Wild, wild Web.

• Author: Goldwin, Mike

Most important new information technologies threaten - or at least seem to threaten - established interests, laws, and customs. In fact, the degree to which such technologies are likely to become useful and ubiquitous can often be measured by the amount of fear, anxiety, and disturbance they inspire. This is particularly true in the realm of intellectual property, especially copyright laws, which give authors and publishers the right to limit how certain information and material can be used.

Remember when cheap videocassette recorders first appeared en masse about a decade or two ago? Movie companies rushed to the courts to prevent the distribution of the machines and blank videotapes, claiming their copyrights would be infringed right and left - a concern that seemed to make a lot of sense at the time. Who, they fervently argued, would pay for a movie if they could get it for free?

The movie companies' nightmare never came to pass, but that hasn't stopped the movie execs from looking at the growth of the Internet with fear and trembling. That's because the Internet is perhaps best understood, technically speaking, as a global collection of copying machines that allows people to duplicate and broadcast all sorts of information with unprecedented ease. As the Internet becomes more and more important to our daily lives, it's easy to see why software makers, book publishers, and others who benefit from copyright protections are in a panic: People can now make an unlimited number of perfect copies of computer programs, books, and other materials and almost effortlessly distribute them around the planet. It's not surprising that an industry trade group like the Software Publishers Association launched copyright lawsuits against Internet service providers that hadn't actually facilitated or benefited from pirating copyrighted materials. The SPA hoped the cases, all ultimately settled at little cost to the defendants, would send a message to service providers everywhere and, more important, set Internet industry standards that would tilt the balance of legal duties in favor of copyright holders.

The tension between the almost frictionless information flow of the Internet and the desire of copyright holders to control the use and abuse of protected materials is exacerbated by our country's longstanding debate over the policy rationale for copyright law. The U.S. Constitution provides in Article I, Section 8 that "Congress shall have Power...to Promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." But when Congress initially exercised that power - the first Copyright Act was passed in 1790 - it remained unsettled whether Congress's primary role in setting up an intellectual property framework was to protect authors or to serve the public. That question should have been finally resolved in 1834 when, in Wheaton v. Peters, the Supreme Court articulated the philosophy behind American copyright law that has persisted up to the present day. But copyright holders continually recast the law in terms of protection of their own property rights.

The Court in Wheaton decided that the purpose of the Copyright Act was not primarily to enrich authors and publishers but to "promote science and useful arts," as specified in Article I. This is the case that copyright scholars normally cite when they talk about the theoretical underpinnings of copyright in the United States, and implicit in its holdings is that the needs and concerns of the general public in an open society are paramount. Copyright law must be understood, therefore, as a means to an end (educating and enriching the public) and not as an end in itself (protecting the interests of copyright...