Chapter 14

THE JUDGE

David R. Johnson

THE IDEALIST (Denise Caruso):
David was the voice of reason when I was on the board of the Electronic Frontier Foundation‹sometimes too reasonable, in fact, when what was required was to be uncompromising. But one of the most memorable experiences I had during my time on the board was watching and listening while David and John Gilmore debated the issue of absolute anonymity on the Internet. Begrudgingly, they came to an agreement they both could live with. I learned a ton‹not just about anonymity, but about how compromise can sometimes be the best solution for everyone.

David R. Johnson
serves as chairman of Counsel Connect, the online meeting place for the legal profession, and is codirector of the Cyberspace Law Institute.


I got to know Washington attorney David R. Johnson in 1995, after I received a letter from Network Solutions Inc., the company that administers the InterNIC, the body authorized to administer the domain-name system. The letter demanded that Edge Foundation, Inc., a nonprofit foundation I formed in the '80s, relinquish or change its domain name‹edge.org‹in fourteen days or be banished from the Internet.

I immediately called David, who I had met when he was chairman of the EFF. He also helped draft the Electronic Communications Privacy Act and has counseled major online system providers. David explained that while Edge had a trademark that would have precedence under trademark law in court (the foundation had published books and newsletters, run conferences, etc., for nearly ten years), that didn't matter under the new InterNIC policy. David went to bat, advising me (and my attorney), making calls to leading trademark lawyers, and going directly to the managers and attorneys who framed this misguided policy seemingly without understanding its implications.

The main function of Edge Foundation, Inc., is to serve as the organizational umbrella for the Reality Club, a group which has, over the years, been compared with the Lunar Society of Birmingham, the Bloomsbury group, and the Algonquin circle. Notice I did not write the Lunar Society of Birmingham, Bloomsbury, or Algonquin. Anyone with a sense of cultural history would recognize the absurdity of doing so. The Reality Club is about ideas, not commerce.

The conventional wisdom is that the big development in this communications revolution is that each of us can be a publisher, and has the same power to communicate as the giant conglomerates. Not so. Through a misguided policy, which seems to be designed solely to cover potential liability for Network Solutions and the InterNIC, we are headed back to business as usual, much to the delight of the powers that be. Major corporations want to own the Internet. Our politicians are more than happy to sell it to them.

David Johnson thinks about such weighty matters. He also acts judiciously. He is "The Judge."


THE JUDGE (David R. Johnson): About five years ago I gave a speech urging the creation of what I called the Electronic Guild Hall for the Legal Profession. Steven Brill of America Lawyer Media and its affiliate Court TV, understood the potential of an online community of lawyers, and launched the service called Counsel Connect, which has grown to be a 35,000-member online service for the legal community.

At an early stage in the Counsel Connect experiment, there was great debate about several things: whether or not members should own the copyright on their postings, whether or not people posting there would inadvertently form lawyer-client relationships or expose themselves to conflicts, whether or not their words would come back to haunt them. We found that the more people got involved in the online discussions, the more they relaxed about those things and understood that the terms and conditions of this new medium are different from those applicable to traditional media. In fact, the law has typically been treating online services by using old analogies‹to a printing press, or a broadcast television network, or some other thing. But the Internet is a new interactive medium all its own.

We're going to see more difficulties arise as people new to the Net take the time to learn the special characteristics of the medium. There are not yet as many good cues as to when you're in a public place and when you're in a private place as there need to be in order to make people comfortable with what happens to the messages they send online. So we're going through a gradual acculturation process. With regard to the use of copyrighted materials, there's still a great deal of uncertainty as to how somebody who has traditionally created content embodied in tangible objects can contribute to the Net in a way that rewards this production of value. The answers may well be found by establishing ground rules that are especially tailored to the Net community and are not the same as traditional copyright law.

On Counsel Connect, our very first decision was to establish a different "copyright" regime. We couldn't allow everybody who uploaded a comment to the public forums to enforce their copyright. Nor could we prevent those who read it from making a copy by sending it to a friend or printing it out for the benefit of a client. So we required everyone who entered this space to grant an irrevocable license to make copies of their public postings. The effect was to open up the flow of discussion. That's a specific example of why the copyright laws as they traditionally have applied to tangible market-based materials, like books and movies and so forth, may not be the right default rule for online communities, where the incentives to create new works come from the need for people to participate in the community, and where the value created is not inherently tied to the ability to tell someone else they can't make a copy of what you've just said.

One of the major topics of discussion on Counsel Connect has been the Clinton administration's White Paper, which proposes some changes to the current copyright law that seem to be both too much and not radical enough. For example, the proposed bill would cover as an infringing copy every transmission of copyrighted material over the Net. The problem is that, on the Net, reading and browsing inherently involve making a copy. The Net is a global copying machine. In the real world, it's fairly easy to know when you're making a copy, so putting the burden on you to get permission in order to make a copy is reasonable. On the Net, anytime you take any action, you're making a copy. There may be an argument, at least for materials that originate on the Net, to establish a difficult rule that allows you to engage in the normal processes of communicating across the Net, even if it does involve "copying," without getting permission.

In other words, the burden would be on the person who wants to restrict access. A good example of this is the "caching" of Web pages. It might be reasonable to think that everyone who puts a Web page up on the Net is giving an implied license to everybody who can access that Web page anywhere in the world to make a copy and download it. In order to speed up the delivery of Web pages, some of the large online services have created host computers that make what's called a "cached" copy of that Web page in order to allow the second person who comes along to get it more rapidly. Under existing copyright law, making that copy is infringing, and a Web page owner could revoke the implied license to do so. But if you post an English-language disclaimer on the front of your Web page saying this may not be cached in the computers of the XYZ Company, the computers of the XYZ Company don't have a way to read that and therefore can't obey the order.

The real question is what the default rule should be. Should it be that if you put something in your store window on the Web, someone should be able to look at it unless you cover it up by some technical means? Or should it be the traditional copyright rule that says everyone has to get permission every time they make a copy? It's pretty clear the Web couldn't function if you didn't make the default rule that the information can flow freely.

What impact the new telecommunications law will have remains an open question. One of the keys will be what role the Federal Communications Commission takes in implementing regulations. The instinct behind the Communications Decency Act is understandable because the Net appears on a screen and that, to some people, makes it similar to a television screen. It is true that children can access the Net without effective parental supervision, particularly because they're more facile with the technology than many parents are. On the other hand, it's very different from the broadcast models that have traditionally allowed some form of government regulation of otherwise permissible First Amendment­protected speech. In particular, on the Net you have to seek materials that are offensive; they don't come in to you unbidden. So we have an example of the failure of the lawmaking apparatus to understand the technology fully, and to take into account the ability of new technologies to provide filters that would allow parents to control what's accessible to their children and solve the problems of concern to legislators in a much less intrusive way. But we can take heart from the three-judge federal court that overturned the CDA as unconstitutional. The best thing about the court's opinion is that it explains the decentralized, chaotic character of the Net.

The court's opinion also recognizes that the Net is a global phenomenon. That's a plus in the sense that it's impossible for any one national government to control the content available on the Net. Some governments are trying, but it's clearly a losing battle. On the other hand, as John Perry Barlow says, the First Amendment is a local ordinance, and for many governments across the world, there is not as strong a commitment to legally protecting free speech as there is in this country. If we want to preserve the free flow of information over the Net, it may well be that we will have to begin to speak in terms of a global doctrine of free speech, a global free flow of information principle, that enables the new global commerce to take place without undue local regulation.

One of the difficulties posed for the Internet has been the collision between traditional law relating to trademark and the new needs of this new medium. The engineers who built the Internet created a registration scheme which worked on a first come, first served basis. Anyone could create a domain name as an easy-to-remember mnemonic address that links into the Internet protocol number through which a machine is located. That worked very well in a small community, but at some point the large corporate entities with a lot invested in trademarks started to notice that domain names closely corresponding to their trademarks or company names had been reserved. As everybody anticipated the growth of commerce on the Net, it became a matter of great interest to McDonald's whether or not it owned mcdonalds.com, for example. The engineering group that focused on making the Internet work and tying everyone together has no desire to become involved in legal questions about who ultimately owns a trademark to the word mcdonalds, so they tended not to focus on the policy questions raised by that conflict.

On the other hand, trademark law as it has traditionally developed is geographically based. There are different rights in different countries and different rules as to who can have a right in different countries. The Net allows the same name to be accessed from anyplace in the world. So you face the question whether the use of a given domain name on the Net is simultaneously a trademark use in every country‹in which case you are required either to register or at least to avoid infringing other people's rights‹or whether it's not a use in any country but a use only on the Net.

There are lots of other respects in which the traditional trademark doctrine doesn't deal with the particular phenomena that the Net gives rise to. All these policy questions have to be addressed by somebody.

Will the Net develop a self-regulatory organization that takes on these policy questions and resolves them in a thoughtful way‹allowing, for example, nonprofit organizations, which don't have registered trademarks, to gain some priority in the use of names on the Net if they have used them for a substantial period of time? Reasonable accommodation has to be made between the engineering and social needs of the Net, on the one hand, and local regulation and traditional law, on the other. If the Net policy makers are wise, they will take steps to accommodate the claims of the owners of strong global marks who have invested millions of dollars in promoting those marks. If they are wise, they will also reserve to themselves the ultimate decision on how to develop an architecture of names on the Net.

The Internet, because it is an emergent technology, raises a very interesting set of issues about who ultimately owns the policy questions and the right to set rules that apply to the Net. On the one hand, a small group of engineers and others have focused on this communications technology and have dominated the decision making for a long time. On the other hand, a large number of people increasingly feel that they've been around long enough to have a say in what the rules are. Because the United States government originally financed some of the development of the Net, some representatives have suggested that it owns the right ultimately to determine, for example, the policies for the domain name space. But it's hard in the end to see how you can justify the control over all the global policy questions raised by the Net solely on the ground that one particular government used to own the computer on which the phenomenon grew in its infancy. It's still an open question, though, whether some essentially internal political community voice will emerge from the Net to assert the right to make the ultimate policy decisions or whether, if that doesn't develop quickly enough, external legal authorities will impose their will by virtue of having the power to control the actions of particular individuals and companies.

I came on the board of the Electronic Frontier Foundation in 1993. I had worked with EFF for a long time and with various members of the staff on the Electronic Communications Privacy Act and various other early efforts to assure electronic privacy. One of the unusual things that happened in Washington with regard to new technology and privacy was a realization that the new technology was so complex that you could never get a sound bill if you took all the different parties and put them in a confrontational mode in a hearing room. Some of the people who ended up being staff members of the EFF created an off-the-hearing-room-floor process to talk through the complex issues,with the goal of getting legislation that would be endorsed by everyone, from the ACLU to the Justice Department. That consulting process has been going on for ten years or more. When I came on the board, I tried to help the EFF go from being a Washington-based political group to being an educational group with regard to the Net as an ecosystem, which I think is a great metaphor for this complex animal we're dealing with.

The EFF brought together people with a wide range of perspectives, but with a shared enthusiasm for the potential of the Net to create a new, more open social space, in effect to aspire to a new form of democracy. One of the great joys of the EFF has been creative discussion at board meetings of how to help the Net develop more freely and fully. There's always been a tension in EFF between, on the one hand, the civil rights origins focused on the First Amendment and the need to strike a strong pose against government censorship and regulation of the Net, and, on the other hand, the desire to take the Net seriously as its own phenomenon, view it in all its complexity, help people understand it, and help convey that the most important rules with regard to the Net are not likely to be made in Washington, but by those who participate in the Net itself.

What's happening on the Net is that the combined decisions made by a systems operator setting rules and the users who vote with their modems, by deciding which areas to frequent and how often, are creating competing environments where different rules and different laws obtain. It's the first time that I know of in the history of the world in which we've had Darwinian selection pressure on the law. People engaged in online activities can reward those kinds of rules that are empowering and penalize those that interfere with what they want to do online. We have moved collectively from an understanding of this new phenomenon in terms of the application of traditional law to an understanding that it will, in effect, remake the law, as much as it will remake the way people engage in social dialogue and formation of operational groups.

Unfortunately, the government has created uncertainty that has a disproportionate adverse effect on small players. For a long time, the forty thousand or so people who are engaged in bulletin board systems have been at risk of unfair impacts from the law. They can't afford lawyers; they die on contact with the legal system. The government has missed an opportunity to create a workable set of rules that will enhance the overall flow of online trade. But everyone is beginning to realize the potential importance of electronic trade for our posture in the global economy, so I haven't given up hope.

When there have been disputes online regarding whether or not something infringes a copyright, or is defamatory, or is otherwise wrongful, systems operators have felt that they were at risk if they didn't take down the file every time. If we rely on a dominant system operator, or place too strict liability on all system operators for a copyright infringement or a wrongful posting by an individual, anything that's controversial or raises a question might be taken down right away. The alternative is to provide a dispute resolution mechanism inside the Net itself that would take a complaint and get it discussed and assessed by a neutral online arbitration system. A new experiment, the Virtual Magistrate Project, is designed to do just that. It was set up with seed money from the National Center for Automated Information Research, with the cooperation of American Arbitration Association, and its Web site is at the Villanova Law School. If the Net is going to develop its own self-regulatory mechanisms, it's going to need a lot more such experiments, run by lots of people who care deeply about the Net.

John Perry Barlow's idea that the Net should be thought of as a complex ecosystem has stimulated thinking about why this environment might need to develop its own internal structures different from those governing activity in the real world, and why in many cases the best response to troubles or wildfires might be to do nothing. Barlow has shown incredible leadership in helping us think through the way in which we should respect the complexity of the new environment.

Watch for the development of a new global legal order applicable to the formation of organizations and transaction of all forms of interaction on the Net. First of all, because the local territorial governments cannot effectively regulate the Net and will give deference to a self-regulatory structure of some kind. Secondly, because the legal questions raised by the Net are going to be special and new. We're dealing with people who may appear only as a screen name. We're dealing with places defined not by geographical boundaries but by whether you have to go through a password or a particular screen to get there. We're dealing with things that differ from material objects like books and may be more like a large database from which a particular paragraph can be extracted. When you change people, places, and things, you're going to get a different law, one that will have the benefit of being capable of being very diverse, where the people who do business on the Net, or interact in communities on the Net, will be able to choose from lots of different sets of rules to govern their life online.

THE COYOTE (John Perry Barlow): There may be no one who has a better intuition of how law will develop in cyberspace than David Johnson. He has a deep instinct for clarifying the unusual legal conditions of the virtual world and exposing the error of trying to adapt existing legal regimes to them. I believe his Cyberspace Law Institute will become one of the central repositories for clear thought on this subject.

THE PATTERN-RECOGNIZER (Esther Dyson): He has an affable, friendly approach that belies a razor-sharp mind. He 's a brilliant, unconventional thinker in lawyer's clothing.


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Excerpted from Digerati: Encounters with the Cyber Elite by John Brockman (HardWired Books, 1996) . Copyright © 1996 by John Brockman. All rights reserved.