The Internet and Property Rights: What's Mine is Yours?
Here is a summary report of the recent roundtable discussion at the National
Press Club hosted by the Cyberspace Law Institute of Georgetown University.
The discussion was entitled: The Internet and Property Rights: What's Mine
The original list of panel participants were (according to the press release
for the event, which is attached below):
Panel Moderator: Bill Burrington - AOL
BB clearly represented AOL and sees it as the model for the Internet,
he primarily acted as a moderator and did a good job of keeping the
panelists in line
Vint Cerf - MCI
VC seemed wise and fatherly :-), he supports technical implementations
to solve most problems
David Johnson - Cyberspace Law Institute
DJ seemed poised, professional, and neutral, did more to facilitate
discussion than to make a specific point
David Post - Cyberspace Law Institute
DP appeared energetic and radical (the only one who was clearly on the
side of the general public as opposed to copyright holders)
Wayne Rash - Contributing Editor, Communications Week
WR looked like a capitol hill man and showed vested interested in
protecting copyright holders
Dan Duncan - Information Industry Association
DD Acted like a lobbyist, strident and unpleasant, wants stronger
Peter Pitsch - Progress and Freedom Foundation
PP was uptight and governmental, ivory-tower legislator type, beltway
Chris Katopis - Did not appear
Earle Cooley - Did not appear
Two additional panelist appeared to fill the empty seats:
Helena Kobrin: Counsel, Church of Scientology International and RTC
HK looked tired, unhappy and looked put-upon
Rebecca Fry: Attorney, Intellectual Property, Foley & Lardner
RF was bright and professional, clearly used to representing copyright
*Note: all participants will be identified by their initials throughout the
rest of this document. All conversation reported below is from notes I took,
and should not be considered direct quotation. My notes seriously dwindled
after the first hour, there was a lot of reiteration of things said before.
I think I got most of the pertinent points made.
The event was held in the First Amendment Room. BB began the discussion by
- Georgetown University's Cyberspace Law Institute for hosting the event
- Janet Weiland(sp?) of the Church of Scientology for proposing the idea for
the event (Janet was there, sitting in the back of the room)
- C-SPAN for covering the event (It was shown early on in the afternoon of
The panelists were then introduced. BB mentioned that Senators Hatch and
Moorhead(sp?) were currently working with AOL and a group of copyright
holders on these issues.
BB: Does current copyright law apply to Cyberspace?
VC: Copyright law does apply, it is intentionally malleable and has adapted
to technology before.
DP: Copyright law should NOT apply to the Internet. The entire medium is
devoted and designed around copying. If copyright restrictions are fully
enforced on the net the net will be shut down. It compares to the idea of
WP:It's imperative that a way is found to make it possible to create and
get paid for it.
HK: Disagrees completely with DP. An author has the right to protect their
property. The courts are currently applying copyright restriction to the
net. Copyright does apply to cyberspace.
DJ: It's important to classify works and apply copyrights differently for
example a published book and an e-mail.
PP: We must balance 2 goals: the incentive to create and the creation of a
productive beneficial environment for idea exchange. Decentralized, cautious
approach based on common law concept is the best bet
BB: Copyright law evolved for TV and the invention of the photocopier, it
can evolve for this. Service Providers are not "common carriers" like phone
PP: It won't be a smooth transition, there will be bumps
BB: The media is growing to rapidly for government to keep up
RF: Don't ditch current copyright law. Crucial to define Fair Use, copying,
DD: Anarchy is prevalent on the Net. If users do not come up with rules for
themselves, someone else will have to. Copyright laws work with TV.
DP: TV is a 1 to many medium. The Net is many to many. If TV was interactive
and everyone could create shows, copyright law would not work. If we do not
know what kind of authorship will be on the net, how do we know what
incentives are needed to promote it (i.e. copyright)? A new kind of
authorship will take advantage of the Net.
DD: Cyberspace is more than the Internet.
VC: DP is wrong, if there are mechanisms put in place to protect content
everyone will need them. Software is malleable enough to handle whatever
diverse changes are necessary. The only challenge is to come up with a
workable concept, implementation should not be a problem.
BB: If you are Time-Warner, Disney, Microsoft, AOL, or the Church of
Scientology then current copyright laws should apply and copyrights need to
WR: Service providers have the right to demand any restrictions they want
(like the preemptive suspending of an account in response to a copyright
claim). If people don't like it then don't use a provider.
VC: Copyright laws will need to be machine-imposed, it is an impossible
task for humans.
DP: What about automated caching of information? If a copyright owner
restricts rights to copy their work, they will have to accept lesser
distribution. On-line liability is a separate issue from copyright law.
HK: Copyright law is currently strict liability, there does not have to be
intent for copyright violation to take place. The CoS believes in warning
the customer and the ISP. If the customer and the ISP don't comply they are
both liable. The ISP put the system there, nobody made them. They are
accessories by providing the means. Some providers do cooperate.
BB: I met with the Church of Scientology to find out 'what's your beef?'.
They have tremendous vested interest in protecting their copyright as does
AOL and other intellectual property owners. We are all in the same boat.
Providers (like AOL) do not want to be part of the liability chain. If a
provider gets a complaint, they must respond to it. How will AN IP holder
provide notice and evidence of infringement? AOL does not want to be a
net.cop. Optional approach - immediate (temporary) shut down upon complaint
- has 1st amendment problems.
DJ: ISPs are not inherently liable. Copyright holders need a way to complain
to a neutral 3rd party that is knowledgeable about the Net and IP law. The
3rd party would make an initial decision as to whether or not there is prima
facia evidence of copyright infringement. This would take liability away
BB: Commissioner Layman(sp? - does anyone know who this is?) and the Church
of Scientology want immediate shut down of the offender upon complaint.
WR: Who will be this virtual magistrate? Government? Industry? Individuals?
DD: We must be able to suspend activity during arbitration.
DP: I disagree, this opens up abuse against individuals by copyright
holders. New ways to determine guilt and innocence are needed.
HK: Another aspect... I am a proponent of free speech and so is the Church
of Scientology. Prior restraint right should reserved be in all ISP contracts. Do it
voluntarily or we will make you.
DP: We have a very rough consensus here, the mere issuance of a complaint
should not be enough to shut someone down. The only solution is for the ISP
to do a quick "smell test" to determine if claim has prima facia value.
DD: This is not about free speech or even discussion about copyrighted works,
this is about protecting copyright holders.
RF: If an ISP has a clause in their service contract disallowing illegal
activities then they can not avoid all liability. They can't be an ostrich
with it's head in the sand.
BB: Right now AOL receives complaints via snail-mail and acts on them and it
RF: We need to differentiate knowingly vs. accidentally infringing on
copyrights. The law does not now.
DD: What level of knowledge about what is on their system does an ISP need?
It's impossible to know everything that is on your system.
WR: ISPs can't immediately know what's on their systems - systems are
partially out of control. ISPs are not copying works, they are providing a
HK: I am for an amendment to the law that if an ISP responds properly to a
complaint they should not be liable. CoS takes a different approach because
confidentiality of materials demands immediate response. We can't ignore
freedom of religion.
DP: Cyberspace is better than the "real world" in terms of determining and
proving copyright claims. Imagine if you thought that someone was copying
your IP physically, you would need a court order to get access to their
property to find out if you are correct. We do need a fast response
mechanism to deal with copyright and confidentiality abuses.
DD: Helena, What process do you use to seize PCs?
HK: Court order, prove urgency to judge.
DJ: The privacy act should not infringe a publishers right to actively
pursue a claim. Anonymous remailers have a responsibility to be able to turn
over real names of people engaging in illegal activity upon valid complaint.
BB: It's a mess. Commissioner Bruce Layman thinks that educating users about
copyright laws will solve a large percentage of problems. What is the role
PP: We need private, decentralized methods to solve these problems. We
should rely on the courts and not legislation to drive the legal factors.
BB: Different rules for different governments won't work.
WR: Government should only be involved to enable flow of information and not
be net.cops. It's impossible for the U.S. government to control the Internet,
current Senate hearings notwithstanding.
DJ: Government would show great leadership to lay off of Internet phenomena.
Those who provide a means of trade (ISPs I assume) will find a solution in a
free market eventually. It can't be rushed.
BB: The Law of the Sea should be the model.
PP: The US is not signatory to the Law of the Sea. The Law of the Sea hasn't
prevented many problems. Government will move too slowly. Government should
be involved in helping set basic guidelines, but people involved (users and
ISPs) must drive it.
HK: The role of government is directly related to the responsibility of the
net. An example: The Roman empire, no one was being responsible, so it
crumbled. Anonymous users think they are beyond the law. Anonymous remailers
must respond acceptably to legal complaints or they will become government
BB: Senator Cole from Wisconsin agrees. Regarding virtual
magistrates, what's to prevent copyright holders from harassing individuals?
Wouldn't this be a type of private law enforcement?
HK: As a lawyer I can say that the legal system is not the most expeditious
way to resolved disputes. It's not private law
enforcement. It should be written into ISP contracts, they should reserve the
necessary rights. It's not harassment... you can clearly see what's going
on... it's obvious... the... the issues are clear!
DP: Copyright law is not clear, it is not a black and white issue. There are
complicated issues. For example, Fair Use, if anyone can give me a clear and
complete description of Fair use in under a half hour, please talk to me when
we are done. I have to teach it to my law classes and I can't do it. There
is a possibility for abuse on both sides of the issue.
WR: Various forms of non-legal arbitration are common, and are always an
option, when available, if both parties agree.
HK: Not always, some contracts limit arbitration to specific arbitration
BB: What legal changes are required?
RF: Adjust strict liability status of copyright law to reflect the difference
between intentional and accidental copyright violations. Statutes need to be
put in place regarding what is making a copy? and what is publishing? as
HK: I agree. An ISP shouldn't be liable if they respond satisfactorily to
DD: My group doesn't want changes to the Fair Use doctrine. Increasing Fair
Use exemptions will weaken copyright law and lower incentives to create
DP: The white paper made a mistake by strengthening current copyright laws.
DD: The stronger the copyright laws the more valuable the content of a
copyrighted work will be.
DP: There is a conflict between the interests of a copyright holder and the
general public. The public _needs_ to get involved in any changes to
DJ: There is a merging of 2 cultures going on; one that relies on copyrights
and one that does not.
HK: Regarding Anonymity, crime, and responsibility: legislation must be put
in place that will force anonymous remailers to be able to give up
records of their users.
DJ: Anonymous transmission of information is nothing new, and has valid uses.
It is an important part of political freedom.
Question from the audience: Do people who post messages have protection for
the contents of their message under copyright law?
DP: Yes, and it's a problem that has not been addressed yet.
**End of discussion**
My personal experiences at the conference: My thanks go to Jarad Smith for
putting me on the guest list at the last minute. I was surprised to see
Janet Weiland and another scientologist I had met at the protest at the D.C.
Org. The discussion was clearly designed for Scientology. I have never
attended an intellectual property discussion before, so I'm not sure I would
recognize a "well-balanced" panel, but... It was used as a forum to
legitimize and drum up support for their declared position on the "CoS vs.
the Internet war" Despite that, it was _not_ a kangaroo court and differing
opinions were heard. I think it was a valid, if somewhat one-sided,
discussion of intellectual property rights and the Internet. It would be a
good idea to get a look at the recent Commerce Department report
"Intellectual Property and the National Information Infrastructure that
supposedly prompted the event (according to the press release). The flyer
that they gave us at the discussion mentions another reason for this
-------------Begin Fair Use extract---------------
Recently an incident involving allegations of wide spread copyright
infringement on the Internet resulted in national news headlines and
thousands of messages on Internet newsgroups.
Some say that the principle of free speech allows unlimited posting of
someone else's ideas, documents or other materials on the Net, while others
claim that such actions must be restricted by copyright or other legal rules.
-------------End Fair Use extract---------------
I have tried to be as fair as possible in reporting what was said, and I now
leave the discussion floor open for any and all comments.
----------Begin press announcement---------------
A prestigious group of Internet experts will hold a roundtable
discussion entitled "The Internet and Property Rights: What's Mine is
Yours" on Wednesday, October 4 at the National Press Club from 9-11 a.m.
This discussion follows the Department of Commerce's recent release of
the "Intellectual Property and the National Information Infrastructure"
report which outlines possible changes to current U.S. intellectual
Bill Burrington -- Panel moderator -- America Online/Interactive
Vint Cerf -- Senior Vice President, MCI, and recognized as "Father
of the Internet"
David Johnson -- Attorney, co-founder, Cyberspace Law Institute
David Post -- Associate Professor, Georgetown Law & co-founder,
Cyberspace Law Institute
Wayne Rash -- Network Consultant and Contributing Editor,
Dan Duncan -- Vice President of Government Affairs, Information
Earle Cooley -- Attorney, Lead Counsel, Church of Scientology
Peter Pitsch -- Progress and Freedom Foundation
Chris Katopis -- Legislative Counsel, Rep. Sonny Bono (R-CA)
WHAT: Roundtable Discussion on the Internet and Property Rights
WHERE: First Amendment Room
National Press Club
WHEN: Wednesday, October 4, 1995
TIME: 9-11 a.m.
CONTACT: Tyler Gronbach or Jarad Smith for the Cyberspace Law
/PRNewswire -- Sept. 29/
CO: Cyberspace Law Institute ST: District of Columbia IN: CPR SU:
Copyright 1995 PR Newswire. All rights reserved