How US Courts Created the Internet
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…
For those on the internet in 1990 or 1994 or 1998, the question of what laws would apply to online interaction, content and software had the potential to impact every aspect of the online experience.
At least in the US, which “owned” the Internet through much of the 90s (because the Internet started as a US Dept. of Defense project) lawyers were arguing that the Copyright Act shouldn’t or didn’t apply to the Internet (it did; it does). Lawmakers were passing laws that said that all content on the internet had to be safe under “contemporary community standards” - but what community? The town where someone lived, the city where the servers were hosted, or something else entirely?
And where could site operators be sued or individuals charged with violations of the law? What court, what state, what country? Did extradition treaties apply when the violations in question were virtual?
Were site operators publishers of every bit of content that they hosted? Were they the authors? Were they common carriers?
Everyone could argue by analogy - that’s the way that laws grow and change in the (US) courts - and the outcome of these six cases is what makes the Internet what it is today.
Had Reno v ACLU gone the other way, there could have been risks to the fannish gift economy because there would have been, as Justice Stevens wrote, broad suppression of speech addressed to adults.
Had the Netcom case (re Scientology) gone the other way, linking to another site would have been seen as infringement of the linked site. The ruling also set the stage for not requiring sites to prescreen content.
Had Zeran v AOL gone the other way, the Communications Decency Act would have been eviscerated, every website would have had to review every piece of content before it was posted, and YouTube, Twitter, Google’s search algorithms, Facebook, Twitch, DeviantArt and the AO3 would not be able to exist; there aren’t enough hours in the day for every piece of content on any of those sites to be reviewed.
Had Perfect 10 gone the other way, image databases would be limited and not as useful as they are. Because the court in Perfect 10 ruled as they did, you can use Google Image Search to find out who created fanart that comes across your Dash or FB feed and correctly give credit to the artist and reblog the artist’s original post rather than someone else’s repost of it. It also fundamentally expanded the definition of “transformative works” which is useful for anyone who creates fanworks.
We would add that Ashcroft v Free Speech Coalition in 2002 should also be added to any list of Cases That Made The Internet What It Is, because it held that it would violate the First Amendment to make it illegal to posses a work that contained even a single depiction of sexual activity among minors, like those found in filmed versions of Romeo and Juliet or in American Beauty, without inquiry into the work’s redeeming value. And yes, had Ashcroft gone the other way, many gifs (and scenes from certain shows and films) would have violated the CPPA - and Congress might have tried to expand the ban to textual works, too.