The brief but intense history of American judicial and legislative
confrontation with problems caused by the online world has demonstrated
a certain wisdom: a reluctance to intervene in ways that dramatically
alter online architectures; a solicitude for the collateral damage that
interventions might wreak upon innocent activity; and, in the balance,
a refusal to allow unambiguously damaging activities to remain
unchecked if there is a way to curtail them.
ability to regulate lightly while still curtailing the worst online
harms that might arise has sprung from the presence of gatekeepers.
These are intermediaries of various kinds - generally those who carry,
host, or index others' content - whose natural business models and
corresponding technology architectures have permitted regulators to
conscript them to eliminate access to objectionable material or to
identify wrongdoers in many instances.
The bulk of this Article
puts together the pieces of that history most relevant to an
understanding of the law's historical forbearance, describing a
trajectory of gatekeeping beginning with defamation and continuing to copyright
infringement, including shifts in technology toward peer-to-peer
networks, that has so far failed to provoke a significant regulatory
intrusion. I argue that the U.S. Supreme Court's Grokster decision
upholds this tradition of light-touch regulation that has allowed the
Internet to thrive. The decision thus is not a landmark so much as a
milestone, ratifying a continuing detente between those who build on
the Internet and those in a position to regulate the builders.
may have achieved such a fit with its ancestors by avoiding a set of
now-pressing issues about gatekeepers. This avoidance is revealed by
looking at Grokster's outcome: a loss for Grokster Ltd. that has no
practical impact on the distribution and use of the sort of PC software
that got Grokster Ltd., in trouble. The most recent peer-to-peer
technologies eliminate a layer of intermediation from the networks they
create; there are often no longer central websites or services that can
be blamed, and then shut down or modified, to dampen the objectionable
activities that they enable. Even decentralized Internet service
providers may prove unable to intercede much as new overlay networks
cloak users' network identities in addition to their personal ones. The
loss of these natural points of control will cause those with
challenged interests to foreground a new and less palatable set of
intermediaries: software authors. These authors may be asked to write
their software in such a way that it can be recalled or modified after
it has been obtained by a user and then put to an undesirable purpose.
They may even be asked to program their software to disable the
installed software of others. Control over software - and the ability
of PC users to run it - rather than control over the network, will be a
future battleground for Internet regulation, a battleground primed by
an independently-motivated movement by consumers away from open,
generative PCs and toward more highly regulable endpoint platforms.