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.