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Not All Speech Need Be Free : Internet: Online service providers and users must be held accountable for copyright infringements.

April 21, 1996|MARK MORRIL | Mark Morril is senior vice president and general counsel for Simon & Schuster, a Viacom Co

A California federal judge's ruling that Netcom, the Internet access provider, may not be responsible for the copying and distributing of Church of Scientology's copyrighted material has some online advocates claiming a victory for freedom of expression on the Internet. In fact, the Netcom decision has nothing to do with 1st Amendment freedoms. Rather, it poses a serious threat to creative expression on the information superhighway by providing comfort and support to cyberpirates--those who would copy and disseminate copyrighted materials online without compensation to the creator.

While there has been much public debate about content censorship on the Internet, relatively little attention has been devoted to protecting copyrights on the Net.

While the 1st Amendment is meant to ensure free expression, it never was meant to ensure that all expression should be free. The copyright clause is also in the Constitution and has coexisted peacefully with the 1st Amendment for more than 200 years. Both are meant to promote expression, one by protecting expression from laws curbing free speech such as the kinds of sedition and press laws that the founders faced. The other, the copyright law, provides the creative incentive.

From a copyright perspective, if speech is "free," meaning creators cannot be assured of compensation for the use of their intellectual property, they will be much less likely to make their works available or even to create them in the first place. Authors, screenwriters, journalists, artists and photographers who bring their intellectual property to the public will not make this valuable content available online unless there is reliable protection for copyrights. The Netcom decision emboldens those who would disseminate copyrighted materials online at the expense of their creators. It supports the efforts of Internet access providers and commercial online service providers to escape responsibility for copyright enforcement on their services.

These service providers contend that they should not have the same strict responsibility for the unauthorized transmission or copying of copyrighted material that other distributors of content such as booksellers, newsstands, music and software retailers and photofinishers long have accepted.

It is difficult to see the rationale behind absolving the service providers of the responsibility of copyright enforcement on the new medium that they control. They have created businesses that enormously benefit the public by making information readily available to their millions of subscribers. At the same time, the public hunger for their services has made their businesses boom: The stock price of America Online has increased by 2,900% since its initial public offering in 1992; its subscriber base has soared from under 1 million to a projected 6 million by mid-1996.

Online service providers are correct in saying the online copyrights are difficult to protect because of the enormous volume of transmitted material. But that's not a reason to exempt them from the rules that apply to other distributors. There is no doubt that the service providers are better positioned to prevent or stop infringement than copyright holders.

What can service providers do? They can require their subscribers to agree in writing that they will not post infringing material and to indemnify the online service provider if they violate that commitment. The online service providers can post information online about copyright obligations and require subscribers to fill out online forms before sending copyrighted material over their networks. They can implement new technologies that automatically obtain permission and process charges for use of copyrighted material. They can screen at least some parts of their systems for egregious copyright infringing conduct, with due regard for legitimate privacy rights. And if all these fail to deter the cyberpirates, they can disconnect subscribers who repeatedly refuse to respect these obligations.

Equally important, the online service providers can ensure that the costs of remedying copyright infringement are built into their systems through subscriber fees. Losses from the unauthorized use of copyrighted material should be spread through the entire system, not imposed on the very creators whose livelihoods are jeopardized by this lawless conduct.

At stake is America's global leadership in the creative and knowledge industries. World trade in intellectual property, book publishing, software and film contributes more to our economy than any single manufacturing sector. Our tradition of respect for copyrights and intellectual property has as much to do with this success as any other factor. Continuing leadership in the information age depends on it even more.

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