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"Clarifying" the Law of Cyberspace

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

 The hoopla surrounding passage of the Telecommunications Reform Act of 1996 -- and its provisions regarding the provision of "obscene" or "indecent" materials over computer networks -- suggests that this is, at least, the sexiest story thus far regarding Congress' attempts to regulate activities on the Internet. I doubt, however, that it is the most significant one. Congress is now considering amendments to the Copyright Act that would likely have far greater impact on the development of electronic communications than will the Communications Decency Act, though, since it lacks any reference to children poring over pornographic images, press coverage has been less than overwhelming.

The bills were originally proposed in the Administration's "White Paper" on Intellectual Property and the National Information Infrastructure, published last Fall, as a way to "accommodate and adapt [copyright] law to technological change so that the [balance between producer and users] is maintained and the Constitutional purpose" -- to "promote the progress of science and the useful Arts" -- is served. The White Paper labels these changes as only a "minor clarification" and "limited amendment" of current law, a "few alterations" that will update a "fundamentally adequate and effective" Copyright Act. But I, and others, believe that they may represent far more than that. This is not just a trivial semantic point; after all, who cares (or should care) about some "minor clarification" of an already complex, technically intricate, and at times incomprehensible statute? But if these proposals will in fact fundamentally re-shape the way that copyright law applies to digital information on the global network, then anyone with an interest in how the law is going to shape this global resource -- and that, surely, is a large category -- should care, and care deeply.

 Two themes draw together many (but not all) of the White Paper's recommended changes.. First, although we all know that copyright deals with rights in intangible "intellectual property," current law generally requires a "material object" before the law's protections apply. For example, no work obtains any copyright protection at all unless it is "fixed in a tangible medium of expression"; that great poem you've been mulling over in your head does not become a copyrighted work unless and until "its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Similarly, the copyright holder's fundamental rights to control copying and distribution of her work extend only to control over the production and distribution of "copies," defined as "material objects . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Any other form of reproduction or distribution is not covered by the Act (and is, therefore, outside the control of the copyright holder -- "user rights," if you will).

 In summary, copyright law is, generally speaking, looking for something in material form to wrap its hands around before its protections for authors kick in. But in cyberspace, where information consists of little more than electrons whizzing from one machine to the next, "material objects" are conspicuously absent. This is, to put it mildly, a hard problem -- indeed, it may be the hard problem regarding development of law in cyberspace. If we deem the transmission of electronic information from one computer to another sufficient to constitute the "fixation" of a "copy," then there is virtually no action one can take online -- from reading your email to posting a comment on a discussion group to browsing on the World Wide Web -- that will not constitute a prima facie case of copyright infringement, subject to the control of the copyright holder. Will subjecting every single transaction in cyberspace to the claim of some copyright holder really "promote the progress of science and the useful Arts"? It looks more like promotion of the economic interests of copyright holders (and their lawyers) to me, with users, thinking that they are participating in ordinary "conversations"online, suddenly awash in copyright claims. But on the other hand, if we declare that those whizzing electrons are not sufficiently fixed to constitute the subject matter of copyright, then virtually nothing that takes place in cyberspace falls within the copyright holder's control, and we have, in effect, a copyright-free zone, where the legitimate expectations of copyright holders can be destroyed with impunity at the click of a mouse.

A more nuanced approach to these questions is clearly called for, a re-thinking of what kinds of protections best promote those legitimate expectations while insuring that users' freedom to utilize this medium for communication is not choked off. No single rule is likely to deal adequately with all possible forms of "copying" in cyberspace, e.g., copying of files into Random Access Memory to allow display of a file on a computer screen, copying of files into a storage "cache" as a way to speed up access to documents on the World Wide Web, copying of files to permit indexing of World Wide documents. Perhaps we need to distinguish these forms of copying from other kinds of copying that more obviously and dramatically implicate the author's interests (e.g., ordinary "piracy" -- the copying and distribution of reproductions of information in competition with the author and in derogation of her reasonable expectations of receiving compensation for that information). Perhaps copyright law should treat material that originates in cyberspace -- that the author has voluntarily placed into this new domain -- differently than material "smuggled over the border" from the real world (in which the author ha not indicated any consent to operate under the kinds of copying so easy to achieve in cyberspace)?

But nuance is not the White Paper's strong suit; its "limited amendment" of copyright law will settle this problem once and for all, by "clarifying" that, indeed, every transaction in cyberspace does implicate the Copyright Act. Shouldn't we think twice before incorporating this notion into our fundamental copyright law? That is, of course, what our common law decision-making system is designed to do -- to think twice (and more than twice if necessary) about difficult questions, to look at the various factual contexts in which those questions arise and seek some understanding, in an incremental fashion, of new phenomena. These questions have begun to percolate through the courts, and are slowly coming into better focus. Are we really ready, as the White Paper appears to be, to give a final, definitive answer to this question? Or should we, perhaps, wait a bit while that decentralized common-law process has a chance to chew this question over a bit more?

A second theme that sounds loudly in the White Paper recommendations is that of giving copyright holders the power to preserve their (greatly expanded) "rights" through technological means. The White Paper -- correctly, in my view -- recognizes that in the emerging age of digital information, "copyright owners [will] look to technology, as well as the law, for protection of their works," that "[c]ontent providers will rely on a variety of technologies [such as encryption and automatic licensing scheme], based in software and hardware, to protect them against unauthorized uses of their information products and services. . . ."

The White Paper recommends adoption of several provisions designed to strengthen these developing technological protections for copyright holders. It provides that it will henceforth be a civil (and in some circumstances a criminal) violation to "knowingly provide false ëcopyright management information'" -- which includes "the name and other identifying information of the author of a work, the name and other identifying information of the copyright owner, [and] terms and conditions for uses of the work . . ." -- or to "knowingly remove or alter any copyright management information." These provisions are not restricted to copyrighted works in cyberspace or in digital form, but will apply across-the-board. Are pseudonymous works -- which would appear to contain "false copyright management" -- henceforth prohibited? Perhaps that is too far-fetched an interpretation. But the prohibition against removing or altering copyright management information would appear to give authors an enforceable "right of attribution" to their works. An attribution right is a staple of continental "moral rights" copyright schemes, and it may be a grand idea to import this idea into US copyright law. But the question of whether, and to what extent, to recognize this and other moral rights is one of the most contentious in all of copyright law; the history of our entanglement with notions of moral rights goes back over 100 years, and was at the heart of the debate over US adherence to the Berne Convention on Literary Property. Is it a "minor clarification" to resolve that debate once and for all?

Finally, the proposed amendments include a prohibition on the manufacture of any device whose "primary purpose or effect" is to "bypass, deactivate, or otherwise circumvent" any copy-protection system -- that is, any "system which . . . inhibits the violation" of the copyright holder's reproduction or distribution rights. We can agree with the White Paper that in the (near) future, copyright holders will begin using document management schemes that are sufficiently sophisticated and efficient that they will be able to track all distribution and usage of their digitized works on the global network, and under which user access to those works may be conditioned upon payment of a licensing fee. And true, as the White Paper again notes, what the technology giveth the technology can taketh away; there is likely to be a thriving market in schemes to defeat these kinds of tracking, monitoring, and copy protection schemes. Current law strikes a careful and delicate balance between these opposing technological forces, a balance the White Paper will undo. By prohibiting the manufacture of any device whose "primary purpose or effect" is to "circumvent" any copy-protection system, the proposal stands upside down the principle laid down by the Supreme Court in Sony Corp. v. Universal City Studios, Inc., 464 US 417 (1984), the "home taping case." In that case the Court held that even if copying devices (like VCRs) can be used for infringing purposes, the manufacturer of such equipment cannot be liable for those infringements so long as the equipment "merely . . . capable of substantial noninfringing uses." But under the new proposals, even if such a device is capable of substantial noninfringing uses -- even if, in other words, it can pass the Sony test -- the manufacturer must show that these legitimate uses constitute its "primary purpose or effect" or face liability. There are, of course, valid and legitimate reasons why one might want to disable protection schemes of this kind -- to gain access, via some form of "reverse engineering", for example, to unprotected information contained in the document (e.g., facts, public domain information, or ideas), or to engage in various forms of "fair use" (such as the home taping at issue in Sony). But who will dare give users the tools to do that, knowing they face civil and criminal liability for having done so? When copyright holders utilize powerful technological means to control access to their works, having the theoretical legal right to make fair use of that material will mean little if this legislation deprives you of the technological means for doing so.

 These recommendations may, or may not, be wise policy; these are hard questions on which reasonable people may disagree. "Minor clarification and limited amendment" of the Copyright Act, however, this is not. The White Paper's characterization of these as a kind of "tinkering around the edges" has shielded these proposals from the kind of public scrutiny that might have greeted, say, an announcement that "Copyright law is being fundamentally reshaped for the next century." What the White Paper says is correct; in this new and exciting, though uncertain, context, we should leave copyright law alone for a while. What the White Paper does, however, belies this principle. With so many difficult new questions cropping up each day, and with the technology and the market changing so rapidly, we are unlikely to yet have all of the answers and to be ready to codify those answers in our statute books. Decentralized, case-by-case consideration of the applicable principles, utilizing ordinary common law adjudicative procedures, may be far better suited to this task than one-fell-swoop statutory revision. The public might want to pay a bit of attention lest this process be short-circuited.

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

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