lyndon@ncc.UUCP (03/24/87)
Brad Templeton writes:
#What the stargate -- and other satellite folks -- really want to sell
#is *telecommunications*. They really have not desire to sell or own
#the transmitted materials.
#
#The service provided by stargate is, in theory, the moving of information
#from point A (say, Atlanta) to point B (say, a customer in Los Angeles).
According to this definition, Stargate is a COMMON CARRIER, in the
business of transporting data.
#It seems perfectly fair that Stargate and the LA customer could enter into
#a contract that says,
# "I will move the information you request from Atlanta to you, so long as
# you pay me and don't resell (or give away) this moving."
IF Stargate is a COMMON CARRIER, I doubt that they could place any
restriction on the use of the goods transported via their service
once it has left the carriers (ie Stargates) hands.
#Perhaps some are suggesting that this sort of contract be illegal because
#it would forbid the reselling (or giving away) of PD information that was
#moved for a fee. The point here is that what is being sold is the moving
^^^^^^
#of the information, and you can't give away that moved information without
^^ ^^^ ^^^^^^^^^^^ (1) ^^^^^ ^^^^ ^^^^ ^^^^ ^^^^^ ^^^^^^^^^^^ ^^^^^^^
#also giving away the moving of it which is inherently within it.
^^^^ ^^^^^^ ^^^^ ^^^ ^^^^^^ ^^ ^^ ^^^^^ ^^ ^^^^^^^^^^ ^^^^^^ ^^ (2)
Point (1) above describes the contract between the COMMON CARRIER and
the customer. (1) really has no relation to point (2) in the context of
a contract with a COMMON CARRIER. The law governing common carriers
applies across the board to ALL common carriers (in general) regardless
of what it is they carry. There may be additional legislation pertaining
to the goods being transported (e.g. The Transportation of Dangerous
Goods Act - covers the movement of dangerous commodities via road, rail,
etc. within Canada). By moving the goods from A to B, you are not changing
the product being moved. You are fulfilling a contract where two parties
benefit - The CC receives money in exchange for the use of its transport
facilities, and the customer receives his data in a more beneficial
location in exchange for money.
Transporting potatoes from P.E.I. to Alberta doesn't change the potatoe!
A spud's a spud's a spud.
#Now such a restriction isn't a restriction on the information itself.
#Anybody else is free to move the information (if it is PD) from Atlanta
#to wherever they want. By why should it be illegal to restrict further
#motions of information that could not have existed without the original
#telecommunications service.
Later, Eric Fair responds:
*There are two kinds of big beasts in communication law: broadcasters
*(e.g. commercial radio & TV stations) and common carriers (e.g. the
*Telephone Company).
This is a VERY important point. A BROADCASTER is someone who creates
new material for transmission (note the previous word) to the public.
This may include repackaging existing information into a new format.
A BROADCASTER may elect to provide its own TRANSMISSION facilities
geared toward general public distribution of the information.
A COMMON CARRIER is someone who contracts with someone to move
something from A to B in its ORIGINAL form.
*
*The question at the crux of John Gilmore's posting is
*
* Can Stargate qualify for common carrier status under the law,
* and therefore not be liable for the content of the information
* that they carry?
*
*USENET uses common carriers to achieve the effect of a broadcaster, but
*Stargate is real live satellite broadcast, hitting the entire
^^^^^^^^^
*continental U.S. from a point 22,000 miles up, so Lauren Weinstein
*(doubtless in consultation with others) decided early on that Stargate
*was a broadcaster under the law, and therefore subject to the legal
*restrictions that broadcasters operate under. Which resulted in the
*statement, from nearly day one of the project, that Stargate would only
*be able to carry USENET's moderated groups (or material from the
*umoderated groups that got passed through a Stargate moderator).
NO! Stargate uses satellite TRANSMISSION. They do not offer the material
to the general public, therefore they are NOT a BROADCASTER. The fact
that the signal is AVAILABLE throughout the continent does not constitute
broadcasting.
*
*So what we really end up with is
*
* How can we change Stargate so that it can qualify for common
* carrier status under the law?
*
*The answer to this question may be that it is not possible, or that
*we'd have to change Stargate too much to be useful to us. However,
*that question is one for a lawyer, which I'm not.
Neither am I. I think we are between the rock and the hard place
right now. If Stargate wishes to Broadcast, they will need a
Broadcasting license from the FCC. This is not trivial to obtain,
nor is it inexpensive. If it were obtained, it would still be illegal
(under Canadian Law) for me to receive Stargate broadcasts in Canada.
On the other hand, if Stargate is to become a Common Carrier, it will
still need a license (Federal, and possible a State license from each
state it "carries" into).
The only solution I can see that would allow Stargate to work would
be to drop the WTBS feed, and try to work out an arrangement with
PBS to use part of the Vertical Interval on one of their feeds. PBS
would have to agree to distribute the material at NO COST to the
source or the destination. There are precidents showing that a VITS
signal is not "generally available to the public", and therefore
doesn't qualify as a BROADCAST signal. It is not a COMMON CARRIER
relationship as PBS would be providing this as a public service.
They would not be receiving "valuable consideration" for transmitting
the information, so there is not valid contract upon which to establish
a COMMON CARRIER relationship...
There MUST be some lawyers on the net who can tear my
arguments to shreds :-) Please do so - this is getting interesting!
__
Lyndon Nerenberg - Nexus Computing Corp. - lyndon@ncc.UUCPhenry@utzoo.UUCP (Henry Spencer) (04/05/87)
> The only solution I can see that would allow Stargate to work would > be to drop the WTBS feed, and try to work out an arrangement with > PBS to use part of the Vertical Interval on one of their feeds. PBS > would have to agree to distribute the material at NO COST to the > source or the destination... HO HO HO. If you've ever watched PBS during "begging month", as one of my friends calls it, you know that they're short of cash. Do you really think they don't know how much *money* their vertical-interval space is worth? Money that they can get without pestering their viewers, without compromising their unusual status by accepting advertising, and without much effort on their part? Actually, given that WTBS does not own its vertical interval space (the Stargate project is dealing with Southern Satellite; WTBS has no say in the matter, as I understand it), probably PBS doesn't either. -- "We must choose: the stars or Henry Spencer @ U of Toronto Zoology the dust. Which shall it be?" {allegra,ihnp4,decvax,pyramid}!utzoo!henry