This is a transcript of portions of THE INTERNET & INTELLECTUAL PROPERTY RIGHTS discussion as broadcast on C-SPAN Wednesday, Oct 4, 1995. The discussion was held by the Cyberspace Law Institute.
This document emphasizes the contribution of Helena Kobrin to the discussion. Almost all of her comments are here, most other comments are not. Some discussion by Bill Burrington of America Online seemed particulary interesting and is also included.
Where you see "[snip]", a segment of the discussion, which may be quite lengthy, was edited out. Therefore, this document does not give you full context, and some interesting and significant parts of the discussion are not here. If you are interested in the subject, the full two-hour discussion is worth watching. See if you can catch a rerun on C-SPAN.
The transcription is from a video tape, and was not produced by C-SPAN. Double dots.. mean a pause in speaking, not that some words are missing.
[BILL BURRINGTON, America Online, is the moderator]
[snip]
[HELENA KOBRIN, church of Scientology, council]
KOBRIN:
I think the position that David [Post, Georgetown University Law Center, Associate Professor] is taking, which I, definitely think his characterization as controversial is certainly correct, I think it is missing a fundamental point. There's nothing wrong with your being a World Wide Web and with people saying I'm putting my creation on there or my writing or whatever it is, and you're free to copy it. Anyone has the right to make that decision, and choose to do that, and you know, there's probably thousands of people out there who are doing that. But, it doesn't change the fact that an author who has not made that decision has the right to protect his property. And others don't have the right to just take it and distribute it in a way that is prohibited by law and by the rights which this person, this author has been given for his creation. And I don't..
In my experience, in the cases that I know of, the courts are not proceeding on the assumption that copyright law does not apply to cyberspace, they are applying it, uh you know, and they don't seem to have much question about that from what I've seen, I mean we have cases such as the Sega and Playboy cases where people have been held liable under copyright law, for what was on their bulletin boards. So, I think copyright law is alive and well, whether it will need some adjusting perhaps, that is possible. But it does exist, it does apply in cyberspace, and that would be my position on it, uhh..
The fact is that you know when you flip the switch off and you turn off your computer you're still _in_ America, or you're still _in_ whatever country it is, and.. the law does apply.
BURRINGTON:
Alright, so far copyright law is winning, three to one.. Sorry David..
[snip]
BURRINGTON:
KOBRIN:
And, at that point, if you refuse to do that, if you don't wish to cooperate, then _you_ start getting into the field as an access provider of having some liability for what is going on through your system, you put that system there, you made the choice of putting that software, that hardware there so people could access the Internet, and you're then facilitating other people violating uh laws. And at that point, it's our position that that's when the liability should kick in, now, many access providers are perfectly willing to cooperate and say hey, we don't this stuff going on through our service, and, they go back to the person and they say hey, you know, you can't do this. If you're going to keep doing this your account is going to be suspended and I know, in dealing with different access providers, there are _thousands_ of people who have had accounts suspended, for, for violating various different uhh, provisions of their rules.
[snip]
BURRINGTON:
Umm, and.. When we had this meeting with the Creative Incentive Coalition and the ISA last week, and the IIA was there as well, uh, I mean I think we all realized, we're really all in the same boat here cause uh, all of this is converging so much we're gonna all be copyright holders, and we're all gonna be, to some extent conduits for information, umm.. and so we really all have a vested interest.
The other thing though I said, the other common sense part of this was that we, we just simply and I say "we" now sort of the online service providers.. or Internet access providers, don't want to be.. thrown into the liability chain for for for really doing something that.. er for not for not doing anything, cause we haven't done anything wrong.
And, I think it's very clear if you came to me and said America Online, you know, we believe that you have some infringing material on your system, and what have you, and er of course we're gonna have to react to that in some way, if we didn't then I would say we should, certainly should be liable. I don't think anybody disagrees with that.
But we run into a problem with, you know, imagine with three and a half million members growing to five million and then you look at the Internet, and the volume of material flying back and forth, umm, who's going to make those decisions? How do you provide notice of an infringement, for example, in in in the case of this medium? How do you do it? Is it a letter in the traditional sense, is it an electronic mail message, I just get an E-Mail one day that says, you know, this little thing needs to be pulled down?
[VINT CERF, MCI Data Architecture Division, Senior Vice-President]
CERF:
BURRINGTON:
Now I had talked with, with the church, of Scientology and others about maybe a.. another approach, which would be that, if you come to us, we _will_ take it down immediately, period, no questions asked, then we're out of it, from a liability perspective. And that, that is, it's a simple solution on its face and the more I think about it it raises some very serious, concerns about first amendment and other issues. Uh We dont' wanna be in that role frankly and we have to balance sort of those issues.. I tend.. We, we we certainly tend to err on the first amendment side. David?
[DAVID JOHNSON, Cyberspace Law Institute, Attorney]
JOHNSON:
But, what we need to create here, and the net itself may well be able to create, with its own community, uhh, is a quick means to, focus the dispute, give a preliminary assessment of how serious the claim is, and give the system operator something, to uh defer to, that is essentially neutral and, and and acceptable to the parties.
BURRINGTON:
And once.. that happens then, we're out of the loop so to speak, unless we, you know contribute to that.. infringement, and and this mediation, panel, or cyber, whatever.. we'll come up with some neat name.. that's hip, and cool for, cyberspace. Umm, that, you know they would be out of the loop, and then it's back to where it should be, which is between, the copyright holder, and the alleged infringer to duke it out, under existing law. Right? [To David Johnson] Is that sort of what you had in mind? [several words by others, "I agree"] All right then we're all done, thanks, no..
KOBRIN:
[WAYNE RASH, Communications Week]
RASH:
BURRINGTON:
RASH:
[snip]
KOBRIN:
If we receive one, and you, you can either willingly take off what you've posted while it's being sorted out, or we'll take off what you posted while it's being sorted out, or if you get really obnoxious about it we will suspend your account but that's not necessary, just cooperate, let's get this resolved. And in the meantime, let's protect this, this person's right, that they say they have, and let's take this off, so it's not being circulated in the meantime.
[snip]
KOBRIN:
Um, There's, there's another point here, um.. and and my concerns maybe come from a somewhat different direction than some people's but.. where you have materials that are not only copyrighted but they're also.. confidential, unpublished materials which the author has chosen not to publish.. You know we were talking about the length of time that a, you know mediation panel would have to look at the issue.. It really, uhh.. increases the, the concern that this has to be dealt with, you know, even, even a matter of a, of a few hours.. can, add to the problem, for the owner of those rights. And, it, it's something that has to be factored in, I mean there are other rights involved. Now in the case of my clients for example you know, we talk about the first amendment and and speech rights.. Where my clients are involved there's the other clause in the first amendment which is the, the freedom of religion clause, and the right to practice your religion the way you wish.. and uh, courts, you know are recognizing this is a serious right that has to be put in the balance, with that, with the particular situation we have. And you know other rights may be implicated, uhh..
I mean just yesterday we had a decision from a court in Colorado, recognizing that there are.. very important first amendment considerations on the religion side, for for our issues that have to be balanced, and you can't.. you you have to.. exercise protections in the meantime. And the same thing relates to, to the online publication issues.
[snip]
BURRINGTON:
KOBRIN:
[snip]
BURRINGTON:
KOBRIN:
Uhh.. Just to go back to something that we were talking about a minute ago which I think is a good example.. In the area of, of anonymous postings, you have these anonymous remailers.. And a number of them seem to feel that they're kind of beyond the law, you know it doesn't really have anything to do with them, now.. They're.. We're not here to debate whether people should post anonymously or not, and you know everyone has their own opinions on that subject. But, the point is.. Anonymous remailers should not be permitted to be there, to cover up, illegal acts. And I don't think anybody would necessarily disagree with that point. So the question then becomes well, what do you do about that? If these anonymous remailers are willing to be responsible, and, and you know, and, and help, when when there is a problem.. when there is an illegal act being committed through their systems, then fine. But if they hang out there and say, you know, too bad, this is anonymous, and it really doesn't matter if someone was plotting murder through our system, or was uh, publishing, you know copyrighted, or trade secret materials or whatever, we're not gonna do a thing cause that's just the way our system is. They're gonna have, government regulation coming in on them, and and, and dealing with the situation for them and I think that's the general point, overall, uhh.. that, you know, you, you can use the system responsibly, or you can use it irresponsibly, and to the degree you use it irresponsibly, that's the degree to which the government's going to step in.
[snip]
AUDIENCE MEMBER [The first audience question]:
BURRINGTON:
KOBRIN:
Uhh.. The other point is.. You know you're talking about, uhh harassing someone who is, using, material, well.. I don't think that's a situation at all because.. I mean, you can easily see if that's what's going on. Wh.. If the person is complaining about something that, that is quite obvious on its face, you know.. someone instead of saying uhh.. I don't want you to uh post.. the last novel that I wrote.. They're complaining about a posting that you made which says, you know.. I read this novel by so and so and I thaught it was terrible.. Well, that's gonna be pretty obvious on its face, that this person is just trying to stop you from talking about what they did.. as opposed to reproducing what they wrote, without their permission. I think these kinds of issues can be dealt with quite simply.
POST:
[snip]
KOBRIN:
[snip]
KOBRIN:
JOHNSON:
[snip]
[end]
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[I threw out the question of] other problems, and they really do come down to this question of online liability.. [snip]
I definitely have comments on this subject, and they are directly implicated in our litigation. Our position.. Copyright law as it currently exists is essentially, I guess what lawyers would call a strict liability law. You don't have to know that you are making a copy, to be liable for that copy. Uh, and this is an area where.. We.. We haven't taken that approach in our litigation. Our approach has been, if.. if we notify you, that there are infringements occurring on your system.. First of all, most access providers have rules and regulations of some sort. Some of them say don't.. you can't do anything illegal through our system. Uh, some of them say.. you can't infringe copyrights through our system. Uh, and they mostly have, some sort of contract with their uh.. their customers. Now.. The contract could be more or less formal, but it's still valid as a contract. Uh.. Our position is, if that's the case, and, and the owner of a copyright calls you up and says my copyright is being violated through your system, I am trying to work with your customer, your customer will not listen to me, you have some obligation to deal with your customer and get your customer to stop.
Helena actually brings up a point, I want to continue on for a little while here, because I think it is a, it's a big issue. We, uh, I've met with the church of Scientology people, and, and, and to to say what, you know, what is, what's your beef? uh, basically, and, and, I think we had.. we we got down, to sort of common sense, which was that.. I think we all agree that copyright holders, now I'm speaking of those that are sort of today's copyright holders, whether it's you know the Time-Warners of the world, or church of Scientology's.. Obviously, they have a tremendous vested interest in protecting the value of their copyright, no one would disagree with that, and they have a right to that. We, as an online service provider have a vested interest in that as well cause we also have copyrights.
That's the obvious choice in that particular system
I know. I appreciate that, Vint. But who makes the decision, uhh to to pull that down and the concern that we have, at least from sort of a first amendment perspective, we don't want to be placed in the role of being the net cop. Uh of having to make, be judge and jury and have someone say, alright, this material is infringing, you must take it down.
[snip] I think that what this cries out for, is the creation, of an intermediate process, by which, the complainant, can go to a system operator, and, who can refer the complaint to a neutral decision-making party who understands both copyright law, and the net. And who can give a preliminary reading which, the system operator would comply with. And, that would constitute the duty of the system operator, in the interim upon receiving the complaint. Ultimately the court systems might resolve the issue and, and decide, whether there is really an infringement.
And that gets to, I mean David raises a great.. idea, which, we've been bouncing around actually, and and it.. My first thought of it was I pictured this group of uh, I don't know, no offense to anybody gray-haired old men sitting in a room getting all this stuff sent to them and having to make judgements.. That's not how it would work in this case, I mean, could be done electronically, could be done in real time, uhh, and, and it really gets at that concern that we all had which is not being the judge and jury, and helps us with the importance of the first amendment considerations.. But also gets at what I know commisioner Leighman (sp) would like to see, and certainly the church of Scientology that, and others would like to see.. is a rather quick and immediate takedown of what is deemed to be allegedly infringing material.
I.. I..
I have a couple of questions about this, which I think need to be addressed. The first one of which is.. Who's going to form this uh, uh, virtual magistrate.. that we're talking about..
There we go..
Uh.. Are we talking about something which is going to become yet another governmental entity? Are we talking about something that is going to be an industry group? Are we talking about an infromal collection of people who, uhh, form uh, perhaps a virtual star chamber? I mean what are we talking about here?
I think there's another aspect to this, which is.. I, I am.. certainly a proponent of sp.. free speech, as are my clients very strongly. When you have a situation here where someone is saying my copyright is being violated.. I think.. First of all.. I think it's a bit of an overreaction on the subject of free speech, in that.. we're talking about possibly suspending.. well.. taking off that posting, for that limited period of time..we are not saying you can not speak. We are not saying, you know, you can not continue to say whatever you want to say. We're saying.. this particular posting, is a problem, at least in somebody's.. opinion. You know, and they have, property rights that they claim are being violated. And therefore, for the period of time while we resolve this, you need to take your posting off That can even be a condition in a person's contract with an online service, you know? If, if we receive complaints, and, and I mean there are not.. eight million complaints happening all the time. There are, you know specific individual complaints that occur.
I agree with the uh, the approach that uh.. An access provider should be required to do something when they are notified. Now I, I would have.. no problem and I don't know exactly wh, how an amendment would be.. with an amendment to the law that says.. that if an access provider is notified and takes all responsible actions.. to deal with the problem and, and not facilitate the infringement.. then the access provider should not have liability, after that point.
[snip] Your clients, the, the church of Scientology, have, have actually done it. They've gone and siezed uh computers and hard drives and what have you in a case, like like exactly like we were discussing, right? What was the process that you went through to do that, I mean did you have to go and get a court order I assume or something..
Right. Pursuant to a court order, uh, you know, there are legal mechanisms for doing that, you present the information to the court that shows the urgency of it and, why it should be done that way, and obviously you either do or do not recieve a court order that you can do that.
Helena, let me give you the last comment before we go to questions.
I think the role of government.. or the necessary role of government, will be.. directly proportional to the.. lack of responsibility, or let me say that in a more positive way.. The more responsibility that individuals, access providers, all the users of the net are willing to take in dealing with the situations the less government involvement will be needed. And.. uhh. I mean you can look at different societies that have existed, I mean obviously in a society like the Roman Empire, people weren't willing to be responsible and things were going down the tubes and nobody, kind of grabbed it by the collar and said you know, we have to do something about this. And that's a society that, that went by the boards.
You raise some actually great, great points and I think, to flesh this out. Do you want to respond, Helen..
Sure, As someone who works in the legal system, I can say, um I mean I'm not going to get into lawyer bashing here but.. I am a lawyer and.. The system, is, is what it is, but it's not necessarily the most expeditious way to deal with a problem. In other words, if, if someone has a complaint against you for posting their copyrights, and you're going to insist that that person take you to court.. you know, many thousands or hundreds of thousands of dollars later, you may have this dispute resolved. And I don't think that's necessarily helpful to you, or the copyright owner. Uhh.. Now.. It is a way to deal with it and, and you know it can be done that way and it is done that way, frequently. But, if there is a a mechanism short of that to deal with it, uhh, I think you know, everyone will be better off, number one. Number two, uhh.. I don't know that I would call it private law enforcement. To me, you know there are agreements that you make, there are, there are contracts you enter into, when you, when you.. go into an online service and you pay them your monthly fee. And, you agree.. I think, what would have to be set up here I mean already, you are agreeing to certain conditions that they have as part of using your system. And, I think all.. the, the uhh online services would have to review their agreements, and they would have to see what the agreements need to be. You can privately agree, you know to do anything that's legal. You can privately agree to give up a right that you have, in order, uh, to receive a benefit of some sort and this happens all the time.
[snip] There are the users, there is an interest in free expression.. I disagree with Helena, I, unfortunately, I wish it were so.. that copyright issues were black and white, but they are not black and white. There is a fair use doctrine, that if anybody can explain it to you in less than half an hour with respect to ANY work, um Send them to me. Because I've gotta do that in class, and I can't do it. Umm, these are very complicated issues and you're right, there is a potential, for harassment, on the part.. on BOTH sides. [snip]
I would add one thing to [a comment about private arbitration panels.] In some types of contracts, it actually isn't uhh optional, in some types of contracts, it says, you know, here's, here's the way you can resolve this dispute. And in fact, one of the hottest areas in the law right now is alternate dispute resolutions. Because everyone recognizes that the courts are overburdened.. things don't get through the courts expeditiously in most cases, and there, there should be other ways that people can get their problems solved short of going to court.
I think there's just one other area I would mention where legislation may be needed and it's, it's something I did mention earlier, which is the area of anonymous remailers and, and what responsibility they will have to take for illegal use of the, the Internet through their systems. And I think, you know they can either decide to, to uhh.. cooperate and do something about it, or there will be a need for legislation, perhaps requiring that when an illegal act is committed through their system, they have to have the information on the person and, and give up that information, probably it would be uh, you know on the basis of a subpoena or something, but, but they, they could not shelter that information to cov.. It, it's kind of like being an accessory to a crime, you know, if, if, you're unwilling to do that.
Again, um, we have to remember though that there are lots of areas of current life where people act anonymously, and uh, uh you all the time exchange information or take actions in a way that.. can't be traced. There may in fact, be some.. There are positive uses for anonymity, to shield political debate, and shield uhh, battered spouses and so forth.. [snip]