July 29, 1998
When asked by reporters whether she favors curbs on the Internet,
which has played a key role in breaking the news about the President's
scandals, Hillary Rodham Clinton ominously replied: "We are all going
to have to rethink how we deal with this, because there are all these
competing values." According to a Reuters dispatch, she went on to
deplore the fact that the Internet lacks "any kind of editing function
or gatekeeping function."
The now famous appearance of Matt Drudge at the National Press
Club showed that Mrs. Clinton is not alone in attacking the notion
that a website, such as the Drudge Report, without any supervisory
editor, can compete with established news sources. The copyright bill
now racing through Congress, H.R. 2281, appears to emanate out of this
same mindset that we should rethink our laws about freedom of the
Copyrights are, of course, a good thing. But the lobbyists for
Hollywood, cable, software and publishing industries are exploiting
temporary confusion on Capitol Hill over high-tech issues.
The problem is the changes to copyright law contained in H.R.
2281's main sections, the WIPO Copyright Treaties Implementation Act
and the Internet Copyright Infringement Liability Clarification Act.
H.R. 2281 has many provisions that are unacceptable in a free society.
H.R. 2281 sets up a procedure which effectively turns Internet
service providers into gatekeepers. A competitor, asserting that you
are infringing his copyright, can demand that your service provider
delete your website, file or link.
H.R. 2281 makes it almost sure that your service provider will
punch the Delete button, no matter how insubstantial or frivolous the
complaint. The bill reads: "A service provider shall not be liable
for monetary relief . . . for infringement . . . if the provider . . .
responds expeditiously to remove or disable the reference or link upon
notification of claimed infringement."
It doesn't take a rocket scientist to figure out that, when a
service provider receives an intimidating letter on legal letterhead
demanding X, and he knows that if he expeditiously does X he is immune
from a lawsuit, most service providers will do X. And presto, your
website, file or link -- the private property of the future -- is
taken from you without due process.
H.R. 2281 enables a bully (a corporation or special-interest
lobby) to eliminate future Drudges and others by merely intimidating
the Internet service provider. Neither a court order nor even a
registered copyright is necessary for a competitor to demand removal
of material from the Internet.
The advocates of H.R. 2281 assert that the bill is designed to
prohibit "black box" descramblers for cable TV, but the language of
the bill goes far beyond this excuse. The bill will allow seizure of
your computer or VCR without advance notice and without any finding of
This bill imposes prison sentences of up to five years if a
federal court determines that you were using a computer, VCR or
website contrary to the rights of a copyright owner. H.R. 2281
empowers a federal judge to order the seizure of your personal
computer or VCR without any finding of wrongdoing, even in the absence
of any pending criminal prosecution.
A proposed change to allow for 72-hour advance notice was
rejected, even though prior notice of a deprivation of property is a
constitutional right of due process. It could take you years of
litigation to get your computer returned, and meanwhile your business
is ruined just because of an alleged copyright infringement.
We've heard a lot of rhetoric from free-marketeers who want to
prohibit taxes on the Internet but, as bad as taxes are, they impose
only a marginal cost. H.R. 2281 would empower federal judges, and
even your business competitors, to force a seizure of your property
without any finding of guilt. The bill provides for a replacement of
seized property, but only under certain conditions and only after the
damage has already been done.
Microsoft, Time Warner, Hollywood and the publishing industry,
the chief backers of H.R. 2281, should be able to protect themselves
against unauthorized users without new legislation. Big corporations
should not be permitted to use federal prosecutors and judges,
spending taxpayer dollars, to defend corporate interests against
As Silicon Valley engineers know, the computer industry was
developed by the use of reverse engineering of competitors' products
for the purpose of copying interfaces and discovering unpatented
features. The Internet itself is built on widespread copying and
unfettered competition, with enormous benefit to the public.
H.R. 2281 includes an exemption for reverse engineering, but it
is limited to having a "sole purpose" of engineering "necessary" for
interoperability. That is so narrow that it is almost meaningless,
and a competitor faces five years in jail if the court disagrees about
the necessity or if the engineer could have learned the same
information through a different, perhaps costlier, means.
Congress will be making an enormous mistake if it empowers
federal judges and gatekeepers to control the Internet.