points us to a writeup by lawyer Will Cross (who apparently is now at the library school at Duke) which kicks off by looking at how retiring Supreme Court Justice John Paul Stevens really had a huge impact on the future of the internet
, by writing the majority opinion in the hugely influential Sony Betamax
case, which highlighted important exceptions to copyright law. Cross then also points to Stevens' decision striking down
much of the Communications Decency Act as being unconstitutional for seeking to restrict expression online only to "what is fit for children." However, the post then goes bit by bit through what's happened since then, and shows how the Sony Betamax decision has been trimmed further and further back, to the point that the basic principles set forth by Stevens in both cases are increasingly unrecognizable:
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.
When Cross puts all those stories together like that, you realize how much of the last few years has really been about the entertainment industry effectively dismantling
the core concepts put forth by Stevens in the Betamax decision. A key component to what helped make the internet free to become the internet we know, love and use every day, is slowly getting chipped away by special interests who don't want to allow that freedom because it undermines their business models. When you put all of that together in one place and realize how much has already been eroded, it's downright frightening, and it makes you wonder what great new technology won't be built and won't be widely used because of these policies.