Re: Music industry proposes a piracy surcharge on ISPs

[David Farber <dave () farber net>]

________________________________________
From: Daniel Weitzner [djweitzner () csail mit edu]
Sent: Tuesday, March 18, 2008 12:07 AM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:    Music industry proposes a piracy surcharge on ISPs

This is a significant overstatement of what it means to have private
property under the rule of law and goes far beyond what any court in
the United States has ever recognized as a 'taking' under the Fifth
Amendment. Yes, network operators own their networks, but the terms
under which they use their property is subject to reasonable
regulation. I'm the first to admit that the question of what is
'reasonable' is not simple. However, the exaggeration inherent in
Brett's argument is evident if you apply the same view to the real
estate. Property owners can do what they want with their property but
are subject to zoning rules, equal opportunity sales requirements,
environmental and land use rules, etc. These are all well-recognized
limits on private property. Whether or not the Founders would roll
over in their private graves, I can't say, but even the most strident
originalist on the Supreme Court is long past this absolutist view of
property.

A takeover of all ISPs by the Commerce Department without just
compensation (I won't mention the NSA) is unconstitutional, but
regulating their operation is not.

Danny

On Mar 17, 2008, at 7:26 PM, David Farber wrote:

> ________________________________________
> From: Brett Glass [brett () lariat net]
> Sent: Monday, March 17, 2008 6:38 PM
> To: David P. Reed
> Cc: Richard Bennett; David Farber; ip; Gordon Peterson; scott () bluespike com
> ; Rbohn () ucsd edu; griffin () onehouse com; Kenneth_Mayer () Dell com; vxm () miglia com
> Subject: Re: [IP] Re:     Music industry proposes a piracy surcharge
> on ISPs
>
> At 08:49 AM 3/17/2008, David P. Reed wrote:
>
> > > > Tom Paine, Tom Jefferson, Ben Franklin, and other American
> > > > revolutionaries would roll over in their graves.
> > >
> > > They might well do so. They drafted a Constitution that
> > > prohibited the taking of property without compensation.
> > The length and artfulness of your argument, Brett, that network
> > neutrality would amount to taking of property stretches the legal
> > understanding of property beyond all reasonable bounds.
>
> My network is property. Period. A taking of my network and its
> resources without compensation is unconstitutional. And I'm not the
> only one who has made that argument. Comcast and other providers
> are already preparing to sue if the FCC attempts to appropriate our
> bandwidth for P2P -- which, ironically, is overwhelmingly used for
> criminal activity.
>
> --Brett Glass
>
>
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