Supreme Court Refusal Means ISPs Are Not Common Carriers

Masem writes "In another Supreme Court refusal to hear a case, a ruling from a lower court stands that AOL and other ISPs are not considered to be common carriers (akin to telephone and cable services), and therefore may not be regulated by the FCC. This can be taken both ways, but moreso on the better side: ISP competition will still be a major factor, helping to keep connection prices low."

what?

Uh, read the DMCA again, it says that ISP's are *not* responsible, although they do need to remove content that might be infringing if notified of the infringement, while the owner of the content is notified. without the DMCA, and with this decision, means that ISP *could* be sued for infringing content. the DMCA isn't all *that* bad, as far as ISPs go. This decision would actually make things worse for ISPs, since they are not common carriers, they have no common carrier immunity. They do however have DMCA granted immunity.

And look at the last FCC ruling, now TVs/VCRs without copy protection. If we granted the FCC power over the 'net, they could unilaterally ban napster/gnutella/whatever else without any kind of legislative action.

Two definitions?

As far as I can tell, there are two different definitions of "common carrier" in the US Code: one that affects the FCC, and one that affects copyright law (and thus, DMCA).

47 USC 153(10) [cornell.edu] (telegraphs, telephones, radiographs)

• The term ''common carrier'' or ''carrier'' means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

17 USC 512 [cornell.edu] (Copyright:DMCA)

• A service provider shall not be liable for monetary relief, or for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if -
• 
  (1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
  (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
  (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
  (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
  (5) the material is transmitted through the system or network without modification of its content.

This ruling was on telephones, so it probably doesn't affect the DMCA?
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Re:A refusal to hear != assent.

I do agree that not hearing the case is not the same as approving or disapproving of the lower court ruling.

However, until a different case enters the SC arena, the lower court ruling stands in the lower court's region. I believe that the original suers were from TX, meaning that the ruling that AOL and ISPs in general aren't common carriers only applies to (pretty much) TX.

It also gives some legal precident for actions in other states if it warrents it. This case, not so much so, but take the DeCSS case, ruled in the NY circuit court. ONLY in this area does the Kaplan ruling apply, but if the MPAA wanted to go after someone in Seattle, they have a good start on a prior case. Sure, the judge for that district need not follow Kaplan's ruling, either.

As you said, the ruling means not much more than nothing. It does state the lower court ruling stands, and that it is sound. But it also implies that there is nothing in the ruling or the case that trends on established US Constitional rights or laws. In cases where the answer should be obvious to techies, the SC saying nothing is a good thing, and possibly shows that they do have some understanding of technology and where it is going. It's cases where the SC refuses to hear the case, and the case itself is iffy (Sony vs Connectix is a good example), then there's questions of why the SC didn't take it, and not taking it may lead to more harm than good depending on the lower court ruling. What if, after appeals, the SC let Kaplan's ruling stand on 2600 because they didn't want to take it?

Re:THANK GOD

If its not the FCC, its going to be someone else.
Wherever there is the potential for lots of money to be made, a big corporation (or a few big corps) will arise and try to capitalize on it. Don't fool yourself by thinking "The 'Net is different! They can never regulate that!!" History dictates that every mass communication medium (print, radio, TV...) eventually comes to be ruled by a few, powerful corporations. The Net will not be any different....
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ISP Liability as Threat to Freedom of Speech

Holding ISPs liable for the content they transmit gives them unlimited powers of censorship. Then all that need be done to put us right back into the dark ages of centralized mass media is centralization of ISPs -- which is happening with AOL right now, not surprisingly, with the help of a conglomerate of mass media companies such as Time magazine, Warner Brothers Studios and Cable News Network.

This is the scenario I predicted in my 1982 white paper on computer conferencing [geocities.com] and its a nasty scenario indeed. Wars have been fought over less than what is implied by a company like AOL telling us what we can say in public.

The question at hand is this: How do we mold the early videotex environment so that noise is suppressed without limiting the free flow of information between customers?

The first obstacle is, of course, legal. As the knights of U.S. feudalism, corporate lawyers have a penchant for finding ways of stomping out innovation and diversity in any way possible. In the case of videotex, the attempt is to keep feudal control of information by making videotex system ownership imply liability for information transmitted over it. For example, if a libelous communication takes place, corporate lawyers for the plaintiff will bring suit against the carrier rather than the individual responsible for the communication. The rationalizations for this clearly unreasonable and contrived position are quite numerous. Without a common carrier status, the carrier will be treading on virgin ground legally and thus be unprotected by precedent. Indeed, the stakes are high enough that the competitor could easily afford to fabricate an event ideal for the purposes of such a suit. This means the first legal precedent could be in favor of holding the carrier responsible for the communications transmitted over its network, thus forcing (or giving an excuse for) the carrier to inspect, edit and censor all communications except, perhaps, simple person-to-person or "electronic mail". This, in turn, would put editorial control right back in the hands of the feudalists. Potential carriers' own lawyers are already hard at work worrying everyone about such a suit. They would like to win the battle against diversity before it begins. This is unlikely because videotex is still driven by technology and therefore by pioneers.

The question then becomes: How do we best protect against such "legal" tactics? The answer seems to be an early emphasis on secure identification of the source of communications so that there can be no question as to the individual responsible. This would preempt an attempt to hold the carrier liable. Anonymous communications, like Delphi conferencing, could even be supported as long as some individual would be willing to attach his/her name to the communication before distributing it. This would be similar, legally, to a "letters to the editor" column where a writer remains anonymous. Another measure could be to require that only individuals of legal age be allowed to author publishable communications. Yet another measure could be to require anyone who wishes to write and publish information on the network to put in writing, in an agreement separate from the standard customer agreement, that they are liable for any and all communications originating under their name on the network. This would preempt the "stolen password" excuse for holding the carrier liable.

Beyond the secure identification of communication sources, there is the necessity of editorial services. Not everyone is going to want to filter through everything published by everyone on the network. An infrastructure of editorial staffs is that filter. In exchange for their service the editorial staff gets to promote their view of the world and, if they are in enough demand, charge money for access to their list of approved articles. On a videotex network, there is little capital involved in establishing an editorial staff. All that is required is a terminal and a file on the network which may have an intrinsic cost as low as $5/month if it represents a publication with "only" around 100 articles. The rest is up to the customers. If they like a publication, they will read it. If they don't they won't. A customer could ask to see all articles approved by staffs A or B inclusive, or only those articles approved by both A and B, etc. This sort of customer selection could involve as many editorial staffs as desired in any logical combination. An editorial staff could review other editorial staffs as well as individual articles, forming hierarchies to handle the mass of articles that would be submitted every day. This sort of editorial mechanism would not only provide a very efficient way of filtering out poor and questionable communications without inhibiting diversity, it would add a layer of liability for publications that would further insulate carriers from liability and therefore from a monopoly over communications.

In general, anything that acts to filter out bad information and that is not under control of the carrier, acts to prevent the carrier from monopolizing the evolution of ideas on the network.

Re:THANK GOD

But like radio, the corporations cannot rule the net without government power. So as long as it is not regulated by the state "for the good of society" then no one can gain control.

But of course....

this makes it *very* important that the DMCA be overturned. Since now ISPs can and (if the law is not changed) will be held responsible for content flowing over their lines and setting on their servers. This could be good but only if the DMCA is done away with.

What exactly makes an ISP?

This probably makes a very important point. Since I've not seen the word-for-word definition of ISP in any of these suits, I think the Supreme Court was very wise in letting the ruling stand without comment. Tons of companies provide Internet access to their employees, apartment residents drop in broadband lines and share the costs among several block residents, etc etc etc...

Keeping the FCC out of the ISP regulation trade is great. Sure, we have to deal with mega-providers trying to arm wrestle eachother and the consumers, but it also prevents the big guys from filing bulls**t lawsuits against little guys who would technically all be subject to the same regulation.

As an aside, does anyone else see a parallel to what's going on in Telecom/Internet these days and the movie Demolition Man? -- ... after the franchise wars, now all ISPs are AOL...

A refusal to hear != assent.

as rjh [slashdot.org] said in responce to previous article [slashdot.org] a refusal to hear does not mean they agree with the ruling.
There is a multitude of possible reasons to decline a request. What follows is his original positing, reprinted without permission:

This is something which arises so frequently that it's become a major annoyance to the Court. The Court will deny cert ("deny cert" == "refuse to hear arguments") on a case, and presto, the popular press and most of America thinks that means anything.

It means nothing.

Denying cert only means the Court won't hear arguments. It doesn't mean the Court thinks the legal reasoning is correct; it doesn't mean the Court is approving the lower court's decision; it doesn't mean anything .

Many cases are denied cert because their legal issues are not as clear as the Court would like ("bad cases make for bad law", as the axiom goes), or the Court wants to give it a few years to let legal scholarship tackle the issues, or the Court thinks this is an issue which Congress will soon issue "direction" (read: legislation) on, or... any of dozens of reasons.

It is tremendously unwise to think that the Court's denial of cert means anything, no matter what the Court says in their response.

Don't get happy; the Court hasn't done anything for us.

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This message brought to you by Colin Davis

Re:But of course....

No, not really, but thanks for pretending to know what you're talking about.

This in no way means that "ISPs will be held responsible for content flowing over their lines". What this means is that ISPs do not meet the definition of a Common Carrier under the specific use in the 1934 Communications Act. The only impact of this is that it means the FCC is not responsible for regulating the ISP industry in the same manner that it regulates the Telecom industry.

AOL and other ISPs may certainly meet other definitions of a Common Carrier ( ala UPS, FedEx, etc. ). *That* has yet to be decided.

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Re:Oh wait...I see...

AT&T was not a monopoly because they were big. They were a monopoly because the government (a combination of local, state and national) had regulations that prevented anyone else from getting into the industry.

THANK GOD

Posted by polar_bear:

The FCC regulating Internet services is the very last thing I would ever want to see. They should not be able to regulate ISPs or anything on the Internet anyway - the whole excuse for the FCC is that radio and televison frequencies are limited commodities and therefore need to be regulated and divvied up by the government - to make sure radio stations don't try to lay claim to a frequency by just squatting there, for instance. However, the FCC has gone far beyond that and has really fubared radio for everyone. Ever wonder why all radio sounds alike? It's probably because most radio stations are owned by conglomerates that just apply cookie-cutter formulas to stations, and corporations are now allowed to own more stations in one area than ever before.

In the early days of radio it was a fairly democratic medium, the barriers to entry were small and many enterprising people started up small stations. However, the trend has been towards creating regulations that raise the barrier of entry, require much more massive equipment and basically bar anyone but the wealthy from starting a radio station. Of course, this has the nasty side effect of limiting your options when it comes to listening to radio. Just try to get a license to run an FM or AM station to broadcast to the area of a small town. More than likely you will be unable to because the FCC only wants you to have a license if you are going to run a large transmitter. Never mind the fact that is not in the best interest of the public - the rules and regs of the FCC are shaped by special interest groups who have the money to lobby them.

If the FCC started regulating the Internet in any way, it wouldn't be long before the heavies started lobbying for rules that would be prohibitive for small businesses or publications on the Net.

Sorry - I used to work in radio and I have an intense hatred for the FCC and what they've done to radio.