from the decent! dept
Five Years Ago
These were the early days of the Chelsea (then Bradley) Manning affair, but apart from that, this week in 2010 was mostly like the last: jam-packed with activity on the copyright front. BPI was sending takedowns to Google in what appeared to be part of a broader plan, while the IFPI was trying to get the search giant to stop linking to The Pirate Bay entirely. German newspaper publishers were seeking copyright on headlines, while up in Canada the Heritage Minister called those who oppose stricter copyright law radical extremists (and then denied it, only to find out it was caught on video). The major labels were busy astroturfing in favor of three-strikes while trying to avoid paying songwriters, and ASCAP was demonizing Creative Commons.
We got one very bad ruling this week in 2010, when an appeals court said it's okay to take stuff out of the public domain and put it back under copyright. We also got a very good one when the court ruled in favor of YouTube in the Viacom lawsuit. Of course, that battle was far from over, but for the time being Viacom was in denial about the result while we wondered what its true implications were. The White House released its strategic plan for intellectual property and it wasn't as bad as we expected, but were disappointed to learn that the administration had pivoted from supporting copyright exceptions for the blind to fighting against them. Meanwhile, lots of researchers and other people were trying to tell the true story: how weaker copyright benefits culture and society, how the lack of fair use coverage for satire stifles free speech, how the recording industry made file-sharing much worse for itself, how there's no evidence that kicking people offline for file-sharing is in any way necessary, and how things like the Digital Economy Act and ACTA will stifle creativity.
Ten Years Ago
Much that was happening in 2005 this week mirrors what was happening in 2010. Canada was grappling with an earlier round of copyright reform, America's Copyright Czar was proposing major changes that were potentially good and potentially bad, and lines were being clearly drawn between the camps for sharing and owning culture. The recording industry was trying out a too-little-too-late plan to compete with unauthorized file-sharing, but it was the MPAA that was really up to no good: it tried to sneak broadcast flag legislation into the law, and then made some grandiose claims about its anti-piracy successes (then, when called on the numbers, tried to explain them away as hypothetical future piracy). Even the FTC was starting to see through Hollywood's anti-file-sharing claims (and so were the kids), while we revisited the ways the fashion industry thrives without copyright.
Also this week in 2005, the EU was moving forwards on software patents despite the fact that the politicians voting for it didn't understand the difference between patents and copyright. We got one great example of the ridiculousness of such patents too, when Apple was sued over the iTunes interface.
Fifteen Years Ago
In 2000, the file-sharing debate was just as heated but far more streamlined, with almost everything focused on the still-prominent Napster, which had just hired the government's lead attorney in the Microsoft case. One independent band, meanwhile, launched StopNapster.com — though on the other hand, the Economist was rightly pointing out that Napster is a wake-up call and proof that online distribution is feasible. Some companies were trying more "creative" offerings, like gas pumps that let you download music while you fill up, and the world drew closer and closer to the iPod with the advent of the first 1GB portable media player hard drive.
NASA announced that it had, for some reason, perfected porn-blocking software. It hadn't, and neither had anybody else who tried. The Librarian of Congress displayed his cluelessness about the internet, while Microsoft was airing a bizarre media campaign starring Bill Gates. The EU was setting up to probe the AOL/Time Warner merger, Sony was getting ready to storm the mobile phone market, and Kmart was making yet another attempt at getting online.
Forty & Eighteen Years Ago
This week, we look at two interesting milestones in the history of free speech in the US, and more specifically one of its most complex and storied wrinkles: obscenity and indecency. First, it was on June 26th, 1975 that the Supreme Court handed down its ruling in Miller v. California, establishing the three-prong "Miller Test" for obscene (and thus unprotected) speech. It requires that all three conditions be satisfied:
- Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Two decades later, a related law hit the scene: the Communications Decency Act. When it gets brought up here at Techdirt, it's mostly with regards to the Section 230 safe harbors, which have had an impact far beyond the subject of "decency". But the Act's original primary purpose was to protect children from seeing bad stuff online, and much of this has been struck down or altered since, with one notable date being June 26th, 1997 — the same day as the establishment of the Miller Test, 22 years later — when the Supreme Court upheld the ruling in Reno v. American Civil Liberties Union that the indecency provisions of the CDA were unconstitutional violations of the First Amendment.