Förderverein Informationstechnik und Gesellschaft
October 2, 2000
Courts are racing to enjoin alleged violators of copyright law, taking no account of the effects on the development of the Internet.
By Lawrence Lessig
As the copyright wars rage on in courts across the country – the deCSS case in New York, MP3.com (MPPP) and Napster in California, Cyberpatrol in Massachusetts – some people are beginning to ask a very interesting question: Why do the courts treat laws that regulate copyright so differently from laws that regulate pornography? Or to put it another way, why is it so easy to invoke the power of the state to protect Hollywood, yet so difficult to wield the power of the state to protect kids?
Instead of urgency, I think a deeper blindness is at work, one that will have profound consequences for the Net.
The regulation of porn raises a question of free speech. Courts get that. So too does the regulation of copyright raise a question of free speech. But courts don't yet see that. They don't yet understand the ways in which this state sponsored monopoly over "who can say what" can, at times, interfere with the "freedom of speech." They don't see it because for 200 years, copyright law has functioned with little interference from the First Amendment. There have been a handful of cases raising extreme claims of conflict, but no clear case that yet addresses how courts are to evaluate the intersection of copyright law and the First Amendment.