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YouTube as a common carrier

Ed Driscoll links a Robert Cox essay in the Examiner that warns of the dangers inherent in allowing the Silicon Valley Democrats to seize control of "Web 2.0", and points to Michelle Malkin as the canary in the online coal mine after one of her videos and her conservative group were banned by YouTube. (Related, although Cox doesn't mention it, is the ongoing Digg-of-war between CAIR sympathizers and Little Green Footballs supporters.)

I can't get too excited about this for a very simple reason. Back in the day, ISPs fought tooth and nail to be classified as "common carriers", like UPS or Southwest Airlines, in order to avoid getting sued to death for whatever poo got flung on their section of the internet. They won that battle, and now if you want to bring down the law on somebody for something that offends/threatens/defames you on the Internet, you have to go after the actual person doing the damage. So the ISPs have the right to be held harmless for the content they carry. The obverse of that, of course, is that they can't deny service to anyone for any reason, unless they can show reasonable cause that customer X is going to use them to violate the law.

The way I see it, "Web 2.0" services like eBay, YouTube and so on are in the same position as the ISPs that give people access to them. As Cox points out, there really aren't any alternatives to either site when it comes to accessing the vast sea of customers/viewers out there...and so eBay and YouTube can't reasonably deny access to anyone unless those people are doing things like violating copyright law -no, wait, um...Okay, you can probably get thrown off legally for posting pr0n clips. But censorship isn't okay, regardless of whether the YouTube headshed decides to pull the video on their own or whether they're doing it by "popular" demand. What happened to Malkin is a violation of the common carrier understanding, and is just waiting for a lawyer to come along and sue the pants off...oh, right, they're part of Google now, aren't they? Sure hope they mentioned this in their most recent 10K.

Comments

( 4 comments — Leave a comment )
433
Oct. 16th, 2006 11:16 pm (UTC)
It'd be nice to see what they say in their defense (if they ever respond).

She's a hottie, isn't she? Why's she wearing the hat, dammit?
wombat_socho
Oct. 17th, 2006 12:23 am (UTC)
I don't think they're going to respond until someone (like, maybe the FCC) whacks them upside the head with the Cluebat of Legality.

Yeah, Ms. Malkin's pretty easy on the eyes. Her husband is one lucky guy - all that and brains too!
nornagest
Oct. 17th, 2006 11:48 am (UTC)
The difference is that YouTube et al. don't really function as a carrier in the sense that ISPs do. Ultimately it's the customers that pay for an ISP's bandwidth - it's what they're buying, right there in the contract, and infrastructure costs to the ISP scale more-or-less linearly with revenues from selling the same. Moreover, ISPs (particularly broadband ISPs) tend to be geographically limited, which gives them the same sort of quasi-public aura enjoyed by other geographically limited utilities such as energy companies and toll roads.

The same can't be said for services like YouTube, which could be referred to as "media repositories". Their bandwidth is an operating cost - or at least it will be as long as micropayment plans aren't in fashion - not a product, so they don't function as a public utility. They're not geographically limited in any obvious fashion. Many do have near-monopolies on their respective markets, but those monopolies aren't "natural" in an economic sense - there's nothing stopping anyone with a server farm and a rudimentary knowledge of Perl from setting up his own versions of the same. In short, most of the arguments for extending common-carrier status to ISPs don't apply to them. Nor should it - for every YouTube there's a hundred specialized services that need the ability to discard or reject off-topic content, but which otherwise differ from YouTube only in size, not in kind.

I don't think the result of this particular dispute is a good thing - I dislike censorship in all its forms - but that's something that YouTube should be left to figure out on its own. In a logical world it wouldn't take too long - if there's controversy in it, there's almost certainly money in it. This isn't a logical world, but YouTube won't have its monopoly forever.
wombat_socho
Oct. 18th, 2006 10:40 am (UTC)
Many do have near-monopolies on their respective markets, but those monopolies aren't "natural" in an economic sense - there's nothing stopping anyone with a server farm and a rudimentary knowledge of Perl from setting up his own versions of the same.
Except for the fact that YouTube and eBay are so dominant in the market since they were the first ones in. Cox talks about this in his article. Sure, you can set up a server farm and host videos all you want - and people have - but you aren't going to have the recognition and market share that YouTube has.
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