Intellectual Property Law

1930 common carriage

By Susan Crawford

The FISA news is not good - the Senate has approved a revision that drastically reduces judicial oversight [CDT] and is riddled with “loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it” [ArsTechnica].

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Disheartened, I’d rather write about a nice article by Warren Jefferson Davis in the first number of an ambitious (and short-lived) 1930s journal called the Air Law Review.  (Sorry that I can’t link directly to the journal - ask your local librarian.)  Davis was, among other things, grappling with the question whether a plane hired for ad hoc, casual, private joyrides should be treated as a common carrier.  (Answer:  No.)  Along the way, he carefully explored the general question of common carriage.

[T]o constitute a common carrier the business as such must be regular and customary in its character, and not casual only, and must be carried on as a business and be of such a general and public nature that the carrier is bound to convey goods for all persons indifferently who offer payment for carriage.

… [citing cases] “The real test whether a man is a common carrier, whether by land or water, therefore, really is whether he had held out that he will, so long as he has room, carry for hire the goods of every person who will bring goods to him to be carried.  The test is not whether he is carrying as a public employment or whether he carries to a fixed place, but whether he holds out, either expressly or by a course of conduct, that he will carry for hire, so long as he has room, the goods of all persons indifferently who send him goods to be carried.”

This framework isn’t based on necessity, or on monopoly status - it’s based on “holding out,” or acting, as if you’re available to everyone to carry their goods (or, potentially, communications).

Your World. Delivered.
–AT&T slogan, introduced Dec. 2005, following merger with SBC Communications, Inc.

It’s the Network.
–Verizon Wireless slogan, introduced 2005.

Hmm.  Sounds like transport is available, doesn’t it?

Full post as published by Susan Crawford Blog on July 09, 2008 (boomark / email).