Law in the Internet Society

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TWikiGuestSecondEssay 2 - 16 Dec 2015 - Main.LianchenLiu
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*Everything That Can Be Shared for Free, Should be Shared For Free*
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-- StephenHorton - 29 Dec 2014
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Technology is blurring the line of property laws. A teenager can easily send a copy of the song of her favorite artist to her friends; college students can download copies of textbooks for free; anyone can distribute the newest Hollywood movies on the internet. Publishers and movie distributors do not seem to be able defend their property rights in books, music and movies, despite their efforts in lobbying the authorities in China, Korea and United States to enforce the laws.
 
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The Supreme Court heard oral arguments for Elonis v. United States on December 1, 2014, which has opened up a debate about the issue of free speech on the Internet. In that case, defendant Anthony Elonis posted violent rap lyrics about murdering his wife on Facebook. He was prosecuted under 18 U.S.C. 875(c), which states that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” In this essay, I review Supreme Court First Amendment jurisprudence and evaluate the merits of Elonis’s argument.
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As the technology makes book, music and movies extremely accessible, copyright and the patent laws turn into hurdles on the road to the democratization of access to knowledge. Knowledge sharing on the internet, for the first time in the human history, reduces the costs of learning to zero.
 
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Before the Sui Dynasty in ancient China, the selection of officers were done through Chaju (recommendations for offices). A prerequisite of office appointments is to be knowledgeable of the Confucius Classics (Liujing). Even though there were only six books to be mastered, the books were written on bamboos, which makes books expensive to maintain and to reproduce. Only a handful of prestigious families had the resources to teach their children about the classics, which, in return, ensure all important positions were taken by these families. These families arranged marriages among themselves, established the monopoly of power for over a thousand years. To give an example of how powerful these families were, Emperor Tangwenzong once asked his chancellor to marry his granddaughter to the crown prince. The chancellor rejected and married his granddaughter to a man of the Cui family. The Emperor sighed “my family has possessed the crown for 200 years, and still cannot not match the families of Cui and Lu.”
 
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Supreme Court First Amendment Jurisprudence

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What came to destroy the monopoly was the invention of paper. Full rooms of bamboo books were replaced by paper copies that could be easily transported and transferred. Papers were also cheap to produce. Any landowners who were able to feed their families, could afford to educate their children. Offices started to be filled by people of poor upbringing. The few families that had dictated the politics for over a thousand years were forgotten.
 
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It is clear that the First Amendment does not provide unlimited protection for all things spoken, written, or otherwise expressed. For instance, in Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes, writing for the majority, famously wrote, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck remains a driving principle behind free speech jurisprudence, but was limited in Brandenburg v. Ohio, 395 U.S. 444 (1969). That case held that it is an infringement of First Amendment speech rights to punish speech unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447.
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Now comes the age that knowledge costs zero. So close we are to free sharing of knowledge through digital copies and online lectures, yet we let copyrights stand in the way. Property is the sole and despotic dominion over a thing. Personal property rules were developed over a long period of time for legitimate reasons. Land was the most important form of property. Property rights solve the problem of common property. When a community owns a forest, individuals have incentives to take as must as he can from the land. By doing so, he externalize most of the costs, and obtain all the benefits. If everyone does that in the community, the resources will be depleted quickly, and the future generations’ interest will be harm. This concern does not apply to knowledge. Sharing knowledge does not diminish the knowledge or deprive the future generations’ ability to access knowledge. Sharing knowledge actually creates more knowledge and makes knowledge more accessible to future generations.
 
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However, the Supreme Court has said that, along with incitement speech, government may impinge on speech that constitutes a “true threat.” In Virginia v. Black, 538 U.S. 343 (2003), the majority held that “[t]rue threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (internal quotation marks omitted).
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Property rights give the owner the sole discretion to price his property. The presumption is that people are rational, and the market will function to ensure efficient distribution of resources. This theory only works if resources are scarce, so that resource can be possessed by the people who value it the most. Knowledge lacks the nature of scarcity. When knowledge can be distributed at cost at zero, any distribution will be efficient. The owner of intellectual property should not have the right to price knowledge however he wants.
 
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Property rights are in rem rights. For example, when a property has an owner, you only need to contract with the owner in order to receive the permission to build a dam. Otherwise, you have to contract with everyone on this land to build the dam. In contrast, one’s use of knowledge does not affect another’s ability to use the knowledge. You do not need to contract with everyone in the world to use some knowledge in exclusion of other users. Hence, there should be no in rem rights in intellectual property.
 
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Elonis’s Case

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In order for anything to constitute property, it must be scarce. Intellectual property lacks the nature of scarcity, and property rights should not apply. The argument that absence of protection of intellectual property will discourage people from creating can be addressed in two parts. First, there is no evidence that people lacked the incentive to create when there was no intellectual property laws. Second, even if we want to encourage people to create by making such creation profitable, the court is perfectly capable of using liability rule to price any creation. If the Delaware court is capable of determining what price is fair for a stock, courts are capable of deciding what price is fair for a book.
 
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Elonis’s case turns on the application of the true threat doctrine. As is apparent, the definition from Virginia v. Black leaves something to be desired in terms of clarity. Elonis is arguing that the federal statute he was prosecuted under requires the government to prove his subjective intent to threaten. The government, on the other hand, maintains that proof of subjective intent is next to impossible to prove and would swallow the true threat exception altogether. Rather, they argue that they only must prove that a reasonable person would regard Elonis’s speech as threatening.

The former position is the correct one. Our legal system has required substantive intent for criminal liability since the beginning of our common law tradition, rather than simple negligence. See e.g., Holmes, The Common Law (1881). Moreover, when a criminal statute implicates a constitutional right, we must allow for a certain margin of error, if you will, in order to avoid a chilling effect on protected speech. People may choose to forgo making protected speech because they are concerned that they may find themselves on the other side of the contours of protection. Democracy thrives on differences of opinion and public discourse, so allowing for an adequate margin of error is preferable as an imprecise means to a desired end.

Substantively, Elonis’s statements were abhorrent and no one is defending the statements themselves. But, it is when we disagree with a speaker’s viewpoint that the civil liberties that this country was founded on are most crucial. Moreover, while it may seem like violent language like Elonis’s has no value whatsoever, as was suggested by Justice Scalia in oral arguments, infringing on Elonis’s right to express himself in this case will have far-reaching consequences on art speech (even if reasonable people disagree about whether statements like the ones in this case could ever be considered art) and political speech. As was pointed out by the Supreme Court itself, “[t]he language of the political arena,” in particular, “is often vituperative, abusive, and inexact,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Watts v. United States, 394 U.S. 705, 708 (1969).

Furthermore, speech on the Internet should be particularly threatening in order t justify government censorship. The Internet was founded on the idea of dissemination of information and is inherently the primary vehicle of democracy in this country: “[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” Reno v. ACLU, 521 U.S. 844, 870 (1997). The Supreme Court has had trouble adapting to 21st Century technology, but even without understanding the architecture of the Net, it is easy to see the value in allowing speech to remain largely unfettered in a context where anyone in the world can communicate with anyone else.

A subjective intent requirement, as argued for by Elonis, is necessary to protect First Amendment rights in general, and Internet speech in particular.

 
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The history of China showed that the power was dispersed after the access of knowledge became dispersed. First time in human history, the powerful and the privileged are losing control of who should be educated and how. As the cost of knowledge sharing approximates zero, intellectual property laws become the only way to artificially inflate the price of education to prevent access to knowledge for free, for all, and forever. Everything that can be shared for free, should be shared for free.
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TWikiGuestSecondEssay 1 - 29 Dec 2014 - Main.StephenHorton
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-- StephenHorton - 29 Dec 2014

The Supreme Court heard oral arguments for Elonis v. United States on December 1, 2014, which has opened up a debate about the issue of free speech on the Internet. In that case, defendant Anthony Elonis posted violent rap lyrics about murdering his wife on Facebook. He was prosecuted under 18 U.S.C. 875(c), which states that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” In this essay, I review Supreme Court First Amendment jurisprudence and evaluate the merits of Elonis’s argument.

Supreme Court First Amendment Jurisprudence

It is clear that the First Amendment does not provide unlimited protection for all things spoken, written, or otherwise expressed. For instance, in Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes, writing for the majority, famously wrote, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck remains a driving principle behind free speech jurisprudence, but was limited in Brandenburg v. Ohio, 395 U.S. 444 (1969). That case held that it is an infringement of First Amendment speech rights to punish speech unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447.

However, the Supreme Court has said that, along with incitement speech, government may impinge on speech that constitutes a “true threat.” In Virginia v. Black, 538 U.S. 343 (2003), the majority held that “[t]rue threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (internal quotation marks omitted).

Elonis’s Case

Elonis’s case turns on the application of the true threat doctrine. As is apparent, the definition from Virginia v. Black leaves something to be desired in terms of clarity. Elonis is arguing that the federal statute he was prosecuted under requires the government to prove his subjective intent to threaten. The government, on the other hand, maintains that proof of subjective intent is next to impossible to prove and would swallow the true threat exception altogether. Rather, they argue that they only must prove that a reasonable person would regard Elonis’s speech as threatening.

The former position is the correct one. Our legal system has required substantive intent for criminal liability since the beginning of our common law tradition, rather than simple negligence. See e.g., Holmes, The Common Law (1881). Moreover, when a criminal statute implicates a constitutional right, we must allow for a certain margin of error, if you will, in order to avoid a chilling effect on protected speech. People may choose to forgo making protected speech because they are concerned that they may find themselves on the other side of the contours of protection. Democracy thrives on differences of opinion and public discourse, so allowing for an adequate margin of error is preferable as an imprecise means to a desired end.

Substantively, Elonis’s statements were abhorrent and no one is defending the statements themselves. But, it is when we disagree with a speaker’s viewpoint that the civil liberties that this country was founded on are most crucial. Moreover, while it may seem like violent language like Elonis’s has no value whatsoever, as was suggested by Justice Scalia in oral arguments, infringing on Elonis’s right to express himself in this case will have far-reaching consequences on art speech (even if reasonable people disagree about whether statements like the ones in this case could ever be considered art) and political speech. As was pointed out by the Supreme Court itself, “[t]he language of the political arena,” in particular, “is often vituperative, abusive, and inexact,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Watts v. United States, 394 U.S. 705, 708 (1969).

Furthermore, speech on the Internet should be particularly threatening in order t justify government censorship. The Internet was founded on the idea of dissemination of information and is inherently the primary vehicle of democracy in this country: “[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” Reno v. ACLU, 521 U.S. 844, 870 (1997). The Supreme Court has had trouble adapting to 21st Century technology, but even without understanding the architecture of the Net, it is easy to see the value in allowing speech to remain largely unfettered in a context where anyone in the world can communicate with anyone else.

A subjective intent requirement, as argued for by Elonis, is necessary to protect First Amendment rights in general, and Internet speech in particular.

 
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Revision 2r2 - 16 Dec 2015 - 05:34:25 - LianchenLiu
Revision 1r1 - 29 Dec 2014 - 19:55:53 - StephenHorton
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