Major Cases of the Last Ten Years

Where are we now, and how did we get here? A partial list of major legal cases coming out during the last decade that we should care about

As an open-access journal with reasonable publication policies and the possibility of quick publication turnarounds, Kairos resists some of the circumscribing legal infrastructure that determines how information is created and shared on the Internet. Readers and writers of Kairos aren't in any forced paradigm of sharing, nor are they encrypting information or blocking access. Over the last ten years, the technorhetorician followers of Kairos have become increasingly aware of the need to stay informed of policy changes that might impact our practices (DeVoss & Porter, 2005; Durack, 1997, 2001; Herrington, 1997, 1998; Logie, 2005). But I think there is room for a focused trajectory within composition and rhetoric to become even more deeply involved in legal events and how those events translate into composition studies. I do not think the sanctioned policy makers, the lawyers, and the elected officials see writers and teachers of writers as being particularly important stakeholders in policy decisions. (Even though, at least through first year writing, we directly and indirectly influence the discourse of tens of thousands of young adults every year.) Therefore, we should continue to research and write upon current areas of law and legal developments that influence what we are "allowed" to write, and how the infrastructure we operate within is configured.

In order to explore infrastructural possibilities of teaching and writing in digitally mediated spaces, we must understand the reasoning behind the legal cases that have shaped our infrastructure, cases that I will explore in detail elsewhere in this webtext. To understand these cases will help us teach students what underlies current commercial composing practices in relation to copyright law, which in turn allows them to exercise agency in the decisions that they make in their own composing practices. While the Sony case (which held that private in-home copying of television shows via VTRs was merely “time-shifting” and therefore a “fair use”) was decided more than ten years ago, it laid the foundation for recent cases that have impacted what is and is not "legal" with respect to copying and distributing information.

Following the Sony case (1984), in the Napster case (2001) the court held that digital copying by way of "space-shifting" was not legal since the technology provider knew or should have known the law was being broken. In the Aimster case (2003), the technology provider constructed an architecture where music files were encrypted and a central server was avoided so that the provider could avoid knowledge of infringing behavior. This configuration was rejected by the court. In the Grokster case (2005), another distribution architecture was used so that once the reproduction/distribution technology was distributed, it was almost impossible for the provider to know whether or not infringing material was being exchanged. In each case, the design of the technology was used to unsuccessfully exploit loopholes in existing copyright law. But in the attempt to exploit the loopholes, the underlying shape of the networks we access have been impacted. I think that technorhetoricians should care about this and should be more involved in how the Internet continues to be transformed, rather than passively accepting whatever future changes may come our way. The readers of Kairos should also reflect on how the transformed definition of "copy" has helped regulate how we compose and exchange information.

Historically, the technology of the VTR challenged the existing copyright regime. Regular home consumers could legally "time-shift" television broadcasts to suit their private needs. Of course, each generational copy lessened the quality of the "original" which provided a natural check on the value of each copy. Later, in digital environments, consumers exchanged music files just like they always exchanged homemade cassette tapes, challenging the notion that copying for "private" use was legal under the copyright act as it merely space-shifted music compositions. (Space-shifting indicates moving a music file from one space to another, cassette to cassette, as consumers had moved TV shows from one time to another by taping via the VTR.) But as Robert Dornsife (2006) points out, because a digital copy retains the same quality as the original, even our definition of "copy" has changed during the last ten years. Copy no longer encapsulates a generational connotation in the same way it did when we lived in the analogue world of music. He writes:

Indeed, the generational status was as large a determinant of value as any: every tape was labeled both in terms of the quality of the performance per se and the sonic quality of the reproduction. 'Great concert—fifth generation—die hards only'  would be valued less than 'great concert—second generation.' Although the fifth generation of the 'great show' might be worth as much as the fourth generation of the 'good show,' generation was always present, asserting itself inseparably into the value of the art.

And so what a copy is has literally changed in digital spaces -- this change in turn has impacted how the infrastructure has been allowed to reconfigure itself and transform over time.

The readers of Kairos should care about the line of cases beginning with Sony because such law impacts not just what we are "allowed" to do with the texts that we create but also what information is legal for us to obtain -- thus impacting composing practices, especially those related to digital and multimodal writing. The P2P cases that began with Sony have impacted the architecture of the Internet -- some say they have pushed technological innovation to decentralized servers in order that technology distributors and providers can avoid liability for the actions of users. And so underneath our everyday writing practices is the architecture of the Internet which in turn has been shaped by P2P cases like Sony. It is said perhaps that technology developers wish to distance themselves from the architectures and technologies they create the same way Xerox has distanced itself from the day-to-day operations of the copy machine. Technological innovation has always challenged US courts as they have tried to reshape existing copyright laws to meet challenges of new technologies -- the player piano, the radio, cable TV, and now the Internet. Such legal decisions matter to us because they shape the information streams we have access to as writers and teachers. And the more we know and understand, the more likely that we might collectively exercise agency ourselves in order to shape and/or resist laws which may potentially circumscribe composing practices.