By Will Cross
About a month ago Kevin wrote about the retirement of Justice Stevens and quoted an excellent article called “Justice Stevens Invented the Internet.” It argued that the development of the internet relied on Stevens’ opinion in the Sony Betamax case, and the standard it established that, so long as a device is “capable of substantial non-infringing uses,” the manufacturer of the device cannot be liable for infringing copies made by consumers with the device.
I could not agree more with this argument and to Justice Stevens’ credit I would add his majority opinion in Reno v. ACLU, which welcomed the Internet under the aegis of the First Amendment and struck down a requirement that “adult” online expression must be sent exclusively to users over the age of 18, a requirement Stevens noted would be technologically impossible to comply with. Given that technological barriers will not work, the only alternative is to simply limit expression. Regulation, Stevens wrote, may not “reduc[e] the adult population . . . to . . . only what is fit for children.”
Taken together, these cases established the legal framework that supports the internet as an open and free medium where users are protected from liability for unforeseen bad or inappropriate uses of expression made by others. Technology and expression must be taken on their own terms, even if third parties subvert them for bad ends.
Unfortunately, this principle of an open internet has been steadily eroded by blowback from copyright firefights, particularly one that arose even as Stevens was drafting Reno: file sharing.
After a decade of fruitless lawsuits and on the heels of another legal victory, this time against file sharing service Limewire, content owners are gearing up for yet another round of lawsuits this week. The problem with this bellicose response to file sharing is that Justice Stevens’ open internet is increasingly caught in the crossfire.
This response to file sharing has taken a significant toll on the efficiency of the legal system and has bent the law badly out of shape. As Eric Goldman’s blog, cited above, notes, “there is ‘normal’ copyright law and then ‘P2P file sharing’ copyright law, and it’s a mistake to think those two legal doctrines are closely related.” Content owners have repeatedly pushed for extreme, or simply non-legal, readings of copyright and fair use, most famously in the Lenz case dealing with bogus takedown notices (and a dancing baby) and the recent Jammie Thomas case dealing with excessive statutory damages. They are also attempting to rewrite the already draconian DMCA, an irony matched only by the sublime absurdity of content owners suing one another over pirated anti-piracy technology.
More troubling, these lawsuits have also begun to target not only users but service providers. Content owners have been overburdening ISP’s with automated discovery requests for years and have recently begun to attack ISP’s directly. They have also sought an injunction against the bandwidth provider for file sharing service The Pirate Bay, essentially arguing for fourth party liability.
This erosion in Justice Steven’s principle of an open internet reached a new low with a California court’s recent injunction against BitTorrent search engine IsoHunt requiring it to remove all links pointing to infringing files. This, of course flies in the face of Stevens’ principle about non-infringing uses and requires IsoHunt to have the same infeasible knowledge and control over users as was struck down in Reno. If the Pirate Bay case is the equivalent of suing AT&T for an obscene caller’s ramblings then this case is akin to requiring that Sprint disconnect anyone whose phone might be used for unlawful acts even before those acts have been identified as unlawful. It cannot be done and the only alternative is to shutter the technology completely or simply bend over backward to accommodate any and all measures litigious content owners may seek to employ.
This also ignores the substantial non-infringing uses of file sharing services similar to those that saved the VCR in Sony. These uses include an increasing number of academic uses. Kevin discussed the potential cost of attacking file sharing to higher education in a 2007 post on this topic and since then file sharing continues to be used to transmit academic materials including textbooks and journals. Many universities have begun to move this sharing into an authorized practice with a service called iTunesU that facilitates academic sharing. Under pressure from content-owners, however, and despite the developing market for academic file sharing, Oxford University has banned all file sharing, even that which explicitly legal. With ACTA’s heavy artillery on the horizon the firefight only seems to be escalating.
Again, illegal file sharing is a real problem but the current move to eradicate anything that might be used unlawfully is in danger of reducing Justice Stevens’ open internet to “only what is fit for children.” The war against file sharing is harming legitimate uses such as academic sharing and has an economic cost, and a cost to public safety. It also has a cost to public knowledge, as poetically illustrated by Princeton’s demand that web sites remove the senior thesis of Justice Stevens’ replacement Elena Kagan, in order to protect Princeton’s market to sell the public writings of the next Justice. With technology and expression in the cross-hairs even an unlikely total victory against illegal sharing seems to offer at best a Pyrrhic one for scholarly communications and society.