Guide More Speech, Not Less: Communications Law in the Information Age

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Louis Attractions Conference, July 19, It is part of a general strategy of control over access to digital content, including digital content that has been purchased by the end user.


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  • Digital rights management schemes, for example, can make digital content unreadable after a certain number of uses; they can control the geographical places where content can be viewed, they can require that content be viewed in a particular order, they can keep viewers from skipping through commercials and so on. Paracopyright creates legal rights against consumers and others who wish to modify or route around these forms of technological control. Matters have come to a head as copying and modification of digital content have become widespread, and media companies have sought in increasingly aggressive ways to protect their existing rights and expand them further.

    The problem is that some of these legal and technological strategies are seriously curtailing freedom of expression. Not surprisingly, media companies have generally resisted the idea that freedom of speech limits the continued expansion of their intellectual property rights. Nevertheless, at the same time media corporations have avidly pushed for constitutional limits on telecommunications regulation on the ground that these regulations violate their free speech rights. From a free speech standpoint, there is something odd about this agenda. It seems to expand free speech rights in telecommunications law, while contracting them in intellectual property.

    But in fact there is a deeper unity here. The capitalist theory does not really promote the values of freedom of expression so much as it employs concepts of speech and property selectively to promote the economic interests of the most powerful economic entities that characterise the digital age — the media corporations that produce and sell media products and other informational goods. Promoting freedom of speech as an anti-regulatory device in telecommunications law while denying it any force as a corrective to the growth of intellectual property rights is a theory of freedom of expression tailor-made for the information industries and the protection of their investments in capital.

    This is hardly the only possible way to think about what freedom of speech might mean in the digital age. Indeed, this approach largely undermines the participatory promise of the digital revolution. To a considerable extent, it seeks to reassert an earlier conception of the end user as essentially a passive recipient of the media goods produced by media companies. The point of controlling distribution networks and rigidly controlling intellectual property rights is to promote consumption rather than production and individual creativity, to arrange matters so that the end-user is placed in a sort of consumerist utopia, continuously being offered a series of opportunities to consume or buy, which are seamlessly melded with other forms of communication.

    There is nothing wrong in theory with maximising buying opportunities, but it is important to understand that this is not the same thing as a system of freedom of expression. Rather, it is a system of freedom of consumption, where liberty means freedom to choose among media goods. That is a stunted vision of free expression because it undermines the creative and participatory possibilities of digital technologies. What is a democratic culture? It is a culture in which people can participate actively in the creation of cultural meanings that in turn constitute them.

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    A democratic culture is democratic not in the sense that everyone gets to vote on what is in culture. It is democratic in the sense that everyone gets to participate in the production of culture. People are free to express their individuality through creativity and through participation in the forms of meaning-making that, in turn, constitute them and other people in society.

    The last great change in communications technology was the emergence of the broadcast media. But only a relatively small number of people had the power to speak using these technologies. This social organisation of speech created a genuine problem for the system of free expression, because not everyone was able to use the technology equally.

    People were able to listen, but not to be broadcasters themselves.

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    That problem led to free speech theories that made a virtue out of necessity: They argued that the goal of freedom of speech is providing information necessary for democratic self-governance, and particularly democratic deliberation about public issues. The great philosopher of education, Alexander Meiklejohn, was probably the most famous advocate of this view. Freedom of speech did not exist to promote individual autonomy, he argued. Rather, the purpose of free speech was to promote democratic deliberation about the great issues of the day.

    As Meiklejohn famously put it, it is not important that everyone gets to speak but that everything worth saying gets said. Democracy-based theories responded to the social conditions of speech produced by the broadcasting technologies created in the 20th Century: a world in which a relatively small number of people controlled radio and television broadcasting, and later cable and satellite broadcasting. Free speech theorists worried that democratic discourse would be skewed and that the information necessary for wise governance would be impaired when the most powerful broadcasting entities were held in a relatively small number of hands.

    This concern justified public interest regulation of broadcasting, cable, and other mass media. Because mass media will remain a central feature of culture for the foreseeable future, some structural public interest regulation continues to make sense, particularly as mass media consolidate and exercise their economic power globally.

    But a conception of free speech based on democratic deliberation is nevertheless incomplete. Focusing as it does on the asymmetries of mass media communication, it does not adequately address the technological changes of the digital age that make it possible for everyone to participate in electronic communication, both as speakers and listeners, both as producers and consumers. Digital technologies foreground certain features of freedom of speech that were always present but previously remained in the background. First, speech ranges over the whole of culture, and much of it has only a limited relationship to deliberation about politics and political issues, the central concern of democracy-based theories.

    Many people do talk about politics, to be sure, but even more people talk about their favorite television show, about their favorite musical group, about what their child did the other day, about art, popular culture, fashion, gossip, mores and customs. One can try to insist that all of this speech really is about politics, but at some point the attempt will become quite strained.

    It is far better to acknowledge that speech goes well beyond the boundaries of deliberation about public issues. Second, speech on the Internet is interactive.

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    People talk back to each other, they respond to each other. People are not simply passive consumers of media products sent to them by broadcast media. They are also active interpreters of what they find in culture, and they continually exchange their ideas with others. Third, speech is appropriative: People build on what other people have done. This borrowing and bricolage is non-exclusive appropriation — I take and use what I find, but what I take is still there for other people to take and use too.

    Wide ranging creativity that goes beyond politics, interactivity and appropriation are all characteristics of speech on the Internet.

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    But they are characteristics of free speech generally; they were true of speech even before there was an Internet. Digital technologies just make these features of free expression more salient. The 20th Century concern with speech as a mode of democratic deliberation privileges the delivery of information about issues of public concern to the public, who receive this information through the mass media. Far from denying the importance of that conception, I want to insist that it is only a partial conception, inadequate to deal with the features of speech that the new digital technologies bring to the foreground of our concern.

    The values behind freedom of speech are about production as much as reception, about creativity as much as deliberation, about the work of ordinary individuals as much as the mass media. Freedom of speech is and must be concerned with the ability of ordinary individuals to create, to produce, to interact, to particulate in culture, to engage in non-exclusive appropriation of ideas and expressions, to make something new out of the cultural materials that lay to hand.

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    Freedom of speech is not merely the freedom of elites and concentrated economic enterprises to provide media products for passive consumption by docile audiences. Freedom of speech is more than the choice of which media products to consume. It is also expression, creation, production, and interactivity. And freedom of speech in the digital age means giving everyone — not just a small number of people who own dominant modes of mass communication, but ordinary people too — the chance to use these new technologies to participate, to interact, to build, to route around, to glom on, to talk about whatever they want to talk about, whether it be politics, public issues, or popular culture.


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    • Why do I insist that freedom of speech concerns the ability to participate in culture, including in particular popular culture? It is because culture is central to individuality, to being the sort of person that you are. You and I are made out of culture.

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      You talk to people, they talk to you, you anger people, they anger you, you influence people, they influence you, and what gets produced over time is— you! You are always in the process of becoming something other than you already are. Your thoughts are changing, your sense of your values is changing, and they change in large part because you are constantly interacting with people, being influenced by them and influencing them in turn.

      Participation in culture through the exercise of your freedom of speech is one of the most important and valuable ways through which this cultural transformation of the self occurs. Interactivity and dialogue, the work of routing around and glomming on, are central to living in the culture that you live in, and to becoming the person that you are. For that reason they are also central to the free speech principle. For example, there are typically strong assumptions about privacy surrounding medical, legal, and financial communications and records.

      It would be a strange outcome, indeed, if traditional notions of privacy applied only at the physical office of the doctor, lawyer, or banker, but not when modern computer technologies were employed to make professional services available at lower cost and with greater convenience. It may be that some services and communications channels will be used regardless of what privacy guarantees are provided. Providing medical advice by computer network to rural areas with no resident doctors may be one example. More common services, however, such as certain cellular telephone technologies and the use of e-mail over the Internet, are subject to less privacy than some other modes of communication, although extensive efforts are currently being directed to address that.

      The growing use of credit cards without security measures to pay for goods and services over open networks is another example. Clearly, as these examples demonstrate, privacy concerns may be outweighed, if only for the moment, by other factors such as cost and convenience. However, given choices in the marketplace that include price, quality and differing degrees of privacy, I have little doubt that privacy would be valued and sought after.