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soon after the panel began, t-mobile’s counsel began arguing that the internet was a neutral medium. as an example, he referred to the company’s recent decision to block websites of certain companies, like fly.com and bigmouth.com, in its wireless service plans. grokster counsel, in support of the companies contentions, argued that the internet is an interactive medium and therefore the internet is a neutral platform from which speech may be transmitted in violation of the anti-discrimination principles of the first amendment. t-mobile’s counsel noted that grokster’s counsel was arguing for the adoption of a per se rule. the honorable richard a. paez (district judge) asked grokster’s counsel how he would propose that a blanket per se rule be adopted. the reply was that this should not be a per se rule. finally, as a representative of the united states government, the justice department’s counsel, made a short closing statement with respect to the applicability of the communications decency act to internet-facilitated communications.
even with these judgments, there are still outstanding questions regarding the application of the cda to these cases. for one, when the government and the districts court reached the issue, there was little judicial interpretation on this point in the context of a conspiracy case. second, the supreme court has found the application of the cda problematic, and this court hesitates to extend the cda or to apply it in a manner consistent with the supreme court’s conclusions. the cda could be construed as criminalizing these non-infringing activities. moreover, the broad reach of the cda could apply to non-infringing or copyright-protected activities. for example, when a copyright holder blocks the use of his copyrighted material, he is acting in a similar manner as a publisher who might block access to a newspaper for fear of the newspaper being accused of copyright infringement. the cda is not quite the tool to address the problems of free speech that the government is attempting to remedy.
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