Liberty Lost

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In an interesting stunt to test copyright enforcement policies on the Net, Brit Christian Ahlert uploaded sections of John Stuart Mill's classic defense of freedom of the press in On Liberty to the Web. In one case, he used an English ISP and in the other, an American one. The Mill material is in the public domain under both British and US law. He then sent the ISPs letters of complaint from a fake group called the John Stuart Mill Heritage Foundation.

Ahlert reports that the US ISP responded with detailed questions, "but the UK ISP took the site down almost immediately, effectively censoring legal content without investigation." In a provocative--though not necessarily completely convincing--conclusion, he writes:

ISPs are acting as judge, jury and private investigator at the same time. They not only have to make a judgement whether a website is illegal or not - they also have to act as a private detective agency, investigating the accusations and deciding on the merits of the evidence they gather. Nevertheless, when an ISP removes content it invokes the cyber equivalent to the death sentence. When an ISP acts it can effectively destroy a business or censor a political campaign, by making access to that website impossible.

Ahlert's implied suggestion--have official public bodies do all the policing--isn't a particularly strong remedy to jumpy ISPs. But he raises interesting questions about how chilling effects come into play. He also usefully links to the Electronic Frontier Foundation's Chilling Effects site.

Ahlert's piece, which appears on the always interesting site Spiked, is online here.

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  1. Is immediately giving in whenever anyone complains conducive to truly free-wheeling speech and expression?

    It seems like a problem the free market can easily solve, though. If significant numbers of people are getting their material *unfairly* targetted by legal complaints, then some enterprising ISP is sure to offer a premium service that bundles with it a certain amount of lawyers' time, to deal with cease-and-desist orders. In fact, I wouldn't be surprised if something like that already existed.

    Most ISPs operate on extremely low margin (since it's easy for customers to ditch them for a better deal). It may simply not be worth their time to investigate whether a complaint is legitimate -- if it costs, say, $100 to investigate a legal claim, and you're only making $1/month in profit off the website the complaint is directed at, ditching the website without investigating may be the smart bet. If you expect your ISP to go to bat for you, it seems reasonable to pay more for that.

    In any case, putting the government in charge of dictating what ISPs are required (or forbidden) to carry seems like a much greater threat to free speech than anything an ISP could do.

  2. There are sites which charge premium rates for a guarantee that you won't be kicked off. They're called "bulletproof" sites. Unfortunately, their customers are spammers.

  3. The culture of "instant takedown upon first complaint" among US ISPs is driven not by fear of lawsuits, but fear of the DMCA. If a service provider doesn't block or remove material "expeditiously" after an infringment claim, they leave themselves liable for contributory infringment. Since copyright violation became a criminal act in late '97 when President Clinton signed the No Electronic Theft act, ISPs have strong incentive not to take chances with (allegedly-) copyrighted material.

  4. The ISP isn't required to carry anything. A policy of responding to any copyright complaint by taking down the material may be a perfectly legitimate risk management policy, especially when compared against the cost of a detailed investigation. The ISP should be free to adopt such a policy if it wants.

    Such a policy may cost it some business, but weighing the marginal loss of business against the cost of investigating, defending, and losing copyright suits should be left to the ISP.

  5. RC,

    I don't necessarily disagree with you about any of that (Ahlert seems to). And, of course, one can see how a market for ISPs that pledge to support its customers would come into being and thrive.

    But there's a larger question for a liberal society: Is immediately giving in whenever anyone complains conducive to truly free-wheeling speech and expression? It's also worth pondering how some forces--especially large corporations such as Disney, which have the ears of legislators and deep pockets for even questionable legal actions--can use threats to get their way, even if the law is not in their corner (that such groups routinely get copyright law rewritten and/or interpreted according to their dictates only adds to the problem).

  6. Like so many other troubling issues, the ISP problem described is one that arises from an ongoing and nearly endless chain of unintended consequences.

    In this case the fear of spurious litigation is more than likely the culprit.

    But I guess you already knew that.

  7. Spike Lee, call your attorney -- there's a website called "Spiked".

  8. Obviously the ISP is free (or should be free) to adopt this policy. For further details, consult the appropriate chapter in your Libertarian Cathechism and then say 5 Hail Murrays.

    But if an entity that acts as a gatekeeper for information caves to spurious threats of a lawsuit, that can undermine (not coercively undermine, but still undermine) the liberal values of a society. It's important that such entities face some pressure in the opposite direction, and I believe that the experiment described in this post was providing just that sort of private-sector pressure.

    I'll never understand why it is that any criticism of a private entity is immediately met with "They have the right to do this! If you don't like it, too bad!" Nobody is suggesting a coercive remedy. To the contrary, the forum is being used to apply some good old fashioned public opinion pressure. Markets work best when individual buyers and sellers exchange information and opinions.

  9. ISP's often employ stupid people to handle complaints, because the smart ones can find less frustrating jobs. On one occasion, I filed a complaint about spam being sent to my club's mailing list. The host of the spammer claimed that it was my club that was spamming, and the ISP which hosts our mailing list threatened us with termination.

    Such events don't really prove anything beyond the stupidity of the people responding to the complaints.

  10. The cure to the chilling effect of ISPs acting in a risk averse fashion shouldn't be regulation of the ISPs, forcing them to take risks.

    The cure should be legal reform to reduce the risks, possibly by amending copyright law, or by amendment the rules of civil procedure to impose costs on a spurious complainant, or the like.

    Ahlert is exquisitly unclear on what he wants as a solution, but it sure seems to involve more government intrusion:

    Of course, policing would be difficult, but this should not be a reason to be in favour of private governance and regulation.

    Just because it is difficult to regulate the internet, this is no reason to resort to badly crafted forms of regulation, which move the entire burden on to unaccountable actors.

    He apparently can't conceive of private actors going about their affairs without "regulation." The only question is whether the regulation is private or public.

    For the record, I object to Ahlert's use of the term "private censorship." Governments censor, private parties edit.

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