ACLU Vows To Press Fight To Preserve Free Internet As Supreme Court Decides Two Cases

June 27, 2005 12:00 am

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Grokster, Brand X Rulings Raise Concerns, Group Says

NEW YORK — The American Civil Liberties Union today expressed concern over the Supreme Court’s rulings in two cases of great importance for the future of freedom on the Internet, and vowed to continue fighting to preserve the Internet as the greatest forum for free speech and innovation that now exists.

About the MGM. v. Grokster case >>
Read the decision >>

About the FCC v. Brand X case >>
Read the decision >>

How Monopoly Control of the Broadband Internet Threatens Free Speech

One is a case that had to do with the legality of file-sharing software (MGM. v. Grokster, 04-480), and the other involved whether the government would regulate monopolistic providers of Internet access (FCC v. Brand X, 04-281).

“These rulings mean that the fight to preserve freedom on the Internet just got tougher,” said ACLU Senior Staff Attorney Chris Hansen. “The ACLU will just have to respond by intensifying our own efforts to defend online liberty.”

In the Grokster case, the Supreme Court found that the makers of peer-to-peer file sharing software can be held liable for the copyright infringements of the people who use that software.

“The precise holding — that a person who intends to assist copyright violations can be held liable — may be unremarkable, but the key is the factors to be used to determine that intent,” said Hansen. “It is particularly important that Grokster not be interpreted as requiring the filtering or monitoring of communications. In a passage that is worrisome but unclear, the Court raised the possibility that the intent of the authors of the peer-to-peer software could be established in part because they failed to ‘develop filtering tools or other mechanisms to diminish the infringing activity using their software.'”

“At one point, the Court suggests that the creator of an innovative communications tool may face an increased burden of liability because he or she fails to conduct surveillance on the communications of people who use that tool,” said Hansen. “If that is what the Court meant, it is a chilling finding with real potential to dampen the Internet’s growth as a forum for free speech. On the other hand, the Court also partially disavows its own language, so we can be sure the decision will cause uncertainty in the lower courts.”

In the Brand X case, the High Court refused to overrule a decision by the Federal Communications Commission that the providers of cable broadband Internet service are not required to provide access to Internet Service Providers (ISPs) other than their own.

The danger, the ACLU said, is that monopolistic broadband providers will leverage their ownership of the wires that people use to get online to exert control over subscribers’ Web surfing, e-mail, Internet telephone services and other uses of the Internet.

“The Supreme Court missed an opportunity to correct the FCC’s decision on this issue,” said Hansen. “The Court’s ruling was a fairly straightforward judgment that the judiciary’s tradition of deference to the executive’s power to interpret the law exceeded any misjudgment on the part of the FCC. That judgment was mistaken in our view and the FCC seems to be moving in the wrong direction on this issue.”

“No one should think that the free Internet that we currently enjoy is somehow immune from change or guaranteed to stay free,” said Hansen. “These two decisions may make it harder in some ways to preserve that free Internet, but they also insure that the battle will rage on.”

An ACLU-commissioned technical report on cable broadband and a white paper on the open access issue are available online at

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