChesney and Nichols outline a self-described "radical" agenda for what they hope will become a media "revolution." And, shockingly, some folks in the Obama administration are listening.

And where are the clowns?
Quick, send in the clowns…
Don't bother—they're here.
—Judy Collins/Stephen Sondheim, Send in the Clowns

Recently, Nate Anderson of Ars Technica published File-sharing has weakened copyright—and helped society. This story's title summarizes the thesis of a "new" paper by those Grokster-loving, Free-Culture-Movement Professors, Felix Oberholzer-Gee and Coleman Strumpf (collectively, "OGS"). Their "new" paper is entitled File-Sharing and Copyright. Fortunately, their non-sequitur thesis does not follow from their clown-car collection of factual, legal, economic, and historical errors that poses as "scholarship."

Indeed, I just published a blog post and a longer paper to show that those who listen to the likes of Oberholzer-Gee merely end up accusing the Government Accountability Office of decades of wrongdoing by celebrating the "positive economic effects" of criminal racketeering. The blog post is entitled, Why Copyright Industry Costs-of-Piracy Studies Correctly Ignore the "Positive Economic Effects of Criminal Racketeering; the paper is entitled, Punk'd: GAO Celebrates the "Positive Economic Effects of Counterfeiting and Other Criminal Racketeering.

Said FCC Chairman Julius Genachowski on May 6th, "The [Comcast] opinion therefore creates a serious problem that must be solved so that the Commission can implement important, commonsense broadband policies..."

I'll say. It's a problem, alright. Yet the chutzpah of the ensuing NOI process - in particular, the FCC asking whether its Net Neutrality workaround to reclassify the transmission element of broadband as a Title II service is worth doing / can be done - doesn't make it any better.

"Again?" That was my reaction when I read the Opinion and Order issued last night by Judge Louis Stanton in Viacom v. YouTube. How ironic that the original YouTube--the "video Grokster" will now force the re-litigation of a minor variation of the same question answered unanimously by the Supreme Court in MGM Studios, Inc. v. Grokster, Ltd.

But so be it. I've seen this movie already. I think I know how its sequel ends.

In MGM Studios, Inc. v. Grokster, Ltd., a federal district judge held that a federal law--in that case, the Supreme Court's 5-4 decision in Universal City Studios v. Sony--created a "safe harbor" that protected from civil liability even corporations that intended to build Internet businesses based on mass piracy by using unprotected consumers as human shields against copyright enforcement so that mass piracy could become "start up capital for their product."

Personally, I never doubted that the district-court decision in Grokster would be overturned. It was absurd. Under then-existing law, corporations that intended to encourage or dupe even one consumer into infringing copyrights were committing federal crimes. See, e.g., 18 U.S.C. secs. 2, 241, 307, 2319. And corporations that intended to induce mass piracy were committing far more serious crimes by operating criminal "racketeering enterprises" within the meaning of the Racketeer-Influenced and Corrupt Organizations Act (RICO). See id. at secs. 1961-68.

Consequently, even though the meaning of the 5-4 majority opinion in Sony was deliberately obscure, one point seemed inarguable: it made no sense to imagine that Sony could have been intended to provide protection from civil liability to potential criminals or criminal racketeering enterprises. Predictably, in Grokster, every single Justice of the United States Supreme Court agreed that Sony had not created a "safe harbor" for any sort of potentially criminal conduct.

I would also suggest that the Court's unanimous decision in Grokster should have conveyed to federal district judges a message somewhat broader than the Court's actual holding. That message was simple: It is highly improbable that any federal law will ever create some "safe harbor" against civil liability for copyright infringement that protects any potentially criminal conduct. That result makes no sense whatsoever.

Alas, in Viacom Int'l, Inc. v. YouTube, Inc., another federal district judge has now held that another federal law--in this case, the hosting-site "safe harbor" codified in Section 512(c) of the Copyright Act--has created a "safe harbor" that protects from civil liability even corporations that intended to build Internet businesses based on mass piracy by using unprotected consumers as human shields to deter the enforcement of the federal civil rights of artists and mass piracy as "start up capital for their product."

Fortunately, this new decision is even less defensible than the district-court decision in Grokster that inspired the Grokster Defendants to disembowel themselves, (see n.1), when their case reached the Supreme Court. The 5-4 majority opinion in Sony was deliberately vague about the meaning of the rule of law it created. Section 512(c) is not--it is quite specific. For example, it expressly denies protections to any hosting site operator who "is aware of facts and circumstances from which infringing activity is apparent." 17 U.S.C. sec. 512(c)(a)(ii). As a result, in Viacom v. YouTube, Judge Stanton had to conclude that a hosting-site operator can actually know about and "welcome" "ubiquitous" mass piracy, yet be unaware of any "facts and circumstances from which infringing activity is apparent." The English language itself precludes that conclusion--as do all known principles of statutory interpretation.

Judge Stanton needs to certify his most implausible conclusions for immediate interlocutory review. He has accused Congress of speaking in tongues in order to create a civil "safe harbor" that protects even online racketeering enterprises that intend to endanger consumers so mass piracy can act as "start up capital for their products."

That is an extremely serious charge. If an unelected federal judge directs such dire accusations of misfeasance and malfeasance at the elected Members of the other two coordinate Branches of the federal government, immediate appellate review should follow as a matter of course.

For the past twenty years, my life and work in Washington D.C. have let me both observe and contribute to the operation of what is surely one of the best governments in human history. The resulting perspective was sometimes inspiring, often perplexing, and sometimes depressing. But while the daily foibles of representative democracy may sometimes cause even its most ardent advocates to contemplate the restoration of the Bourbon Monarchy, there are also those faith-restoring moments when principle unexpectedly trumps politics and common sense suddently prevails.

That happened this morning at a hearing held by the Senate Committee on the Judiciary entitled Oversight of the Office of the Intellectual Property Coordinator. Unless I am mistaken, this hearing produced something that I would not yet have predicted: a politically risky, bipartisan, Legislative/Executive-Branch call for private copyright owners, internet-access-service providers and payment processors to work together to devise private solutions to the challenges of curbing digital piracy and internet counterfeiting.

I just published a new paper called Punk'd: GAO Celebrates the "Positive Economic Effects" of Counterfeiting and Other Criminal Racketeering ("Punk'd"). It debunks efforts to claim that a recent report from the Government Accountability Office (GAO) reasonably concluded that counterfeiting and piracy have important "positive economic effects" and that all copyright-industry estimates of piracy's economic costs are "bogus," "baseless" and "false." A few of the many examples of such nonsense include Content Industry Piracy Claims Are Bogus and GAO Concludes Piracy Stats Are Usually Junk, File Sharing Can Help Sales.

Punk'd explains why these backfiring claims are the real "bogus junk." This post summarizes some of its arguments.

As I touched on last night, I can't say as I was surprised by today's announcement by the FCC to move toward full-blown Internet regulation. Voting along party lines, the three Democratic FCC Commissioners expressed their wholehearted belief that their regulation of the Internet - not de facto marketplace regulation - was the only way to protect consumers and Americans.

The Comcast v. FCC decision should have rebooted the Commission's discredited Net Neutrality ambitions. Yet instead, the FCC appears moving closer toward questionable new rules, using specious authority to get there. Such an exercise in regulatory hubris is truly confounding, especially in light of the facts and a clear consensus that the Internet must remain free from stultifying regulation.

Make no bones about it, the FCC's NOI today will work to regulate the Internet, and poorly at that. It takes a yellowed, dog-eared page from a 19^th Century industrial policy playbook, and seeks to graft that on to the rapidly evolving Internet. Ultimately, it will prove offensive to American consumers, as well as those innovating at the core and edge of America's broadband networks.

• 93% of the time parents are present at the time games are purchased or rented
• 64% of parents believe games are a positive part of their children's lives
• 86% of the time children receive their parents' permission before purchasing or renting a game
• 48% of parents play computer and video games with their children at least weekly
• 97% of parents report always or sometimes monitoring the games their children play
• 76% of parents believe that the parental controls available in all new video game consoles are useful

Today, the Federal Communications Commission (FCC) voted along party lines to adopt a Notice of Inquiry opening a new proceeding to regulate the Internet by reclassifying it under Title II of the Communications Act. FCC Chairman Julius Genachowski calls this his "Third Way" plan. In a PFF press release, I issued the following response:

In its ongoing 'by-any-means-necessary' quest to regulate the Internet via Net Neutrality mandates, Chairman Genachowski's FCC continues to flaunt the rule of law and magically invent its own authority as it goes along. If this Chairman wants to bring the Net under his thumb and regulate broadband networks like plain-vanilla public utilities, he should ask Congress for the authority to pursue such imperial ambitions. As the law stands today, the FCC has no such authority. Indeed, the unambiguously deregulatory thrust of the Telecom Act of 1996 stands in stark contrast to Chairman Genachowski's outdated vision for Big Government Broadband.

The FCC stands on the cusp of killing one of the great deregulatory success stories of modern economic history by reviving the discredited regulatory industrial policies of the 19th Century. The revisionism about that epoch is dead wrong: Price controls and protected markets limited choice and stifled innovation. With the agency rolling back the regulatory clock in this fashion, today marks the beginning of the Internet's "Lost Decade" of stymied investment, innovation, and job creation as all sides wage battle over the legality of reclassification and its implementation.