Much to our reviewer’s chagrin, a new book joins the popular press in perpetuating misconceptions about the Internet.
By Erik J. Heels
First published 10/1/1995; Student Lawyer magazine, “Online” column; publisher: American Bar Association.
If you read this column regularly, you probably also read other columns and articles that discuss technology and the law. You have probably noticed that much of the coverage of the discussion in the “popular press” often misses the mark, either by oversimplifying or, worse, by misstating the law.
I spent my summer in search of a book that, free from the space constraints of periodical publications, would fully address technology and the law. Much to my chagrin, many of the books fail to deliver. In this column, I’ll briefly discuss some of the myths and misunderstandings about technology and the law. Then, I’ll discuss some of these myths in the context of a book review.
The Myth of Magic.
Although this issue has been discussed in previous issues of Online (see 11/94 and 05/95 Online columns), it bears repeating: The technology underlying the Internet is not magic. The Internet works because the computers connected to it communicate via computer programs that operate according to preset rules (protocols), not because of magic. Terms like the “information superhighway” and “cyberspace,” when taken out of context or not properly defined, serve not only to confuse or mislead the reader but also to perpetuate the myth that the Internet is somehow magical.
Far from magical, the technology underlying the Internet is relatively straightforward; some have called it paleo-technology. The unfortunate result of using magical misleading metaphors is that senators, representatives, and judges are writing statutes and case law without a fundamental understanding of the subject matter. The law relies on the precise use of language, and the most important part of any statute is the section of definitions. Any law that fails to define its terms will undoubtedly cause more problems than it solves.
The Myth of the Old Dog.
Perhaps the most frequently made assumption is that much of the law will have to be changed to deal with new technologies. I agree that some of the law will have to be changed to deal with some of the legal questions, but, for the most part, I believe that the majority of the legal questions can be solved by a straightforward application or extension of existing law. In other words, new laws are not necessary where “old” laws still apply.
It is often stated that since copying digital works is very easy to do, and since illegal copying of copyrighted works is widespread, then the copyright laws must be rewritten to deal with this “problem.” Is it really a problem? Is 100% enforcement of civil or criminal copyright laws necessary to effect the desired result? What is the desired result? Is 100% enforcement of and law necessary to effect the desired result? Where is the evidence to support the proposition that artists are starving because of Internet copying? The Internet is another medium of publication. The copyright laws are well suited to deal with many publication media. Rather than worrying about rewriting the copyright laws, we should be fine-tuning what the language of the law means. On the Internet, for example, it is important to identify whether a digital work is “fixed” on a particular computer system before discussing whether or not an illegal “copy” has been made. For instance, when one looks at a computer screen, the image of the screen exists in the viewer’s eye. When one browses on the World-Wide Web, an image is displayed on the computer screen. Is the former image “fixed”? Is the latter? Are either “copies”?
One ways to avoid the “problem” of illegal copying on the Internet include controlling the dissemination of digital works at their source. The creator of a digital work who complains to courts about the unauthorized copying of her works is not unlike the patient who twists his body in an awkward manner and then complains to his doctor of back pain. The answer to both is the same: “Don’t do that.” Publishers, artists, and composers have solved the “problem” of illegal copying by selling copies of digital works at appropriate (i.e. high enough) prices to identifiable customers. By controlling the distribution of digital works at their source, they remain profitable.
Another way to use existing law involves drafting novel copyright notices. For example, my book, The Legal List, is published according to a scheme I call print-and-pay copyright (http://www.lcp.com/The-Legal-List/TLL-home.html). It could also be called the honor system. The copyright notice for TLL states that the work may be freely copied from one electronic storage medium to another, but if it is copied to paper, the copier must pay a royalty fee. Some have commented that TLL is shareware. It is not. Shareware (like shrinkwrap licenses) is a concept that is not firmly rooted in either contract or copyright law. Print-and-pay copyright is a straightforward application of copyright law. Of course, 100% enforcement is not possible, but neither is it necessary. What is “lost” in sales is gained in goodwill, and enough organizations (including the US Supreme Court) have honored the copyright notice to make it worthwhile.
The Myth of Disaster.
The belief that the Internet is magical causes many to believe that new laws are needed to regulate it–and that the sky will fall unless government regulators step in. For example, some would like to limit the ability of Internet users to send anonymous e-mail even though this same capability exists with USPS mail, phone calls, and faxes. Others would like to legislate away from the Internet all information about how to make bombs, even though this information is freely available in libraries, bookstores, and US government publications.
Predictions of disaster on the Internet are all too frequently taken out of context. The percentage of fraudulent transactions on the Internet is seldom compared to the percentage of fraudulent telephone calls, postal mailings, or business transactions in general. As discussed above, the oft-repeated claim that digital copying will be the death of creativity has proven false. The US recording industry is thriving despite bootleg copying of their works at home and abroad. The printed media is richer and more vital than ever before. Electronic publishing is thriving both in for-pay media and on the World-Wide Web (where transactions are still generally not for-pay).
Books and Bytes.
With the belief that 1) the Internet is not magical, 2) few (if any) new laws are needed to answer the legal questions it raises, and 3) disaster will not result if the government fails to regulate the Internet, I sat down to read Law in a Digital World by M. Ethan Katsh, Oxford University Press. Law in a Digital World is certainly a thought-provoking book. Many of the topics it covers are important to students and practitioners of the law. But perhaps because of the breadth of the work, the depth of coverage is unsatisfying.
First, Katsh perpetuates the myth of magic. In addition to using many of the buzzwords that make the Internet sound like magic, Katsh even uses the word “magical” to describes how it works. And frequently other terms he employs to describe how the Internet works miss the mark. For example, in a chapter entitled “Communicating In Cyberspace,” Katsh mentions three models of communication, including the one-to-many model (e.g. a personal mailing list), the many-to-many model (e.g. the listserv list), and an online service model (e.g. Lexis or the World-Wide Web). Conspicuously absent from this discussion is the important distinction between centralized methods of communication and publication (typified by listserv lists and FTP servers) and decentralized ones (typified by Usenet newsgroups, Gopher servers, and World-Wide Web servers). Also missing is any discussion of how ISDN technology (which transforms a simple analog phone line into two 64 Kilobyte digital communication channels) blurs the distinction between voice and data networks.
Second, Katsh apparently believes that new laws are necessary to deal with the “problem” of illegal copying on the Internet. As discussed above, it is never necessary or possible to have 100% enforcement of any law, much less copyright law. And the publisher’s copyright page makes the egregious error of misstating the law by failing to account for “fair use” under the Copyright Act. The blanket statement that “no part of this publication may be reproduced in any form” is simply not true.
Katsh’s examples of how the law is “limited” are paralleled by examples of how technology is limited. I argue that the many of the “limitations” are either not limitations at all or are limited by the human factor. For example, Katsh holds out the “talking” dishwasher and the programmable VCR as examples of how modern machines are limited in their capabilities, how they are not linked to each other. He says that it makes no sense to have unconnected machines in a digital world. The same can be said of internal combustion engines, which are very powerful machines that frequently perform a single task, such as powering an automobile or a lawnmower. Task-specific machines (whether their heart is a computer chip or an internal combustion engine) are exactly what consumers want. Why would I want my dishwasher to communicate with my VCR? While I agree that automation can be useful both for automating tasks and (as Katsh points out) for gathering information, I disagree that automation is the solution to every problem. One need look no further than the “modern” airport lavatory to see the utter failure of automation in action. Faucets run when people merely want to comb their hair in front of the mirror, and they shut off when one’s hands are still soapy. Often the choice between hot and cold water has been removed entirely.
As another example, Katsh points out that searching for law by key words (Boolean searching) is not very easy. He suggests that natural language searching may be the solution. Bunk. Natural language searching is no help to a lawyer who cannot spot the legal issue. The human factor, whether in finding the relevant case law or figuring out what it means, will always be the limiting factor.
Third, Katsh restates the myth of disaster, stating that bad things will happen if copyright law is not fixed. This myth appears to have its roots in the writings of John Perry Barlow, one of the founders of the Electronic Frontier Foundation. In the March 1994 issue of Wired, Barlow asked the following question: “If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without is even leaving our possession, how can we protect it?” (The phrase “Doctor, Doctor, it hurts when I do this” quickly comes to mind…) I would answer this question by asking more questions. Why do you feel that protection is necessary? What is the goal of protection?
There is a world of difference between intellectual property (which are usually statutory rights) and its embodiment (e.g. a book, computer file, or painting). But that issue alone can fill a textbook. (For example, see Stevens v. Gladding, 14 How. 528 (1854), where the court held that the purchaser of copper printing plates did not have the right to make maps therefrom.) The legal community must educate legal professionals, consumers, and producers of intellectual property about intellectual property and the law governing it.
Law in a Digital World is a good introduction to the legal and technical challenges facing the legal profession as more and more information becomes available in digital form. But if fails to challenge–and in fact often repeats–many of the assumptions made by the popular press.
Next month, Rick will review another book, Netlaw by Lance Rose.
“Law in a Digital World” by M. Ethan Katsh.