Technological Mad Libs: How the Common Law Evolves to Embrace Disruptive Technology Despite Legal Technopanic

by on August 7, 2017 · 0 comments

“First electricity, now telephones. Sometimes I feel as if I were living in an H.G. Wells novel.” –Dowager Countess, Downton Abbey

Every technology we take for granted was once new, different, disruptive, and often ridiculed and resisted as a result. Electricity, telephones, trains, and television all caused widespread fears once in the way robots, artificial intelligence, and the internet of things do today. Typically it is realized by most that these fears are misplaced and overly pessimistic, the technology gets diffused and we can barely remember our life without it. But in the recent technopanics, there has been a concern that the legal system is not properly equipped to handle the possible harms or concerns from these new technologies. As a result, there are often calls to regulate or rein in their use.

In the late 1980s, video cassette recorders (VCRs) caused a legal technopanic. The concerns were less that VCRs would lead to some bizarre human mutation as in many technopanics, but rather that the existing system of copyright infringement and vicarious liability could not adequately address the potential harm to the motion picture industry. The then president of the Motion Picture Association of America Jack Valenti famously told Congress, “I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

In the eyes of the film and television producers the legal system did not have the resources to protect their copyright or hold the manufacturers and distributors of these disruptive machines properly liable for their actions. The Ninth Circuit initially sided with the producers finding that recording of television programs for home-viewing was not part of a blanket fair use exception in copyright law and that the manufacturers and distributors of VCRs could be held vicariously liable for their actions. This was overturned at the Supreme Court by a single vote.

By denying the movie industry a victory, ironically, the courts actually handed them a much bigger one. By allowing for the widespread adoption of this technology, the courts actually provided a new line of profit for the studios in home video sales and did not cripple copyright law in the process. It also though shows that the process by and large works. Individuals who pirate or distributed copyrighted video material (remember the FBI warnings at the start of tapes) could still be held personally liable for their violations. If Congress had intervened, the actions would likely have been too broad or too narrow to give appropriate remedy as common law did. Similar concerns arise today with new creative techniques such as 3D printing, but typically it is best to at least let the common law attempt to address these concerns before deeming it incapable. This illustrates how liability norms can evolve naturally over time to strike a sensible balance.

This legal technopanic also emerged around the Internet. The global and anonymous nature of the Internet naturally make it more difficult to perceive the potential harms and to identify the perpetrators and gain jurisdiction over them. Or so the legal technopanic goes. Judge Easterbrook explained in his 1996 article Cyberspace and the Law of the Horse, “the law applicable to specialized endeavors is to study general rules.” Intellectual property law and property rights more generally are relatively well defined general rules. The beauty of the common law is its ability to adapt to a specific situation. Still there are concerns which may require interventions to be made. When necessary these interventions are especially important because, as John Villasenor wrote, “While technology is usually described as an enabler … liability is often described as an impediment.”

For example, Congress preemptively limited the liability of internet service providers in Section 230 of the Communications Decency Act. While there always seem to be concerns over this immunity when bad things happen on the internet, by and large the courts have been able to determine when the ISP was actively contributing to the violations of state and federal laws. In fact the protection provided by Section 230 merely codified the same principles at common law which lead to the protection of the VCR.

A little protection via legislation was necessary to allow the internet to flourish, but that protection was needed in part because of a legal technopanic. Similarly, Congress intervened to establish a notice-and-takedown procedure through the Digital Millennium Copyright Act (DMCA), when it became apparent that existing copyright law was not evolving as quickly as technology to address both the internet host and the copyright holders concerns. While ideally the common law would have been allowed to evolve to a conclusion on the issue, the sudden rise of YouTube and other online services necessitated at least a temporary intervention. Such legislation represents a compromise that likely would have resulted in a winner or loser if it had played out in the courts. As a result, while the common law is typically preferable sometimes legislation is necessary to at least temporarily establish a norm and stem the prevention of innovation from a possible legal technopanic.

By and large the courts have adapted disruptive technology as quickly or even more so then society, and as a result allowed the common law to see reason. Perhaps the moral of the story is as Edward Coke wrote in 1642, “The common law itself is nothing else but reason.”

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