Thursday November 12 1998.
Following are excerpts from one of the Intellectual Property Practice
Group Session panel discussions held as a part of the Federalist
Society's 1998 National Lawyers Convention. The convention took
place on November 12-14, 1998, in Washington, D.C. The panel discussion
is entitled "Bringing Intellectual Property Law to New Frontiers,
Part One: Cyberspace." The comments below are a transcription
of oral remarks edited by Federalist Society members. The moderator
for the panel discussion was Mark Schultz, Vice Chairman of the
Intellectual Property Practice Group.
I am Mark Schultz. I'm the moderator, a vice chairman of the Intellectual
Property Practice Group, and President of the Chicago Lawyers Chapter.
Thank you all for coming.
In setting up this panel, we were thinking about regulation of
the internet and talking about a few different perspectives that
are out there on this topic. We asked ourselves, " what should
be the regulatory regime for the internet?"
There are probably three points of view out there. One is that
we should allow self-regulation. It's too soon to regulate the internet.
We should step back and see what order emerges.
Another point of view is that changes brought about by the internet
are far too rapid and disruptive to just completely ignore. We need
some help from the government, and there is a wide range of views
on what positive role government could play in a regulatory regime.
The third point of view is a bit contrary and can mesh with either
of the first two points of view. . . . [T]here is a fear that new
technology could allow governments or big business to oppress us,
to give them awful tools for blocking people's freedom to view published
materials and other forms of censorship.
We'll be hearing from the panelists today where they fall within
that spectrum of views and what their thoughts are about how the
internet should be regulated, if at all.
As our first speaker, we're very pleased to have Professor David
Post. Professor Post is an Associate Professor of Law at Temple
University Law School. He's also co-founder and co-director of the
Cyberspace Law Institute. Before joining the legal profession, Dr.
Post was an anthropologist and taught anthropology at Columbia University.
He went to Georgetown University, where he graduated summa cum
laude. He then clerked for Judge Ruth Bader Ginsburg on the DC Circuit.
He joined Wilmer, Cutler & Pickering for six years, practicing
in intellectual property law and working on high tech transactions.
He then went back to clerk for Justice Ginsburg, once she joined
the Supreme Court. Professor Post is a frequent speaker on these
topics in a wide range of media, both second wave and third wave
media. He's actually been the subject of a Wired profile, so that
means he's "right dead on" for our topic.
DR. POST: I want to talk
briefly about . . . the notion of what it means when those of us
say that the internet is a kind of complex adaptive system that
is best left, in many cases, to its own devices, as it were, in
an uncoordinated and unstructured way for solving policy problems.
I'll just start with one, I think it's a fairly obvious point,
at least these days, from which to start this discussion. I think
the very existence of the internet and its extraordinary growth
over the past half dozen years or so really proves one very important
principlethat coordination at the most detailed technical
level and, simultaneously, on a global basis, is possible; is possible
at amazing speed, entirely without centralized control of any kind,
and without the imposition of coercive force of any kind. We sort
of take it for granted, but I think the adoption of a set of uniform
internet protocols, for example, is a remarkable achievement of
the global community.
As I say, we do take it for granted that I can as I just
did a few weeks ago walk into an office building in a city
in provincial China and access my own web page in Philadelphia and
all the Java applets work right. I can send myself messages. It's
now quite commonplace, but, in fact, that has required a kind of
agreement and coordination among thousands and thousands of individual
actors, none of whom were told what to do, none of whom were ordered
what to do. And I guess I would go even further to say that this
could not have been achieved by any kind of centralized control,
by any kind of interference with what is the natural evolutionary
processes that are at work in a system like this.
Now, I don't think that this principle solves any particular public
policy problem standing alone. It doesn't necessarily mean that
there are no circumstances in which regulatory intervention is permissible
or a good idea. But I also don't think that there are any policy
problems regarding the internet that can be addressed without serious
consideration of this principle and of this phenomenon. And I guess
what I wanted to do was to give an example of . . . how I think
this helps one to think about policy issues and, in particular,
the current controversy over the domain name system.
To give a 30-second background for those of you who are not familiar
with this, the system under which internet addresses, numerical
addresses and internet domain names are handed outibm.com,
temple.org, aol.com, for exampleis in a state of crisis at
the moment. The United States Government has played a role in this
by funding or partially funding the institution that has had primary
responsibility for handing out both names and numbers on a global
basis. A funding role has been declining over the last several years,
as the internet became capable of generating its own revenue, and
it ended formally last month with the expiration of a contract under
which NSI, Network Solutions, has been operating.
Last spring, the Commerce Department began plans for an orderly
transition of this system. They had determined that they wanted
to discontinue the government's role in this system more or less
entirely and that they were looking for ways to transition to the
private sector. . . .
A non-profit corporation has, in fact, been set up with the government's
blessing. It's called ICAN [Internet Corporation for Assigned Names
and Numbers]. They are in the process of wrestling with their own
bylaws and charter to determine exactly how they proceed. Again,
the Commerce Department has been looking over its shoulders to make
sure that it proceeds in a way that comports with the government's
I guess one question I had when I started to get involved with
. . . this issue is why the government really felt compelled to
do anything at all. That is, having funded this for some time, and
with the contract expiring in October 1998, why didn't they just
walk away and say, "you're not getting any more money from
the US taxpayers to do this, you can generate the money on your
own, and we'll keep an eye on you should anything really dreadful
happen, but off you go and let's see where this system takes itself
in the ensuing months."
Now, there would certainly be a period of uncertainty. There would
perhaps be a period of some chaos on the net. There might be multiple
suppliers of the domain name services such that I would type www.ibm.com
and be taken one place and [you] might type it in from [your] computer
and be taken to a different place, because . . . [your] service
provider would be resolving these names and numbers in a different
But it is, in fact, in the nature of complex systems that they
can adjust, in a sense, to chaotic perturbations to find new adaptive
configurations when they are subject to stress. And it's adaptive
configurations that we can't order in advance, and that often we
can't even imagine in advance.
Beyond this period of initial chaos, there is nobody who can tell
me what this system would look like four months down the road or
six months down the road, as all of the interested players began
to adjust to each other's actions, and to reroute their browsers
to different sources of supply. There would be new players in the
game who would seize an entrepreneurial opportunity to provide this
Where this system would resolve itself is unknowable. . . . [W]ould
we come up with a better solution to this problem in advance? That
is, can we dictate in advance exactly what the best solution to
the domain name system might be, as opposed to allowing the multiple
players in this system, in a decentralized and uncoordinated way,
to perhaps find the right or the best configuration of this system?
I think that's a central question for internet policy and I think
the existence of the internet itself puts a thumb on the scales
in favor of the uncentralized and unordered approach because it
has proven that such an approach can in fact be very successful
on a global scale. At the very least, the policy that the government
needs to adopt
is to avoid, at all cost, the use of governmental
force and governmental power to freeze the system in some way so
that individual entrepreneurs and others are not permitted to be
experimental and unpredictable in the future.
Evolutionary change in a system like this is . . . in a sense,
the enemy of orderly transitions, and orderly transitions are the
stock and trade . . . of officials at the Department of Commerce.
There is a real tension that would be difficult to resolve in favor
of adaptive change in the system and against the notion of orderly
transitions and orderly policy-making. I think the internet is a
huge global experiment in the adaptive significance of complex systems
and their ability to regulate themselves. That, so far, has proven
quite remarkably the . . . internal power of systems to configure
themselves in . . . ways that could not have been predicted or ordered
MR. SCHULTZ: Thank you,
Professor Post. Next we will hear from Andrew Shapiro. Andrew Shapiro
is the Director of the Aspen Institute's internet policy project.
He is also currently a First Amendment fellow at the Brennan Center
at New York University.
Mr. Shapiro is a journalist, a writer, a scholar, and a policy
analyst. His writings have appeared in numerous periodicals. He's
a contributing editor at The Nation. He has also written for the
American Prospect, Feed, Lingua Franca, the New Republic, the New
York Times, the Washington Post, USA Today, and the list goes on.
He's also been a fellow at the Harvard Law School's Berkman Center
for Internet and Society and a fellow at the 20th Century Fund.
He graduated from Brown University in 1990, and in 1995 graduated
from Yale Law School.
In 1992, he spoke at President Clinton's post-election economic
summit at Little Rock and this coming spring he will teach a seminar
at Columbia Law School on new media and the law.
One of Mr. Shapiro's primary areas of focus is the impact of the
internet and new technologies on the First Amendment. We are pleased
to welcome Andrew Shapiro.
MR. SHAPIRO: First, the general question of whether the internet
should be regulated. I think the first thing we need to do is step
back and really disaggregate that question. What is the internet?
Now, I just really thought of this, but here in my pocket is a cell
phone. It's a digital cell phone and I was looking at this as we
started here and I noticed, on the inside, it says this device complies
with Part 15 of the FCC rules, et cetera, et cetera. This is a regulated
device and one of the reasons it's regulated is because the spectrum
is regulated in terms of what can be used where.
Now, what does that have to do with the internet? Well, if I pay
the fee to my service provider for the phone, I can get e-mail on
this telephone. What that means, essentially, is that the internet,
as we know it, is becoming increasingly amorphous. You can hook
a device up to your television, a web TV device, to get internet
access. . . . And increasingly it's going to be difficult to distinguish
one technology platform from another. One of the ways that people
who write about this stuff think about it is just basically to say
we have one big net. Forget internet. It's just one large net that's
going to encompass so many technologies that separating one from
the other [will] be almost impossible.
In fact, the FCC has started to realize this, because they face
the conundrum of what to do with cable modem access to the internet.
Are those cable channels that come over by an IP protocola
visual representation over your screenbound by the cable public
access rule, public education and governmental access standards?
It's a tough question, right? It is a cable box, but it's not cable
broadcasting. It's internet access over your cable TV. . . . [E]essentially,
you can watch Seinfeld on a web site. Should that be under the same
regime as cable TV? No one really knows the answer.
My cautionary point, though, is that it's going to be increasingly
difficult to distinguish these media. Now, this is a prediction
that was made 15-20 years ago by people like ETL Desola Pool and
others who said it's going to be very difficult to distinguish,
and the answer is we should treat all electronic media the way we
treat print media. Don't regulate it. Just leave it alone.
Now, I want to take issue with that by further disaggregating our
original question: should the internet be regulated? Well, we say,
"what's the internet?" Now we want to ask what regulated
means. What is regulation?
My position is that the internet and other developments and technology
are going to actually challenge our notion of what constitutes regulation.
Traditionally, when we think about the state, we think about rules
that are promulgated by administrative agencies. We think about
laws, statutes that are passed by legislatures at the state and
the Federal levels. We think about treaties that are implemented
by groups like WIPO, the World Intellectual Property Organization.
I think regulation increasingly is going to take different forms.
We've talked about what industry might do to make up its own rules
and govern itself. But I think we need to go even beyond that, to
start thinking about how the technology itself can be a regulator.
I think the best way to think about the internet is that it's a
force that can actually affect people's lives. It can allow for
control and power to shift from one place to another, from institutions
to individuals. What that means, essentially, is that the internet
itself is a regulatory force.
So when we ask the question, whether the internet should be regulated,
we really need to think about what regulation means. Is it just
the state acting in ways that can change behavior and change social
and political relationships, or is it the technology itself?
Let me give you an example. Professor Post mentioned the copyright
changes that have recently taken place, the Digital Millennium Copyright
Act. I interpret the Digital Millennium Copyright Act as a sign
basically of the copyright industry's anxiety about a giant copying
machine. They see digital media as a giant copying machine. You
can put anything on there, copy it instantly, and send it anywhere.
What was their response? Over the last five to ten years, people
have been trying to figure out what are we going to do when you
can so easily copy material. Should we pass new laws that prevent
that? Well, that's one way to deal with it and that might be a traditional
regulatory angle. But that's not really what we've done. What we've
done is invent new tools. We've changed the code of technology to
essentially achieve the same goal of protecting creative original
works, in the case of copyright, from this giant copying machine.
And so there has been the invention of something called trusted
systems, also known as copyright management systems or copyright
management tools, which do with technology what we would like to
do with lawprevent people from distributing or copying, otherwise
illegally, so we think in the traditional sense, using our materials
that we own. These trusted systems are just coming into play. But
what the Congress just did with this anti-circumvention provision
that Professor Post mentioned was make it illegal to create tools
that would allow you to go around trusted systems.
That's not direct regulation. Congress is not saying you can't
copy on the internet, because, frankly, a lot of people think, that
should already be a violation of the existing copyright statutes.
What Congress is saying is that when people create trusted systems,
we are going to make it illegal for you to go around them. That's
not state regulation. That's regulation by technology and it's the
state buttressing that kind of regulation by saying if you intentionally
don't comply with technology as regulation, you're going to go to
Let me flag a few more things for you. As we start to think more
expansively about what regulation is, I think that we need to have
a more sophisticated, nuanced understanding of government's role
on the electronic frontier.
Does government have a role on the electronic frontier? Absolutely
it has a role. To think that government doesn't have a role on the
internet in cyberspace is to marginalize the internet and cyberspace
to a place that doesn't matter. Even the most laissez faire, pro-competition,
anti-state, pro-deregulation individual must recognize that there
has to be a framework for contract, for property, and for other
rules, and, therefore, there is going to be a role for government.
And, frankly, I would take slight issue with what Professor Post
has said in terms of what we can see in the way of precedent with
the internet. It was the Federal Government that created this tool.
It was the Federal Government that did establish the contracts that
allowed the domain system to happen with IANA, with NSI.
What's going on now in the DNS reformation process is a recognition
that what government did was insufficient. It handed an exclusive
monopoly to one player to be in charge of the domain name system.
We wanted to make things more competitive and to make them more
competitive, the internet community is going through this soul-searching
process of figuring out where do we put the locus of control. The
thought now is that it will be put in the private sector, with a
non-profit entity that will assume some of these functions that
were being played by a group called IANA.
But it's not as if there won't be government. It's just that the
locus of government will be less familiar to us. It may not be in
Washington, DC or Albany, New York or Sacramento. It will be in
ICAN, which is going to be, in a sense, a governmental entity for
the internet. And the question is, whether there are going to be
the constitutional values, the democratic principles, and the notion
of the public interest that we're accustomed to when it comes to
One more point on this idea of what role government has played.
Often, when you hear people say the government should just get out
of the internet, they don't know that much about the underlying
structure of the net. Frankly, if the government did pull out of
the internet, what would happen?
With respect to the DNS reformation process Professor Post spoke
about, that was one option. I think everyone recognized that if
there wasn't an orderly transition, we wouldn't be sitting here
because I would never have gotten the e-mail . . . three months
ago that allowed me to know about this conference. And many of the
business transactions that all of you are involved in with your
practices would not have occurred. All sorts of systems that rely
on the orderly back-and-forth of information would have been disrupted,
and we recognize that that was a social cost that was just too large.
And so there is now an orderly transition process.
In some ways the internet has gotten preferential treatment relative
to other telecommunications technologies. If you know about the
issue of access charges and the access charges that long distance
carriers pay to local phone companies, there is a big controversy
about whether internet service providers should be paying access
charges. They don't pay them and that's because of the way that
the FCC has, wisely, I believe, chosen to not regulate electronic
communications over computer networks. In a series of decisions
starting in the '80s, they decided that, and that's the continuing
regime. Now, is that fair? As we increasingly have what's known
as IP telephony, telephone conversations over internet protocol,
why should there be no access charges paid by ISPs, internet service
providers, when long distance phone companies pay them?
The internet is not being regulated. It's getting a regulatory
boost. It's being put up on a pedestal and is considered a child
that we need to protect. And, increasingly, that's not the case
because of the convergence I mentioned earlier. As it becomes increasingly
difficult to distinguish between these tools, it won't make sense
to have a preferential regulatory regime for IP, TCPIP, the internet
protocol, relative to traditional analog telecommunications.
I want to leave you with a case that represents, I think, some
of the different kinds of regulatory power I'm talking about and
some of the clashes of values that I think we, as lawyers, need
to be attuned to.
There is a web site called Free Republic, (freerepublic.com). It's
a conservative web site that is very well designed. It's got bulletin
boards and fora for just about every topic you can imagine and it's
really easy as a user to create new fora. So if you want to talk
about Gingrich resigning, you can create a forum. If Gingrich resigns,
people can post messages there. It's pretty well designed. I encourage
you to check it out.
The most interesting thing about freerepublic.com is that it encourages
users to post news articles that they find on the web or that they
find in their local newspaper. The site says take that article,
copy it, and post it on the Free Republic site with commentary.
That's a key point. There is an interface that allows you to post
the article, but it says add your own critique. When The Washington
Post and LA Times sued, as they did, for copyright infringement,
is this an infringement of the copyright laws and, perhaps more
interestingly, should it be? Now, we all know about the principal
of fair use. Fair use is, some would say, an exception to the copyright
statute, which says that for certain limited uses, like news or
criticism or certain educational uses, you're allowed to use a copyrighted
work in some limited way. The purpose is to further creativity,
and free expressionall the things that copyright is supposed
to allow us to do.
Who should win that case? I think that's something I want you to
think about, because it points to a fascinating tension, a tension
that I think is becoming more and more obvious now because of digital
media. It's a tension between free speech principles, on the one
hand, and intellectual property principles on the other. And for
the Federalist Society, this should go to the heart of what you
are concerned about.
It's property, on the one hand, free expression on the other. Who
wins? Does The Washington Post win? Free Republic is taking the
full article. There is major economic value there in terms of the
resale of that on line. The Washington Post licenses that. On the
other hand, Free Republic, is critiquing it; that would seem to
be the heart of political fair use. Critique for a political purpose.