THE HONEYMOON IS OVER: HOW REAL WORLD LEGAL PRINCIPLES HAVE QUICKLY REASSERTED THEMSELVES ON THE INTERNET

By MARCI HAMILTON


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Thursday, Oct. 12, 2000

The honeymoon of the Information Era is officially over, as it ought to be. Like most good honeymoons, this one was filled with optimism, unrealistic expectations, and a rose-tinted vision of the world. We were told that the Internet and the computer industry would require no regulation, that information could be free, and that the Internet is a medium that inherently fosters pure democracy. Yet all these assurances turned out to be sheer myths.

The end of the honeymoon was marked by three events, each of which definitively proves that the technological marvels of our era have not constructed a utopia habitable by humans. Rather, the old standbys—the rule of law is the surest way to liberty, you get what you pay for, and power corrupts—continue to be the best rules of thumb in cyberspace, too.

Forget About A Lawless World.

The Microsoft antitrust case has contributed to the demise of the myth that the Internet would not require legal regulation. As Microsoft was amassing wealth and engaging in predatory practices that violated the antitrust laws, it was securing political power as well — by paying massive sums to both political parties and lobbying incessantly in Congress, the states, and around the world. The company holds the very sort of concentrated power the Framers of the United States Constitution feared most. In the Microsoft antitrust litigation, the Department of Justice could have asked for damages, or they could have asked for an order breaking up Microsoft. They persuaded the court to issue the break-up order — an order that is now on review. That decision was the right one.

Merely ordering Microsoft to pay damages would have left the early, untenable structure of the Information Era in place. Although Microsoft might have paid a huge damage award, it would still have remained in basically the same status quo: holding more assets than many countries of the world, positioned to engage in predatory practices, and capable of exercising enormous muscle in the halls of power from the European Union to the United States.

The Department of Justice's request that Microsoft be broken up, rather than simply forced to pay damages, challenges the right of Microsoft—or any other single company— to direct the world's information policy. It is a shot across the bow of those who claim that the Information Era needs no laws.

The Internet was born to the hacker's mantra, "Information Wants to Be Free," and scores of players in the Information Era have incorporated this mesmerizing, utopian belief into their business plans. As it turns out, however, this belief is inaccurate.

Federal courts rightly have rejected the notion that Napster and MP3.com–which employ the MP3, a technology creating special compression files that speed the transmission of music over the Internet—created a fabulous new world of free content. Instead, courts have held that these websites are the instigators of massive, wholesale copying of copyright-protected works.

MP3.com argued that it was not facilitating copying of the files, because the users had to show that they had purchased the particular CD to which they were listening. But this is tantamount to Random House arguing that it can sell an unlimited number of copies of a particular book — without paying royalties — to a buyer, as long as the buyer purchased, and royalties were paid on, the first copy alone. This is a strange argument, to say the least, and the court's refusal to give it credence is surely the right decision. Even on the Internet or the World Wide Web, copying copyrighted material is illegal. Buying once does not endow a buyer with carte blanche to copy over and over. While the MP3 technology holds tremendous promise for information-sharing, it need not and should not be used to bypass copyright authors' legitimate claims to remuneration for providing original expression to the marketplace.

With all due respect to David Boies' efforts on behalf of Napster, the argument in favor of the websites, and the judicial decision to reject this argument, are both so straightforward that it may be hard to understand why the controversy arose in the first place. But that is only because the previously dominant hacker's mantra is fast fading into background noise. Hackers failed to realize that while information may want to be free, its authors still want to — and legally deserve to — be paid for creating it.

The Web Is Not Inherently Democratic.

Believing that a technology could by itself institute self-government, proponents of the Internet ballyhooed the Web's inherent disposition to foster democracy, or rule by the people. Nicely summing up this facile understanding of politics and power, Common Cause's Scott Harshbarger has said that the Internet should "empower individuals, allow us to better communicate and cooperate, and enable us to create public forums in which decisions more genuinely reflect the will of our communities."

Setting aside the dubious proposition that the will of "communities" — code word for "majorities" — ought to dictate governance, such claims for the Internet cannot be determined solely by the Internet's technological environment. Humans, not technology, will determine the contours of power, even if information can be delivered at ultra-fast speeds to huge numbers of people. The Internet's governance and structure are as easily employed in the service of powerful dictators — be they multinational corporations or governments — as they are employed in the service of empowering the people or, better yet, seeking the common good.

The mess called "ICANN" (the Internet Corporation for Assigned Names and Numbers) is an interesting example of this phenomenon. ICANN was created for the purpose of policing domain names on the Web, a crucial issue that will determine important aspects of the structure of the Web. But what began as a function of the federal government has been transformed into an international committee consisting of people from — but not necessarily representing — various countries and Internet-related industries. No one at ICANN's table is truly accountable to either the people at large, the people of any country, including the U.S., or the service of the greater good.

Common Cause, with its erroneous assumption that direct majority rule is good rule (apparently regardless who is voting), applauded ICANN's decision to choose at-large elections by members — rather than elections in which the people would choose a set of representatives, who would in turn choose the board. Yet the latter alternative would have been the better one. Without a structure that ensures accountability to the peoples of the world, the means of election are irrelevant, and the structure not only is not democratic, it is autocratic.

As information control technology develops — and much of it is already available — those in power will have means of controlling the stream of information going to the people. Singapore and China understand this reality and are just two of the powers that will invest in the research and development of, or simply purchase outright, technology that does not democratize, but rather increases government control.

In short, the Internet's purported inherent disposition to democracy is nothing but a chimera. Even in the Internet era, governing structures must be built consciously by humans, monitored by humans, and adapted by humans, and they will continue to be capable of being used to good as well as bad ends.

The honeymoon was marvelous. Welcome to reality — where law is necessary to liberty, where there is no free lunch, and where tyrants understand technology.

Professor Marci A. Hamilton is a FindLaw Columnist. She is currently a Visiting Professor of Law at New York University School of Law. She also holds the Thomas H. Lee Chair in Public Law and is Director of the Intellectual Property Law Program at Benjamin N. Cardozo School of Law, Yeshiva University

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