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.

 

This is essentially the plaintiffs' (Columbia Pictures' et. al.) memorandum of Points and Authorities in Support of Summary Judgement on Liability. Essentially it captures the main arguments of the plaintiffs in Columbia Pictures v. Gary Fung (IsoHunt), a recent development in the bittorrent context. Essentially the plaintiffs claim that the whole purpose of the "Fung websites" is to facilitate and provide users with the ability to search for ".torrent" files which link to trackers hosted on various computers and servers that contain actual content files like movies, etc. Also, plaintiffs maintain that "torrent" files in themselves have no purpose but to link to actual content files. The plaintiffs say that there had been done an "unrebutted" statistical study which showed that "95%" of all the torrents on the "other fung sites", which work hand-in-hand with the main IsoHunt site, are links to copyrighted material. Also important, is the plaintiffs counter to the defendant's (Gary Fung) claim that the Grokster case doesn't apply because unlike in the Groster case IsoHunt does not distribute any product. The plaintiffs' argument is that this claim is invalid because the Grokster case had nothing to do with it being a product as opposed to a service, but rather the fact that the Grokster "induced and promoted" active infringement which thus made Grokster liable for contributory infringement. 

This document is crucial to my research paper. It is the only recent legal document, and at the same time a primary source, directly related to my research thesis of whether government can/should shut down sites like www.IsoHunt.com. I plan to use virtually all of the arguments presented by the plaintiffs in my research paper. By weighing these arguments with various other sources (copyright law, DMCA, Grokster case, Fung's Affidavit) I'll be able to reach some kind of a conclusion in regards to my thesis.

This is a news article reporting on the recent developments in the campaign against copyright infringement. Specifically it reports on the recent development surrounding isoHunt. Essentially it makes it known that IsoHunt is using the claim that it's "only a search engine" as a defense against copyright infringement. It also makes reference to how the IsoHunt website functions as claimed by Gary Fung, the owner and developer of the website technology (see Affidavit no. 1). The article also exposes the MPAA's strategy in accusing IsoHunt and the like in copyright infringement. According to the artical the MPAA is heavily relying on the MGM v Grokster case. Lastly the artical also provides some significant issues raised by the on-going case. One is that it will probably be difficult for IsoHunt to prove to the judge that the IsoHunt website behaves like Google or Yahoo or any other search engine. It also raises an important point in regards that once settled this case could affect the fate of the whole internet structure specifically for search engines and the filesharing community.

The article is important for my research paper because it is the only article out of those that I looked at that covers the developments of the MPAA v. IsoHunt case in an unbiased way. Furthermore, since there is no official court transcript available as the case is still in progress any recent developments are important for my research paper. Further it provides one significant insight that IsoHunt does not behave in the same way as any other search engine in the sense that google and the like is data-agnostic but isoHunt links to specific type of content. I plan to quote this directly in my paper.

This is a summary of the Digital Millennium Copyright Act of 1998 released by the Copyright Office. The DMCA was signed into law by President Bill Clinton. It is divided into five titles.

• Title 1: WIPO TREATY IMPLEMENTATION implements the WIPO treaties. The title makes several technical amendments regarding national eligibility, restoration of copyright protection and registration as a prerequisite to suit. Although the title provides exceptions, the title essentially prohibits the production/services of copyright-protection circumvention tools. Further it prohibits the distribution of such tools/services.
  
• Title 2: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION. The title essentially provides a safe-harbor for online service providers as long as they meet certain provisions of the title. It establishes for classes of online services: transitory communictations, system caching, storage of information on systems or networks at the direction of users, and information location tools. In general as long as a service provider does not have requisite knowledge of infringing material, does not recieve financial gain attributable to infringing activity, and further more once the service provider is notified of infringing material it must act fast to take down or block access to such material.
  
• Title 3: Computer Maintenaince or Repair. This title basically says that an owner of a computer or a lessee doing maintenance or repair on the computer is excempt from copyright infringement if a situation arrises during which one must make a copy of a program for back up purposes. However the original copy must have been lawfully owned and further once all repair/maintenance has been finished the back up copy must be destroyed.
  
• Title 4: MISCELANIOUS PROVISIONS. This title further clarifies certain existing provisons and implements new ones regarding broadcast excemptions, library and archive excemptions among other things.
  
• Title 5: PROTECTION OF CERTAIN ORIGINAL DESIGNS. This title primarily deals with the protection of vessel hull designs.
  

This source is very valuable for my reseach paper. Specifically Titles 1 and 2 are going to be analyzed and used in my research paper. Title 1 is important in 1 crucial way. Although it may be a leap, in the sense of a legal court room, but I believe that the following analysis can be seen valid. IsoHunt and other similar websites link to/index .torrent files that allow users to download ISOs. ISOs are images of original CDs or DVDs. Now given that the DMCA prohibits the circumvention of encrypted DVDs, and other content such as software, these ISOs are illegal according to Title 1 of the DMCA. IsoHunt and other similar websites allow users to search for and download such ISOs. The title of the website itself: "IsoHunt"  suggests that the primary purpose of it is to "hunt" for "Iso"s. Title 2 is important for my paper because site operators such as Gary Fung (see affidavit no.1) often claim that as long as they follow the safe harbor provisions established by Title 2 of the DMCA, they may not be held liable for contributory infringement. Thus in my research paper I plan to make careful analyses of both these safe-harbor provisions and the claims of site operators. Title 2 is also important because many other important sources that will be used directly deal with this title.

This is the Supreme Court Opinion regarding the MGM et al v. Grokster et al case. The opinion of the court was delivered by Justice Sutter. Essentially what happened was that the decision made by the United States Court of Appeals for the Ninth Circuit was reversed. The question raised before the court was "under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product." According to the court, there was an error made by the Ninth Circuit Court, in its interpretation of Sony v. Universal City Studios. "The Ninth Circuit has read Sony’s limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties’ infringing use of it..." This document includes a description, gathered in the process of litigation, of how the Grokster and StreamCast products worked what technologies they used (Gnutella and FastTrack) and more importantly how the products were used by their users. It is made known that although the products have legitimate uses "90%" are copyright infringement uses. Another important point made by the document is that both Grokster and StreamCast profitted from advertisements that users would see while using the product. Furthermore, it is made known that "the business models employed by Grokster and StreamCast confirm that their principal object was use of their software to download copyrighted works." The decision of MGM v. Grokster essentially made the precedent that the Sony v. Universal decision doesn't leave service providers such as Grokster and StreamCast unliable for copyright infringement made by third parties using their product.

This source is very valuable for my research paper because it is one of the only cases dealing directly with the issue of p2p filesharing. Furthermore it provides support for my contention that government can and should shut down websites involved with/enabling copyright infringement. Many of such service providers use the Sony v. Universal case as defense against being liable for copyright infringement stemming from the use of their service by third party users. This case set a precedent to how future cases involving filesharing and copyright infringement cases are going to be handled in the future. Also, many of the current websites being targeted by the MPAA and RIAA and other agencies, whether in the U.S. or elsewhere, including www.IsoHunt.com among others, function in similar ways as Grokster and StreamCast did. Therefore if Grokster and StreamCast were found liable by the Supreme Court in this case, some of the strategies/analyses from this case can be used to shut down other sites such as IsoHunt.