Twenty years ago, a federal appeals court said Kenneth Zeran couldn’t sue AOL for failing 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; instead 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 v. AOL decision, it is impossible to know now how many innovative industries will never emerge due to its copyright counterparts.
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