TechFreedom

"[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment."

— Justice Oliver Wendell Holmes, dissenting in Abrams v. United States, 250 U.S. 616 (1919). Read more more on the “marketplace of ideas.”

"The fundamental question from an antitrust perspective [raised by the FTC’s efforts to bring competition claims under Section 5 beyond traditional antitrust law] is whether consumer choice is a better predictor of consumer outcomes than current tools allow. There doesn’t appear to be anything in economic theory to suggest that it would be. Instead, it reduces competitive analysis to a single attribute of market structure and appears susceptible to interpretations that would sacrifice a meaningful measure of consumer welfare (incorporating assessment of price, quality, variety, innovation and other amenities) on economically unsound grounds. It is also not the law."

— TechFredom’s Geoff Manne, The Folly of the FTC’s Section Five Case Against Google in Forbes

"The good news for consumers, though the bad news for failuremongers and the U.S. Justice Department (and possibly for consumers if the Department of Justice should prevail), is that the economic theory of a high-tech market locked in to failure has its foundation only in shallow perceptions—not in facts."

— Stan Liebowitz & Stephen Margolis in Winners, Losers & Microsoft (2001).

"I think that Chairman Smith genuinely believes that he’s defending property rights that are at the heart of capitalism. I don’t doubt his intentions. [But he’s been ensnared by] a trap that conservatives can sometimes fall into: of being so upset about what they see as an attack on property rights, that they abandon their normal healthy skepticism about government regulation."

— Berin Szoka, president of TechFreedom, quoted by Declan McCullagh in CNET explaining our concerns about the Stop Online Piracy Act and especially the process by which the bill has been rushed through the Judiciary Committee with only a single hearing and no expert witnesses to explain legitimate concerns about the bill.  Read TechFreedom’s coalition letter urging further deliberation and refinement of the bill.

(Source: CNET)

"Stripped of their obfuscations, SOPA and Protect IP suggest increasing desperation by media companies. A bill that was to target only the ‘worst of the worst’ foreign Web sites committing blatant and systemic copyright and trademark infringement has morphed inexplicably into an unrestricted hunting license for media companies to harass anyone—foreign or domestic—who questions their timetable for digital transformation…. But the solution isn’t to strengthen the law, choking off innovation. The solution is to give consumers what they want, which Hollywood always, if begrudgingly, figures out how to do."

— TechFreedom’s Larry Downes writing in CNET on “SOPA: Hollywood’s latest effort to turn back time” about the House’s “Stop Online Piracy Act” and the Senate’s Protect IP Act.

"The use of voluntary standards allows administrative agencies better to skirt statutory limits on their authority, an offense to the concept of administrative agencies in possession of only those powers delegated to them by Congress… . It is no coincidence that the commitments extracted from regulated entities in the guise of voluntary standards tend to be things that the agency lacks statutory authority straightforwardly to require. Voluntary standards, as opposed to duly promulgated rules, can all too easily be used to bootstrap jurisdictional issues: got jurisdiction to approve or disprove the transfer of licenses but no express statutory authority to require unbundling of the licensee’s product offerings? Just make it a “optional” condition of the license transfer, add water, mix, and you have fresh jurisdiction to regulate a whole new area. The problem with this approach … is that it renders superfluous Congressional attempts to delineate our areas of responsibility….
Judicial review of the statutory basis for ‘voluntary’ standards may be difficult to obtain because such guidelines, being technically non-binding, may never formally be announced or enforced against any regulatee."

— Former FCC Commissioner Harold Furchgott-Roth in “Voluntary Standards Are Neither,” Speech Before the Media Institute (Nov. 17, 1998) (www.fcc.gov), quoted in his 1999 separate statement approving the SBC/Ameritech merger but protesting the imposition of extensive conditions by the FCC that amounted to extra-legal regulation.

"The First Amendment was intended to be a shield against government meddling, not a sword for regulatory activism, however well-intentioned…. We look forward to working with these new Commissioners to ensure that FCC regulations serve consumers by advancing competition and innovation while respecting free speech rights. The Commission should ask, and explicitly answer, the following questions whenever considering the need for new, or existing, regulations:
(1) What free speech rights are at stake?
(2) How substantial is the government’s interest? Has the market failed?
(3) Can regulation, always slow to start and slower to adapt, really address the problem better than technological change?
(4) Will the regulation’s benefits outweigh its costs, considering its likely unintended consequences?
(5) Are there less-restrictive and more speech-protective ways government can achieve its interest, such as enforcing existing antitrust and consumer protection laws, supporting consumer education, empowering users to make their own decisions, or compelling disclosure to consumers?"

— TechFreedom President Berin Szoka commenting on the nominations of Jessica Rosenworcel and Ajit Pai to the Federal Communications Commission.

"Last summer, House leaders assured Silicon Valley they would correct serious defects in the Senate’s Protect IP bill, defects that would have caused long-term unintended damage to innovation. SOPA does just the opposite. SOPA would give media companies unwarranted and unprecedented new powers to shape the structure and content of the Internet. It creates vague, sweeping standards for secondary liability, drafted to ensure maximum litigation. It treats all U.S. consumers as guilty until proven innocent. SOPA is an early Christmas present for Hollywood, and a jobs bill for trial lawyers. SOPA, regrettably, represents a big step backward in Washington’s efforts to support the digital revolution, one of the only sectors of the economy that continues to grow. A bill that was supposed to target the ‘worst of the worst’ foreign websites committing blatant and systemic copyright and trademark infringement has morphed inexplicably into an unrestricted hunting license for media companies to harass anyone—foreign or domestic—who questions their timetable for digital transformation. Only by carefully crafting narrow remedies against truly rogue websites can Congress achieve copyright’s goal of promoting creativity without undermining basic freedoms and distorting the healthy development of the Internet itself."

— TechFreedom’s Larry Downes on the Stopping Online Piracy Act (H.R. 3261), also called the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act (E-PARASITE Act). For his earlier commentary on SOPA’s predecessor bills, PIPA and COICA, see “Five Essential Changes to Protect IP” at CNET and “Why Internet Content Wars will Never End” at Forbes.

"Privacy is a popular word, and government attempts to “protect our privacy” are easy to endorse. Government attempts to let us “control … information about ourselves” sound equally good: Who wouldn’t want extra control? And what fairminded person could oppose requirements of “fair information practices”? The difficulty is that the right to information privacy—my right to control your communication of personally identifiable information about me—is a right to have the government stop you from speaking about me. We already have a code of “fair information practices,” and it is the First Amendment, which generally bars the government from controlling the communication of information… whether the communication is “fair” or not. While privacy protection secured by contract is constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law."

— First Amendment scholar Eugene Volokh in his 2000 article, Freedom of Speech & Information Privacy: The Troubling Implications of a Right to Stop People from Talking About You (52 Stanford L. Rev. 1049).

"The fact that more video traffic is going to devices other than a PC should be a wake-up call that counting bytes is no longer sufficient for network planning… Communications Service Providers need to have detailed business intelligence on not only the devices being used but also the quality and length of the videos being watched so they can engineer for a high subscriber quality of experience and not simply adding capacity through continuous capital investment."

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Dave Caputo, commenting on the 2011 Sandvine Internet Phenomena Report, quoted in MediaBeat by Chikodi Chima in ”Netflix hogs 32 percent of peak Internet bandwidth.”

While such “engineering” serves consumers while keeping broadband prices down (by avoiding unnecessary capital investments), the for sophisticated network management that keeps pace with rapidly evolving consumer demands has been largely ignored by the FCC in the agency’s heavily politicized rush to impose prophylactic “net neutrality” regulations—without any clear showing of harm to consumers that can’t be remedied by existing antitrust and consumer protection laws, as FCC Commissioner Robert McDowell argued in his scathing dissent to the FCC’s legally groundless “Open Internet” order.