rthstewart | Democratizing Effect of the Internet

A long time ago, in galaxy far, far, away, in the dark times, before Google, these were the days when Lucasfilm, Paramount, and Ten Thirteen (we assumed) amassed armies of tony LA and New York copyright lawyers armed with C&Ds who browsed Usenet groups and the burgeoning web looking for sites to shut down. This was in the days before ff.net and fan fiction dwelt in this ambiguous place where we all thought it was probably fair use, but we didn't have The Organization for Transformative Works to tell us these things. We had a whole running gag in one group I ran with taking lines from Star Wars and twisting them about:

"Copyright infringement ain't like dustin crops, boy."
"Aren't you a little short for a copyright lawyer."
“Mos Eisley spaceport. You will never find a more wretched hive of scum and copyright infringement."
"I am an infringer, like my father before me."
"Before the dark times, before the copyright lawyers."

But, I digress (I'm feeling nostalgic because on Other Fandom Friends are all down working the Star Wars Celebration in Orlando).

During this period, in 1995-1996, the U.S. Congress passes this funky piece of legislation known as the Communications Decency Act that sought to regulate and prohibit "indecent" material on the Internet, with criminal sanctions:

"any person in interstate or foreign communications who" ... "by means of a telecommunications device,""knowingly ... makes,creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned."
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Scary stuff for any content provider. The issue wasn't the "obscene" part -- it was the "indecent." What the heck was indecent? Well, practically everything, prison rape discussion boards, websites devoted to the raising awareness of female genital mutiliation, AIDS awareness. Certainly your average porn-ficathon. A whole slew of groups sued, claiming it was an improper intrusion by the government into speech protected by the First Amendment to the U.S. Constitution. A three judge panel heard the case and it was one of those things that once you read it, you never really forget it. I was musing on it in the previous entry and min023 asked for the link. So, here it is. The opinion is sort of "cute" in it careful explanation of the Internet as it existed in 1995. It was eventually affirmed by the US Supreme Court. The best, most ringing, and quotable parts, were by Judge Dalzell,

Both Tornillo and Turner recognize, in essence, that the cure for market dysfunction (government-imposed, content-based speech restrictions) will almost always be worse than the disease. Here, however, I am hard-pressed even to identify the disease. It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country--and indeed the world--has yet seen. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen.
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Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos."

Flat | Top-Level Comments Only

Nice one on that judge's part :)

OMG. A judge that 'gets' the Internet... And in 1995, when it really still was something of a wild frontier? That is truly remarkable. Don't know about your part of the world, but down here, the level of technological ignorance in public officialdom is really quite horrendous. We're in the throes of a federal election campaign, and the technological gaffes and stupidity on display are quite jaw-dropping. That's something of a generalization, but you get the idea.

I ended up going back and reading a lot of it and while some of it is certainly dated, the 3-judge panel was very careful and compiled a very thorough record. It is, in some ways, reminding me of the Judge Walker who issued a 138 page opinion on Proposition 8 declaring that the CA ballot initiative defining marriage as between a man and a woman was a violation of the US constitution. There is the same very careful mustering of facts, the same methodical application of law to those facts, and then some really snazzy language that occasional borders on the snarky. I know the following line was my sig for a long time: "Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation." I used the opinion to help write a FAQ for one of the groups I used to hang with.

But, in all seriousness, it was a really bad law and it was just one part of the real cloud under which fandom operated when it started moving to the Internet in the 90s. We all could see that privately circulated fanzines were qualitatively different than posting fan fic on the net. There was a pervasive sense that the content owners were arbitrarily deciding that only "acceptable" content were permissible -- something I've heard some Narnia sites still hold to -- "we'll report your story to the estate of CS Lewis if it has homosexuality." To which my response is always that that's WORSE -- it's all or nothing. Either you permit it, or you don't and the content holder can't make that judgment on arbitrary grounds of taste or "morality."

This is why I'm always a bit surprised at the new gen of content creators who deliberately cater to fans, as opposed to running around with C&Ds trying to shut them down. I remember those years of uncertainty, made worse by the fact that a lot of the commercial services in those days, like AOL and Compuserve and even some Usenet groups, adopted no fan fic policies. When starwars.com began hosting fan fic on its own site, I really didn't know what to think.

As far as I know, here in the states, there has never been a true fan fic test case -- a fan fic story (we'll assume for the same of argument, it's Gen), posted on the Internet, with adequate disclaimers, original and derivative content, and no profit made. Without the appropriation of media (sound or video), without an attempt at profit, and without an attempt to confuse the origin of the work, the conventional wisdom, I think, is that this is what's called fair use under copyright law. I think.

That is really interesting. Obviously our copyright regime is a bit different to yours, and our fair use regime (called fair dealing here) isn't as liberal, which I occasionally have reason to lament when I'm chasing copyright rats down holes for work.

I looked with some envy at your recent Register of Copyright fair use rulings. Ours are all enshrined in the legislation, and have to be passed through Parliament, and because much of our elected officialdom still doesn't get technology, it's slow, torturous, and sometimes just plain silly. We only got the legal right to format and time shift in 2008, and to hear some rights-owners talk, you'd think that the sky had fallen. It's something of a personal hot-button for me that the current suite of copyright laws (like DMCA) have gone too far the other way, and fair use isn't keeping up.

The (apparent) lack of a test case is another interesting point. I'm wondering whether the Harry Potter fan-site brouhaha is analogous. You had Warner Brothers chasing all these kids with C&Ds and great threats of prosecution, and the public backlash was so awful that WB eventually had to pull their heads in. Got to admit, though, in some ways I'd love to see that missing test case, if only to see what creative lunacies all the parties and judges could come up with. Yep, law nerd.

Bravo, bravo! Hear, hear!

it's a fun, rip-roaring opinion. For, you know, a law thing.

Whoo!

(Wow, I am glad that while I was in preschool, the internet was already being protected! God, I feel really young.)

When I joke about my age, it's not really a joke. I was writing fan fic before a lot of the NFFRs were born. Some of their mothers are certainly younger than I am. Which just goes to show that a young woman really doesn't know what her mom might be up to on her laptop.

Democratizing Effect of the Internet

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