From: Black Unicorn <unicorn@schloss.li>
Date: Sun, 14 Apr 1996 02:28:48 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: Any examples of mandatory content rating?
In-Reply-To: <ad93dffc1b021004ed13@[205.199.118.202]>
Message-ID: <Pine.SUN.3.91.960413083139.10486F@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 12 Apr 1996, Timothy C. May wrote:

> 
> I'm interested in hearing about any _actual_ examples where a government
> body in the United States has mandated that intellectual property (roughly,
> written words, magazines, motion pictures, CDs, etc.) be "rated" or
> "age-labelled." Before anyone out there fires up his "Reply" and tells us
> about movie ratings, magazine warning labels, and the like, read on.

Well, my examples aren't all going to be in the United States, or 
strictly intellectual property, or 'age' based, but here:

Age rated, I don't think there are many examples.  General ratings exist. 
The best place to look for this kind of thing is e.g., FAA safety
ratings on potential aircraft/aircraft part designs.

While at first it may seem a bad example, these ratings are generally 
mandatory if you wish to market things as aircraft parts/related.  They 
are implemented in much the way I envision mandatory Internet ratings 
being implemented.  (e.g., executive Agency created to define standards and 
execute ratings system as well as enforce infractions by the removal of 
whatever largess the FAA provides.  It might also be noticed that this 
is right in line with the conflict of interest trend in government of 
allowing the same entity define and enforce standards of 
conduct/manufacture/design).  It might further be noticed that the FAA 
rating for parts increases their cost several-fold over non rated parts, 
even if non-FAA rated parts are literally identical.

> So, if anybody's still reading this, I am interested in _any_ examples
> where intellectual content (as opposed to food or drug packaging, for
> example) is required to be labelled.

Mandatory labelling or mandator rating?  I think this is an important 
distinction.  Most of the mandatory _ratings_ I can think of (FAA stuff 
included) are implemented in a round-a-bout way.  (i.e. "If you want to 
market this as X (bear a label) you must comply with Y, Z and U.")  I 
can't think of strict examples of mandatory "Labels" (i.e. "If you 
want to sell X, it must say Y, Z and U.") where a product simply must 
bear a quality rating symbol or something.  Voluntary systems are many.

The green "point" is a german example.  (Products wanting to market 
themselves as environmentally "safe" have to pass certain standards and 
then can bear the "green point" label.  This is still in the 'voluntary' 
labeling class in my view.  It might be noted, however, that if you are 
selling a food like product without the green point and you have even one 
compeditor who has it, you're not going to sell a single jar in germany).

The other German example is the Reinheitsgebot (Beer purity law, struck 
down as violating Article 30 of the ECC Treaty in Commission v. Germany, 
Case 178/84, [1987] ECR 1227).  Briefly, the word 'bier' could only be 
used on beverage products produced with only malted barley, hops, yeast 
and water.  Said the court (translated from the French)  "It must be added 
that such a system of mandatory consumer information must not entail 
negative assessment for beers not complying with the requirements of the 
Reinheitsgebot."

Laws on the mandatory use of the words "Sekt," "Weinbrand," "Branntwein 
aus Wein," and "Shaumwein" were struck down in Commission v. Germany, 
Case 12/74, [1975] ECR 181.  Taken as a whole, the German scheme could 
be viewed as a mandatory ratings system on type and quality of alcoholic 
beverages.  (The German argument for preservation of the Reinheitsgebot 
was that it prevented consumers from being taken in by producers who 
were using additives.  The Sekt, Wienbrand etc. laws were defended on 
similar grounds).  Granted all of these shy away from Mr. May's 
"intellectual property" qualification, but only insofar as we ignore 
the fact that what is really being regulated is a production process.

I suppose milk dates are "mandatory" and can be considered a "rating" in 
so far as they represent percieved quality/freshness.

Still, governments are quite talented at making ratings schemes look 
voluntary when practically speaking they are not.

> Such examples might shed some light on how these various proposals for
> "labelling" of Net traffic might work. And absent such examples, might show
> just what a tough road lies ahead for those advocating such labelling.

I think it will end up much like motion pictures.  The net will be asked 
to regulate itself under the threat of government regulation, which might 
be an empty threat if the First Amendment rights are applied.  Most 
people will comply, it being easier than making a fuss.

The real concern, if you believe as I do, that some form of internet 
rating standards are unavoidable, is allowing the same agency to make and 
enforce the standards.  IRS, SEC, FDA, FAA, FCC are all examples of where 
and how this can go wrong.  For a detailed discussion of the problems of 
government largess in the context of conflicts of interest, See Reich, The 
New Property; Reich, The New Property after 25 Years.  (Harvard Law 
Review, I forget the precise cite, but I will dig it up if anyone cares).

> --Tim May
> 
> Boycott "Big Brother Inside" software!
> We got computers, we're tapping phone lines, we know that that ain't allowed.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
>tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> Higher Power: 2^756839 - 1  | black markets, collapse of governments.
> "National borders aren't even speed bumps on the information superhighway."

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information
Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com