The New York Times
September 2, 2000
Is Litigation The Best Way To Tame New Technology?
By ADAM LIPTAK
The growing and dangerous intrusion of this new technology," Jack
Valenti said, threatens an entire industry's "economic vitality and
future security." Mr. Valenti, the president of the Motion Picture
Association of America, was testifying before the House Judiciary
Committee, and he was ready for a rhetorical rumble. The new
technology, he said, "is to the American film producer and the
American public as the Boston Strangler is to the woman alone."
It was 1982, and he was talking about videocassette recorders.
But the woman in this instance survived, and even flourished. "It
is fair to say," declared Charles S. Sims, a lawyer at Proskauer
Rose who represents the industry in Internet-related litigations,
"that as things worked out, the studios did not lose control of
their products" through home taping on VCR's.
Indeed, video rental income now rivals box-office receipts.
Still, adaptation was not the industry's first response to the new
technology. Its first response was to sue.
Some hear an echo of Mr. Valenti's doom-saying in the entertainment
industry's recent lawsuits against Web sites that allow users to
swap music and movies and to decrypt DVD's. In July, Marilyn H.
Patel, a federal judge in San Francisco, effectively signed a death
warrant for Napster, a Web site through which users share music
files. Asserting that it had "contributed to illegal copying on a
scale that is without precedent," she said: "Any destruction of
Napster Inc. by a preliminary injunction is speculative compared to
the statistical evidence of massive, unauthorized downloading and
uploading of plaintiffs' copyrighted works -- as many as 10,000
files per second, by defendant's own admission."
An appellate court deferred the enforcement of that order until it
hears arguments.
Last month Lewis A. Kaplan, a federal judge in New York, forbade
Eric Corley, a computer hacker, and his company, which publishes a
magazine and maintains a Web site, to post or even provide
hyperlinks to sites containing a computer code for decrypting
DVD's. Judge Kaplan was unmoved by the general availability of the
code on countless Web sites. "If a plaintiff seeks to enjoin a
defendant from burning a pasture," he wrote, "it is no answer that
there is a wild fire burning in its direction."
Nor was he impressed by the defendants' First Amendment arguments:
"The Constitution, after all, is a framework for building a just
and democratic society. It is not a suicide pact." He was echoing a
similar statement by Justice Robert H. Jackson in a 1949 Supreme
Court decision.
Unlike Judges Patel and Kaplan, however, jurists have generally
been reluctant to wade into fast-evolving technical issues.
Existing law can fit poorly with technological developments, mostly
because the legislators who drafted the laws did not anticipate
them.
The VCR case, for instance, caused the Supreme Court considerable
anguish. The court heard arguments twice, and finally, a year and a
half after it had agreed to decide the case, it issued a 5-to-4
decision allowing home taping. The court's uneasiness with the
technical aspects of the case was evident in its description of the
device under attack. "The pause button, when depressed," Justice
John Paul Stevens solemnly found, "deactivates the recorder until
it is released."
The only point on which the justices on both sides agreed was that
the courts were the wrong forum for regulating technological
advances. "Like so many problems created by the interaction of
copyright law with a new technology," Justice Harry Blackmun said
in dissent, "there can be no really satisfactory solution to the
problem here, until Congress acts."
Legal experts have no trouble thinking of similar examples from the
past. Susan P. Crawford, who specializes in Internet issues at
Wilmer, Cutler & Pickering in Washington, noted the sheet music
industry's challenge to the new player piano technology in 1908.
The Supreme Court of that era held that perforated paper was not a
copy of musical notations for purposes of the copyright law.
While the court observed that the case was "of very considerable
importance" because it involved "large property interests" and "the
rights of composers and music publishers," it held that existing
law did not prohibit the new technology. As in the VCR case, the
court said the issue was for Congress to decide.
Ms. Crawford went on to identify what seems to be a recurring theme
in the litigation in this area: "The older industry lost."
Legal scholars are sharply divided on whether litigation is the
appropriate vehicle for resolving these clashes. Eugene Volokh, a
law professor at the University of California, Los Angeles, said
that judicial resolution of cases like the one against Napster "is
what law is all about." He said that "it is a good and acceptable
thing if business people address the violation of their legal
rights by seeking judicial relief."
He dismissed concerns that Napster or at least its decentralized
cousin Gnutella is unstoppable as a practical matter. "It's
important not to take a nirvana-or-the-abyss attitude about these
things," he said. "Any attempt to enforce the law is going to be
imperfect."
Others are warier of judicial intervention. "This is a technology
that is enormously exciting, with enormous potential," said David
G. Post, a law professor at Temple University, referring not only
to Napster but to all file sharing. "It has the potential to
fundamentally alter people's relation to information on the
Internet."
The legal system, he continued, should "allow this thing to grow
and move off into all those new applications and somehow figure out
how to compensate those who are harmed."
Lawrence Lessig, a law professor at Stanford and the author of
"Code and Other Laws of Cyberspace," also questioned the wisdom of
a rush to judicial judgment. He told Judge Patel in a report filed
at Napster's request that the record companies' "apparent aim is to
use the law to fit the Internet into their traditional business
model." Mr. Lessig urged the court to act cautiously before
attempting "judicial regulation on net architecture."
There are other problems as well. Napster, like the VCR
manufacturers before it, is accused of "contributory infringement,"
a concept invented by judges as a sort of short cut. It allows a
single suit against a central facilitator rather than thousands of
suits against individual infringers.
"It's almost like a class action," Mr. Post said.
And as in class actions, he went on, courts should be concerned
about the interests of those not before the court. In the Napster
case these absent voices include people who merely retrieve from
remote locations music they already own, musicians who welcome the
opportunity to distribute their work and even copyright holders who
think that sampling will encourage buying.
"The other thing about litigation is that the future is not present
either," he said. "The courts are inherently retrospective
institutions."
If nothing else, he continued, this much is clear about the future:
"The people who will make money are not those saying, 'You're
infringing my technology.' The people making money here are those
thinking, 'This is a really neat idea.' "
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