And in both cases, there is the danger that the regulation at stake will have unintended, and harmful, consequences for the Internet generally. By contrast, in the context of copyright, courts are racing to enjoin alleged violators of copyright law, often without any trial at all, taking no account of the effects on the development of the Internet generally. One might think this is because there is some urgency in the case of copyright infringement, and not in the case of porn. Instead of urgency, I think a deeper blindness is at work, one that will have profound consequences for the Net. The regulation of porn raises a question of free speech.
Courts get that.
So too does the regulation of copyright raise a question of free speech. But courts don't yet see that. They don't see it because for 200 years, copyright law has functioned with little interference from the First Amendment. There have been a handful of cases raising extreme claims of conflict, but no clear case that yet addresses how courts are to evaluate the intersection of copyright law and the First Amendment. This is a question the Supreme Court will have to address.