Infrastructures of Censorship and Lessons from Copyright Resistance

U.S. policymakers proclaim their commitment to Internet freedom while simultaneously endorsing restrictions on Internet exchange. Unfortunately, the tools – legal and technical – built to block copyright infringement, counterfeit sales, online gambling, or indecency, often find use to censor lawful expression here and abroad. In particular, the United States and its entertainment industries have prioritized online copyright enforcement such that its attack and riposte can be instructive in the Internet freedom arena. 1 Copyright as Information-Control The United States Internet is largely free from government-mandated censorship. The 1997 ACLU v. Reno set an early bar, striking as unconstitutional provisions of the Communications Decency Act that would have required Internet Service Providers to block children’s access to materials deemed “harmful to minors.”[2] The First Amendment, the Supreme Court held, forbade these restrictions on speech. While parents in their homes (and later, libraries and schools operating with federal funds) might filter their children’s Internet connections, a law mandating ISP-controlled blocking was not “narrowly tailored” to government purposes. Copyright, however, stands as one of the rare permissible restrictions on speech. As the Court said in Eldred v. Ashcroft, copyright is an “engine of free expression,” and therefore, “The First Amendment securely protects the freedom to make – or decline to make – one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” [8] While numerous scholars [16, 22, 21, 26] and litigants [10, 12] have criticized copyright’s seeming freepass from First Amendment scrutiny, its anomalous information-control has persisted. In response, technologists and hackers have joined the academic and legal critics of copyright. The history of copyright enforcement measures and counter-measures thus provides a domestic analog and preview of Internet censorship in other contexts. 1.1 Squeezing Filesharing Online copyright debates took hold in the mid 1990s, as Internet connectivity spread, “rippers” and MP3 compression enabled the public to extract and save digital tracks from music CDs, and sites arose to help people exchange music. Early music-sharers operated through central servers, depositing files and retrieving others from BBSs, FTP servers, and websites. Beyond simple file-exchange, My.MP3.com recognized CDs from a user’s drive and transferred copies of their tracks to an online virtual “locker.” As all of these methods involved copying, the music studios successfully argued that the unauthorized reproductions of their copyrighted works infringed copyright. [7, 5] Centralized architecture made these early sites easy to find and squash. Napster claimed both technical and legal innovation when it was released in 1999. The peer-to-peer software distributed the burdens of file storage and the sharing activity, directing peer users to transfer files to one another so Napster itself never copied the files. Yet the Ninth Circuit found that architecture insufficient to avoid copyright liability. Because the company maintained a central directory of files and routing information, its owners were liable for contributory and vicarious infringement of copyright: Napster knowingly materially contributed to infringement, and it profited from infringing activity it had the right or ability to control. [6] The next generation of peer-to-peer software decentralized further still: Morpheus, KaZaA, and Grokster moved the directory and routing information to supernodes nominated from among peer computers, requiring only a bootstrap download to join the network. After the Ninth Circuit found this architecture escaped Napster’s