As promised, a few notes on today's (extremely interesting)
conference, sponsored by the Cyberspace Law Institute, on copyright
issues on the Net:
- The panel was moderated by Bill Burrington of America Online
and the Interactive Services Assn; panelists were myself, David Johnson
(Lexis Counsel Connect and the C.L.I.), Vint Cerf (MCI Communications),
Rebecca Fry (an attorney at Foley & Lardner), Wayne Rash (Communications
Week), Dan Duncan (Info Industry Assn.), Helena Kobrin (attorney, who
has represented the Church of Scientology and its affiliates in recent
disputes), and Peter Pitsch (Progress & Freedom Foundation).
- There was, shall we say, a spirited discussion about whether,
and to what extent, copyright principles should apply to the Net or in
other electronic communities. I articulated one pole of the debate:
that granting authors exclusive rights to control the making of copies
is (a) fundamentally inconsistent with the nature of communication over
the Net (which necessarily involves the making and transmission of
"copies"), leading to a potential "holdup" problem (rightsholders using
copyright strategically and thereby imposing costs on the medium itself),
and (b) not clearly necessary to give authors incentives to create new
works in the new medium. Others disagreed, more or less strongly, on
both points. There was, however, some rough consensus at least to the
effect that the question of how best to protect *new* content, written
for and distributed via the network, needs to be distinguished from the
very separate question of protections for works that are created and
distributed off the network but that, by one means or another make their
way on the network.
- There was an extended discussion of the question of online
service provider (OLSP) liability. There was general agreement that in
the absence of notice of infringing material, the OLSPs should not bear
liability for infringement. But we went on to the harder (I think)
question: what is an OLSP to do when presented with a claim that
infringing material has appeared on his/her system? Some argued that
such notice leads to a duty to remove the material; but during the
course of the discussion it became clear that this is not always an
acceptable mode of action, since some claims will be spurious, and
removing material that is *not* infringing is unfair to the distributor
of that material (as well as damaging to the values of open discussion
and discourse). The panelists all expressed a great deal of interest
in an idea, advanced by David Johnson, to set up online dispute
resolution panels -- "virtual magistrates" -- to hear these claims *in
real time* and report back to the OLSP on whether the claims are
sufficiently credible on their face to justify removal of the material
pending further investigation (and/or resort to the courts if necessary).
The OLSP, for its part, would, under this model, be deemed to have
acted reasonably and to have complied with its duty in response to the
notice of a claim if it abides by this preliminary "judgment" of the
panel.
The panel was taped by C-Span; if I get any information on times
that it will be broadcast I'll pass that along. I also hope to get a
transcript of the proceedings, which I'd be happy to share with anyone
interested.
David Post
<dpostn00[_at_]counsel.com>
Received on Thu Oct 05 1995 - 13:07:28 GMT