This short essay, prepared for a retrospective organized by Eric Goldman and Jeff Kosseff on the twentieth anniversary of the Fourth Circuit’s decision in Zeran v. AOL, argues that the Supreme Court failed to learn the lesson of that foundational case, with adverse consequences for copyright law on the internet

Ford, Roger Allan

English

UNH Scholars' Repository

University of New HampshireUniversity of New Hampshire Scholars' RepositoryLaw Faculty Scholarship University of New Hampshire – School of Law11-10-2017How the Supreme Court Ignored the Lesson ofZeran and Screwed Up Copyright Law on theInternetRoger Allan FordUniversity of New Hampshire School of Law, roger.ford@law.unh.eduFollow this and additional works at: https://scholars.unh.edu/law_facpubPart of the Law CommonsThis Article is brought to you for free and open access by the University of New Hampshire – School of Law at University of New Hampshire Scholars'Repository. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of University of New Hampshire Scholars'Repository. For more information, please contact ellen.phillips@law.unh.edu.Recommended CitationFord, Roger Allan, "How the Supreme Court Ignored the Lesson of Zeran and Screwed Up Copyright Law on the Internet" (2017).The Recorder. 407.https://scholars.unh.edu/law_facpub/407How the Supreme Court Ignored the Lesson of Zeran and Screwed Up Copyright Law on the Internet  Roger Allan Ford† This short essay, prepared for a retrospective organized by Eric Goldman and Jeff Kosseff on the twentieth anniversary of the Fourth Circuit’s decision in Zeran v. AOL, argues that the Supreme Court failed to learn the lesson of that foundational case, with adverse conse-quences for copyright law on the internet. Twenty years ago, a federal appeals court said Kenneth Zeran couldn’t sue AOL for fail-ing to remove defamatory posts. It is no exaggeration to say that had the court gone the other way, much of today’s internet could not exist in its modern form. But when the issue is copyright instead of defamation, Congress and the courts have resisted this lesson; in-stead of nurturing new industries, they’ve snuffed them out. And just as it was impossible to guess in 1997 the many platforms, tools, and communities that would emerge after the Zeran decision, it is impossible to know now how many innovative industries will never emerge due to its copyright counterparts. Zeran answered a critical question for online services: If a user posts something that’s defamatory, and so violates the law, is the service liable? It’s easy to see why the answer must be no. An online community like AOL doesn’t work without content contributed by users; without that content there is no community. That was true in 1997, and it is even more true today, when content generated by users underlies all kinds of online services. But if a company had to police every piece of user-generated content or, worse, were liable every time a user went too far, it would be impossible to run online services at scale. Face-book and YouTube couldn’t vet each post for defamation liability; certainly a ten-person startup couldn’t do so.                                                              †  Roger Allan Ford is Associate Professor of Law at the University of New Hampshire School of Law and Faculty Fellow at the Franklin Pierce Center for Intellectual Property. Thanks to Alexandra Roberts, Ann Bartow, Eric Goldman, Jeff Kosseff, Jennifer Berk, John Greabe, Keith Winstein, Leah Plunkett, and Ryan Vacca for comments on a previous draft. © 2017 by Roger Allan Ford. This essay first appeared on Law.com on November 10, 2017 and is repro-duced by permission. This essay may be reused under the Creative Commons Attribution 4.0 International License, http://creativecommons.org/licenses/by/4.0/, provided that the required attribution under the li-cense includes the information in this paragraph. 2 So Zeran made it possible for online services to exist without incurring crippling liability. And that led to a surge of services that billions of users rely on, an explosion the scale and breadth of which the court could not have imagined in 1997. Some of these services are straightforward descendants of AOL and its contemporaries: discussion forums, search en-gines, and blogging platforms all resemble tools that existed in 1997. Others were less foreseeable. Social networks and online video existed in 1997, but the sheer variety and scope of platforms like Facebook, YouTube, and Snapchat would surprise someone from 1997; likewise, tools like Wikipedia, Genius, and Adblock Plus, which rely on content con-tributed by users, had few parallels when Zeran was decided. Zeran’s rule of limited liability was a public-policy success because it created free space in which whole industries could develop. The same cannot be said of copyright policy on the internet; if Kenneth Zeran had sued AOL for failing to take down copyrighted content instead of defamatory content, he probably would have won. So new business models that involve copyrighted content are at much greater risk than those involving other kinds of user-generated content.  Take the case of Aereo, a service that let users watch broadcast TV on the internet. Courts had long held that consumers can legally copy works for space-shifting and time-shifting, so they can watch and listen to video and music at different times on different devices. This is what iPods and DVRs do, and it’s also what Aereo promised to let users do. Aereo set up individual, dime-sized antennas for users so they could record and stream broadcast TV channels. This system was just a remote DVR: instead of recording shows onto a hard drive in her home, a user could outsource that function to Aereo, just as she might outsource email or file storage to an online service. And so the United States Court of Appeals for the Second Circuit held that what Aereo did was legal, just like any other DVR would be. The Supreme Court disagreed, in a funhouse mirror image of Zeran that destroyed in-novation instead of encouraging it. The court noted that Aereo marketed itself as a replace-ment for cable TV and reasoned that since cable companies “perform the copyrighted work[s] publicly” when they transmit them to subscribers, Aereo must do so as well. It didn’t matter that Aereo’s transmissions were triggered by users, not Aereo itself, or that each user recorded and transmitted her own copy from her own antenna, or that the trans-missions were available only to the user, not to the broader public. Instead of analyzing these key distinguishing features of the Aereo system, the court adopted what Justice Scalia, in dissent, called a “looks-like-cable-TV” test: if a company creates a new business model that competes with an incumbent technology, courts should bend the law to apply the same copyright rules to each. So while in Zoran the court took a narrow view of the plaintiff’s rights, requiring him to sue the people who posted defamatory content instead 3 of the platform hosting that content, in Aereo it took the broadest possible view of the plaintiff’s rights. Did the Aereo decision actually prevent any innovation? It’s impossible to tell for sure, but there are all sorts of possible business models that would run afoul of the court’s rule. One big contender would be a service to solve fragmentation in video streaming. When all TV was broadcast over the air, people could buy any TV set and pick up any show on any channel. As video moves online, though, there is no streaming service that has every show and no box that can run every streaming service. Instead of just changing the channel, today a user might have to skip a show if she doesn’t have a box that can play it. It’s easy to imagine a service, then, that could tune in and stream video from any service to a custom app or a web browser—effectively, space-shifting for streaming services. But under Aereo, that service is probably illegal. The result is that incumbent rights-holders can veto new businesses that might threaten their incumbency, a power they have been happy to exercise. Copyright holders have long used their copyright monopoly—legally—to prevent com-petition, but they have been constrained by limitations like the first-sale doctrine. Back when Blockbuster Video was the state of the art in watching movies, studios couldn’t stop stores from renting them, since the law blocks a copyright holder from restricting what someone does with a copy after it has been sold. But the shift to online business models has upset this balance between creators and others using those creations, since online stream-ing inherently creates copies and so isn’t subject to the first-sale doctrine. The Aereo court could have helped restore the balance between creation and competi-tion by limiting rights-holders’ powers, letting people use online services to do the same things they have long been able to do offline. This would have encouraged entrepreneurs to create valuable new businesses and services, just as the Zeran decision did two decades earlier. Instead, the court went the other way. The fault may lie more with Congress than with the courts, since in Zeran, Congress had created an express immunity for businesses relying on user-generated content; Congress’s similar immunity for copyrighted content, a safe-harbor rule that applies when sites have notice and take down allegedly infringing con-tent, is much more limited. Still, there is a long history in copyright law of technologies that look like pirates at first but eventually become respected businesses; recorded music, the VCR, even sheet music were all at one point seen as threats to rights holders. Congress and the courts should keep the Zeran lesson in mind before backing away from that history and preemptively killing off the online services of tomorrow. 

How the Supreme Court Ignored the Lesson of Zeran and Screwed Up Copyright Law on the Internet

University of New Hampshire

University of New Hampshire 
University of New Hampshire Scholars' Repository 
Law Faculty Scholarship University of New Hampshire – Franklin Pierce School of Law 
11-10-2017 
How the Supreme Court Ignored the Lesson of Zeran and 
Screwed Up Copyright Law on the Internet 
Roger Allan Ford 
University of New Hampshire School of Law, roger.ford@law.unh.edu 
Follow this and additional works at: https://scholars.unh.edu/law_facpub 
 Part of the Law Commons 
Recommended Citation 
Ford, Roger Allan, "How the Supreme Court Ignored the Lesson of Zeran and Screwed Up Copyright Law 
on the Internet" (2017). The Recorder. 407. 
https://scholars.unh.edu/law_facpub/407 
This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School 
of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in Law Faculty 
Scholarship by an authorized administrator of University of New Hampshire Scholars' Repository. For more 
information, please contact sue.zago@law.unh.edu. 
How the Supreme Court Ignored the Lesson of Zeran 
and Screwed Up Copyright Law on the Internet 
 Roger Allan Ford† 
This short essay, prepared for a retrospective organized by Eric Goldman and Jeff Kosseff 
on the twentieth anniversary of the Fourth Circuit’s decision in Zeran v. AOL, argues that 
the Supreme Court failed to learn the lesson of that foundational case, with adverse conse-
quences for copyright law on the internet. 
Twenty years ago, a federal appeals court said Kenneth Zeran couldn’t sue AOL for fail-
ing to remove defamatory posts. It is no exaggeration to say that had the court gone the 
other way, much of today’s internet could not exist in its modern form. But when the issue 
is copyright instead of defamation, Congress and the courts have resisted this lesson; in-
stead of nurturing new industries, they’ve snuffed them out. And just as it was impossible 
to guess in 1997 the many platforms, tools, and communities that would emerge after the 
Zeran decision, it is impossible to know now how many innovative industries will never 
emerge due to its copyright counterparts. 
Zeran answered a critical question for online services: If a user posts something that’s 
defamatory, and so violates the law, is the service liable? It’s easy to see why the answer 
must be no. An online community like AOL doesn’t work without content contributed by 
users; without that content there is no community. That was true in 1997, and it is even 
more true today, when content generated by users underlies all kinds of online services. But 
if a company had to police every piece of user-generated content or, worse, were liable 
every time a user went too far, it would be impossible to run online services at scale. Face-
book and YouTube couldn’t vet each post for defamation liability; certainly a ten-person 
startup couldn’t do so. 
                                                             
†  Roger Allan Ford is Associate Professor of Law at the University of New Hampshire School of Law and 
Faculty Fellow at the Franklin Pierce Center for Intellectual Property. Thanks to Alexandra Roberts, Ann 
Bartow, Eric Goldman, Jeff Kosseff, Jennifer Berk, John Greabe, Keith Winstein, Leah Plunkett, and Ryan Vacca 
for comments on a previous draft. 
© 2017 by Roger Allan Ford. This essay first appeared on Law.com on November 10, 2017 and is repro-
duced by permission. This essay may be reused under the Creative Commons Attribution 4.0 International 
License, http://creativecommons.org/licenses/by/4.0/, provided that the required attribution under the li-
cense includes the information in this paragraph. 
2 
So Zeran made it possible for online services to exist without incurring crippling liability. 
And that led to a surge of services that billions of users rely on, an explosion the scale and 
breadth of which the court could not have imagined in 1997. Some of these services are 
straightforward descendants of AOL and its contemporaries: discussion forums, search en-
gines, and blogging platforms all resemble tools that existed in 1997. Others were less 
foreseeable. Social networks and online video existed in 1997, but the sheer variety and 
scope of platforms like Facebook, YouTube, and Snapchat would surprise someone from 
1997; likewise, tools like Wikipedia, Genius, and Adblock Plus, which rely on content con-
tributed by users, had few parallels when Zeran was decided. 
Zeran’s rule of limited liability was a public-policy success because it created free space 
in which whole industries could develop. The same cannot be said of copyright policy on 
the internet; if Kenneth Zeran had sued AOL for failing to take down copyrighted content 
instead of defamatory content, he probably would have won. So new business models that 
involve copyrighted content are at much greater risk than those involving other kinds of 
user-generated content.  
Take the case of Aereo, a service that let users watch broadcast TV on the internet. 
Courts had long held that consumers can legally copy works for space-shifting and time-
shifting, so they can watch and listen to video and music at different times on different 
devices. This is what iPods and DVRs do, and it’s also what Aereo promised to let users do. 
Aereo set up individual, dime-sized antennas for users so they could record and stream 
broadcast TV channels. This system was just a remote DVR: instead of recording shows 
onto a hard drive in her home, a user could outsource that function to Aereo, just as she 
might outsource email or file storage to an online service. And so the United States Court 
of Appeals for the Second Circuit held that what Aereo did was legal, just like any other 
DVR would be. 
The Supreme Court disagreed, in a funhouse mirror image of Zeran that destroyed in-
novation instead of encouraging it. The court noted that Aereo marketed itself as a replace-
ment for cable TV and reasoned that since cable companies “perform the copyrighted 
work[s] publicly” when they transmit them to subscribers, Aereo must do so as well. It 
didn’t matter that Aereo’s transmissions were triggered by users, not Aereo itself, or that 
each user recorded and transmitted her own copy from her own antenna, or that the trans-
missions were available only to the user, not to the broader public. Instead of analyzing 
these key distinguishing features of the Aereo system, the court adopted what Justice 
Scalia, in dissent, called a “looks-like-cable-TV” test: if a company creates a new business 
model that competes with an incumbent technology, courts should bend the law to apply 
the same copyright rules to each. So while in Zoran the court took a narrow view of the 
plaintiff’s rights, requiring him to sue the people who posted defamatory content instead 
3 
of the platform hosting that content, in Aereo it took the broadest possible view of the 
plaintiff’s rights. 
Did the Aereo decision actually prevent any innovation? It’s impossible to tell for sure, 
but there are all sorts of possible business models that would run afoul of the court’s rule. 
One big contender would be a service to solve fragmentation in video streaming. When all 
TV was broadcast over the air, people could buy any TV set and pick up any show on any 
channel. As video moves online, though, there is no streaming service that has every show 
and no box that can run every streaming service. Instead of just changing the channel, today 
a user might have to skip a show if she doesn’t have a box that can play it. It’s easy to 
imagine a service, then, that could tune in and stream video from any service to a custom 
app or a web browser—effectively, space-shifting for streaming services. But under Aereo, 
that service is probably illegal. The result is that incumbent rights-holders can veto new 
businesses that might threaten their incumbency, a power they have been happy to exercise. 
Copyright holders have long used their copyright monopoly—legally—to prevent com-
petition, but they have been constrained by limitations like the first-sale doctrine. Back 
when Blockbuster Video was the state of the art in watching movies, studios couldn’t stop 
stores from renting them, since the law blocks a copyright holder from restricting what 
someone does with a copy after it has been sold. But the shift to online business models has 
upset this balance between creators and others using those creations, since online stream-
ing inherently creates copies and so isn’t subject to the first-sale doctrine. 
The Aereo court could have helped restore the balance between creation and competi-
tion by limiting rights-holders’ powers, letting people use online services to do the same 
things they have long been able to do offline. This would have encouraged entrepreneurs 
to create valuable new businesses and services, just as the Zeran decision did two decades 
earlier. Instead, the court went the other way. The fault may lie more with Congress than 
with the courts, since in Zeran, Congress had created an express immunity for businesses 
relying on user-generated content; Congress’s similar immunity for copyrighted content, a 
safe-harbor rule that applies when sites have notice and take down allegedly infringing con-
tent, is much more limited. Still, there is a long history in copyright law of technologies that 
look like pirates at first but eventually become respected businesses; recorded music, the 
VCR, even sheet music were all at one point seen as threats to rights holders. Congress and 
the courts should keep the Zeran lesson in mind before backing away from that history and 
preemptively killing off the online services of tomorrow. 


https://scholars.unh.edu/cgi/viewcontent.cgi?article=1406&amp;context=law_facpub

How the Supreme Court Ignored the Lesson of Zeran and Screwed Up Copyright Law on the Internet

Abstract

Similar works

Full text

Available Versions

UNH Scholars' Repository

University of New Hampshire

University of New Hampshire