Cyberspace Prosecutor

Before the courts race to join the content control freaks' chorus, they should pause to consider our national tradition.

By Lawrence Lessig [ lessig@pobox.com ]
The Industry Standard

February 21, 2000

Jack Valenti, the Motion Picture Association of America's lobbyist to the stars, is quickly becoming the Internet's Kenneth Starr. High from victory in jailing a 16-year-old Norwegian for offering a way to run DVD movies on Linux, Valenti has been singing victory again in the recent battle over iCraveTV.com, a company of "cyberthieves" that was rebroadcasting television programs over the Net.

Toronto-based iCraveTV offered television via the Net. Under Canadian law, such rebroadcasting is apparently legal – at least for cable and satellite broadcasters. ICraveTV claims the Net is just like cable – and that it, too, should have the right to offer TV.

It is the nature of the Net that content in one location bleeds to another. Remember, this was the great promise of online speech: While China could silence dissidents in real space, it could not block protests of that silencing in cyberspace. The Net is global; as Electronic Frontier Foundation cofounder John Gilmore said, censorship it routes around.

Nonetheless, iCraveTV took steps to block foreigners from accessing free Canadian TV. But these measures were not perfect; the lawyers fighting iCraveTV found a smart hacker to prove they could be cracked. A U.S. court thus enjoined the Canadian firm because it bled, God forbid, free TV into America.

The battle over iCraveTV is just one in a series that together will define the future of the Internet. In every context that it can, the entertainment industry is trying to force the Internet into its own business model – the perfect control of content. From music (fighting MP3) and film (fighting the portability of DVD) to television, the industry is resisting the Net's original design. It was about the free flow of content; Hollywood wants perfect control instead.

No doubt "thieves" should be punished and content should not be "stolen." But "theft" is defined relative to the law and the First Amendment, not to an ideal of perfect control. And when the law grants a right to speech, that right is ordinarily defended even if control over that speech is not perfect. But according to the MPAA, until iCraveTV can "guarantee" that no hacker can crack its security system, iCraveTV should be enjoined from giving Canadians access to desktop TV.

The principle is extraordinary. Does a movie theater lose the right to show R-rated movies if local moralists can produce a ticket sold to a 15-year-old? Should Amazon.com be barred from selling Mein Kampf anywhere if a German court finds that some Germans succeeded in buying the illegal (in Germany) book? Can Congress ban porn on the Net if it is shown that kids might be exposed?

Obviously, in each case, no, and at least with the last point, there is a clear Supreme Court decision saying as much. Yet this gets lost when talk shifts to copyright. Courts seem eager to grant the entertainment industry perfect control, quick to deny any space for fair use. It is apparently irrelevant that Linux users will lose access to DVD movies that they have lawfully purchased, or that Canadians will lose access to broadcasts to which their law grants them a right.

We could build a network to give content providers perfect control. Canadians could be kept to Canadian TV, and Americans could be kept from wandering where copyright law is less extreme. We could design a network that would be the envy of the Soviets, encoding content control far more effectively than any possible law.

But that is not our tradition. It is neither the tradition of copyright law, which in its embrace of fair use and individual rights has never granted owners perfect control; nor is it the tradition of the Net, which was built to facilitate a free flow of information. Before district courts race to join the control freaks' chorus, they should pause to consider the other side in our tradition.

Valenti et al. will argue that our tradition should change; they are paid to argue as much. But courts are paid to be balanced. And there is a balance to be struck here between the increasing technologies of control and a tradition of copyright law informed by limited terms, fair use and the values of the First Amendment. Courts should be finding it.

Lawrence Lessig is Berkman Professor of Law at Harvard Law School.