New and old technology,
new and old solutions
on a constantly expanding
playing field.
By Robert Daniels
he dream of the founders of the Internet—fast and free exchange of information between everyone everywhere—not only still exists, but becomes increasingly real every day, as more and more join the burgeoning ranks of Net users, with experts predicting 200 million users by the year 2000.
As the Global Information Infrastructure has expanded to embrace some 200,000 computer networks around the world, age-old problems have surfaced, to which, Internet authorities point, time-honored solutions have been applied.
“It’s always surprising how well old concepts carry over into the new medium,” Microsoft’s co-founder, chairman and CEO Bill Gates said in a recent interview.
Gates noted, “It’s overly idealistic to act like, Oh, the Internet is the one place where people should be able to do whatever they wish: present child pornography, do scams, libel people, steal copyrighted material. Society’s values have not changed fundamentally just because it’s an Internet page. Take copyright. Sure, there should be some clarifications about copyright, but the old principles work surprisingly well in the new medium.”
“Digital Watermarks” and “Cryptolopes”
Copyright—a basic right guaranteed under the United States Constitution—has emerged in cyberspace as an area where technology both old and new is being applied to resolve problems.
The profession of cybersleuths flourishes, dedicated to protecting organizations from high-tech pilferage of everything from logos to software to comic strips. Electronic safeguards that include “digital watermarks” (similar to watermarks on stationery, woven into text or images to identify the creator) and “cryptolopes” or “encrypted envelopes” (digital containers for copyrighted material that can only be opened if one has the proper “key”) are on the way as part of comprehensive plans to bring real-world safeguards online.
Before the advent of the Internet, anyone seeking to safeguard copyrighted material could identify who their foes were, such as criminals who unlawfully duplicated videotapes, with relative ease. But the constantly expanding global computer network has altered the playing field radically. It is now possible, with the click of a mouse, to illegally copy and distribute worldwide unpublished novels, unreleased music, cutting-edge software or anything else that can be stored on a computer.
Software publishers alone have estimated that they lose more than $8 billion a year to copyright pirates in the United States, with even more stolen overseas. While only a few are involved in criminality, such acts poison the Internet for other users.
Conflict has thus loomed between access providers, who furnish the channels to obtain information on the Internet, and content providers, who hold the copyrightson the actual material or “intellectual property"—whether it be words, sounds, pictures or a combination—which can be ripped off.
Access providers generally seek to supply as much data as broadly as possible, with limited or no liability when others exploit their network for illegal acts. Content providers wish to be recompensed for creative works to which they hold the rights; they also want access providers to be held accountable if one has made possible the theft or misappropriation of copyrighted materials.
It is a stage set for controversy—one that prompted the Cyberspace Law Institute of Georgetown University Law Center to sponsor a roundtable discussion on “The Internet and Property Rights” in October 1995, attended by an array of notables that included Vinton Cerf, senior vice president of MCI and widely known as the “father of the Internet.” (See “Solutions in Cyberspace,” Freedom, Volume 28, Issue 1.)
That conference developed from conversations between Bill Burrington, assistant general counsel of America Online, and Janet Weiland, vice president of the Church of Scientology International, on the need for an open forum on the subject of intellectual property in cyberspace.
“I do think that the medium poses some serious challenges to us in protecting copyrights,” Cerf said, “but I remind you that copyright law is intended to help people benefit from intellectual contributions whether it be those who receive them or those who produce them so as to encourage that kind of contribution on the Internet.
“I believe it is vital that we find a way to institute that same protection and encouragement for intellectual contribution in this new medium. When copyright laws were originally written, movies and sound recordings did not exist, and yet we were able to adapt the intent of the law to deal with those technologies.”
Another panelist, Communications Week columnist Wayne Rash, commented, “If the world of online services becomes less respectful of intellectual property, and if those who would steal intellectual property find support and gratification, all who would use such services are ultimately hurt. Businesses that provide content will stay away. Services that provide information freely will close their systems. Ultimately, people who own intellectual property will lock it away rather than see it stolen.”
Passage of Treaties Forecast
The majority of the panelists agreed that cyberspace problems, including differences between access providers and content providers, can be resolved through communication, without government intervention.
As Marc Pearl, vice president of government affairs for the Information Technology Association of America, the nation’s leading advocate of the information technology industry, expressed it more recently, “To date, too much attention has focused on government’s role in attempting to ‘settle’ the dispute, on both the federal and global levels.”
“I don’t really believe we need additional legislation in order to protect the copyright holder,” said Vinton Cerf at a press conference sponsored by the Ad Hoc copyright Coalition, a group representing the local telephone exchange carrier industry, the long-distance carrier industry and Internet access providers. “We think the right solution is to work together so that when infringement occurs, the party that’s doing the infringing, the originator of that content, is the one who is liable, not the carrier.”
The copyright controversy also took center stage at a sometimes tempestuous three-week conference of the World Intellectual Properties Organization (WIPO) in Geneva, Switzerland, in December 1996, where delegates representing 128 nations approved two treaties adding to the international agreements that protect copyrighted materials, known as the Berne Convention for the Protection of Literary and Artistic Works.
One of the treaties strengthens safeguards for literary and artistic works, extending protections to include computer software, while the other addresses sound recordings. Although the new treaties did not directly address the subject of the Internet, delegates pointed out that Article 9 of the Berne Convention specifically includes “reproductions of works in any manner or form.”
These new measures constitute “the most important overhaul of international copyright law in the last quarter century,” according to Hilary Rosen, president of the Recording Industry Association of America, which represents MCA, Capitol, Motown, Arista and other copyright holders.
Signed by the Clinton administration in December, the treaties went to the Senate for ratification. Pointing out that the measures strengthen intellectual property rights worldwide and that the United States is the world’s primary exporter of intellectual properties, a Congressional Internet Caucus source forecast Senate passage of the treaties before the end of 1997.
“Any Internet User ... Can Destroy Valuable Intellectual Property Rights”
A relevant example of the application of existing law to resolve cyberspace problems came in the case of Religious Technology Center vs. Netcom Online Communications Service Inc., involving the Scientology church which oversees the purity of the religion (RTC) and an Internet access provider.
In a November 1995 ruling in that case, U.S. District Judge Ronald M. Whyte held that Netcom and a bulletin board service operator, Tom Klemesrud, should have acted to prevent a man from continuing to commit copyright violations after they had been advised to do so by the copyright holders.
Judge Whyte’s decision upheld the ability of copyright holders and licensees to put a halt to the efforts of a lawless few to steal creative works or destroy the fruits of creative labors.
“The court is troubled by the notion that any Internet user, including those using ‘anonymous remailers’ to protect their identity, can destroy valuable intellectual property rights by posting them over the Internet,” the judge stated, “especially given the fact that there is little opportunity to screen postings before they are made.”
The ruling has been applauded by numerous experts in Internet and related fields. Computer publisher David Rogelberg described it as “a great victory for all publishers who plan to venture into Internet publishing.... The power to publish their views and be heard will only be enjoyed if we follow the copyright laws currently on the books. Furthermore, everyone—even a service provider—is responsible for ensuring copyrightsare upheld. We must avoid intellectual piracy at all costs.”
According to Steve Arbuss, attorney and Internet lecturer, RTC vs. Netcom was “one of the most influential things to bring attention to the Net and the problems on the Net and the need for solutions.”
Following that decision, in August 1996 Netcom established “a protocol for handling future intellectual property disputes.” The headlines told the story: “Scientology Case Helps Define On-Line Liability” (American Lawyer), “Copyrighton the Web Enhanced” (Legal Times) and “Netcom Pact with Church Includes New Policy for copyright Disputes” (Software Law Bulletin).
As described by attorney Mark Eckenwiler in Legal Times, “Clearly based on the district court’s analysis of the quantum of knowledge necessary for contributory liability, the protocol sets out the type of notice that must be provided to Netcom by an aggrieved copyright owner.”
That notice must include a copy of the copyrighted work, its registration number and certification that a significant portion of the work has been improperly copied. Once Netcom has thus been notified, the protocol states that the firm will assess the legitimacy of the claim and if warranted take appropriate steps to ensure the infringing materials are removed.
Other access providers, such as America Online and Prodigy, now require that membership agreements be signed cautioning against unauthorized submission of copyrighted materials. “Providers have a responsibility to try to protect copyrightsby taking prompt action and informing members of the importance of intellectual property rights,” said David W. Phillips, associate general counsel of America Online. “At the same time, we want to protect free speech and the information flow on the online medium.”
Rights and Responsibilities
Marc Pearl of the Information Technology Association of America is one of the many who stresses cooperation between content and access providers. After all, he told Freedom, “The public doesn’t want technology. The public wants content.” The question then becomes, he said, “How do we work together to make sure the end user, who wants to know about Scientology, who wants to see the latest Disney picture, who wants to read the latest book, who wants to see the latest study, whatever the Internet can provide, who wants to order something directly from the manufacturer, whatever it might be—gets what he wants?” That can only be accomplished, he said, by content and access providers working together.
The Internet’s capacity to connect people from all corners of Earth for instant communication makes it a priceless tool to improve and advance communication, understanding, cooperation, research, health, science and freedom itself.
And as the Internet population expands, more users are learning that the freedom afforded by the new environment must be accompanied by responsibility. Many individuals and organizations are working to ensure that the rights, responsibilities and freedoms granted by the Constitution apply in the online world.
The progress made to date is good news for the Internet—and for all present and future authors, creators, access providers and users.
To air your views, or to network with others interested in ensuring freedom in cyberspace, write to editor@freedommag.org. Snail mail: Editor, Freedom Magazine, 6331 Hollywood Blvd., Suite 1200, Los Angeles, CA 
