THE IRRELEVANCE OF THE FIRST AMENDMENT TO THE MODERN REGULATION OF THE INTERNET

Richard Epstein¹

I. INTRODUCTION

One of the most vexing challenges to any legal system is to answer this question: Should established legal principles be modified with the advent of new technologies that in turn require the creation of new property rights? The trivial answer is simply "yes." It is a commonplace observation that the creation of new property rights regimes is often dependent upon the creation of new technologies. For example, no one was in a position to ask who owned the electromagnetic spectrum—at least at invisible frequencies—until the technology became available to exploit it. But once communications through the spectrum became possible, someone had to organize it, lest physical interference in the use of frequencies render it useless for all concerned. Does this new generation of regulation pose a problem for the protection of speech under the First Amendment? Does it, for that matter, pose any difficulties under conventional conceptions of the antitrust law? After all, any exclusive system of property rights in the spectrum necessarily blocks the speech rights of all individuals except for that favored owner.

The answer to these and similar questions does not depend on the novelty of, for example, spectrum, for the same answer could also be made with respect to land. As Pierre-Joseph Proudhon famously observed, "property is theft"² because its creation limits the rights of non-owners to access land as they could have before it was reduced to private ownership. Whether Proudhon’s observation is false, it does not carry the weight that he sought to attach to it with either land or the electromagnetic spectrum. In both instances, if you leave property in a commons, no individual is in a position to exploit it. Allow the first possessor to make exclusive use of it, and, for example, agriculture and manufacturing become possible. Other individuals can reduce other parcels of land to private possession, and the persons who start out without property can acquire wealth by labor or land by purchase.

The key observation in this article is that identical arguments carry against any claim that individual efforts to reduce the spectrum to private ownership necessarily violate other individuals’ free speech rights. The organization of the spectrum, for example, creates a coherent set of property rights that allows more speech to be heard over time than under any alternative arrangement. Any limitation of speech in the individual case is more than offset by the overall social gains. The First Amendment does not let any and every person speak as he pleases wherever he pleases. Instead, all claims for freedom of speech have to be embedded within a system of property rights that gives some individuals exclusive control over key resources. For example, under the law of copyright, it is not a violation of your free speech rights for me to enjoin your publication of an infringing copy of my book.³

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To be sure, there have always been some well-defined exceptions to the exclusive use of one’s own property. For example, people can enter the land of another in order to save their own lives. More relevant here, the law of copyright recognizes the privilege of "fair use," whereby others can quote short passages from works that they wish to criticize, lest all criticism be stopped. Property rights, be they physical or intellectual, are not absolute, and their exercise is of course subject to conventional antitrust limitations on the creation or exploitation of monopoly power.

The same is true of rights to speech. Although it is a presumptive violation of the right of free speech to impose restrictions on the use you may make of your own telephone or printing press, it is not a violation of your rights to free speech for me to say that you cannot enter my house to use my telephone or printing press against my will.⁴ By the same token, all speakers in a given industry cannot collude to raise prices and divide territories.⁵

In all cases, freedom of speech must always be embedded in some larger system of property rights for it to be coherent. People do not have the right to trespass on the lands of others in order to voice their messages. Indeed, the one case that hinted at this approach, PruneYard Shopping Center v. Robins,⁶ applied only to the distinctive setting of shopping centers, which are analogous to traditional public forums like streets and parks. The approach has never been applied, for example, to residential apartment complexes.⁷ There are too many alternative ways for speakers to reach their intended audiences without having to commandeer the property of others. Likewise, newer technologies create tensions between property and speech rights, but in the end these tensions are generally amenable to the same solution: Establish the basic systems of property rights correctly, and any concerns with the protection of speech take care of themselves, by the general protections against the use of force (and the threat of force), misrepresentation (and concealment), and monopoly. But if that property rights system falters, no invocation of the First Amendment is able to restore balance to the overall system.

In order to illustrate these problems, I shall look at the following questions. The first asks whether the First Amendment trumps the law of trade secrets. The second asks whether the First Amendment limits website owners from restricting unauthorized entry by other users. The third asks whether the First Amendment restricts the application of the principles of rate regulation and antitrust to new technologies in the common carrier setting. In all these settings, the answer is the same. If one understands how property and speech fit together as a matter of first principle, nothing in the Constitution requires that the First Amendment trump, limit, or restrict the outcomes in any of these three scenarios. There is less novelty here than meets the eye. Technology becomes a diversion that does not alter the guiding principle.

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II. TRADE SECRETS

In most situations, there is little conflict between the First Amendment and the law of trade secrets. In business, one who steals a trade secret has every incentive to keep his theft secret. The value of a trade secret lies in the extent to which the use of particular information necessarily supplies some competitive advantage to the person who holds the information over those without it. The benefit of that trade secret can be confined to its owner, or the secret can be licensed to other individuals subject to conditions of confidentiality, on an exclusive or nonexclusive basis. But in both cases the value of the secret lies in the ability to restrict the class of individuals who use it. Nobody has any incentive to let the world in on a good idea for free. Indeed, in typical commercial settings, the last thing that the thief of any trade secret wants to do is announce his success publicly to the rest of the world, and thus lose the value of what he has stolen.

But this iron logic of trade secrets does not apply when the theft of a trade secret occurs not for private profit, but rather for political ends advanced by disclosing the trade secret publicly. Two famous instances of this behavior occurred over a decade ago, in Ford Motor Co. v. Lane and in DVD Copy Control Ass’n, Inc. v. Bunner.

In Ford Motor Co. v. Lane,⁸ the Ford Motor Company sought to enjoin the publication of key business plans that had been leaked by a Ford employee to Lane, who published that information on his own website. The subsidiary issue was whether an injunction of that speech violated the First Amendment prohibition on prior restraint given that the defendant knew he had received the information from an unauthorized source.

The district court took a wooden approach to First Amendment law by applying the normal First Amendment prohibition on prior restraint to the stolen material, which resulted in a denial of the injunctive relief sought. I regard that outcome as a serious categorical error. It is of course the case that injunctions should not be issued to restrain the publication of defamatory speech. In that area, prior restraint carries the serious risk of suppressing vital speech critical of either a key government official or public figure. The safer course is to let the speech be published, so long as the aggrieved party retains the ability to sue for a damages remedy in cases of defamatory harm.

The situation is, however, wholly different with the illegal disclosure of trade secrets, whose value is lost with public disclosure, and for which a damage award is a weak substitute for injunctive relief that preserves the exclusive right of use. Nor does the unauthorized publication of technical specifications for a new product, a customer list, or a litigation strategy rate First Amendment protection, when none of these could be pried out of their owner by legal process.⁹ In this respect, the proper analogy is to the bad faith purchaser of stolen goods, who nowhere gains rights superior to those of the original thief under private law.¹⁰ And once the owner of a trade secret can enjoin its publication as of right by those who have come unlawfully into its possession, it follows that any third person who receives that trade secret should be subject to the same relief if he knows that the information in question has been purloined from its owner. In this context, the law of freedom of speech should never confer some special immunity on the press for tort liability that would not be granted to any other bad faith recipient of stolen property whose value is diminished or destroyed. Never encourage a senseless cat-and-mouse game by adopting a consciously inferior set of remedies that allow the holder of a trade secret to use any and all measures of self-help to protect that secret,¹¹ while denying a call for legal assistance when some outsider, or worse, employee turned thief, has taken the information and handed it over to a third party, who to a moral certainty knows of its illegal acquisition from the intermediate party.¹²

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The same analysis also applies to the well-known case of DVD Copy Control Ass’n, Inc. v. Bunner,¹³ on which I coauthored an amicus brief supporting the DVD Copy Control Association (DVDCCA).¹⁴ One major concern of copyright holders is that their material will be pirated by persons who have not paid for its creation. In order to forestall that threat, members of the DVDCCA encoded their copyrighted material under a Content Scrambling System ("CSS") in order to deny access to it from those who had not purchased the appropriate key. As is commonly the case, this encryption system can be reverse-engineered, allowing an unauthorized person to make the key needed to unlock the content. In this instance, Jon Johansen was able to reverse-engineer the protected software and develop a decryption program called deCSS that used confidential elements of CSS to allow users to play pirated DVDs. He did so even though he knew that the software that he had acquired contained a licensing agreement that specifically prohibited that practice.

If these prohibitions against reverse-engineering can be ignored with impunity, it is only a matter of time before someone cracks the code, thereby allowing everyone to gain access to pirated content without paying a fee. Nor is it sufficient to enforce this prohibition only against the first buyer of the copyrighted material. That prohibition must also be enforced against any third party, such as Bunner, who takes and discloses that information with knowledge that it had been stolen. Thus, First Amendment issues disappear from view just as they did in Ford Motor Co. v. Lane. Bunner does not limit the ability of others to speak their own minds. It merely blocks efforts to transfer the plaintiff’s property for free. To be sure, once the information has been made public, it is fair to ask whether an injunction helps limit its further spread.¹⁵ But that genuine concern is no argument for denying a plaintiff an injunction that may slow the spread of pirated material, even if it cannot staunch the flow altogether. This First Amendment claim should fail because it upsets the basic framework of intellectual property rights.

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III. UNAUTHORIZED TRESPASS

Unauthorized trespasses into computer networks should be treated like the theft of trade secrets: once again, exclusive property rights should trump any novel First Amendment claim, notwithstanding judicial decisions to the contrary.

The earlier discussion of the PruneYard case shows how this tension between speech and trespass should play out in the case of land. That same issue also arose in the celebrated case of Intel Co. v. Hamidi,¹⁶ for which I also prepared an amicus brief, this time in support of Intel’s effort to enjoin Hamidi’s trespass into its private computer network. At issue was whether Intel could enjoin Hamidi, a former employee it had fired, from making unauthorized use of Intel’s servers to email Intel’s employees. The messages were highly inflammatory, but Intel’s claim was for trespass to its equipment, not for defamation. In framing its claim this way Intel achieved two things. First, it narrowed the issue so that it was not asking the court to enjoin any messages that Hamidi sent to Intel employees from non-Intel servers. Second, it relieved itself of the duty to prove the messages were defamatory.

Intel sought relief under the trespass to chattels doctrine, which in effect makes it impermissible for any person to use force to either take or dispossess another person of his chattels.¹⁷ By a narrow four-to-three vote, the California Supreme Court denied the injunction on the grounds that there was no physical damage to Intel’s computers. That conclusion may make some sense in those cases where the self-help measures give perfect protection to the property owner, as is the case when, to use the example provided by the Restatement of Torts, the defendant’s conduct consists of pulling the ears of someone else’s dog without harming it.¹⁸ The implicit subtext is that the owner can get the dog out of harm’s way.

But the Internet is not a dog, let alone a conventional chattel. In this instance, the self-help remedy is decidedly imperfect, as Hamidi was able on several occasions to skirt those software defenses with mass mailings that roiled Intel’s employees. Hamidi also had full knowledge that his actions were unauthorized. Once again, the law of remedies contains no principle that should deny a simple injunction against the performance of an admittedly unlawful act, when the parallel remedy is routinely available, for example, in cases of trespass to land. Nor is there any First Amendment argument on behalf of Hamidi that justifies his trespass in this case, any more than the First Amendment would justify using someone else’s office lobby to speak to his or her employees. Indeed, in this case, the free speech issue cuts in favor of Intel because, as the dissenters in that case argued, Intel and its employees had to receive Hamidi’s unwanted messages from his unauthorized use of Intel’s facilities.¹⁹

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The Internet is, as I argued in the amicus brief,²⁰ a complex institution that contains key elements of common and private property in cyberspace. Its organization is parallel to that governing the use of open access highways and private homes in ordinary physical space. There is no risk that strong trespass remedies designed to protect houses beside the highway will limit the traffic along the public road, and the same conclusion holds here.

The right to prevent trespasses applies with equal force to efforts to scrape information from someone else’s website, which is yet another form of unauthorized activity that should receive no First Amendment protection. Anyone who wishes to acquire this information can do so efficiently through the standard voluntary protocols commonly used to expedite complete and accurate data transfers.²¹ Indeed in most cases, a firm that posts its information publicly on its website should not be understood to make it available by scraping to its competitors. The recent Federal Trade Commission (FTC) investigation of Google’s practice of "scraping" information off rival websites to use in building its search results demonstrates that rival websites have property rights in their own compilations of publicly available information.²² In this setting, Google faces a strong parity constraint because its competitors can scrape information from Google’s website if Google can scrape information from theirs. Scraping has been attacked on various grounds, including trespass to chattels, where the claim has drawn blood precisely because the technique can impose physical damage, induce inferior performance on the scraped system,²³ and even lead to lost advertisement revenue when unique visitors do not enter through an advertisement portal. The disposition of this issue in the FTC’s investigation of Google resulted not just in a TKO for the FTC but in an affirmation of property rights in developing and presenting information online. The Report’s brief discussion says it all:

The Commission considered whether this conduct could have diminished the incentive of Google’s rivals to invest in bringing new and innovative content and services to the Internet in the future or reduced Google’s own incentive to innovate in the relevant markets, and if so whether this conduct was actionable as an unfair method of competition within the meaning of Section 5 of the FTC Act, 15 U.S.C. § 45. Chairman Leibowitz, Commissioner Brill and Commissioner Ramirez found the record evidence to support strong concerns about Google’s conduct in this regard, and Google has committed to refrain from this conduct in the future.²⁴

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It is worth noting in this context that Google did not seek to protect that practice, in part because it would object strongly if the tables were turned. The creation of these property rights does not offend the basic principle that the legal system affords no protection to simple ideas, any more than it does to the laws of nature.²⁵ So long as the basic property rights system fits these requirements, the First Amendment does not impose any additional constraints in this area.

IV. MISAPPROPRIATION

A similar analysis applies to the common law tort of misappropriation, where once again the proper principles of dispute do not implicate the First Amendment. The origins of the modern misappropriation tort lie in the 1918 United States Supreme Court decision in International News Service v. Associated Press,²⁶ which introduced the tort of misappropriation of information to deal with conflicts between direct competitors. INS engaged for a time in collecting information off the AP’s bulletin boards in New York for use in INS newspapers on the Pacific Coast. At no point in the case did INS argue that it had a First Amendment right to use information that the AP had collected from its own sources. In affirming the lower court decision to enjoin INS from copying AP’s news stories, Justice Pitney cautioned: "It is to be observed that the view we adopt does not result in giving to complainant the right to monopolize either the gathering or the distribution of the news, or, without complying with the copyright act, to prevent the reproduction of its news articles, but only postpones participation by complainant’s competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that competitor from reaping the fruits of complainant’s efforts and expenditure, to the partial exclusion of complainant."²⁷ Thus, the remedy afforded in Justice Mahlon Pitney’s opinion was shaped so as not to prevent anyone else from obtaining and disseminating the underlying public facts by independent effort. Rather, it only prevented the freeloading in information gathering that would make it less desirable for AP to generate the information in the first place.

One of the great achievements of the INS decision was its temporal limitation. The protection disappeared a day later, with the next day’s news cycle. Consequently, the protection applies when it is needed most, but it is promptly and automatically lifted when the wide circulation of the information from multiple public sources renders this form of protection ineffective. If one sums private and public value over the full news cycle, this division of entitlements maximizes the total value of the information to all players at all times—a neat achievement that responds to the need to limit the temporal dimension of the property right far more dramatically than for either inventions or writings. Correspondingly, it also shows how crafting the scope of the property right in question protects short-term production without impairing long-term access to valuable information, all without invoking the First Amendment. Indeed, one could imagine the First Amendment being used in such a way as to hinder the useful result achieved in INS: if INS were to claim a First Amendment right to reuse information acquired by others, that misguided claim would start to resemble Harper & Row v. Nation Enterprises,²⁸ which rejected the parallel First Amendment claim in the copyright context.

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Similar business practices in related contexts also maximize the value of information, thereby serving First Amendment values, without explicitly invoking the First Amendment. It is commonplace today, for example, for radio talk shows to get leads from written articles. But, since these outlets do little investigative reporting of their own, there is no way that the print media can rely reciprocally on the broadcast media for leads, let alone detailed information on which they could profitably rely. Accordingly, the usual mode of implicit compensation, which helps both sides, is for the radio talk-show host to thank the written source for starting the story. On the one side, that practice gives recognition for work done that could expand readership. On the other, it also lends credibility to the talk-show host, so that this wide-open public system is largely self-enforcing, and continues on indefinitely without complaint from either side.

V. COMMON CARRIERS AND ANTITRUST REGULATION

As noted earlier, no well-articulated system of property rights blocks the use of both common carrier regulation and antitrust laws to prevent the acquisition or exercise of monopoly power. Here too the institutional risk is that overblown First Amendment claims can hinder the sensible development of these bodies of law in cases involving misappropriation, theft of trade secrets, trespass, or scraping, as for example with net neutrality laws.²⁹ The seminal discussion is found in Sir Matthew Hale’s De Portibus Maris, or Concerning the Gates to the Sea, which examined just these questions under the heading of businesses that were "affected with the public interest."³⁰ Hale concluded that special rules were required for those firms that acquired either a legal or a natural monopoly over a particular commodity in a particular area, so that only one firm can operate. His view, still valid today, was that such firms must serve all customers on reasonable and nondiscriminatory terms. The motivation behind that limitation was to make sure that the firm did not reap monopoly profits. Implementing this program is not easy, for it must at the very least allow for differentiation among customers for whom the cost of service is different. This principle led to the system of rate regulation that applied after the Civil War to railroads and public utilities.

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The doctrine developed in cases involving rate regulation for railroads has special relevance for the Internet. Railroads and the Internet are both networks, which means at the very least that no party who controls access to either can refuse to deal with customers without cause. But the quid pro quo for the duty to deal was and is the requirement that the common carrier or public utility receive over the long haul a rate of return on its investment that would allow it to attract and retain capital.³¹

What is relevant, however, is how these basic principles carry over to today’s key issue of net neutrality, which refers to the extent to which the firms who own the "pipes" through which data is transmitted are duty-bound to supply equal service to any and all users of the system. The analysis contains an added layer of complexity whenever the owner of the pipes seeks to send its own messages across its own networks. So how best to handle these situations?

Not by invoking the First Amendment. The reason why that amendment is irrelevant is that the scope of a common carrier duty is not enlarged when it is involved with the transmission of ideas rather than the shipment of goods. Today’s telecommunications carrier may incorrectly argue that it is being forced to carry speech with which it disagrees under net neutrality, for which it might invoke Justice Robert Jackson’s famous pronouncement in West Virginia v. Barnette,³² in the flag salute cases, where public schools sought to compel students to salute the flag or recite the pledge of allegiance: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."³³ But the carrier’s use of that analogy is hopeless. For years railroads have been required to carry cartons of books even if they disagree with their content. No one assumes that the carrier endorses the positions represented in the information that is shipped on its network. The same is true with respect to the modern set of internet connections, which do not "force citizens," or for that matter corporations, to confess by word or act their faith in anything. It is equally vacuous to argue that imposing general rules of carriage in some way limits the freedom of speech of the persons who use the network.

It follows, therefore, that the standard rules of the game should apply to today’s common carriers as applied to those historically, which require setting reasonable and nondiscriminatory terms for their use of their monopoly power.³⁴ The modern embodiment of that ancient principle is a more cautious version of the modern principle of "net neutrality." But in dealing with ordinary common carriers, nothing in the restrained account of the nondiscrimination principle prevents the carrier from charging premium rates for more rapid service, so that same flexibility given to FedEx or UPS, or for that matter, the U.S. Post Office, should be allowed here as a regulatory matter (if not a First Amendment one). Whenever different packets of information have different value, it would be absurd to force valuable information to wait in the queue as reams of spam-like material sashay across the pipes. To avoid just that risk, it should be made perfectly clear that any carrier should be allowed to use tiered pricing to allow for sorting of content by importance, which is done by the content provider in response to a pricing schedule, thus eliminating the risk of selective approval that can raise First Amendment issues.

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In this situation, moreover, it does not matter whether the carrier itself wishes to push its own content through the pipes because there is no way that it can give its own content preferential treatment. To be sure, the fee paid just goes from one pocket to another. But that does not matter, because the key point is that by taking the spots at the head of the queue, the common carrier forfeits the revenues for premium services that it could collect from others, so that its opportunity cost becomes the proper estimate of the social value of its own information.³⁵ The First Amendment adds nothing to the protection of speech, but only clouds the application of the older common law duties of common carriers that developed outside the speech area.

If rate regulation fails, what about the use of antitrust laws? Here it is necessary to stress the now-familiar theme that the First Amendment does not aid in finding the correct analysis. Historically, the United States Supreme Court has long allowed antitrust regulation of conduct with only an incidental impact on speech.³⁶ Thus, the 1945 Supreme Court decision in Associated Press v. United States³⁷ held that a cooperative agreement of newspapers was not immune from prosecution under the Sherman Act just because the defendants were involved in the transmission of news information and opinion, which receives the highest protection under the First Amendment. That decision is correct because it is never clear whether the AP’s members are entitled to invoke the First Amendment to keep the information private, or whether the INS subscribers should invoke that reverse trump card to gain access to information they need. Neither argument has any traction. The proper analysis just notes that cartels tend to reduce output, raise prices, and result in a loss of social welfare that may be remedied by either damages or injunctive relief against participants in the collusive behavior.

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That same approach carries over to modern technologies as well. Thus, in United States v. Microsoft,³⁸ the question was whether Microsoft abused its monopoly power when it sought to leverage the control of its operating system into control over the market for key applications, most notably web browsers. The monopolization charge raised under Section 2 of the Sherman Act echoed the basic theme associated with the common carrier cases. Microsoft was placing entry barriers against other suppliers of particular competitive applications. That charge could not be answered by Bill Gates’ famous, if uninformed, remark that Microsoft had no more duty to accommodate Netscape on its operating system than Coke had a duty to make room for Pepsi bottles in its cartons³⁹ simply because Microsoft had become a common carrier in a way that Coke has not. Given that connections could be established at a zero price point, a material difference from other "common carriers," the only point of contention was the scope of the interconnection obligations fashioned on remand by Judge Colleen Kollar-Kotelly.⁴⁰

To elaborate, Coke and Pepsi are not network industries, which the Internet surely is, so the duties of common carriers could apply to Microsoft to the extent that its operating system enjoyed a monopoly position. Normally the antitrust law cannot be used to regulate a market for a zero-priced good because, as with telecommunications, the regulator has to set specific nonzero rates. But that administrative action is not needed for Microsoft when all interconnections should be done at zero price. The key point here is that the Microsoft settlement ultimately reduced itself to forcing interconnection obligations on Microsoft on reasonable terms, which was the right course generally, though it was arguably bungled on remand.⁴¹ But again note that the problem goes away when multiple hubs obviate both the antitrust and the common carrier obligations, a result that furthers First Amendment values of diversity without relying on the First Amendment.

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A related analysis explains why the antitrust claim against Google did not gain much traction either. As in Microsoft, the charges against Google were for monopolization, only in this instance by the use of algorithms that gave Google entries higher places on the search queue than those entries from its competitors. But this opening gambit is where the difficulties begin. Most critically, the higher ranking that Google gives its own entries is not an undivided bad. It may have some negative effect on consumer search costs, but by the same token, even if that were true, several powerful ripostes eventually carried the day. First, its competitors often exhibited the same pattern of search results. Second, the actual Google rankings did not seem off base in comparison with those supplied by others, so allegations of consumer harm were difficult to sustain. Third, users are able in part to detect and correct those ranking errors. Fourth, even if there were some preference, it does not follow that such results are bad for users. With search engines, there are the same tradeoffs as with patents. Cutting Google, as the generator of the system, a bit of slack has the additional benefit of inducing a somewhat more rapid deployment of new technologies. In the end, the exhaustive FTC search concluded that the game was not worth the candle.⁴² And for what it is worth, no invocation of the First Amendment could, or should, alter the outcome of the case—whenever Google, Microsoft, or any high technology company acquires market power.

VI. CONCLUSION: BEWARE OF NOVEL FIRST AMENDMENT CLAIMS

This very rapid tour of modern communications law reveals an established truth. It is always necessary to ask how traditional legal doctrines carry over to the novel institutions and practices of a new technological age. The answer is that the older principles may need a bit of tweaking here and there; but in general, if they were sound in their inception, they will do quite well in a new context.⁴³ That result applies in this case whether we look at the novel forms of misappropriation that are generated on the Internet or the principles of common carrier or antitrust regulation of these same technologies. Physical invasions and the misappropriation of information still remain issues, but these can be handled by standard tools of analysis within customary frameworks.

Once that is done, a further proposition becomes clear. Virtually all of these new situations involve the control and dissemination of information, which clearly bring the First Amendment into play. But strangely enough, not for long. The complications about stealing information from websites do not differ all that much from the theft of information from old-style bulletin boards. The antitrust and common carrier rules are driven more by issues of monopoly and its regulation than by the First Amendment, which plays no more role here than it does in cases of rate regulation of common carriers that carry cartons of books to their destination. Plus ça change, plus c’est la même chose: The more things change, the more they remain the same.⁴⁴

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——–

Notes:

^1. Laurence A. Tisch Professor of Law, New York University Law School; The Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; The James Parker Hall Distinguished Service Professor Law Emeritus and Senior Lecturer, The University of Chicago Law School. My thanks to Graham Safty, University of Chicago Law School, class of 2013, for his excellent research assistance. This article appeared originally in the Fall 2013 issue of Icarus, the journal of the Media and Technology Committee of the ABA’s Antitrust Section.

^2. Pierre-Joseph Proudhon, What is Property? 13 (Donald R. Kelley & Bonnie G. Smith eds. & trans., Cambridge Univ. Press 1994) (1840).

^3. See, e.g., Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) (discussing 17 U.S.C. § 107).

^4. As with copyright, it is easy to imagine rare occasions of necessity, but the cases are likely to be few and far between where I could claim (at least in the pre-cell phone age) the legal privilege to use your telephone to protect my own life, or the lives of third persons. See, e.g., Soldano v. O’Daniels, 190 Cal. Rptr. 310 (Cal. App. 1983).

^5. Associated Press v. United States, 326 U.S. 1 (1945), discussed infra at n.37.

^6. 447 U.S. 74 (1980). For my views, see Richard A. Epstein, Takings, Exclusivity and Speech: The Legacy o/PruneYard v. Robins, 64 U. Chi. L. Rev. 21 (1997).

^7. See, e.g., Golden Gateway Center v. Golden Gateway Tenants Ass’n, 29 P.3d 797 (Cal. 2001) (denying a tenants association "the right to distribute its newsletter in a privately owned apartment complex").

^8. 67 F. Supp. 2d 745 (E.D. Mich. 1999).

^9. Compare United States v. Alvarez, 132 S. Ct. 2537, 2547-48 (2012) (plurality op.) (rejecting the view that all fraudulent speech receives First Amendment protection when striking down a statute that subjects a person to criminal sanctions for lying about receiving military medals).

^10. See Saul Levmore, Variety and Uniformity in the Treatment of the Good Faith Purchaser, 16 J. Legal Stud. 43, 46 (1987).

^11. The phrase is used in Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (Cal. App. 2001): "We conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction. Id. at 249.

^12. See Pamela Samuelson, Principles for Resolving Conflicts Between Trade Secrets and the First Amendment, 58 Hastings L.J. 777, 777 (2007) (defending injunctive relief in trade secret cases); Andrew Beckerman-Rodau, Prior Restraints and Intellectual Property: The Clash Between Intellectual Property and the First Amendment from an Economic Perspective, 12 Fordham Intell. Prop. Media & Ent. L.j. 1, 67 (2001) (same); Richard A. Epstein, Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism, 52 Stan. L. Rev. 1003, 1035—46 (2000) (same, given the valuation difficulties in these cases).

^13. 75 P.3d 1 (Cal. 2003).

^14. Amicus Brief of Microsoft Corporation, et al., DVD Copy Control Ass’n, Inc. v. Bunner, 75 P.3d 1 (Cal. 1993) (No. S102588), available at https://w2.eff.org/IP/Video/DVDCCA_case/20020718_bunner_ms_amicus_brief.pdf.

^15. See, e.g., DVD Copy Control Ass’n v. Bunner, 10 Cal. Rptr. 3d 185, 192-96 (Cal. App. 2004).

^16. 71 P.3d 296 (Cal. 2003).

^17. Restatement (Second) of Torts §§ 217—18.

^18. Restatement (Second) of Torts § 218 cmt. e illus. 2.

^19. See Hamidi, 71 P.3d at 318 (Brown, J. dissenting).

^20. Amicus Brief of California Employment Law Council, et al., Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003) (No. S103781), 2002 CA S. Ct. Briefs LEXIS 39. The claim was explicitly criticized by Judge Werdegar. Hamidi, 71 P.3d at 309—11. For my extended reply, see Richard A. Epstein, Intel v. Hamidi: The Role of Self-Help in Cyberspace, 1 J. Law, Econ. & Pol. 147 (2005).

^21. See EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58, 64 (1st Cir. 2003) (allowing injunction against scrapers in cases involving "misuse of confidential information").

^22. See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 344-51, 358-59, 361-62 (1991) (factual compilations may often be copyrighted, but not the information in white pages which lacks even the smidgen of the required originality).

^23. See e.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1066 (N.D. Cal. 2000).

^24. In the Matter of Google Inc., Statement of the Federal Trade Commission Regarding Google’s Search Practices, at 3 n.2 FTC File No. 111-0163 (Jan. 3, 2013), available at http://www.ftc.gov/os/2013/01/130103googlesearchstmtofcomm.pdf.

^25. See Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U.S. 124, 126 (2006) (approving limits on the patenting of laws of nature or abstract ideas by analogy of the limits of copyright protection for " ideas").

^26. 248 U.S. 215 (1918).

^27. Id. at 241.

^28. 471 U.S. 539 (1985).

^29. Under net neutrality telecommunications, cable companies are obliged "to route traffic without regard to the source or content of the packets of data that move across the Internet, the application with which those packets are associated, or the sender’s willingness to pay." Christopher S. Yoo, Network Neutrality or Internet Innovation, 1 (University of Pennsylvania Law School, Institute for Law and Economics, Research Paper No. 10-06, April 2010). The Federal Communications Commission has promulgated net neutrality rules in what is known as its Open Internet Order. See In the Matter of Preserving the Open Internet Broadband and Industry Practices, FCC 1021 (Federal Communications Commission Dec. 23, 2010), http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-201A1_Rcd.pdf (last visited Sept. 14, 2013).

^30. Matthew Hale, De Portibus Maris, in 1 A Collection of Tracts Relative to the Law of England 77-78 (Francis Hargrave ed., 1787).

^31. I ignore here the complex calculations needed to determine reasonable rates of return in public utility pricing . For a convenient discussion of permissible methodologies, see Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989).

^32. 319 U.S. 624 (1943).

^33. Id. at 642.

^34. See United States of America v. Terminal Railroad Ass’n of St. Louis et al., 224 U.S. 383, 392-400, 4 04 -05, 411-12 (1912) (terminal company that gained control of every railroad bridge across the Mississippi could be forced to grant access to all carriers on reasonable and non-discriminatory terms).

^35. It remains an open question whether tiered pricing should be subject to a total revenue constraint similar to that in old public utility regulation. The Federal Trade Commission’s Maureen K. Ohlhausen noted that "[t]echnology industries are notoriously fast-paced, particularly industries involving the Internet." In the Matter of Google Inc., Statement of Commissioner Maureen Ohlhausen of the Federal Trade Commission Regarding Google’s Search Practices, FTC File No. 111-0163, at 1, available at http://www.ftc.gov/os/2013/01/130103googlesearchohlhausenstmt.pdf. The persistent rapid decline in rates owing to technological improvements makes setting maximum rates completely otiose. At this point, an obligation to take all comers under tiered pricing is the most that can be expected. More aggressive rate regulation in this industry leads to a dead end.

^36. See, e.g., Citizen Publishing Co. v. United States, 394 U.S. 131 (1969) (upholding injunction prohibiting newspaper publishers from entering into joint operating agreement); National Society of Professional Engineers v. United States, 435 U.S. 679 (1978) (striking down under the antitrust laws a professional association’s ethical ban on competitive bidding for engineering services); American Society of Mechanical Eng’rs v. Hydrolevel Corp., 456 U.S. 556 (1982) (inaccurate professional association report on safety issues violated the antitrust laws when used to undermine a competitor’s product); Federal Trade Comm’n v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 430-32 (1990) (bar association’s boycott of case assignments involving indigent defendants violated the antitrust laws even though the boycott involved expression); see also e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 n.5 (1985) (exchange of pricing and production information by competitors can be proscribed under the antitrust laws).

^37. 326 U.S. 1 (1945).

^38. 253 F.3d 34 (D.C. Cir. 2001). For my account, see Richard A. Epstein, Antitrust Consent Decrees in Theory and Practice: Why Less Is More, ch. 4 (AEI Press 2007); Richard A. Epstein, Monopolization Follies: The Dangers of Structural Remedies under Section 2 of the Sherman Act, 76 ANTITRUST L.J. 205, 231—37 (2009).

^39. See, e.g., U.S. v. Microsoft—It’s a Battle over Metaphors, C.S. Monitor (n.d.), http://www.csmonitor.com/1998/0522/052298.us.us.5.html/%28page%29/2 (last visited Sept. 14, 2013).

^40. See Open Law: The Microsoft Case, Berkman Center for Internet & Society, http://cyber.law. harvard.edu/msdoj/.

^41. See William H. Page & Seldon J. Childers, Measuring Compliance with Compulsory Licensing Remedies in the American Microsoft Case, 76 Antitrust L.J. 239 (2009).

^42. See In the Matter of Google, Inc., supra, Statement of the Federal Trade Commission Regarding Google’s Search Practices at 2-3.

^43. See Richard A. Epstein, The Static Conception of Common Law, 9 J. Legal Stud. 253 (1980).

^44. Wikitonary, http://en.wiktionary.org/wiki/plus_%C3%A7a_change,_plus_c%27est_la_m%C3%AAme_chose(last visited Sept. 14, 2013).