The rapid advances in science and medicine since 1950, and especially the advances in computer technology since 1980, have revolutionized the way society functions. It is widely recognized that our society is making a transition from the industrial manufacturing age to an information age. In contrast, the U.S. Constitution and most of our common law was written when people lived in an agrarian economy prior to 1850. Law has been slow to adapt to the choices posed by technology. While I believe that knowledge, opportunities, and choices are inherently Good, there are the possibilities of (1) prohibiting or restricting use of new technologies for no good reason or (2) of misusing technology to harm people. Law that made sense in 1850, or even in 1950, can be inappropriate for today's problems and opportunities. While I am personally enthusiastic about new ideas and change, it is important to recognize the reason that law is slow to change. One of the basic principles of jurisprudence is stare decisis: the old decision stands as a precedent for the present and future. Such a principle gives society stable law, so that attorneys can predict the outcome of a case and advise their client. Therefore, judges are reluctant to make new law.
In this essay, I briefly examine several situations in which new technology revolutionized society. In some of the situations, law was reactionary: law initially preserved the status quo. However, in a few situations (e.g., use of videotape recorders in the home), the U.S. Supreme Court quickly made the benefits of technology available to people. While this essay contains some citations to court cases in the USA, I provide neither a scholarly treatment nor legal advice, but only some observations and my personal opinions.
Prior to the invention of the printing press, books were only available in handwritten copies. This meant that information could be restricted: only priests and monks had access to a copy of the Bible, only attorneys had access to a copy of laws, only physicians had access to recipes for drugs.
The first book to be printed and widely distributed was the Bible. Manuscript copies of the Bible were in Greek or Latin, so first the Bible had to be translated into the vernacular, before it could be read by laymen. The first person to translate the Bible into English was Tyndale. As a result of his translation, Tyndale was burned at the stake for the crime of heresy. The first person to translate the Bible into German was Luther, who as part of his Reformation, argued that laymen could read the Bible for themselves.
Galileo was attacked by the Catholic Church, not for arguing that the sun was at the center of the solar system, but for publishing his hypothesis in the vernacular, where laymen could read it and challenge the Church's teaching that the Earth was the center of the Universe.
The lesson from the printing press is that widespread dissemination of information threatens the established order, who then reacts with repressive law. Legislators who today attempt to regulate content of the Internet are following in this long tradition of censorship that is both ineffective and stifles civil liberties.
The invention of the telephone gave people, and the police, a new way to eavesdrop on private conversations. The U.S. Supreme Court heard its first case on wiretapping in 1928 (Olmstead v. U.S. 277 U.S. 438) and reached the wrong answer. The only part of the Olmstead decision that is quoted today is Justice Brandeis' eloquent dissent, which is also the first mention of privacy in a U.S. Supreme Court case. The Supreme Court finally found the right answer to wiretapping of telephone conversations in a 1967 decision (Katz v. U.S. 389 U.S. 347), thirty-nine years after the wrong decision in the Olmstead case. There are two points to be made here. First, a response time of 39 years is too slow: today, technology makes big changes in our lives in a space of less than 10 years. Second, most attorneys would object to my writing "wrong answer" to characterize the decision in Olmstead; most attorneys would observe that the U.S. Supreme Court never makes a wrong decision, since their decision is the law of the land. This willingness to passively accept the law in its current state — even if it is outrageous — is one of the big problems that I see with the legal profession.
Eventually, the issue of wiretapping will be solved by technology, through the use of encryption. Note that law can never prevent any activity: law is limited to punishing someone or finding a remedy for wrongful conduct, after the wrongful act has occurred. Unlike law, technology can be used to avoid undesirable occurrences.
Early invasions of privacy could be treated as trespass, assault, or eavesdropping. Part of the reason for the delay in recognizing privacy as a fundamental right is that most serious invasions of privacy involve relatively new technology (e.g., telephone wiretaps, microphones and electronic amplifiers for eavesdropping, photographic and video cameras, computers for collecting/storing/finding information). Before the invention of such technology, one could be reasonably certain that conversations in private (e.g., in a person's home or office) could not be heard by other people. Before the invention of computer databases, one might invade a few persons' privacy by collecting personal information from interviews and commercial transactions, but the labor-intensive processes of gathering, storing information on paper in file cabinets, and retrieving such information made it difficult to harm large numbers of victims.
Unfortunately, the conservative judges appointed by Presidents Nixon, Reagan, and Bush greatly slowed the U.S. Supreme Court's trend toward expanding the privacy rights of individuals. While one might wonder if judicial activism from a liberal judiciary is the right way to advance civilization, the truth is that the legislature and executive branch have been unable to address difficult issues, because of their desire to be re-elected and their reluctance to offend any substantial minority of voters. I see privacy rights as transcending conventional liberal and conservative dogma: a democratic government should trust people to make appropriate personal choices for themselves. The fact that some people will make bad choices does not justify a paternalistic attitude by government that imposes the same decision (i.e., absence of choice) on everyone. Freedom and privacy are good!
In the years after the Civil War, there was a popular crusade in the USA against a variety of vices: pornography, abortion, contraception, prostitution, alcoholic beverages, etc. The result of this crusade was to attempt to legislate morality and compel everyone to obey one group's moral values. Federal law in the USA (so-called Comstock Law, first passed in 1873) made it a crime to: (1) sell or give away any contraceptive or abortifacient, (2) send through the U.S. Mail any contraceptive or abortifacient, or (3) import any contraceptive or abortifacient. See U.S. v. One Package, 86 F.2d 737, 739 (1936). "Every article or thing designed or intended for the prevention of conception or procuring of abortion" was banned from the U.S. Mail by the Comstock Law, together with "obscene, lewd or lascivious" publications. See U.S. v. Chase, 135 U.S. 255, 257 (1890); Andrews v. U.S., 162 U.S. 420 (1896). As a result, condoms were sold for prevention of sexually-transmitted disease (i.e., "prophylactics"), not as contraceptives.
Some state statutes, notably in Connecticut, prohibited the distribution of information about contraception and also prohibited the distribution of contraceptive devices or drugs.
The U.S. Supreme Court in a series of three famous decisions, invalidated laws making contraception illegal.While I admire these three U.S. Supreme Court opinions, the obvious questions is "Why did the courts wait so long to invalidate these repressive, medieval laws?" The best answer that I can suggest is that all forms of contraception became more acceptable to society in the USA, after oral contraceptives became available by prescription in the mid-1960's. The immediate popularity of these birth control pills quickly changed society's attitudes about contraception. By the late 1970's, condoms and spermicides were displayed in aisles of supermarkets and drug stores in USA, as an unremarkable product marketed to consumers. Earlier, one had to ask a pharmacist for condoms and spermicides, since such products were not openly displayed on store shelves. Most adolescents were too embarrassed to ask a pharmacist, since asking would be an admission to an adult authority-figure that they were engaging in taboo premarital intercourse.
One of the pieces of the Comstock Law was declared unconstitutional by the U.S. Supreme Court 110 years after the law was first passed. Bolger v. Youngs Drug, 463 U.S. 60 (1983) invalidated a U.S. statute that prohibited mailing of unsolicited advertisements for contraceptives.
Drugs, articles, and things used for abortions can neither be mailed in the U.S.A. nor imported into the U.S.A., according to 18 U.S.C. §§ 1305, 1461, 1462, so parts of the Comstock Law are still on the books in 1997. However, in 1971, the U.S. Congress did remove the prohibitions on contraceptives from these three statutes.
When video tape recorders (VCRs) began to be sold to individual people, for taping television broadcasts, there was an initial fear by the movie and television industry that (1) people would tape broadcasts and then fast forward through the commercials and (2) copies of movies would reduce income for movie theaters.
Two movie studios (Universal City Studios and Walt Disney Productions) sued one VCR manufacturer, Sony, for contributing to the infringement of copyrights by users of VCRs. The citation for this landmark case is Sony v. Universal City, 464 U.S. 417 (1984), although this reported opinion does not contain all of the information necessary to understand the issue. The U.S. Supreme Court held that copying by homeowners with a VCR was "fair use" under copyright law. This decision, together with the immense popularity of VCRs, made it politically impossible for the legislature to enact a statute that would provide royalties to broadcasters and movie producers (e.g., by a tax on blank videotape). People who receive television signals directly from a satellite were not so lucky: they must pay copyright royalties under 17 U.S.C. § 119.
In passing, one notes that this case was filed in Federal District Court in 1976, when VCRs were not common in homes. By the time that the case was argued before the U.S. Supreme Court in 1983, there were more than ten million VCRs in homes. Technology and market conditions changed much more rapidly than the legal system could respond.
In the end, the widespread use of VCRs spawned new ways for movie producers to make money, for example by sale of movies and classic television shows (e.g., Star Trek) on videotape. Movie theaters continued to make money, not only by showing new releases that were unavailable on either videotape or television, but also by showing old releases with higher visual resolution and better sound that a television receiver could provide.
It costs computer software manufacturers millions of dollars to develop new applications (e.g., word processing programs, desktop publishing programs, compilers, libraries of scientific subroutines, etc.). It is only fair that software developers be able to recover their investment in development of software through sales revenue. In many cases, the software is "sold" to users for $ 300 to $ 2000 per copy. Instead of acting properly, many users made illicit copies for their friends, other employees in their company, etc. The end result was that perhaps half of the software in use is a pirated copy, for which the software manufacturer received no income. Let me make clear my personal bias: while I am generally pro-consumer, I believe it is outrageous for people to use software without paying for it. This is not an area where a poor consumer has been injured by an evil corporation! As an aside, people who are honest in other areas of their life seem, for reasons that I do not understand, to have no reluctance to pirating software.
In the early days of software for desktop computers (e.g., 1980-85), software came with a manual and with a toll-free telephone number for free technical support. Users of pirated copies did not have the manual, so they were totally dependent on the free technical support from the software manufacturers. Not only did users of pirated copies use an arguably stolen copy of the software, but (because the pirates had no manuals) they also took advantage of the free technical support from manufactures! As a result of this abuse of the system, manufacturers were forced to stop their free technical support policy and instead (a) provide free support for a limited time (typically 1 to 3 months) only to registered purchasers and (b) charge everyone else for technical support. One of the side effects of widespread piracy was to end free support to users who had legally obtained their copy of the software.
With most property in the history of law, only one person can own it or use it at a time and it can not be easily copied. This is true of tangible property (e.g., automobile, computer). But computer software can be easily copied and, because the copy of the diskette is in digital rather than analog format, the copy functions indistinguishably from the original. The response of law to this new problem was inadequate to protect the software industry.
There are four traditional forms of legal protection for so-called intellectual property: (1) patents, (2) copyrights, (3) trademarks, and (4) and trade secrets. Trademarks are clearly not applicable to protecting the software itself. Trade secrets arguably offer no protection from people who use a disassembler to get readable code from the machine code.
Copyrights protect expression of ideas, not the ideas themselves. 17 U.S.C. § 102(b). Therefore, copyright is more suitable for protecting fiction than nonfictional works. After some initial hesitancy, the U.S. Copyright Office began to register computer software as a "literary work". However, attempts to use copyright infringement litigation to protect computer software have been only sometimes successful.
An early response of the software industry to prevent piracy was to use copy-protected diskettes that were required to be inserted in drive A: whenever the program was in use. While this method was inconvenient for users, it was an inexpensive and effective way to allow only one copy of the software to be used at one time. One famous case in this area is Vault v. Quaid, 847 F.2d 255 (1988). Vault Corp. developed and sold the PROLOCK copy-protected diskettes. Quaid Software disassembled Vault's program for the purpose of marketing a product that would destroy the economic value of PROLOCK. The court ruled that Quaid's product had "substantial noninfringing uses" and therefore refused to honor Vault's copyright protection.
The software manufacturer sells the diskette and manual, but not the software on the diskette. Instead, the purchaser has a license to use the software on only one machine at a time. Courts generally have refused to enforce the terms of software license agreements, for example: Step-Saver v. TSL, 939 F.2d 91 (1991); Arizona Retail Systems v. TSL, 831 F.Supp. 759 (1993); Microsoft v. Harmony Computers, 846 F.Supp. 208 (1994). The one exception is ProCD v. Zeidenberg, 86 F.3d 1447 (1996), in which Judge Easterbrook ruled that the license agreement was enforceable. While I believe that software license agreements can be valid, such licenses are not an economical way to remedy all piracy. A software manufacturer will not spend thousands of dollars in legal fees to litigate a breach of contract case on a product worth only a few hundred dollars. (Note, punitive damages are not available as a remedy in breach of contract cases.) However, the license agreement could be a powerful tool in cases where one purchaser can be proved to have distributed at least hundreds of pirated copies.
For relatively expensive software, the manufacture can encode the serial number of the software into a plug that is attached to a serial or parallel port of the computer. The plug must be connected to the computer on which the software is executed, which effectively prevents more than one copy of the program from being used simultaneously. This anti-piracy method works well for expensive software, but is not practical for inexpensive, mass-market software. However, I am certain that there are future technological developments that will allow software manufacturers to prevent piracy, without relying on law.
This is not the place to engage in a technical discussion of this fascinating area of law. The point to be made here is that software piracy was a major economic loss to an important industry, yet the courts, legislature, and government agencies did little to protect the software industry.
The Internet was originally created in 1969, as a way of sharing current results of research sponsored by the U.S. Military. Physicists doing research in nuclear physics quickly joined the Internet, also as a way of sharing the latest results of their work in a fast-paced field. Most of the people using the Internet were well-educated physicists, chemists, and engineers (many of whom had earned a doctoral degree). Many of these people were highly creative, somewhat eccentric, and contemptuous of authority. The last point is critical to understanding the Internet, since authority tends to be reactionary (preserve the status quo) and distrustful of independent thinkers.
The Internet developed as an anarchic organization, where no one was
in control, and cooperation among all users was routine. G. Burgess Allison,
in The Lawyer's Guide to the Internet at page 37 (ABA 1995), notes
two basic principles of the Internet:
1. freedom of speech is absolute
2. self-determination is absolute
It must be stressed that the Internet was a highly useful medium and worked extraordinarily well as long as the user community was dominated by professional scientists and engineers. The Internet began to experience problems when other groups of people (e.g., college students who were away from parental supervision for the first time in their lives, people who were not professionals) joined the Internet, but did not honor the unwritten rules of etiquette for polite professionals.
It is certainly true that there is abundant pornography and hate speech on some parts of the Internet. However, one rarely accidentally stumbles into this material, unless one reads bulletin boards or the Usenet. In my opinion, there are several points to be made about censorship of offensive material:
In recent years, pornography on the Internet has attracted much attention. The liberal view is that the government is again trying to restrict access to information, just as governments did when the printing press was invented. Instead of making a blatant attempt to censor the Internet, the U.S. Congress passed the Communications Decency Act (what a sweet title! <grin>) under the pretext of protecting children from pornography. This law was promptly declared unconstitutional by a U.S. District Court, ACLU v. Reno, 929 F.Supp. 824 (1996). On 26 June 1997, the U.S. Supreme Court affirmed the decision of the District Court. Reno v. ACLU, 117 S.Ct. 2329 (1997).
Miller, at pages 30-33, specifically rejected a national standard for obscenity. One gets the feeling that the U.S. Supreme Court in Miller tossed this politically controversial issue back to the state and local governments, thereby solving the U.S. Supreme Court's problem. While the local standard in Miller might have been practical for bookstores, this standard is not practical when applied to the Internet, which is an international entity. There has been one case in which an operator of a web site in California was hailed into court in Tennessee and convicted for distributing obscene material, U.S. v. Thomas, 74 F.3d 701 (1996). Thomas is complicated by the defendant also sending allegedly obscene material by United Parcel Service to a government agent in Memphis, Tennessee, so it is not a pure Internet case. The application in Thomas of the Miller test requires the entire Internet to be held to the "contemporary community standard" of the most repressive community in the USA, which is exactly what the U.S. Supreme Court was trying to avoid in Miller.
It may be that many parents are frightened by new technology (i.e., computers and the Internet) that they do not know how to use. When children can use the technology that their parents can not, the parents have lost some control of their children. In my opinion, the right answer for this problem is for parents to become computer literate and then to spend time with their children using the Internet together. But history shows us that most adults are reluctant to learn to use new technology. This reluctance may have its origins in bad teaching in school, in which an authoritarian instructor threatens pupils and students with failing grades, thereby inducing a fear of learning new skills. Whatever the reason, studying and learning are conventionally seen as a task for young people, not for adults. In my opinion, it is not respectable to make excuses for ignorance. Studying and learning should be a life-long quest. One goal of education should be to show people how to teach themselves, by reading books, thinking, and experimenting.
In my opinion, the way to avoid exposing young children and sensitive adults to pornography, hate speech, and other indecent material on the Internet is to use filtering software (e.g., CyberPatrol, CyberSitter, NetNanny, or SurfWatch) that removes "bad words" and blocks access to sites with substantial offensive material. Because URLs of sites with offensive material are continuously changing, this mode of filtering will only be partially successful. There might be a market for Internet Service Providers to sell two types of Internet access: raw and filtered. Filtered access could include daily updates of offensive sites, something that would be inconvenient for parents, school teachers, and librarians to do. While this might be an interesting market opportunity, it would be a customer relations nightmare to receive calls from angry customers who, inevitably, would sometimes see offensive material, despite the best efforts to provide effective filtering software.
Law takes hundreds of years to fully evolve. Modern technology evolves on a scale of a few years. Therefore, law is unlikely to be an effective way to guide society in a reasonable and fair use of technology. Therefore, society (both businesses and individual people) will need to turn to technology for protection from technological innovation, since law is too slow to respond. This may seem paradoxical, but there are examples above (e.g., encryption defeating wiretapping).
The problem is not only that most attorneys, judges, legislators, managers (indeed: the general population) are ignorant of science and technology. There seems to be something deep in most people that makes them afraid of new ideas and new opportunities. This fear and inability of managers is satirized effectively in the comic strip Dilbert, but the problem is real.
Most attorneys are extremely adverse to taking risks. The study and practice of law considers disputes between two parties. Often one party to the dispute has engaged in awful behavior: intentionally causing harm to another person, fraud, coercion, duress, threats, exploitation, alteration or destruction of evidence, "forgetting" unfavorable facts, .... A lawyer learns to structure advice so that, in the future, when the other party has behaved badly, the client will be in the best possible position to seek protection from a court, perhaps by enforcement of a written contract or estoppel. This cautious attitude of attorneys can pose problems to engineers and entrepreneurs who are excited about new ideas (such as marketing a new product), or clients who want to do something unconventional, where legal protections are uncertain. Furthermore, most people, including most attorneys, don't like to do creative thinking, because they are afraid of making a mistake or afraid of failing to find a good solution. It is a lot easier to say "NO!" than to design a way to accomplish an unusual or unconventional goal.