Law Rules: Internet Vs First Amendment

The Wall Street Journal, October 25, 1999
By Jason L. Riley

NEW YORK - The Internet is testing America's vaunted commitment to free speech. The Web now gives individuals the means - and the First Amendment, the right - to applaud, critique, parody or simply discuss whatever with whomever on an unprecedented scale.

The past few years have seen a body of law begin to emerge to address these issues. First, courts rejected would-be Web censors, who wanted ill-defined "decency" laws enacted to ban "offensive" material online.

The marketplace has responded with technological advances such as browsers and search engines that enable smut-free surfing. While that debate is not yet settled, another has gained attention. The ease with which the Internet allows us to reproduce and disseminate texts and images has raised concerns about protecting intellectual property, specifically copyrights.

Intellectual property not only has a long and important history in our democracy, it happens to constitute a significant bulk of what Silicon Valley produces. If innovation is to continue apace, innovators need assurances that they will be duly credited and compensated for their ingenuity. In his book, "Law and Disorder in Cyberspace," Peter Huber traces the origins of copyright law, which shadow the birth of the printing press in the late 15th century.

Codified for the first time in England in 1710, the framers decades later saw fit to embed copyright protections in the Constitution.

Today, copyright law in the U.S. is governed by the Copyright Act of 1976. Among other things, it gives the owner exclusive right to reproduce his work and distribute copies to the public. These rights, however, are subject to limitations, one of which is the doctrine of "fair use." Fair use allows others to lawfully reproduce copyrighted works "for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research." But reproducing copyrighted work for commercial gain - for instance, posting this article on your Web site without permission and charging for access to it - is unlawful.

The Internet's unique ability to turn each of us into publishers, commentators and critics to be reckoned with has swelled court dockets, often pitting the interests of free speech against the interests of intellectual property holders. In a high-profile decision last month, a Michigan federal judge ruled in favor of a defendant who had been accused by Ford Motor Co. of breaching copyright and trademark law.

Robert Lane operates a Web site that publishes information about the auto manufacturer. What began as a friendly relationship turned sour when Mr. Lane began posting material critical of Ford. In response to threats of legal action from the company, Mr. Lane started posting numerous copyrighted, internal documents owned by Ford, which resulted in the lawsuit. In her decision, U.S. District Court Judge Nancy Edmunds said Mr. Lane's copyright violations were secondary to his First Amendment right to copy and disclose information about Ford obtained from the internal documents.

"In the realm of law, we are only beginning to grapple with the impact of the communications revolution," wrote Judge Edmunds, "and this case represents just one part of one skirmish - a clash between our commitment to the freedom of speech and the press, and our dedication to the protection of commercial innovation and intellectual property. In this case, the battle is won by the First Amendment."

Many First Amendment lawyers cheered the decision, perhaps out of awareness that free speech arguments haven't always fared so well in past court battles involving similar issues. Since 1995, the Church of Scientology has waged an aggressive legal campaign against anyone daring to bad-mouth the group online. In instances where cybercritics have posted excerpts of the church's copyrighted secret texts, Scientologists have sued with mixed results.

In a 1995 ruling against the church, U.S. District Court Judge Leonie Brinkema wrote: "When the [Scientologists] first approached the court . . . the dispute was presented as a straightforward one under copyright and trade secret law. However, the court is now convinced that the primary motivation of [the Scientologists] . . . is to stifle criticism of Scientology in general and to harass its critics."

Contrast that decision with one issued two years later by another district court judge, Ronald Whyte in California. Again, the church accused the defendant, Keith Henson, of violating its copyright and trade secrets through his Internet postings. Mr. Henson argued that his postings were protected under fair use, since his motive was not to profit from the church's writings but to expose what he considers a corrupt organization. This time, however, the judge agreed with the

Scientologists and ruled in their favor. Further, a jury deciding on damages in the case last year awarded the church $75,000. The inconsistency doesn't surprise observers like David Post, a law professor at Temple University. For one, "the threshold for copyright protection is fairly low," says Mr. Post, who is also co-director of the Cyberspace Law Institute. "Pretty much anything that you can imagine flying around out there in cyberspace is protected. So copyright is going to be the place where people try to shut up their opponents. It's the weapon of first resort, in a sense."

More important, says the professor, is the fact that the issue is being played out through the common law process of the courts, in a sort of conversation among judges. This process, says Mr. Post, is a very effective, decentralized way of adapting existing law to this new medium without ham-fisted legislation.

Given time, the Internet has a way of solving some of the very problems it creates. The rise of technological methods to keep kids away from online pornography is one example of this, and new technology may be the wildcard in addressing copyright concerns. In the future, copyright holders may come to rely less on legal cover that they may or may not have, and instead turn to technological protections, such as access codes, encryption software and tracking devices.

"People find ways to protect their property," says Mark Schultz, an attorney in Chicago who specializes in Internet law. Mr. Schultz says technological solutions aren't only preferable but probably inevitable, due to the economics. Copyright holders don't want "to file an expensive lawsuit every time somebody infringes," he says. "It's much cheaper to stop infringement from happening."


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