If these cases had ended differently, we would live in a very different world.
By Matt Stroud on 32Comments
When AOL executive Ryan Block went public with a recorded a customer service call in which a Comcast representative refused, for the better part of 20 minutes, to cancel Block’s service, the recording went viral not because it was an anomaly, but because the rep’s sales tactics were familiar: most of us have been at the receiving end of a Comcast sales call we didn’t ask for. And, if you’re been following Adrianne Jeffries’ “Comcast Confessions” series, you know many people are tired of it.
But part of the reason why Comcast is able to treat its customers in weird and often belittling ways is that it provides access to one of the best things in modern society: the internet. Comcast provides a portal to this awesome, sprawling thing we all access constantly.
The internet is great. And we all know that. But it’s worth noting that the internet has only taken on its current form of greatness because of legal battles that have allowed it to provide speech protected by the First Amendment, third-party content, and all sorts of other great things that we sometimes take for granted.
What follows is a list of six legal cases that helped to shape the internet into what it is today. And who knows: maybe the next case to shape the internet will involve Comcast’s customer service policies.
Many thanks to Jeffrey Hermes, former director of Harvard’s Citizen Media Law Project; Santa Clara University law professor Eric Goldman; Yale Information Society Project fellow Wendy Seltzer; University of California Berkeley School of Information Assistant Professor Brian W. Carver; Digital Media Law Project staff attorney Andy Sellars; and University of Maryland law professor Danielle Keats Citron for their help compiling this list.
Wikipedia
Why it’s important: This case protected online freedom of speech.
What the case is about: In February 1996, Congress passed the Communications Decency Act, an attempt to regulate pornography and “indecent” material on the web — and, more precisely, to keep kids away from some of the internet’s less dignified elements. The act included a provision that threatened criminal prosecution against any party that “knowingly” sent anyone under 18 to content that displayed “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”
Federal judges in Philadelphia and New York struck down the provision and the Supreme Court unanimously agreed with those decisions. “It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials,” Justice John Paul Stevens wrote in the high court’s opinion. “But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.”
Carver: “The court had to struggle with whether the internet should be regulated like a print medium, a broadcast medium, or as something new altogether. The Court paved the way for our understanding that on the internet, the government cannot reduce the adult population to only what is fit for children and that less-restrictive means of controlling online content, such as parent-controlled filtering software, were preferred.”
Electronic Frontier Foundation
Why it’s important: This case allowed website owners to host third-party content without having to worry about being prosecuted if someone published something illegal on that website.
What the case is about: About a week after the Oklahoma City bombings in April 1995, posts appeared on an AOL messageboard offering items for sale that were printed with multiple exclamation point witticisms such as, “Visit Oklahoma … It’s a BLAST!!!” and “McVeigh for President 1996.” The posts directed users to contact Seattle resident Kenneth M. Zeran and listed the guy’s home phone number. The posts were a bizarre prank — Zeran claimed not to know anything about the messageboard or the items ostensibly for sale — but the phenomenon went viral after an Oklahoma City radio DJ encouraged his listeners to express their outrage in Zeran’s direction. For a while, Zeran received hundreds of angry phone calls per day and eventually required protective assistance from the FBI at his home. He sued the radio station’s owners for amplifying the prank and AOL for publishing the prank in the first place.
The radio station suit was interesting enough but the suit against AOL was monumental; it had the potential to change everything about the web. Like Reno, it called into question an element of the then- brand-new Communications Decency Act. But this time it wasn’t the indecency provision, it was the law’s controversial Section 230, which held that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A ruling in Zeran’s favor would have called Section 230 into question and likely required every website to vet every piece of content it published.
Goldman: “It’s no exaggeration to say that the Zeran case is responsible for our entire UGC economy.”
Hermes: “Think about YouTube. If [Zeran] had gone the other way, Google today would need to hire people with sophisticated legal backgrounds to review every single piece of content on that site. There would not be enough hours in the day. You would need to have literally millions of lawyers whose only responsibility would be reviewing user videos.”
Wikipedia
Why it’s important: The web is “world wide,” right? So which courts get to decide if a certain website has violated the law? This case paved the way toward establishing standards in that regard under the legal concept of “personal jurisdiction.”
What the case is about: Zippo Manufacturing, the well-known Pennsylvania lighter company, sued Zippo Dot Com, a California web company that provided about 140,000 users with access to USENET newsgroups. The court battle involved perceived trademark violations: The lighter company wanted the web company to stop using the name Zippo.
A main point in this case, the lighter company operated exclusively in Pennsylvania while the internet company only conducted about two percent of its business in Pennsylvania (where it had registered about 3,000 users).
Keeping that in mind, a Pennsylvania federal district court made the distinction between a “passive” website and an “interactive” one. Because the internet company conducted an interactive business — via forums, etc. — with the 3,000 or so Pennsylvania users, that was enough to establish personal jurisdiction and force the internet company to relinquish the Zippo name in Pennsylvania.
Zippo Dot Com (the USENET company, not the lighter manufacturer) went out of business not long before the case ended but the decision established the Zippo Test, which asked courts to consider whether a site was “passive,” “interactive,” or “commercial” as a way to decide whether or not it should be held liable under a certain state’s laws.
Yes, the Zippo Test has evolved — and there are similar personal jurisdiction cases that are worth knowing about and that call the Zippo Test into question for being too simplistic — but the Zippo case had a huge impact on the internet for a long time.
Goldman: “Even if the rule of law is now weakened, [the Zippo case] highly influenced Internet jurisdiction law for over a decade, and it is still cited more than perhaps any other Internet Law case.”
Museum of Intellectual Property
Why it’s important: If you clicked to agree, it’s official: You agreed. This case confirms it.
What the case is about: Grad. student Matthew Zeidenberg purchased a CD-ROM telephone directory, SelectPhone. He loaded it onto his hard drive and clicked through a series of warnings stating that the directory was licensed by ProCD and that users were not allowed to share the CD-ROM’s contents in any commercial pursuit. Zeidenberg ignored the warnings and posted the directory to a website, offering users access to the directory for a fee slightly lower than what ProCD charged.
Telephone directories are not protected by copyright (see Feist v. Rural, which has nothing to do with the internet). And that was Zeidenberg’s argument: you can’t protect the copyright of something that can’t be copyrighted. But a United States appeals court decided that the series of warnings Zeidenberg clicked through were enforceable as a contract. Meaning that Zeidenberg was in violation of a legal agreement.
Carver: “This case has been criticized as much as it has been followed by subsequent courts, but it was highly influential in establishing the idea that all the countless ‘click-to-agree’ agreements that we now experience online are just as enforceable as any other contract.”
Wikipedia
Why it’s important: This case established that linking to another site didn’t equal stealing content from that site.
What it’s about: Not a fan of the Church of Scientology, Dennis Erlich posted links to unpublished L. Ron Hubbard manuscripts on the Usenet newsgroup alt.religion.scientology, hosted by a Netcom server. Scientology held copyrights for the not exactly dead church leader’s unpublished manuscripts. The Church of Scientology sued Netcom for hosting the files, insinuating that it should have known that the files were copyrighted and that it had harmed the Church of Scientology for allowing the files to be posted.
The U.S. District Court in Northern California decided in Netcom’s favor, noting that Netcom had no reason to expect that Erlich, a random user, was publishing copyrighted material and that ruling against Netcom could seriously infringe upon First Amendment rights in the future. From the decision: “Netcom … [plays] a vital role in the speech of their users. Requiring them to prescreen postings for possible infringement would chill their users’ speech.”
Hermes: “[This case] is important for the development of the internet because it allows pretty much free linking.” It also solidifies that “Scientologists and Jehovah’s Witnesses set up a lot of the major copyright and First Amendment policies in this country because of their extremely litigious nature.”
Wikipedia
Why it’s important: Ever hear of Google Image Search? Of course you have. This case is why it and other similar services are allowed to exist.
What the case is about: Perfect 10 was a magazine and subscription website in the vein of Hustler — airbrushed nudie pics of open-mouthed young women, basically — with less meddlesome politics to get in the way of body parts on display. Third-party websites took images from Perfect 10’s subscription site and posted them, violating the subscription site’s copyright. While those third-party sites were clearly in the wrong, Perfect 10’s lawyers also argued that search indexes used by Google and Amazon — which used some of the stolen third-party images — were also in violation. The argument crawled slowly through the court system, eventually making it to the United States Court of Appeals for the Ninth Circuit. There, it was determined that the “potential harm” from linking “to Perfect 10’s market remains hypothetical” and that the search indexes were worth protecting because they provided “access to [pictorial] information on the Internet” and because “search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody’s sales.”
Carver: This case “continues to have an impact as it is cited to support technologists that are creating information-location tools, such as search engines, against the overreach of copyright law.”
