Internet Czar?

Wall Street Journal/July 21, 1998
Lead Editorial

Which judge is going to run the Internet? Stanley Sporkin made a stab early on in the Microsoft antitrust case, before an appeals panel removed him. Thomas Penfield Jackson has now assumed that gavel, but so far has had important decisions twice shot down on appeal. With would-be Beltway czars faltering, maybe we should glance toward Silicon Valley, covered by the U.S. District Court in San Jose. There you will meet Judge Ronald Whyte.

Last October Judge Whyte was assigned a case with the pregnant title of Sun Microsystems Inc. v. Microsoft Corp. In contrast with Justice Department fantasies about browser predation, Sun's case has a certain basic plausibility. It alleges that Microsoft abused its licenses fooling around with Sun's Java scripting language; Java is intended to work interchangeably on different operating systems, but Microsoft came up with a mutant that works better on Microsoft's Windows. While "merely" a contract case, the outcome may determine Internet language standards, and even more importantly, the rules of cross-licensing on which computer technology ultimately depends.

So putative Czar Whyte's jurisprudence is of some real consequence. As it happens, he already busily if quietly has been establishing cyberlaw, handling a succession of cases concerning the Internet and the crucial question of copyright. The cases arise from the efforts of the Church of Scientology to keep its secret but copyrighted scriptures from being put on the Internet by defected members and their newfound cyberfriends.

In 1996, the Church of Scientology sued Tom Klemesrud, the systems operator of a bulletin board, and Netcom, his Internet service provider, for copyright infringement. Both cases eventually were settled. Mr. Klemesrud agreed to pay the church $50,000 to go away, but admitted no liability. Netcom agreed to establish new protocol for handling disputes in which copyright holders claimed infringement, but were unwilling to display the originals for comparison with posted material.

Some similarly situated individuals, however, are still in Judge Whyte's court. Portions of secret Scientology texts have been popping up anonymously in many Internet discussion groups for some years, and in 1994 ex-Scientologist Dennis Erlich attached his name to one of the postings and promptly was sued by his former brethren for copyright infringement and misappropriating trade secrets. Eighteen months later, Grady Ward, a virulent critic of the church, also was sued in connection with the posted texts. Both suits are pending in Judge Whyte's court.

In 1996, Keith Henson, an electrical engineer, found himself before Judge Whyte; he'd posted church script on the Internet in anger over the discovery that Scientologists were trying to muzzle cybercritics by erasing internet discussion groups. Mr. Henson bravely but no doubt unwisely chose to represent himself in court. Judge Whyte ruled on infringement as a matter of law, and found Mr. Henson guilty without a jury trial. The judge then convened a jury on the question of damages, and the Scientologists won $75,000, which their lawyers believe to be the largest copyright infringement statutory damage award ever recorded for a single infringement.

In addition, Mr. Henson faces a possible jail sentence for contempt of court. He also posted a transcript of his own trial that included the sacrosanct material. Mr. Henson said he did not know the computer diskette he received included the material, but Judge Whyte found him in contempt, and reserved judgment on the penalty. He has, however, enjoined the defendant from publishing a register of other web sites where Scientology scripture can already be found. Mr. Henson has finally retained counsel from an lawyer who has opposed the Scientologists in other cases, and plans to appeal the decisions.

The Scientologists are merely doing their thing, but both cyberlitigants and First Amendment vigilantes ought to take a close look at Judge Whyte's reasoning. Mr. Henson is not trying to steal the profits from Scientology scriptures; his motive is to criticize what he believes is a corrupt and dangerous organization that practices coercive mind control and engages in medical quackery, in the process bilking vulnerable individuals for thousands of dollars and endangering their health. While admitting that the documents were copyrighted, he felt his postings would be covered under as "fair comment and criticism," a long-standing provision of copyright law.

This, Judge Whyte held, didn't even require a jury to deliberate on Mr. Henson's motives. For one thing, his postings didn't include enough explicit criticism of the material, since he felt it was preposterous on its face. More basically, the judge found, the "fair use" doctrine in its application is much stronger for already published material, and of course the posted scriptures had not been published by the owners of the copyright. You can criticize the texts of a public religion, that is, but a secret religion is immune.

Judge Whyte, in short, has turned copyright law on its head. The purpose of the law is to encourage free speech, giving authors and artists comfort in knowing that others cannot misappropriate their works for their own profit. The essence of the matter before him, as anyone not blinded by a Pecksniffian literalness can see, is that the plaintiffs are using the law to muzzle their critics. In addition, the judge is in the process of morphing an already dubious tort case into a criminal matter through the contempt power--a threat to freedom of speech well recognized in the First Amendment community.

Now, we have a certain sympathy for Judge Whyte, rooted in the feeling that the internet copyright issue is too important to be fought out over secret scriptures and pro se defendants. Maybe Judge Whyte could figure out how to send all such cases across the country to Judge Sporkin. All the same, the third would-be Czar is off on no better foot than the first two--a bad omen for Sun v. Microsoft, for internet law and for free speech.

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