Lessig on copyrights

[Doug Henwood]

<http://www.thestandard.com/article/display/0,1151,18964,00.html>

Industry Standard - September 29, 2000

Copyrights Rule
Courts are racing to enjoin alleged violators of copyright law, 
taking no account of the effects on the development of the Internet.

By Lawrence Lessig

As the copyright wars rage on in courts across the country - the 
deCSS case in New York, MP3.com and Napster in California, 
Cyberpatrol in Massachusetts - some people are beginning to ask a 
very interesting question: Why do the courts treat laws that regulate 
copyright so differently from laws that regulate pornography? Or to 
put it another way, why is it so easy to invoke the power of the 
state to protect Hollywood, yet so difficult to wield the power of 
the state to protect kids?

Don't get me wrong: I'm a strong believer in the hesitation and care 
with which the courts have approached laws regulating porn on the 
Net. Though these laws are often simply carryovers from offline 
regulation - banning the distribution to minors of material 
considered "harmful to minors" - the courts have been cautious about 
the effect of these laws on cyberspace in general. Rather than affirm 
this extension of real-space regulation to cyberspace, courts from 
the Supreme Court down have demanded that the state first show that 
its regulation will "do no harm" to cyberspace. They have been 
careful to consider how the burden legislation imposes might affect 
the development of the Internet, and the rights of Net surfers. They 
have tried to guarantee that this legislation won't muck about too 
much with the potential for innovation and free speech. As a result, 
no law proposed to regulate kids' access to porn has withstood 
judicial review.

The story with copyright legislation is different, even though in 
principle the question is exactly the same. In both cases, there is 
an important state interest that the legislation is advancing: in the 
context of porn, it is the protection of children; in the context of 
copyright, it is the protection of copyright holders. But in both 
cases, there is another important free-speech interest that weighs in 
the balance - in the context of porn, the right of adults to have 
access to erotic material; in the context of copyright, the rights of 
fair use. And in both cases, there is the danger that the regulation 
at stake will have unintended, and harmful, consequences for the 
Internet generally. In the context of porn, those consequences would 
chill the production of erotic speech; in the context of copyright, 
those consequences would chill the development of other modes of 
distributing content.

Yet these parallels notwithstanding, the courts have held Congress to 
an extremely high standard when regulating porn, after a careful and 
extensive investigation of the facts at stake. By contrast, in the 
context of copyright, courts are racing to enjoin alleged violators 
of copyright law, often without any trial at all, taking no account 
of the effects on the development of the Internet generally.

Why? One might think this is because there is some urgency in the 
case of copyright infringement, and not in the case of porn. I doubt 
a parent would share that view, and at least in the MP3.com case, no 
showing of harm was needed before the judge issued a self-consciously 
punitive verdict of $100 million against a company that had done 
nothing more than give owners of music a simpler way to listen to the 
music they had purchased.

Instead of urgency, I think a deeper blindness is at work, one that 
will have profound consequences for the Net.

The regulation of porn raises a question of free speech. Courts get 
that. So too does the regulation of copyright raise a question of 
free speech. But courts don't yet see that. They don't yet understand 
the ways in which this state sponsored monopoly over "who can say 
what" can, at times, interfere with the "freedom of speech." They 
don't see it because for 200 years, copyright law has functioned with 
little interference from the First Amendment. There have been a 
handful of cases raising extreme claims of conflict, but no clear 
case that yet addresses how courts are to evaluate the intersection 
of copyright law and the First Amendment.

This is a question the Supreme Court will have to address. For the 
reality of copyright has become different in cyberspace than in real 
space. When copyright law is invoked to shut down "pirates" in real 
space, it doesn't have an obvious and predictable chill on the 
development of fundamentally new free-speech technologies. It does in 
cyberspace. (Napster, for example.) When Hollywood succeeds in 
getting its rights enforced strongly in real space, it doesn't have 
the effect of chilling a new model for distributing content. It does 
in cyberspace. (MP3.com, for instance.) And when technologists write 
texts in real space that show others how technologies might suppress 
free speech, they don't easily or obviously raise copyright claims. 
They apparently do in cyberspace. (Such as Cyberpatrol.) In these 
cases and others, the application of traditional law in this 
untraditional medium - like the application of traditional 
regulations of access to erotic speech - raises new and complicated 
questions.

The Supreme Court will eventually have to answer these questions, and 
my bet is it will get the answers right. There's a pattern of the 
Supreme Court being more balanced than lower courts; it is its 
regular burden to remind the lower courts that there are a mix of 
values at stake in Congress' exercise of this monopoly speech power.

But the real danger here is in the interim, and in the effects this 
activist, aggressive judiciary will have. Rather than investigating 
the facts thoroughly enough to give the Supreme Court an adequate 
basis to make a judgment, rather than going slowly with their 
injunctive power, applying injunctions only where real harm is shown, 
rather than listening with patience to the evidence about the effects 
these cases will have, lower courts have, for the most part, simply 
raced to their conclusions. And they have buttressed these 
conclusions with claims that the cases are simple or obvious.

But these are not simple or obvious cases. The issues they raise are 
as profoundly difficult as the issues raised by the state's objective 
to protect children from erotic speech. They require a patient and 
well-informed inquiry about the effects of different legislation. 
They require an opportunity for innovators to try out different 
models of content distribution. They require, in short, all the 
hesitancy - and humility - that the courts have demonstrated in the 
face of the regulation of porn.

Yet they don't do this. There is no hesitancy or humility when one 
questions the obvious. And in America's judiciary, it is obvious that 
Hollywood gets to control distribution and pornographers get to 
freely distribute porn. But the notion that these views are obvious 
is itself just bizarre.

Lawrence Lessig is a professor of law at Stanford Law School.