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Copyright and Free Expression:
A Battle, or A Dance?

© 1996 David G. Post. Permission granted to redistribute freely, in whole or in part,with this notice attached.

Plugging In, January 1996

 In 1957, I was taken to see the Moiseyev Dance Company -- a Russian circus/folk dance troupe -- at Madison Square Garden in New York. The only thing I recall about the performance (other than the picketing going on outside the hall, in protest of the-recent Soviet invasion of Hungary) was one act where two midgets, dressed in what we would now call body suits, were wrestling on stage, locked in a tight embrace and furiously tossing each other around (though, mysteriously, never losing their grip on one another). This went on for several minutes until, finally, the body suits were removed -- only to reveal, to general astonishment, a single person underneath.

 To this day I have no comprehension of how this illusion was sustained, but it came to mind when I was recently asked to speak on the relationship between copyright law and the First Amendment in cyberspace. Like the two wrestlers, copyright and free expression are starting to push each other around in cyberspace, each looking for a foothold to gain the advantage; and we are left to wonder whether there is, indeed, a single fundamental principle or value underlying the two combatants.
Consider, for example, the likely fate of "fair use" -- the principle, embodied in section 107 of the Copyright Act, allowing individuals to make copies of copyrighted works "for purposes such as criticism, comment, news reporting, teaching, . . . , scholarship, or research."

Fair use fosters public discussion and debate of the new ideas contained in copyrighted works (and, to an extent, allows copying of the expression contained in those works so as to permit that discussion to proceed); it thus functions as a kind of safety valve, resolving the inherent tension between the need simultaneously to protect copyrighted material and to allow others to build upon it, insuring that the property right granted to copyright holders is used to invigorate, rather than stifle, expressive activity. In cyberspace, while fair use is not yet at the hospital door, it might be feeling some dizziness, the prelude to a more extended stay in the E.R; aggressive intervention may be required for it to survive.

 Most -- probably the vast majority -- of instances of fair use are justified (or rationalized) on the grounds that individualized bargaining between the user and the copyright holder is (virtually) impossible; the copy of the New Yorker cartoon that I put on my refrigerator, the copy of a magazine article that I send to a friend, the copy of a story from the New York Times that I hand out in class -- all may involve an infringement of the copyright holder's rights, but we tolerate these activities largely because it is absurd and impractical to obtain the copyright holder's permission, and because the harm to the copyright holder's interests is minuscule.

But in cyberspace, those "transactions costs" -- of negotiating a license fee for each use of a copyrighted work, however trivial and insignificant -- are rapidly disappearing. Imagine a world in which documents distributed electronically are not only encrypted but contain small embedded programs that can generate a complete record of every time the document is used (i.e., called up onto the screen, printed out, etc.). These so-called "steganographic" techniques are not yet fully developed (although the meeting I referred to in the first paragraph, at the Library of Congress, was called to discuss just such new technologies), but when they are widely available they will allow copyright holders to track all distribution and usage of their digitized works on the global network; user access to those works -- even access that might be considered "fair use" under current law -- may then be conditioned upon, payment of a transaction-specific fees (fees that, to be sure, may be measured in tenths, or hundredths, of a penny).

 And once tracking and payment mechanisms of this kind are in place, is there still a place for fair use? The Second Circuit has recently suggested that there may not be. In Texaco v. American Geophysical Union (60 F.3d 913)), the court held that Texaco researchers who routinely made copies of articles from scientific research journals were not making fair use of that material, basing its holding, in substantial part, on the recent introduction of convenient schemes (offered by the Copyright Clearance Center) under which Texaco could have obtained blanket copying rights upon payment of blanket licence fees. In short, uses that might once have been considered fair (when the transactions costs of bargaining were prohibitively high) are no longer in that category (when those costs have declined significantly).

And the Administration's recently-issued White Paper on Intellectual Property and the National Information Infrastructure, indirectly, takes a position that may have equally dire consequences for our notions of fair use. The White Paper recommends adding a provision to the Copyright Act to prohibit any person from "import[ing], manufactur[ing], or distribut[ing] any device, product, . . . the primary purpose or effect of which is to . . . deactivate, or otherwise circumvent, . . . any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner . . ." In other words, if rightsholders choose to utilize new technological means to control access to, and prevent unauthorized copying of, their works, it will be a federal crime to attempt to defeat those technologies -- even if that is the only way to make what might otherwise be considered "fair use" of that material.

And the conflict between seemingly narrow questions of copyright law and broader First Amendment questions is also well illustrated by the legal campaign now being waged by the Church of Scientology. One of the more active discussion groups on the "Usenet" -- a portion of the Internet containing thousands of discussion forums on everything from politics to cooking to rock climbing -- is the "alt.religion.scientology" group, devoted to a discussion of the training methods and teachings of the Church of Scientology. A number of sensitive Church documents have been posted to this group, as well as to individually-operated bulletin board systems, documents that the Church has claimed contain copyrighted and trade secret material. To the members of the Church, these are simple and straightforward transgressions: certain individuals have taken advantage of the electronic network's extraordinary distribution capabilities to violate their exclusive rights to this material under US copyright and trade secret laws.

To those on the other side, the issue is a bit more complicated; the Scientologists, they claim, are using intellectual property law as a sword, not to protect whatever their legitimate interests may be but to stifle vigorous (and oftentimes highly critical) public debate over their methods of operation.

 Whatever may be the "correct" outcome in these cases -- indeed, whatever one thinks the "correct" rule regarding copyright protection or fair use might be in cyberspace, one necessarily confronts a difficult enforcement issue: how will any rule be implemented and enforced against violators in a global environment where the location and the identity of "wrongdoers" is often impossible to determine? The "litigation market" is already supplying us with one answer to this enforcement conundrum: parties believing themselves to be injured will look to the intermediaries -- the individual system operators through whose facilities access to the Internet and other electronic communities is provided -- to make them whole, either because they have the deepest pockets, or because they are the only pockets in sight.

 The Scientologists have indeed taken on the network service providers in their attempt to have this allegedly infringing material removed from the Net, and several weeks ago, in the case of Religious Technology v. Netcom (N.D. Cal., Nov. 21, 1995), Judge Whyte refused to dismiss charges of contributory copyright infringement against one such service provider, Netcom, holding that Netcom may be liable for contributory infringement if it "knew or should have known" about the infringing postings. The Scientologists had, in fact, notified Netcom by letter that, at least in their view, infringing material had been transmitted over Netcom's system; this, the judge held, creates a factual question

"as to whether Netcom knew or should have known that Erlich [the defendant who originated the postings] had infringed plaintiffs' copyrights . . . .Because Netcom was arguably participating in Erlich's public distribution of plaintiffs' works, there is a genuine issue as to whether Netcom knew of any infringement by Erlich before it was too late to do anything about it. If plaintiffs can prove the knowledge element, Netcom will be liable for contributory infringement since its failure to simply cancel Erlich's infringing message and thereby stop an infringing copy from being distributed worldwide constitutes substantial participation in Erlich's public distribution of the message."


Service providers and system operators ("sysops") like Netcom, I am told, routinely receive complaints of the kind that Netcom received in this case. What is a reasonable sysop to do? On the one hand, it faces a risk of liability if they leave these postings online and the claim turns out to be a valid one. On the other hand, if it removes the offending posting, it is probably immune from liability, because it [probably] has a contractual right to remove postings and because users have no enforceable rights under the First Amendment against private entities like these.

Needless to say, faced with this risk calculus, the offending messages will be removed -- pending, perhaps, further investigation and litigation, but unavailable to the public in the interim. This is the wrong result -- a bias in the law in favor of copyright claimants (including those claimants whose claims may be spurious) and against those whose expression is curtailed by the sysop's actions.

 We may wait for the law to respond -- either by rules that alter the scope of the sysop's liability, or by a declaration that these networks are public fora to which the First Amendment rules do apply, or perhaps in other ways. In my next column I will describe a different approach that we have begun to implement, a pilot online arbitration project for rapid, interim resolution of claims of this kind that are brought to the attention of sysops, which may provide sysops with real-time guidance as to the validity of individual claims and as to the reasonableness of taking action (or, importantly, of not taking action) in the face of such claims.


© 1996 David G. Post. Permission granted to redistribute freely, in whole or in part,with this notice attached.

Contact David Post by e-mail at Counsel Connect: david.post@counsel.com.