Speech in Electronic Space.
[22 Aug 1995]

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Speech in Electronic Space.
The Washington Post
August 22, 1995

As use of the Internet grows, one thing that's becoming
uncomfortably clearer is just how much of existing communications
and copyright law depends on the physical limitations of records
and publications kept on paper. A copyright infringement suit
brought recently in Alexandria, concerning dissemination via the
Internet of supposedly secret and copyrighted documents belonging
to the Church of Scientology, brings some of these newly
problematic issues into sharp relief. It's only one of a string of
recent cases that show how much things are changing because of the
new medium and how difficult it will be to enforce existing law by
existing mechanisms.

In the Scientology case, a federal judge in Alexandria ordered
marshals to seize the computer equipment of a man who had allegedly
transmitted an unpublished but copyrighted "secret" text about
Scientology, containing theological precepts and instructions, to
a computer "newsgroup," or public space, from which it was
instantaneously copied by thousands of other computer users all
over the world. A lawyer for the church told the New York Times,
"There are people out there who think the Internet has created a
new medium where all the rules go away, and it's not true."

Legally, she's right: Copyright remains theoretically binding on
the Internet when you can catch up with it. The trouble is that the
Internet is international, and copying materials is effortless, so
while individual copyright violators can be punished, that won't
necessarily have the effect that copyright is designed to produce.
The church of Scientology, for instance, had been able to charge
people money for access to its documents. Now there are so many
millions of copies available that they were reported to have
clogged distribution outlets in Germany, Finland and Beijing.

Besides being of interest to publishers and authors (and, we might
note, newspapers with on-line distribution services, such as this
one), the future of copyright in cyberspace is of urgent concern to
academics, who had made use in recent years of a special copyright
exemption carved out to allow the photocopying of published
articles for use in class (as long as no extra fee was charged
beyond the cost of reproduction). Academics now want to distribute
such work to students electronically, and some want libraries to
provide it that way -- including, perhaps, the Library of Congress,
which is under pressure to get on line quickly with more material.
But publishers and the owners of copyrighted material on, say,
CD-ROMs are vigorously opposed to measures that could render them
possibly unnecessary and certainly financially unviable. They want
the copyrights enforced, even as others are calling them
unenforceable -- and as machines that can "scan" books directly
into computers make the pace of reproduction ever faster and more
painless.

Some of this will require legislation. The Commerce Department has
held sessions on the topic without coming up with a plan, as has
the publishing industry. What the courts rule on specific cases may
prove less important to the structure of future law than an
evolving technological understanding of just what kinds of rules
can be imposed with some reasonable hope of results.