IN CYBERSPACE:
Regulating on the Electronic Frontier
Elisa Maria Maciá
and
Heidi Sue Messer
PREPARED FOR JUSTICE STEPHEN BREYER
Copyright ©1995 by Elisa Maciá and Heidi Messer
Not to be reproduced in whole or in part without written permission
COPYRIGHT AND CENSORSHIP IN CYBERSPACE
The enactment and subsequent amendments of the Copyright Act occurred in a world lacking many modern technical possibilities. In their evaluation of the market system lawmakers concluded that additional protections were necessary to encourage authors to produce new works - specifically, they prescribed a legal monopoly over their creations embodied by the Copyright Act.
The current technological landscape has undergone a remarkable transformation and continues to shift at a dizzying pace. New innovations have revolutionized the way the market functions with respect to creative works. One of the new developments, the Int ernet, has affected the process of information transfer dramatically. Rather than blindly applying the current copyright laws to the Internet, it is appropriate to first reevaluate the goals of regulation and reconsider the wisdom of vesting authors with legal monopolies over their works.
The Internet raises copyright issues in many types of works, including literary works, graphical works, sound recordings, videos, and computer programs. In order to help clarify the impact that the new medium has on the legal scheme of copyright, the fol lowing discussion will examine primarily on the Internet's impact on book publishing. By focusing on this traditionally clear-cut case for copyright protection, it is hoped that the new issues will reveal themselves more clearly and broad generalizations can be made about other areas subject to copyright protection.
Part I will examine the principles behind copyright law. Part II will describe how the Internet has affected the abilities of authors to create and disseminate works. Part III examine the reimbursements that authors require to continue creating new works on the Internet as compared to traditional print publishing; and the mechanisms for cost recovery will be addressed in Part IV. Part V will consider general societal benefits that are created by having works available on the Internet. Alternatives to the current state of copyright law will be addressed in the final section, Part VI.
While the announced objective of copyright law is promoting the progress of science and the useful arts 2 , moral and economic arguments have been offered to justify its existence.
It has been stated that authors have a right to reap the benefit of their labors - a property right created under a moral rationale. Proponents of this view suggest that every creator has an inherent claim to the economic rewards resulting from their wor ks. However, this type of argument has not and should not be recognized as a legally protectible interest. In areas outside of writing, workers do not receive salaries that approach the total value of what they produce, 3 nor is there an identifiable reason for doing so solely on the basis of labor expended. 4
The original goal of copyright protection was to institute economic incentives for the maximum dissemination of authored works. Two important and distinct sets of values related to the creation and dissemination of a work. The first is the author's persu asion cost, which is the amount that an author would require in order to create the work in the first place. This figure is distinct from the second value, which is the societal value of the work. The societal value, while impossible to accurately measure , is the sum total of the amount persons would be willing to pay to have the work in circulation.
The Copyright Act takes into account these values and their relevance in the print publishing context. The costs of creating a book are expended primarily in an initial investment - the marginal costs of printing the book are relatively quite low. Howeve r, if information can be copied at a low cost by anyone who acquires it, the person who developed the information would not be able find many buyers, for anyone could resell it himself. As a consequence, an author would be unable to collect either the soc ietal value or the persuasion amount without a protection mechanism. 8 Thus, copyright law grants a monopoly to the author in order for her to recapture her investment in the work and to keep incentives in place for the production of new works. The virtue of setting the author compensation equal to the social value of inform ation is that a potential creator will make the socially correct decision whether to develop the information. 9 Because a monopoly in the information ensures that authors will recover persuasion costs, it was determined to be a socially valuable institution. However, property rights result in the disadvantage that information is sold at a monopoly price, not the ac tual cost of dissemination - which is typically low. 10
A more efficient system would allow every person who values a work at some price over the marginal production cost to obtain the work for that amount, ensuring maximum dissemination. A monopolist could achieve this result and capture all value for hersel f, if only she could determine individual purchaser valuations of the product. While this can be achieved to a limited degree in certain circumstances through a differential pricing policy (such as between hard and soft cover books), generally consumers p ay the same amount. Alternatively, if the persuasion cost could be quantified and a system created that ensured the author received only enough to keep the incentive to create, the excess could be spread to consumers. By offering consumers a price lower t han the monopoly price while still protecting the ability of the author to recover persuasion costs, this second system would provide greater dissemination than an exclusive property rights scheme, ensure the creation of socially valuable works and treat writings more similarly to tangible goods, where sellers do not have the opportunity to reap monopolistic profits.
After applying this analysis to the traditional publishing context, a few commentators have concluded that the case for copyright protection was weak because the market would ensure that desirable books would continue to be produced. 11 The view, however, that a legal monopoly was necessary prevailed and resulted in the strengthened Copyright Act of 1976 and successive amendments.
After many years and the inception of new technologies, it is important to reevaluate the merits of copyright protection for the current state of affairs. While existing copyright law could be applied in the Electronic Age, first it must be determined wh ether it should be applied. In order to do this, the following discussion will examine the economic incentives that modern authors need to write and analyze the systems outside of copyright law that can reimburse those costs in an electronically networked society.
The Internet, by changing the way that authors can disseminate works to the public, has dramatically altered the factual basis on which original copyright law was founded. The role of the publisher has been redefined with the advent of new possibilities for electronic dissemination.
Authors can place works on-line so that the public can access them directly from a node on either an independent bulletin board, a commercial service, or the Internet. Thus, an on-line service can act as a publisher, providing the link between the author and the consuming public. CompuServe, for example, maintains this type of node for computer software. 12 Authors can act as their own publisher by requesting royalties directly by establishing their own PC-based nodes for uploading and controlling distribution of their works under terms they establish, in a way never possible under existing distribution syst ems. 13 Alternatively, an author can utilize the services of a commercial access provider to easily publish on the World Wide Web. Commercial access providers have begun to include, as part of basic service, a new feature that will allow hundreds of thousands of users to create their own "home page" on the Internet's World Wide Web: "In cyberspace, a home page is the equivalent of a storefront or front door and can include text, pictures and sound... By creating a personal home page, anyone can pub lish material that potentially can be read by millions of people worldwide." 14 Lastly, authors of individual works who do not wish to handle their works directly or through a major publisher could use a collection society that would provide on-line upload services. 15
While electronic publishing is a new area, its popularity is rising rapidly. Not only are newspapers and magazines available on-line, complete books can be obtained in digital form from the Internet. Users merely sign-on to the network and provide releva nt authorization to access the providers' content and services. At this juncture, users can reproduce the content from the provider's equipment onto their own equipment, or access a display or other time-sharing use of content on their equipment. 16 The On-Line Bookstore, for example, can be found at "marketplace.com" on Gopher. This bookstore lists a numbers of titles which can be obtained either in hardcopy form, or digital text that can be directly down-loaded onto the user's computer. T he
following picture shows one screen of available titles:
With more advanced software the interface would be more user-friendly and could include graphics. After selecting a title, the purchaser can learn more about the work, and after deciding to purchase must enter at the prompt either a credit card number or an account number that can be used for other on-line purchases. The following figure describes the process for ordering one title - all of the communications and delivery take place on-line:
In addition to Gopher, the World Wide Web can be used to access the On-Line Bookstore 17 as well as other sites containing books. Distribution can be controlled so that the entire work may not be down-loaded onto the user's machine. Instead, consumers go to the site and pay a small fee to unlock the entire hypertext volume on-line -- one page at a time. 18
The Internet has changed the way that authors can create works and the way that consumers may purchase them. Traditional publishing depends upon the printed word and the physical distribution of the information, whereas electronic publishing has eliminat ed physical intermediaries. These changes should lead to a reevaluation of the persuasion costs and the mechanisms for recovery of those costs.
In the traditional publishing arena, the costs involved are incurred by both an author and a publisher. The author expends time and effort in creating a book; the publisher then compensates the author through a contract providing a fixed sum and/or royal ties and spends additional sums himself. Publisher costs thus include (1) author royalties, (2) fixed manufacturing expenses, such as composing type onto pages or making corrections, (3) selling, promotion, and overhead costs, and (4) costs expended for ( 1)-(3) on other works which failed in the market and are passed along to consumers of successful works ("risk-sharing costs"). In order for a publisher to agree to expend the costs involved in the four categories, there must be some mechanism to ensure that they can recapture those costs.
Without an exclusive right, a copier could enter the market and compete directly with the original publisher. In print publishing, copier costs are considerably less, because of the savings in payments to the author, advertising costs, and risk-sharing c osts. Any manufacturing expenses the copier would have to incur would be significantly lower, depending upon the available copying technology. The more expensive the original was to create, the greater the copier's cost advantage. 19
With information published on the Internet, the calculations have changed. The original author's publishing costs are considerably lowered both in the production and distribution stages of creating and disseminating a work.
The dissemination of a work in digital form eliminates binding, printing and distribution costs. Whereas traditional printing costs have been rising, electronic duplication costs have fallen dramatically. 20 As stated in Part II, any person can set up their own node or use a commercial service provider in order to create their own on-line book store. Payment and delivery may be made electronically. A physical space is not required for sales, leaving the only "rent payments" of gaining access to the Internet.
The creative effort and time that an author inputs into a work do not differ significantly from the traditional publishing context. However, the ability to use advanced computer software lowers formatting and editing costs.
Risk-sharing costs include the manufacturing and distribution costs absorbed by the publisher for unsuccessful works. It is interesting to examine the effects of the Internet on the costs of unprofitable works formerly borne by publishers. In the traditi onal book publishing context, capital would be spent in attempting to bring many books to market, many of which would later prove to be unsuccessful. Those risk-sharing costs would be passed on to the consumers in higher prices for the works that did succ eed. With the elimination of the manufacturing costs for books in the Electronic Age, publishers would not have to expend a large sum of capital on the gamble that a book will be successful. Thus, the costs borne by publishers that went into funding unpro fitable works would basically be eliminated. Authors, whether later successful or not, could market their works directly to the public through the Internet. Additionally, it would be the market, not individual publishers, who could initially screen works for their marketability.
Promotional expenditures, while they might exist for works published on the Internet, would be dramatically smaller. Marketing and advertising are not as acceptable on the Internet as they are in television and radio. One of the particular advantages of on-line publishing is the value placed on substance, not advertising glitz. The Internet is characterized by the free flow of opinions; authors achieve and retain a reputation largely through the substance of their works rather than through marketing. How ever, organized free advertising is readily available on the Internet. Already, the Copyright Office has a database which can include information on pricing, licensing, and terms and conditions of use, in every country that has access to the Internet; une ncrypted samples of the works may soon be included in the database to help advertise its content to potential users. 21 As this example indicates, promotional efforts are unbounded by the restraints of time and print dollars. Promotional materials can include excerpts of the work, reviews and otherwise enriched content. 22 Not only does protection of promotional expenditures seem unnecessary, a legal monopoly should not be granted in order to ensure that advertising and promotional expenditures are recovered; in other industries this expenditure would not be an issue.
In print publishing, a book's value may be dependent on distribution, whereas the Internet's ability to reach a consuming audience directly minimizes the need for traditional distribution channels, and the distinction between different kinds of works wou ld be eliminated. For instance, there would be no need for separate channels of distribution for tradebooks or textbooks. All buyers could log onto the internet as the single source for books. Additionally, the distinctions between different media have br oken down with the advent of digitization: "[w]hat have been traditionally known as letters, journals, photographs, conversations, videotapes, audiotapes and books merge into a single stream of undifferentiated electronic impulses." 23 One digitized work can incorporate music, text, software, graphics and video components. 24 All forms can be included on the Internet.
The differences that remain between works is the magnitude of the initial expenditure, the size of the audience that values the work, and the demand for works with time. For example, scholarly works generally require a higher initial investment, are targ eted towards a smaller audience, yet retain their value for more time than faddish novels.
Without an exclusive right in the book, the author and the publisher still may have created and released the work to the market; the new publishing ability of the Internet not only changes the persuasion costs, but also mechanisms for recovery of such co sts. Because the critical determination is whether the author would have been persuaded to create the work, not whether he recovered all possible value, one must examine the mechanisms besides property rights which could result in a recovery of persuasion costs.
Not all areas involving an intellectual creation require an exclusive monopoly in order to encourage creators to continue innovating. In neither the food industry nor the fashion industry is intellectual property protection available for recipes and clot hing designs, respectively, yet those two industries introduce new products weekly. 25
In the traditional publishing arena, many natural market factors exist that could possibly allow authors to recover their persuasion costs even without the existence of a property right in the work. For certain works, the lead time in entering the market prior to copiers can provide sufficient advantage so that the incentive to create remains. Especially for books that can turn a profit in a couple of months following their release, the natural lead time in entering the market before a copier might lead to a recovery of the persuasion cost. 26 Additionally, the original product's quality is often higher than that of less expensive hard copies. Photocopies and dubbed recordings, for example, do not match the quality of the original, especially when imperfections are compounded by successive gene rations of duplications.
While a few persons assert that pirating is not a significantly greater problem on the Internet, 27
The use of contracts in the market might ensure that authors recover their persuasion cost. While this approach is often difficult to carry out in the traditional publishing context, severa1 factors generally encourage contracting. For instance, contract s could be used prior to publication to assure that there would be enough buyers to make the endeavor worthwhile. 30 Alternatively, large groups of buyers might be organized so that orders could be placed collectively. 31 Books which are marketed towards a specialized audience, while generally more costly to produce, can be more amenable to contractual protection. Works targeted towards a large audience are much more difficult to protect. Costs associated with identifying and securing individual buyers made a contract system difficult in the traditional publishing context. While there are problems in a contracting system, such as higher administrative costs, limited individual choice, and freeloading, 32 such a system may be workable for books that are targeted to discrete groups of buyers. 33
On the Internet, there are factors which weigh in both directions. Freeloading, a problem to contracting in the traditional publishing scheme, can be even greater where copying is costless and exact. The ease in which perfect copies can be transmitted to multiple users is a new phenomenon made possible by the Internet. 34 Additionally, copies can be obtained almost instantaneously, decreasing the advantage of a high volume of initial sales. The major threat to contracting in this context is organized pirating. Organized pirates can compete with original authors by setting up systems that are convenient and less expensive than those of the original author, as they can save on all costs associated with the author's time and effort in writing and editing the book.
While transaction costs associated with contracting could prove to be prohibitive in the traditional publishing arena, contracting may be a more workable system on the Internet where communications are less cumbersome and expensive. Individual purchasers could state their interest in a particular work prior to its release and, in exchange for a payment, be the first persons to receive the work. Purchasers could buy books on-line, and be more likely to follow their ethical principles when it is quick and easy to purchase a work from the author directly. Electronic contracting has yet to be legally recognized, but the possibility of electronic signatures could facilitate the creation of binding agreements over the Internet. 35
With lower publishing costs involved in the production of the work, less consideration would be required from consumers to encourage an author to create a work. Thus, authors could meet their persuasion costs either by selling their work at a lower price , by selling fewer total works, or a combination of both. Lower costs would make buyers more willing to enter into contracts. Even at prices comparable to book prices, many fewer purchasers would be needed to keep the incentives in place for writers to cr eate new works. Were many publishers to agree to similar contractual arrangements on the Internet, a set of by-laws could develop that would eventually be deferred to by the courts, lowering transactions costs further. 36
The Internet, while making copying and transmission easier, also makes direct contracting with authors a realistic means to encourage them to create works. Because an inefficient allocation of resources results from preventing the dissemination of works to persons who do value them, the new ability to protect copyright through direct contracts calls for a decrease in the need for a state-granted monopoly.
Many persons feel that "the answer to... technological challenges to copyright very likely will be found on the technology itself." 37 For certain types of works, it is futile to attempt to prevent pirated works from being released onto the Internet. Photographic images and short documents, for instance, can be electronically scanned and posted with relative ease. For lengthier works, ad vances such as encryption devices and access codes can be used to prevent unauthorized access or to make copying more difficult. 38 Source files can be buried and complete downloads prohibited, while still allowing queries and access to the files. 39 A different device causes a book to selfdestruct after the reader has gone through it once. 40
While these technologies may make copying a greater challenge, some feel that they serve only to encourage piraters; these "computer crackers" may push the outer limits of network security as long as any barriers exist to the free flow of infor mation. 41 Moreover, it is difficult to rely upon purely technical solutions, as the state of technology is hardly static.
The purpose of copyright law is to encourage the proliferation of works that are of societal value. Thus, it is useful to quantify not only the persuasion costs, but also to examine the societal value of works on the Internet.
While this analysis has focused on one medium - that of digitized information - other traditional forms of information coexist with digitized information. Unlike computer programs, other subjects of copyright law can and usually do manifest themselves in non-electronic formats. Traditional hardcopy books and magazines remain the primary source of information for consumers, and it is not clear that those sources will ever be completely ousted in favor of electronic communications. While advances in comput er displays have made photographic images more clear and newspaper layouts more closely resemble the printed page, the prospect of an entirely paperless society remains distant. An intangible value is attached to tangible books or magazines, which can be leafed through. It is questionable whether a computer could fully replace such forms.
This paper was written with the intention of analyzing the Internet as an isolated publishing system. Even the most traditional forms of publication are being supplanted by digital media. Encyclopedias, for example, are quickly being replaced by signific
antly less expensive, less cumbersome CD-ROM or on-line version: "the economics of publishing in the digital age may make weighty tomes infeasible."
45
To the extent that both forms exist, however, total revenues could rise by taking advantage of the particular characteristic of each. For instance, a person might find a magazine article on-line and be encouraged to purchase a physical subscription. This
argument has been made with respect to computer software - that persons eventually purchase the versions of software they depend upon so that they can have copies of manuals and access to help lines.
46
Where the online version is not a perfect substitute for the hard copy and vice-versa, the total demand for the product will rise.
The variety of works and expansive distribution capabilities found in the Internet creates value that exceeds the sum of individual works. For example, where traditional publishing tends to market works towards large blocks of mainstream consumers, the l
ow publishing costs on the Internet would make works targeted to a smaller, specialized audiences economically feasible, thus increasing the diversity of viewpoints expressed and heard.
Not only does the current copyright system prevent some persons who value the work over the marginal production cost from obtaining it, some works are shared and benefits obtained in no relation to the amount paid under the copyright. The first sale doct
rine allows the copyright owner control over only the initial dissemination of a work; buyers may share the work with others or resell it with no accounting to the copyright owner. The existence of convenient inexpensive digital libraries could cause more
consumers to obtain the work directly from the source, allowing the author to receive compensation from a more equitable distribution of readers.
Additionally, digital libraries can contain works from the "back-list" - those works whose sales have leveled off after an initial profitable period. The Internet allows those books to "remain on the shelf" without having to undergo a
new reprint and marketing campaign, as storage and reprinting costs are so inexpensive.
47
"Front-list" works are helped as well, due to the broad audience reached, the ability to target specialized groups, and the ability to receive feed-back.
As stated in the foregoing analysis, the copyright laws may not be desirable in the form that they take today. Were copyright abolished, not only would maximum dissemination of works occur, but also other positive externalities, such as an educated and w
ell-read population would be shared by society. Moreover, this system would force companies to expend energy on creating new innovations, rather than falling "deeper in the tar pit of courtroom warfare."
48
Were the government to step out of regulation of the Internet, some feel that a system of self-regulation would come into being, based upon customs that could eventually become legally enforceable. This method of law enactment is predominant in internati
onal law, where customs become legally binding after the recognition by nations that their actions are bound by those CUSTOMS.
49
Other customs in international areas have become legally enforceable without the backing of a sovereign.
50
This system might be appropriate for the Internet; a body of law could co-exist with existing laws which would be practical and efficient in handling commerce on the networked world.
51
Due to the unbounded nature of the Internet, a scheme which can cross national boundaries is particularly appealing.
52
The Internet is young, and the culture is still developing - it is unclear what self-regulation, if any, would emerge. Many users are willing to pay for works if they are readily available from legitimate sources; some publishers have found that by provi
ding pieces on an easy to access subscription service, the incidence of pirating went down.
53
Other cultures on the Internet, however, support having no limitations on the transfer of information.
54
The above system, while it might eventually lead to some solutions, would do little to alleviate current problems. It takes common objectives in order to create a system based on common understandings. With the divergence of interests and cultures repres
ented on the Internet, it is difficult to imagine that a common accord would ever be agreed upon by participants. Additionally, any such.system would be slow in developing, resulting in uncertainty costs.
Some commentators have argued strongly that while the medium has changed, the underlying policies and solutions of copyright law remain applicable.
55
Even if the current copyright system were to remain substantially intact, the current law needs to be clarified, however, to specify what constitutes "copying," and whether users have a right to "browse" in the traditional bookstore s
ense. To this end, the government's National Information Infrastructure Task Force recommended expanding infringing activity to include "transmissions".
56
This recommendation has been criticized in that it would make it impossible to function on the Internet without violating copyright law. Litman,
supra
note 24, ("Reading one's mail or picking up one's telephone messages these days requires many of us to commit acts that the government's Information Infrastructure Task Force now tells us ought to be viewed as unauthorized reproductions or transmissi
ons."). Moreover, practical guidelines must be developed to determine how the fair use doctrine applies to digital works.
57
Even assuming copyright law is appropriate, enforcement issues must be considered. Traditional means of interdiction, such as U.S. Customs border control actions and raids on counterfeit production facilities, are not effective methods of enforcement of
copyright laws where electronic publishing is concerned.
58
However, monitoring of copying, while extremely difficult to detect on an unorganized level, is easier to monitor when it is systematic. In order for organized pirates to do real damage, they must market themselves in some electronic or other manner, whic
h could be observed by the rightholder, "who, like any other member of the public, can log onto the pirate's bulletin board and see what works he is offering for upload."
59
Some advances would assist in policing the Internet to determine when copyright violations are occurring. For instance "knowbots," programmable software that can search thousands of resources and databases for words and phrases, could be used t
o determine to which sites of the Internet works have been copied.
60
Additionally, in order to make copyright laws more enforceable, legal measures could be taken such as criminalizing the unauthorized access to computers, the theft or interruption of computer services, the destruction of computer equipment, the trafficki
ng in computer passwords, or the misuse of computer system information. Additionally, the manufacture, possession and use of a device that circumvents the security of the infrastructure could be made illegal to create a system less vulnerable to attack.
61
Instead of the complete abolition of copyright, it may be beneficial to retain and narrow certain protections. If the existence of organized pirates is in fact the greatest threat to the functioning of the contracting scheme, perhaps copyright protection
should not be eliminated, but enforced against appropriators who act for financial gain or whose appropriations are on a large scale. This enforcement against commercial or otherwise organized appropriators could fit into a broader interpretation of the
fair use doctrine.
Also, the duration of copyright protection could be limited so that the monopoly lasts only as long as necessary to recoup persuasion costs. The current system, which extends protection beyond the life of an author, appears to protect value which has no
direct effect on the author's initial decision to create the work.
Moral rights elements may be kept, so that authors would have actions against the creation of derivative works or the defacement of their works. While it might initially appear that the Internet does not change the claims that authors make on behalf of m
oral rights, there is a debate about the extent work should be freely altered and improved on the Internet - where such modifications are much easier than in the traditional hardcopy form. Those changes may be beneficial to society, but they also may be d
etrimental to an author's reputation.
There are other avenues to ensure that authors are paid their persuasion cost, such as direct payments by the government to authors:
This scheme is currently used for authors who have difficulty recouping the contribution they make to society. Were copyright law abolished because of the impact of the Internet, subsidies could be used to ensure that the author's persuasion costs are co
mpensated, especially for those authors who might not be able to secure payment through contract. To the extent that the Internet creates an overall reduction in the magnitude of persuasion costs, and allows the recovery of those costs, the size of subsid
ies could be significantly lower.
While this scheme is currently used in a few areas, such as the National Endowment for the Arts, it is difficult to imagine that the public would support an extensive appropriations scheme to fund popular novels, magazines, films and computer programs. m
any controversies would arise regarding the proper scope of such an appropriations system.
Some commentators support creating systems where authors who contribute works to the system lose control over the dissemination, and are reimbursed by a compulsory licensing mechanism similar to the music industry's Ascap system.
63
While there is a sentiment that compulsory licenses violate the moral rights of authors to decide how to disseminate their works
64
this system is much closer to practice than many believe. For example, late in 1994, the Library of Congress received $13 million in grants to digitize library materials, including books, records, pamphlets, speeches and motion pictures, and make them ava
ilable to the public electronically through the Internet.
65
While the library makes available on-line only information to which there are no exclusive rights, the library "is working toward developing mechanisms for 'securing all necessary permissions for eventually digitizing selected copyrighted materials.
"
66
The library intends to secure licensing arrangements that would be supported by either appropriations or public access fees.
67
However, new collective administration or levy schemes might increase the cost of license administration and result in reduced or non-market payments to authors and rightholders; this result can serve as an economic incentive to piracy.
68
The considerable advantage of a licensing system is that charges could be tailored more closely to a person's valuation of the product. For instance, most individuals would not purchase an expensive medical reference book in order to learn about one part
icular ailment, but probably many would reference such a work on-line if doing so was convenient and relatively inexpensive.
69
A license agreement which charged by the hour or by the amount of information referenced would allow a more efficient recapture of social value than the current all-or-nothing approach of copyright law.
The main principle behind copyright law - to encourage the exchange of information and ideas - must always be kept in mind. Unquestioning application of copyright law can ultimately hinder that principle. The process of promulgating regulations is difficu
lt because technology continues to develop methods of getting around technical and legal barriers. "But when the screen flashes 'Abort Retry Ignore,' we all need to remember that aborting isn't productive, Ignoring leads to Ignorance, a most unhealth
y state. It is the trying and retrying that will lead to a worthwhile on line culture."
70
The growth of the Internet reflects the recent revolution in communications transfer. The rise of this new medium poses a new challenge for legislators attempting to reduce potential harmful uses of information without sacrificing its tremendous political
, economic and social value in society. Content based restrictions on obscene and indecent speech present this dilemma in its starkest form.
This paper will examine the issues surrounding expressive regulation in the context of a specific piece of legislation, the Communications Decency Act. The aim of this analysis is to clarify existing policies underlying information regulation and shed li
ght on the general problem of applying an existing regulatory framework to a new medium. Through this analysis, a common theme emerges; namely, the importance of evaluating information regulation in light of the communications medium to which it applies.
Part I presents the core conflict created by the emergence of a new medium and the costs and benefits associated with the communications contained therein. Part II will compare the Internet to other existing forms of telecommunications which, individuall
y, prove to be insufficient reference points for formulating approaches to controlling harmful information on the Internet, but collectively, provide insight into potential avenues to consider. Part III will refine the analysis by focusing on the Communic
ations Decency Act as one recent legislative effort to update existing regulation to new technology. This discussion will consider the constitutionality of the proposed legislation and evaluate its desirability as a means to control information abuse. Fin
ally, Part IV will assess the strengths and weaknesses of this proposal as it pertains to future attempts to address the problems of regulating information in an atmosphere of technological uncertainty.
The challenge for any scheme regulating expression is to respect private communications, to preserve protected speech, to encourage the free flow of information and to shield individuals from inappropriate or dangerous communication. Realizing any one of
these lofty goals requires careful consideration of the nature of the medium and the communications contained therein. Thus, comparing the Internet to preexisting medium already informs the analysis for determining the constitutionality of the Decency Ac
t and other legislative proposals.
Insofar as regulation is concerned, analogous forums may provide assistance in determining the desirability of regulation.
72
Television and radio programming restrictions, for example, may offer guidance in formulating content-based restrictions for the Internet. The Communications Decency Act is itself an addendum to prior legislation originally intended to regulate the transm
ission of telephone pornography. As the analysis below will reveal, however, legislative short cuts are not the answer where constitutional protections and procedures to remove harmful speech conflict.
One way to conceive of the Internet is as a postal service. E-mail, whereby private messages can be forwarded instantaneously to any subscriber, has all of the elements one would expect of the national mai1 system. Every user has a unique address where t
hey may receive or send private communications. What distinguishes electronic from written message services is former's ability to transfer unlimited information at unprecedented speed, to large populations at relatively low cost.
76
The speed and ease of these exchanges likens the interchanges on the Internet to those which occur on another communication"s web, the telephone network. The ability to have on-line conferences and two-way interaction on the Net supports this analog
y. One specific service, the Internet Relay Chat (IRC) exists as an open forum for on-line discussion between users at any time.
77
In light of the wide range of information shared through mail and phone communications, individuals receive a wide range of constitutional and legislative protections over the substance of their exchanges.
78
As a source of information or a form of passive entertainment, the Internet resembles existing entertainment sources such as print and broadcast media. Subscribers can access information about current events, works of literature, pictures and photographs
. Newspapers, art and books appear on-line.
79
The volume of these materials is likely to increase in conjunction with the growing number of Internet subscribers. Constitutional law has developed a panoply of protections to preserve the value of free and open discourse over these channels.
80
The Supreme Court has recognized that broadcast media by its nature may be subject to different standard of review under the First Amendment.
81
This distinction would call into question the applicability of restrictions that have been held to be acceptable for other forms of broadcasting.
82
Unlike other forms of passive entertainment, however, the source of the information transmitted on the Internet is decentralized. No one agency, station or organization is responsible for the content on the Net. Where programmers, for example, networks, a
dvertisers and stations exist as buffers between consumers and their entertainment exposure, on the Internet viewers may themselves become content producers. Thus permissible regulation in one context may be constitutionally prohibited in another.
The decentralized contribution of information on the Internet resembles content production through cable television. The Supreme Court has distinguished cable television from other forms of commercial television broadcast insofar as what is accepted as p
ermissible regulation under the Constitution. In upholding federal preemption for the regulation of the cable industry, for example, the Court elaborated on decentralization as a distinct feature of cable television:
Moreover, the existence of universally accessible libraries and information databases reveal that there are large sectors of centralization and in addition, educational discourse.
Finally, as the metaphorical reference to a "information superhighway suggests, the Internet can be conceived as a transportation network of information:
Unlike the federal highway system, however, the government oversees the highway system and as a result, rules are enforceable and regulation possible to manage risk without destroying societal benefits. Specifically, police enforce speed limits, the Core
of Engineers coordinates the infrastructure, and government expenditures maintain the roads and highways used by American citizens. By contrast, the Internet receives financial support from numerous sources and has no centralized enforcement mechanism. A
unique culture exists amongst those who use the "Net" where no such bond unites highway users. The lack of centralized funding and the separate value system of the Internet further complicates any attempts to create, coordinate and enforce laws
by the means utilized in our existing transportation infrastructure.
In the absence of a clear analogy, the appropriate constitutional and desirable regulatory policy for restricting harmful speech is far from clear. Examining one recent legislative proposal best demonstrates the complexity of this endeavor.
The Communications Decency Act represents the most recent regulatory response to increasing publicity regarding the volume of pornographic and violent material available on the Internet.
Initially proposed as freestanding legislation, the Senate passed the Communications Decency Act as an amendment to the Telecommunications Act of 1934 on March 24 of this year. In the words of the bill's sponsor, Senator Jim Exon:
The proposed law prohibits: (1) obscene communications made by a person or with their knowledge, to unwilling individuals and (2) indecent speech to children under the age of 18.
90
To this end, common carriers are required to undertake restrictive measures (such as requiring written requests for service and access codes) and may claim as a defense to prosecution good faith efforts to restrict access to underage individuals.
91
The primary substantive modification of the Communications Act of 1934 relates to the medium and form of these communications. Specifically, Senator Exon's proposal extends existing content based regulations from the telephone to all telecommunications d
evices and from "comments, requests, suggestion[s] or proposal[s]" to also include "images and other communications."
92
The basic prohibitions against telephone calls made with the "intent to annoy, abuse, threaten, or harass any person at the telephone number"
93
remain unaltered by the proposed amendment.
Liability under the Communications Decency Act arises where any person "knowingly (i) makes, creates or solicits, (ii) initiates the transmission of any comment, request, suggestion, proposal, image or other communications which is obscene, lewd, la
scivious, filthy or indecent.
94
"Knowingly" is defined as "an intentional act with actual knowledge of the specific content of the communication specified in this section to another person."
95
The proposed law increases potential penalties from $50,000 to $100,000 and extends potential prison terms from 6 months to two years.
96
In addition to the good faith defense mentioned above, the amendment exempts access providers from liability and provides new defenses of lack of editorial control or knowledge of the obscene or indecent materials, and good faith attempts to restrict acce
ss to minors (e.g., through warnings, responsiveness to complaints, or other enforcement mechanisms).
97
Finally, the federal law expressly preempts any inconsistent state law.
98
Despite its perception in popular culture as an absolute bar on governmental restriction of expression, the First Amendment does not shield all speech from governmental regulation. most notably, obscene speech has been deemed to be outside the purview of
First Amendment protection.
99
In
Roth v.United States,
the Supreme Court upheld the Constitutionality of a criminal obscenity statute which prohibited the use of the postal system to transport [e]very obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, lettet, writing, print, or other publica
tions of indecent character..."
100
Of particular relevance to the Communications Decency Act was the Court's approval of regulatory efforts to curb obscene communication. "(T]hese statutes, applied according to the proper standard for judging obscenity do not offend constitutional sa
feguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited."
101
The key issue left unresolved is the acceptable definition of obscenity. Assuming that in the absence of a definition the Communications Decency Act (as amended) relies on the test articulated in
Miller v.California,
102
§does not, on its face, violate the First and Fourteenth Amendments. In Miller, the Court stated the three factors to consider in determining whether a definition of obscenity passes Constitutional muster:
The Supreme Court directly addressed the regulation of content providers and the transmission of obscene and indecent speech in
Sable
v.
Federal CommunicationsCommission.
109
The case involved the constitutionality of §of the Communications Act of 1934, the same section amended by the Communications Decency Act. This decision thus merits close consideration as it is uniquely applicable to the Decency Act (and was most lik
ely in the minds of its drafters).
Sable Communications of California began a dial-a-porn service in conjunction with Pacific Bell whereby the two companies shared fees collected from adult callers paying to hear sexually explicit phone messages. Sable sought an injunction against the fed
eral ban on obscene and indecent communications arguing that the statute established impermissible restrictions on the rights guaranteed in the first and Fourteenth Amendments.
In addition to arguing against restricting the rights of consenting adults to receive obscene and indecent material, Sable posited that, by forcing the content provider of the pornographic materials to promulgate speech that would be in compliance with m
ultiple definitions of decency, the government was, in effect, creating a national standard of obscenity based on the lowest common denominator. Simply stated, Sable's claim was that the legislation put "message providers in a 'double bind', by compe
lling them to tailor all of their messages to the least tolerant cormnunity."
110
The Court rejected this latter claim, as well as Sable's arguments against statutory restrictions on obscene speech. In an opinion authored by Justice White the court was explicit with respect to the extent of Congressional power to regulate this area: [
w]e hold today that there is no constitutional stricture against Congress' prohibiting the interstate transmission of obscene commercial telephone recordings."
111
The Court ruled against the FCC with respect to the regulations pertaining to indecent speech on the ground that Congress had not contemplated the least restrictive alternative when balancing the rights of adults to receive materials
112
and the interests of the state in restricting access to minors.
Insofar as the proposed law seeks to regulate and limit the exchange of obscene material, it is within accepted constitutional boundaries of regulation. Without a definition of obscenity, the Act is arguably valid on its face.
113
The application of the statute to specif ic instances, however, might violate the Constitution.
A distinct issue is whether the extension of the amendment's coverage of the statute violates the Miller test for defining obscenity. Considering the practical effect of this proposed legislation calls into question the Court's current rejection in
Sable
of the argument that federal decency legislation creates a national definition of obscenity.
Incentives to censor communication to meet the broadest definition of obscenity are already developing. Where some material may reach the hands of minors or violate the standards of decency in a few communities, the incentive is to remove the information
from the marketplace. A recent case involving a couple who operated a computer mail order service for pornographic materials from California supports this conclusion. A federal agent in Tennessee downloaded materials for the express purpose of prosecutin
g the couple under that State's more stringent definition of obscenity.
In further support of the argument that the effect of this statute is to define obscenity based on the most restrictive definition is that in order to avoid liability, a content provider would not only have to research which communities considered such i
nformation obscene, but would also have to restrict access to its bulletin boards in these areas.
114
Unlike the solutions available in the context of telephone transmissions, the technological plausibility of restricting access is itself questionable. The use of the Telnet feature, for example, to remotely access accounts in other states would mask the u
ser's jurisdiction. Without this information a content provider could "knowingly" transmit information to an unknown destination and still be held liable in the state of the recipient.
Thus, the Court's conclusion in
Sable
that technology would permit the multiple definitions of obscene speech is highly questionable in the Internet context. The remaining issue is whether the restrictions on indecent speech are sufficiently narrow.
115
On the one hand, it is conceivable that the Sable ruling would be dispositive of the question of the Communication Decency Act's constitutionality with respect to its restriction on indecent speech. The amendment offers several means, including warnings
and disclaimers, by which a content provider can escape liability- some of which -were explicitly recognized in the Sable decision.
Given the unique attributes of the Internet, the state may be justified in more extensive regulation of indecent speech. Where the choice is between shutting off the computer or receiving potentially explicit messages there may be a "captive audienc
e" problem that does not exist with one-on-one telephone communication.
116
Parents may not be able to monitor the bulletin boards accessible to their children in the same way they can prevent access to dial-a-porn services. Parents may lack even the basic understanding of the technology necessary to restrict the affirmative acts
taken buy their children to receive it. Where the nature of the medium itself makes private censorship impossible, federal regulation may be permissible.
117
On the other hand, much of the current unrest surrounding the law emanates from network providers who fear that the proposed law subjects them to limitless liability for content beyond their control. This problem is exacerbated by the statute's vague dis
tinction between access and content services and reveals the lack of contextual sensitivity that permeates the proposal.
In reality, a spectrum of providers offer services ranging from mere access to content creation. Subscribers may be restricted to information contributed by other subscribers to a particular service or, more likely, will pay to access larger networks. In
addition to the impossibility of monitoring the content of networks to which they provide mere access, providers thus may lack the means to restrict participation in their forums (hackers often break access codes or assume new identities) and even less c
ontrol over the geographic regions to which their material is sent. Unlike one-on-one communications, neither providers nor individuals clearly possess the ability to adequately screen the recipients of their dispatches and may be liable for a wide range
of communications.
The amendment's extensive application to all telecommunications devices may undermine some of the fundamental assumptions motivating the
Sable
decision. A content provider may not realistically be capable of restricting transmission of sexually explicit material on a medium where anonymity and/or created identity's are a very real possibility. In
Sable,
the court emphasized both the affirmative steps made on the part of the individual who wished to receive the indecent material and the control exercised by the content provider over the geographic and individual receipt of the obscene and indecent materia
ls.
Finally, where no reason exists to doubt Congressional judgment, deferential treatment of their judgments about the regulation of indecent speech may be justified. Debates scheduled to begin this month may prove decisive in determining whether Congress c
onsidered and/or. properly rejected less restrictive alternatives.
In sum, the amendment may violate the Constitution by creating a national standard of decency by applying broad restrictions to technology that can only effectively respond by removing the communications from the marketplace.
118
In addition, the amendment may lack a reasonably narrow means to restrict indecent speech.
Assuming that Senator Exon's bill survives Constitutional review, regulation of the transmission of information on the Internet still requires careful consideration. As with any emerging communications network, choices about the desirable limits of free
expression involve trade-offs and the results are likely to have far-reaching economic, as well as social and political effects.
Clearly what is motivating this legislation are attempts to mitigate the damaging effects of the widespread accessibility of obscenity on children already exposed to excessive amounts of sex and violence. No one denies proliferation of sexually explicit
and disturbing speech on the Internet. The following picture depicts a sampling of newsgroups where erotic pictures are exchanged.
b. Digital Libraries
VI. Alternatives to Copyright a. Complete Abolition
b. Self-Regulation
c. Keep Current System - Strengthen Enforcement
d . Narrowed Copyright Protection
e . Government Subsidies or Grants
f. Compulsory Licensing
I. The Regulatory Challenge
II. What is the Internet?
In many respects, the Internet is a quilted medium. Elements of private, commercial and political communication coexist under the same network.
74
Similarly, subscribers may express themselves through any number of roles ranging from talk show host to electronic publisher or, alternatively, may use the medium as a form of passive entertainment. As one commentator has noted, [e]lectronic communicatio
ns are sort of like phone communications, mail newspapers, notice boards and standing on a soap box in the public square. And sort of not."
75
Comparing the Internet to other forms of existing telecommunications highlights the range of exchange that occurs on the Internet. In addition, this comparison helps to isolate influential factors in constitutional review or legislative intervention, whic
h in turn, informs the evaluation-of the Communications Decency Act that follows.
While, the Internet is similar to cable networks sustained by subscribers and characterized by multiple transmission sources, this analogy falls short. Unlike cable television, any individual subscriber has the simultaneous ability to be a content provid
er with unfettered access to the sheer speed, ability to contribute content at low cost and widespread availability of information transfer over the Internet.
In this way, the Internet is more akin to an academic or research institution and in the purview of the most intense First Amendment protection. The grass roots political nature of many of the Internet discussion groups in addition to the vast publishing
capabilities and incentives support the analogy of the Internet environment to that of a university.
85
In many ways, this is an apt analogy. No single person, company or institution can be held responsible for the fact that traffic accidents happen. Similarly any person can access the network and peruse without restriction any available avenue of communic
ation.
III. The Communications Decency Act
a. History
Other accounts reflect Senator Exon's legislative philosophy in sponsoring the Act. A recent Senate Report emphasizes that the regulation of content produced through evolving telecommunications networks is a response to increased threats to minors and ad
ults through the expansion of existing protections against unwanted obscene and indecent speech:
The Act has generated significant attention as one of the first attempts to regulate the informational content of the Internet. Civil liberties groups and computer users vehemently object to this federal regulation citing the parade of horribles they bel
ieve will ensue.
89
interesting reflections on American regulatory culture:
James Lileks,
Sexy Talk OK for Consenting Computers,
detroit free press, April 3, 1995, at El.Objections to the legislation ranged from the fear of industry flight of content providers to questions about its constitutionality. Congressional debate is scheduled to commence in the beginning of May. In the mea
ntime, the Clinton Administration and members of Congress have been developing alternative proposals. Thus, regardless of whether the Communications Decency Act becomes law, some form of speech regulation is on the horizon.
b. Provisions
C. Constitutionality: The First Amendment and Speech Regulation
In contrast to the constitutional treatment of obscene speech, the First Amendment prohibits restrictions on indecent communication in the absence of a compelling goverrmental interest.
104
Barring unique characteristics of the medium containing the speech,
105
legislation must be "reasonably restricted to the evil with which it is said to deal."
106
Where the state interest is to limit children's access to obscene materials,
107
Congress must employ the least restrictive means. Thus, the reasoning behind this limitation on government regulation is the recognition that broad limitations "burn the house to roast the pig" and must be limited so as not to destroy valuable s
peech.
108
1. The Sable Decision
2. The Act' s Restrictions on Obscene Speech
3. Problems in Applying Obscenity Prohibitions
4. Restrictions on Indecent Speech
5. Issues in Applying the Indecency Restrictions
6. Conclusion
d. Desirability
1. Goals of the Communications Decency Act
The newsgroup "alt.binaries-pictures.erotica" is among the most popular newsgroups both in terms of messages posted and the memory (in kilobytes) of the memory used. 119 Many persons are concerned with the indirect effects of pornography on society. Other more direct harms may be revealed on the Internet. One recent incident supports the need for regulation. Following the disclaimer "the following story contains lots of sick stuff" a University of Michigan student promulgated a sexually explicit story where the victim of a violent rape bore the name of a current classmate. 120
Another common justification for speech regulation is its potential use as a tool in law enforcement. The Department of Justice, for example, has expressed its desire to monitor information on the Internet to control national terrorism, much of which is coordinated through computer networks.
This legislation may stifle the exchange of ideas. For example, the statute imposes liability for indecent images provided on the Internet. Would that mean that a statue of David contained in an on-line art history library or a discussion group devoted t o nude sculptures would subject the provider or participants to liability? While the answer may be "no," in the face of penalties as severe as $100,000 or two years in jail, a content provider may be wary of the risk. Thus, where obscenity may b e defined according to the strictest standards and what may appear not to be a total ban on indecent speech may, in practice, have that precise result. 121
In spite of the defense available to content providers who warn subscribers of sexually explicit materials, the amendment's knowledge-based standard warnerings alternatively may prompt ignorance rather than action. To warn requires knowledge, which in tu rn, exposes those "in the know" to liability. Where ignorance removes the incentive to warn, transmissions on the Internet may in fact make it more difficult for users and parents to screen speech without revealing its indecent nature.
Supporters of the proposed amendment assert that "telecommunications and information service providers and systems operators who are not themselves knowing participants in the making of or otherwise responsible for the content of the prohibited comm unications" will not be held liable. 122 Even if the act's phovisions are limited to those who market themselves as Internet publishers, the imposition of liability, however, may have negative effects. In response to large scale liability risks, content editors may base their operations in forei gn countries and force American competitors out of business.
One of the larger issues raised by the Communications Decency Act is the whether the government should have access to the communications on the Internet. Governmental regulation of the content of an information network with unprecedented power may open t he door for abuses unparalleled in the history of obscenity regulation. The worst case scenario is the realization of the Orwellian state where the government has the ability, means and legitimacy to control social mores and societal debate.
In addition to its value as a communications and entertainment network, the Internet creates the realistic potential for enormous data banks which are widely accessible to both individuals and the government. Access to this information has enormous value for the purposes of law enforcement while raising corresponding concerns over the intrusiveness into the private lives of individuals.
As is the case with proposed legislation in the arena of speech regulation, Constitutional law may protect private exchanges on the Internet under the First Amendment and the corresponding right to privacy. Once again, the appropriate metaphor for regula tion may determine the answers to what is considered communication, where individuals are entitled to an expectation of privacy and what is the public domain.
Traditionally, our legal culture frowns upon governmental intrusion into individual information exchange:
Anonymity represents another aspect of the core problem surrounding all communications regulation on the Internet. With relative ease, current subscribers can disguise their true identity when engaging in communications. Anonymity may either encourage th e free flow of information or permit individuals to avoid responsibility for their actions. For example, an anonymous editorial may encourage political debate over entrenched political institutions or allow for unbridled harassment.
Once again the vision of the communications that one accepts defines the protected privacy interest. Many have argued that it is a matter of parental, rather than state responsibility to choose what is appropriate material for children. 127 This view necessarily views Internet access as activity that occurs in a private place, involves individual choice to access (like most forms of printed media) or that involve fundamental value judgments that, like religion, are under private control. 128
Respecting local definitions of decency while upholding national prohibitions against obscenity reflects the difficulty between protecting individual rights to expression and freedom from unwanted intrusion. These rights, however, may be shaped by the ch anging environment on which discourse takes place. The future challenge for policy makers is to promulgate regulations that are supported by some set of shared norms.
Conclusion
Regulating information in any context requires careful balancing. As a communications network, the Internet eliminates many of the inefficiencies that exist in other analogous mediums. Information asymmetries may be eliminated where individuals can easil y exchange information about anything. Consider, for example, the potential power of this information in the consumer protection arena. Experiences with faulty products could be shared among many at relatively no cost.
The power to inform, however, is also the power to destroy. Defamation, libel and other potentially harmful "crimes of information" are infinitely more damaging when they can be conducted at virtually no cost and without physical or geographic constraints. 129 One profound embodiment of this problem is the case of international terrorism where, content regulation becomes an even more tricky issue in light of the increased potential for benefit and harm.
As Foucault suggests, the stakes of regulating sexually explicit speech are high. Policy-makers must recognize the power at issue when imposing liability on a medium with as diverse an array of communicative form and substance as exists on the Internet. Thus, as the above discussion of the Comminications Decency Act indicates, speech regulation, if desirable at all, should not proceed by simply extending existing legislation without considering its impact on several forms of expression. A worthwhile effo rt would require a legislative commitment that respects the medium as well as the message. Currently, both technological illiteracy and political rhetoric threaten this understanding.
While serious evaluation of potential avenues for regulation may initially raise more questions than answers, proposals that fail to adequately distinguish between the nature and the form of communication are likely to violate constitutional prohibitions or produce unwanted side effects.
| 1 |
*
We would like to express our appreciation to those whose insights and support assisted us in this endeavor. In particular we would like to thank Professor Lawrence Tribe, Professor Lloyd Weinreb, Justice Stephen Breyer, Jerome Kern, Jonathan Zittrain, an
d Stephen Messer.
|
| 2 | Art. I. Sec. 8, U.S. Constitution. |
| 3 | Stephen Breyer, The Uneasy Case for Copyright: A Study ofCopyright in Books, Photocopies, and Computer Programs, 84 Harv.L.Rev.281, 285 (Dec. 1970). |
| 4 | Id. at 289. |
| 5 | Id. at 286. |
| 6 | Berne Convention § 106A (1990). This provision applies to visual works. § 106A(a)(1) provides that the author has the right to claim authorship or deny authorship. § 106A(a)(3) provides the rights "to prevent any intentional distortion , mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right" and "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right." |
| 7 | See , e.g. , Lanham Act § 43(a). |
| 8 | Steven Shavell, Economic Analysis Of Law(Preliminary Draft, 11/10/94), § 7.2.1. |
| 9 | Id. § 7.2.17, n.6. |
| 10 | Id. § 7.2.1. |
| 11 | Breyer, supra note 2, at 329. |
| 12 | Allen N. Dixon & Laurie C. Self, Copyright Protection and the information Superhighway , 11 EIPR 465, 466. CompuServe software publishers offer software utility files and bug fixes available from their own upload nodes to identifiable users. |
| 13 | Id. |
| 14 | Peter E. Lewis, Prodigy Seen Opening Doors in cyberspace , N.Y.Times, May 11, 1995, at D11. Users can utilize an automated system that eliminates the need for specialized programming knowledge. Prodigy currently does not plan to charge extra for this capability, but is reserving the right to charge businesses t hat wanted to publish more than a few simple pages. While Prodigy is the first major service to announce this service, other providers will soon follow. Id. |
| 15 | Dixon & Self, supra note 11, at 466. |
| 16 | Id. at 467. |
| 17 | The On-Line Bookstore's Word Wide Web site is "http://marketplace.com/obs/top.htm." |
| 18 |
David Plotnikoff
, Good Manners and Good Business,
San Jose Mercury News, March 10, 1995, at 44. For example, Virginia Shea's book "Netiquette" is now for sale in its entirety on the World Wide Web, through a joint venture between Albion Books and the Bookport Web. The material is not downloade
d to the user's home machine. Instead, customers go to the site -- http://www.bookport.com/Albion/ and pay a small fee ($6.95 versus $19.95 for the paperback) to unlock the entire hypertext volume on-line and access one page at a time. This method all but
eliminates the unlicensed copy problem that had made many publishers wary of the Web. Id.
|
| 19 | Breyer, supra note 2, at 297 (Textbooks, for instance, are more costly to create than tradebooks.). |
| 20 | Deborah Reilly, The National Information Infrastructureand Copyright, J.Pat.& Trademark Off. Soc'y903, 917 (Dec. 1994)("It costs only pennies to press a CD-ROM disc, while the cost of print publishing continues to rise faster than the cost of living index."). |
| 21 | Eric Schwartz, The Herbert Tenzer Memorial Conference:Copyright in the Twenty-First Century: The Role of theCopyright Office in the Age of Information, 13 Cardozo Arts & Ent. L.J. 69, 72 (1994). |
| 22 | Laura Fillmore, OnLine Publishing: Threat or Menace? (found in "Information that wants to be Free" at http://marketplace.com/obs/top.htm.) Laura Fillmore is the President of the On-Line Bookstore. |
| 23 |
Anne W. Branscomb,
Common Law for the Electronic Frontier,
Scientific Aerican
,
Sept. 1991, at 154.
|
| 24 | Pamela Samuelson & Robert J. Glushko, Intellectual Property Rights for Digital Library and Hypertext Publishing Systems, 6 Harv.J. Law & Tech. 237, 240 (Spring, 1993). |
| 25 | Jessica Litman, The Exclusive Right to Read , 13 Cardozo Arts & Ent. L.J. 29 (1994). |
| 26 | Breyer, supra note 2, at 299-301. |
| 27 |
Fillmore,
supra
note 21.
|
| 28 | See, e.g., Playboy v. Frena, 839 F.Supp. 1552 (U.S.D.Fla. 1993)(independent bulletin board operator held liable for infringement of Playboy photographs.). On the Internet, there are newsgroups which are well-known for their computer-encoded depictions of copyr ighted photographic images. George P. Long, Identityand Anonymity in Cyberspace, 55 U.pitt.l.rev. 1177 (Summer, 1994) (one popular newsgroup is described as "Gigabytes of copyright violations). |
| 29 | John Perry Barlow, The Economy of ideas: A Framework forRethinking Patents and Copyrights in the Digital Age , Wired Online, (1994) at 14-15. Barlow, head of the Electronic Frontier Foundation, gives the example of broadly pirated software which becomes a standard and benefits from the law of increasing returns based on familiarity. |
| 30 | Breyer, supra note 2, at 302. |
| 31 | Id. at 303. |
| 32 | Freeloading might occur when interested buyers understate their interest in the hope that they will not have to commit to a higher price. Factors that oppose freeloading include ethical considerations, faster delivery by ordering through contract, and the fact that freeloading is only an option after the work has been produced, and the critical goal has been attained. Also, buyers are less likely to freeload when they see that others in their business have to contribute and share the risk of buying a poor book. See Id. at 303-04. |
| 33 | A successful contractual approach to intellectual property was achieved in France, where the government refused to protect new plant variations. A complex network of associations and cooperatives with multi-level contractual agreements developed and endur ed for some 66 years before the goverrment enacted a legislative scheme of property rights on plant varieties that essentially followed the lines of the previous contractual arrangements. I. Trotter Hardy, TheProper Legal Regime for Cyberspace, 55 Upitt.l.Rev. 993, 1019 (Summer 1994). |
| 34 | Samuelson & Glushko, supra note 23, at 240. |
| 35 | Dixon & Self, supra note 11, at 469. |
| 36 | Hardy, supra note 32 at 1031-32. |
| 37 | Dixon & Self, supra note 11, at 469. |
| 38 | Id. at 466. This type system is in place for the distribution of computer software; after agreeing to payment and licensing conditions, users can download software complete with access codes necessary to decrypt and use it, in order to achieve the same re sult as in traditional software distribution. Id. at 467. Additionally, access to works could be limited to one page at a time, so that the entire document cannot be downloaded at once. |
| 39 | Fillmore, supra note 21 |
| 40 | Id. The device was pioneered by William Gibson with "Agrippa." |
| 41 | Branscomb, supra note 22, at 154. |
| 42 | Fillmore, supra note 21. |
| 43 | Id. |
| 44 | Id. |
| 45 | Mark Landler, Slow-to-Adapt Encyclopedia Britannica is forSale, New York Times, May 16, 1995, at Dl, D4. Encyclopedia Britannica is now for sale after experiencing losses for the last few years. "For all its pedigree and quality, they said, the collection has failed to adapt itself to an industry that is being tr ansformed by new products like CD-ROM's and on-line services." Id. at Dl. "At $1,500 for a 32-volume set, Britannica seems both expensive and cumbersome next to Encarta, Microsoft's CD-ROM encyclopedia, which is based on Funk & Wagnalls and sells for $99." Id. at D4. "Britannica has belatedly acknowledged the electronic age with an on-line version of its collection on the Internet." Id. |
| 46 | Barlow, supra note 28, at 14. |
| 47 | Fillmore, supra note 21. |
| 48 | Hardy, supra note 32 at 1010. |
| 49 | Joseph Weiler, International Law Class at Harvard Law School (Spring 1993). |
| 50 | The Medieval "Law Merchant" was a body of customary rules that grew up in Medieval Europe as a response to the needs of international commerce. Special courts grew up to enforce the Law Merchant, whose jurisdiction was commercial transactions an d whose judges were drawn from the merchant class. The court was particularly effective for the filed, as the courts were practical and flexible because of the judges who were familiar with the customs and could be more adaptable than written rules. Hardy , supra note 32 at 1021. |
| 51 | Id. |
| 52 | The Copyright Act, at least, is a national law which preempts problems resulting from divergent state definitions of illegal behavior. In other areas regarding the regulation of the Internet, the problem is complicated by varying state standards. See, e.g., censorship: Part II.c.5, infra. |
| 53 | Jean Erhard, DigitalRights, internet world, Nov./Dec. 1994, at 81. |
| 54 | See generally Barlow, supra note 28. |
| 55 | See generally Arthur Miller, Copyright Protection forComputer Programs, Databases, and Computer-Generated Works:Is Anything New Since CONTU?, 106 harv.L.REv. 977 (1993). |
| 56 |
Information Infrastructure Task Force, Iintellectual Property And The National Iinformation Infrastructure: A Preliminary Draft of the Report of the Working Group of Intellectual Property Rights (July 1994).
|
| 57 | See Patricia Sinn, Protecting Computer Software andDigital information: Deciding What's Fair, 40 FED.B.NEWS& J. 226 (May 1993). |
| 58 | John S. Bliss, Counterfeiting in the information Age: AGlobal Threat to Intellectual Property Protection, Legal Backgrounder, August 12, 1994, vol. 9, no. 25. |
| 59 | Dixon & Self , supra note 11, at 469. "[A]nti-piracy organizations, such as the Business Software Alliance, have found that even present-day 'bulletin board', pirates, who engage in systematic copying of software through modems over the existing telephone network, are re latively easy to find and prosecute." Id. |
| 60 | Fillmore, supra note 21. |
| 61 | Dixon & Self , supra note 11, at 472. |
| 62 |
Breyer,
supra
note 2
,at 287. |
| 63 | Nicholas Baker, Infohighwaymen, new york times, Oct. 18, 1994, at A25 ("Whenever a magazine data base 'plays a single', (downloads or faxes an article to a consumer) some percentage of the fee charged would trickle down to the person who wrote the piece.") A comprehensive syst em was proposed by Ted Nelson termed "Xanadu." For a lengthy criticism, see Samuelson & Glushko , supra note 23, at 247-61. |
| 64 | A fundamental principle of the Berne Convention, to which the United States is a party, is that intellectual property rights are to be exercised only with the author's or rightholder's consent, which may be freely withheld, and that compulsory licensing s hould be avoided in all but extreme circilmntances. Id. |
| 65 | Library of Congress Awarded $13 Million for National Digital Library, bna daily report for executives, Oct. 14, 1994, Section A, at 197. |
| 66 | Id. (quoting the library' s Register of Copyrights, Marybeth Peters). |
| 67 | Id. |
| 68 | Dixon & Self, supra note 11, at 471. |
| 69 | Fillmore, supra note 21. |
| 70 | Id. |
| 71 | Michael Foucault, the Archeological or Knowledge and the Disclosure on Language, 216 (translated from the French by A.M. Sheridan Smith, Pantheon Books, New York, 1972). |
| 72 | One argument for regulatory abstention is the case study of the cable industry. Deregulation in this context has resulted in information providers who are more likely to meet the demands of consumers and in the lower the cost of basic services. Whether or not this is a desirable approach on the Internet depends on the respective underlying incentive structures of cable television and the Internet and is beyond the scope of this analysis. |
| 73 | Kovacs v. Cooper, 366 U.S. 77, 97 (1949) (J. Jackson, concurring). |
| 74 | See generally edward a. Cavazos & gavino morin, cyberspace and the law: your rights and duties in the on-line world (1994), 2-11. |
| 75 | Cyberspace Cadets: Senators Don't Know the Net andShouldn't Censor It, SAN JOSE MERCURY NEWS, April 16, 1995, at 10B. |
| 76 | By at least one account, information transfer on the Internet is such that the entire Encyclopedia Britannica could be sent from a New York computer to one in California in less than two seconds. When one considers that, by conservative estimates, fifteen to twenty million people are on line, the potential communicative power of this medium is enormous vis a vis other traditional forms. George P. Long, Who Are You?: Identity and Anonymity in Cyberspace, 55 U. PITT. L. REV. 1177, 1180 (1994). |
| 77 | Cavazos & Gavino supra note 73. |
| 78 | See, e.g., Perry Education Ass'n v. Perry Local Educators', Ass'n, 460 U.S. 37; Katz v. U.S., 389 U.S. 347; 18 U.S.C.A. § |
| 79 | In one case, a bulletin board operator was held liable for copyright and trademark infringement when he circulated actual materials from Playboy magazine on line. Playboy v. Frena, 839 F. Supp. 1552 (U.S.D.Fla. 1993). More recently, several newspapers and magazines have made their product accessible over the Internet. In addition, at least one online bookstore exists. |
| 80 | See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Erzonznik v. Jacksonville, 422 U.S. 205 (1975). |
| 81 | Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). But see FCC v. League of Women Voters, 468 U.S. 364 (1984) |
| 82 | For example, the Supreme Court's decision to allow for speech regulation of broadcast media under the rationale that there "is no sanctuary in the First Amendment for unlimited censorship operating in a medium not open to all" may be wholly inap plicable on the Internet. Red Lion Broadcasting, 395 U.S. at 392. |
| 83 | Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). |
| 84 | Cavazos & Morin, supra note 73. |
| 85 | The electronic response to the Electronic Decency Act reveals the existence and recognition of the Internet as a place for political discourse. See Cyberlobbying, PHOENIX GAZETTE, March 20, 1995, at C2. In addition, the perception of the Internet as an uncharted frontier reflects a fiercely individualistic American tradition which is resistant to outside interference to individual political and intellectual debate. Several organizations, such as the Electronic Frontier Foundation, are committed to limiting goverrmental involvement in on-line exchange. In the words of one writer, "freedom has been the lifeblood of computer communications." Stephen Chapman, Love at First Byte: When the Morals PoliceCrack Down in Cyberspace, CHICAGO TRIBUNE, March 26, 1995, at 3. More troubling are the limitations of any regulations formulated in the American context in their enforceability outside of the United States. |
| 86 | Jon Carroll, Once More into the Cyber, Part 11, SAN FRANCISCO CHRONICLE, March 8, 1995, at E8. |
| 87 | Jim Exon, New Law Will Protect Kids, USA TODAY, March 13, 1995, at A14. |
| 88 | S. Rep. 104-23 |
| 89 |
The debate over the proposed legislation has produced some
|
| 90 | 47 U.S.C.A. 223 |
| 91 | 47 U.S.C.A. 223(c)(1), (2) |
| 92 | Proposed Communications Decency Act of 1995, §an Amendment toSenate Telecommunications Bill, reprinted in Daily Report for Executives: Regulation, Economics and Law Text, March 24, 1995, [ hereinafter Communications Decency Act.] |
| 93 | Id. |
| 94 | Id. Prior to the proposed amendment the statute read as follows: "Whoever ... makes any comment, request suggestion or proposal which is obscene, lewd lascivious, filthy or indecent..."47 U.S.C.A. §(a)(1)(A) |
| 95 | 47 U.S.C.A. 223 (d)(6)(e) |
| 96 | Communications Decency Act. |
| 97 | Id. |
| 98 | 47 U.S.C.A. 223 (d)(6) |
| 99 | Roth v. United States, 354 U.S. 476, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). |
| 100 | 354 U.S. at 479. |
| 101 | 354 U.S. at 492. |
| 102 | In light of the fact that no such definition is provided, presumably courts would apply the Constitutionally permissible definition set forth in Miller. |
| 103 | Miller V. California, 413 U.S. 15 (1973). |
| 104 | Butler v. UniSable 492 U.S. 115, 125, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). |
| 105 | Pacifica, 438 U.S. 726. |
| 106 | Butler, 492 U.S. at 383. |
| 107 | Regulating access of indecent materials to minors is a permissible state interest. See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968). |
| 108 | Butler, 492 U.S. at 383. |
| 109 | Id. at 115. |
| 110 | Sable Communications of California v. F.C.C., 492 U.S. 115, 124 (1989). |
| 111 | Id. at 124. |
| 112 | Stanley v. Georgia, 394 U.S. 557 (1969). |
| 113 | Sable, 492 U.S. 115. |
| 114 | The overwhelming effect of a national standard is compounded by tho fact that in order to control the content transmitted through their networks, service providers would have to constantly monitor the input of their subscribers. |
| 115 |
Indecent speech is protected under the Constitution. See
generally
Roth v
.
United States, 354 U.S. 476 (1957); Sable, 492 U.S. 115. |
| 116 | Sable, 492 U.S. at 127. |
| 117 | See Pacifica, 438 U.S. 726. |
| 118 | In addition, enforcement may require measures that impede upon other rights, such as privacy, protected under the Constitution. Even where speech is clearly obscene, various communications on the Internet (such as e-mail) may be deserving of privacy prote ction. |
| 119 | Long supra note 26 at 1183. |
| 120 | John Schwartz, Sexually Explicit Story Sparks Debate OverOn-Line Rights, the Washington Post, February 27, 1995, at F20. This incident might call into question the desirability of Senator Exon's proposal as, the warning attached to this story might arguably shield the student from liability. |
| 121 | In light of the pending Amendment and uncertainty in existing copyright law, one legal advisor has been advising those under her supervision: "When in doubt, take it out." Jan Christiansen, lead counsel for Delphi, Address at Harvard Law School. |
| 122 | S. Rep. 104-23. |
| 123 | Arthur Miller, the Assault on Privacy: Computers, Data Banks and Dossiers(1971), 24. |
| 124 | Id. at 25. |
| 125 |
One commentator has suggested that mandatory key escrow
|
| 126 | Id. at 736-7. |
| 127 | Karina Wright, Smut on the Internet?, The Washington Post,March 24, 1995, at A2; Lawrence Magid, Senator Exon's CensorsAre Set a Little High for the Internet,The Washington Post, March 13, 1995, at F18. |
| 128 | Cf. Wisconsin v. Yoder, 406 U.S. 205 (1972). |
| 129 | See generally Assessing the New Hazards of the High Technology Workplace , 104 Harv. L. Rev. 1898 (1991) (Arguing for Congressional legislation to protect workers from the government and employer intrusion into their private technological communications.). |