Thankfully, Americans take free speech a bit more seriously than the Brits, the French, the Germans and rest of the world. And, yes, America could become the guardian of free speech worldwide by offering the protection of the First Amendment over the Net to millions of people who have been denied the right to speak freely in their own countries.[6]
2. Protecting Hollywood
In 2000, a serial entrepreneur, Bill Craig, launched a Toronto-based service for the World Wide Web called iCraveTV. iCraveTV was designed to stream ordinary television across the Internet. Under Canadian law, at least as interpreted at the time,[7] iCraveTV believed it didn’t need permission to stream broadcast television across the Internet lines. Under Canadian law, so long as the broadcast itself wasn’t changed, you could use any technology to extend the reach of the broadcast.[8] So Craig bought his servers, fired up the streams, and with a much-hyped launch, sat back to wait for the customers to come. And come they did, by the millions. Craig’s service was an instant success. It seemed lots more than Craig craved TV.
Not long after Craig’s launch, however, he began to discover that not everyone loved Craig’s idea. In particular, U.S. copyright holders were not too keen on the free TV that Craig had created. While one was free in Canada to rebroadcast television across the Internet, one wasn’t in the United States. United States copyright law heavily regulates the right to rebroadcast, and Craig had not satisfied U.S rules.
iCraveTV did take some steps to keep U.S. residents out. But no one could really have expected these steps would work. At first, iCraveTV simply warned people that only Canadians were to use the site. Later iCraveTV added an area-code block to its site — you needed to specify your area code to get in; if the area code was not Canadian, you couldn’t get in. But it’s not hard to find a Canadian area code (for example, the telephone number of iCraveTV itself prominently displayed on iCraveTV’s website.)
But Craig didn’t think it was his job to police the infringing behavior of Americans. It didn’t violate the law for anyone to stream TV in Canada. Why did he need to worry about whether it violated the law in the U.S.?
A posse of American lawyers quickly convinced Craig that he needed to worry. In a lawsuit filed in Pittsburgh, the National Football League (and a few other parties) charged iCraveTV with copyright infringement in the United States. Whether or not it was legal in Canada to stream TV across the Internet, it was not legal in the United States. Thus, to the extent Americans could get access to this Canad ian site, they were violating American law. And to the extent this Canadian site made it possible for Americans to access this Canadian site, it was violating American law. The NFL thus demanded that the Pittsburgh court shut this Canadian server down.
The U.S. District Court Judge, Donald Ziegler, conducted an extensive fact-finding proceeding. On February 8, 2000, the Court issued an injunction shutting iCraveTV down. The Court gave iCraveTV 90 days to demonstrate that it had the technology to block U.S. residents. iCraveTV promised that, using some of the IP technologies described in Chapter 4, it could block 98 percent of American citizens. But 98 percent wasn’t good enough for the Court. If any American could access the iCraveTV site, iCraveTV was violating U.S. law.
iCraveTV couldn’t promise 100 percent success. Unlike Judge Gomez’s decision about France, however, there was no outrage on the Net following this decision. There weren’t thousands of websites criticizing it, or even a handful of editorials questioning it. Indeed, almost nobody noticed.
Reciprocal Blindness
The Yahoo! France case and the iCraveTV case raise the same fundamental issue. In each, there is a behavior that is legal in one country (selling Nazi paraphernalia for the United States, streaming free TV across the Internet for Canada), and illegal in another country (selling Nazi paraphernalia in France; streaming free TV in the United States). In both cases, the judge in the country whose laws were being violated exercised his power to stop the violation (Judge Gomez ordering Yahoo! either to remove the Nazi material or to block it from France; Judge Ziegler ordering iCraveTV to either remove broadcast television from its site or block it from Americans). But in one case, this result was vilified as “censorship” while in the other, it was barely noticed.
This is reciprocal blindness. We see a fault in others that we can’t see in ourselves. To an American, blocking the speech of Nazis is “censorship.” And it adds insult to injury to demand that such speech be censored in the United States — where it is legal — just because it is not legal in France.
But why isn’t it “censorship” to block free TV in Canada just because it is illegal in the United States? In both cases, speech legal in one country is being blocked in that country by a court in a second. The United States blocks Canadians from getting free TV just because free TV is illegal in the United States. The French blocks Americans from getting Nazi paraphernalia on the Yahoo! auction site just because that paraphernalia is illegal in France.
Indeed, in one important respect, the iCraveTV case is worse than the Yahoo! case. In the Yahoo! case, the Court considered evidence about whether Yahoo! could take technical measures to block French citizens.[9] As Joel Reidenberg emphasizes[10], its trigger for liability was the conclusion that there were reasonable technical means for blocking French citizens from the Nazi material. Those means weren’t perfect, but the Court estimated that over 90 percent of French users could be identified.[11] But in the iCraveTV case, the technical means, though promised to be 98 percent effective, were deemed not enough. The restriction of the American court was thus greater than the restriction of French court.
Americans don’t have any monopoly on blindness. And I don’t pick this case to pick on Americans. Instead, this brace of cases teaches a general lesson. There will be no nation that has no speech that it wishes to regulate on the Internet. Every nation will have something it wants to control. Those things, however, will be different, nation to nation. The French will want to regulate Nazi speech; the Americans will want to regulate porn; the Germans will want to regulate both; the Swedes will want to regulate neither.
This chapter is about these overlapping desires for control. How will the Internet accommodate this mix? Whose rules will apply? Is there a way to avoid either anarchy or total regulation? Will the most restrictive regimes determine the freedom left for the rest of us?
In my view, we’ve seen enough to see how the story will unfold. I describe that unfolding in the balance of this chapter. But first, we should be clear about the reason why this regulation of cyberspace will occur. We should all recognize the interest the government has here and just how strong, or weak, that interest is. And, more importantly, we should recognize how the architecture of the network has changed to make securing that interest possible. As Jack Goldsmith and Tim Wu write,
Yahoo!’s arguments were premised on the 1990s vision of a borderless Internet. Half a decade later, this vision is fast being replaced by the reality of an Internet that is splitting apart and reflecting national borders. Far from flattening the world, the Internet is in many ways conforming to local conditions.[12]
6.
Adam D. Thierer, "Web Restrictions Unlikely to Muzzle Neo-Nazi Speech," Cato Insti tute Web Site (Jan 15, 2001) (available at http://www.cato.org/dailys/01-15-01.html (cached: http://www.webcitation.org/5J6ndBsSx)).
7.
Available at http://news.com.com/Canada+blocks+free+Net+TV/2100-1023_3-981254.html?tag=st.ref.goo (cached: http://www.webcitation.org/5J6ngEK77). John Borland, "Broadcasters Win Battle Against iCraveTV.com,"
8.
Michael Geist, "Is There a There There? Towards Greater Certainty for Internet Jurisdic tion,"
10.
Reidenberg points out that the translation of the French ruling offered to the District Court in the United States was flawed. Joel R. Reidenberg, "Technology and Internet Jurisdiction,"
12.
Jack Goldsmith and Timothy Wu,