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 
is Yours?

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 
     copyright laws
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 discussion)

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 
copyrighting words.

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, 
and duplication

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 
be protected.

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 
from ISPs.

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
of Government?

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 
regards cyberspace.

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 
creative works.

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 
copyright law.

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
property law.

    Bill Burrington -- Panel moderator -- America Online/Interactive
     Services Association
    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,
     Communications Week
    Dan Duncan -- Vice President of Government Affairs, Information
     Industry Association
    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
            13th Floor
            Washington, DC

    WHEN:   Wednesday, October 4, 1995

    TIME:   9-11 a.m.

    CONTACT:  Tyler Gronbach or Jarad Smith for the Cyberspace Law
Institute, 703-549-9592.
    -0-                   9/29/95
    /PRNewswire -- Sept. 29/

CO:  Cyberspace Law Institute ST:  District of Columbia IN:  CPR SU:

Copyright 1995 PR Newswire.  All rights reserved