Return to Nicholas Johnson Home Page
A transcript of a presentation by, and interview of,
Via the Iowa Communications Network
From the ICN Classroom of the University of Iowa Hospital and Clinics
[Notes: This text represents a transcript of extemporaneous remarks and was not written, or edited, for publication. Because of its length -- 50-to-60 pages double-spaced -- topical sub-headings have been inserted to ease finding and retrieving specific subject matter. Hot links to those headings are immediately below. The event was a live "video conference" interaction: students in Waverly could hear, see, and respond to Nicholas Johnson; he could hear and see them. ]
Liz Mathis: Dr. Johnson, hello.
Nicholas Johnson: Well, hello. Since when did I get this great title? I thought I was still Nicholas.
LM: How would you like students to address you?
NJ: Well, probably, Box 1876, Iowa City would do it, or by e-mail.
No, they can call me "Nick" or "Nicholas" or "Professor Johnson," however you've brought them up, Liz, I don't know.
LM: With familiarity, I'm sure.
NJ: That's good.
. . .
[Liz Mathis read through a bio/introduction of Nicholas Johnson.]
NJ: Thank you, Liz.
I'm here because I'm a fan of Liz Mathis, as I guess all of you in that classroom are.
I had drawn up a much briefer background than Liz provided for you.
I'm going to give you this Web site. There are an enormous number of references from there, hundreds perhaps thousands of pages you can get into that relate to subjects that you all are studying, that you are interested in, and far more than we can possibly cover during this hour. For those of you who do want to follow up and know what I've been up to, what I've been writing recently, references to sources that I use on the Web, check out my Web site at
http://soli.inav.net/~njohnson.
I'm going to say some very brief things about broadcasting and the F.C.C., many of which you are familiar with. I'll just zip thorough them quickly in case you're not.
Broadcasting didn't begin as broadcasting. It began as "wireless telegraphy." That's because we have a habit of trying to define things in terms of things that we knew before -- which is not irrelevant to the legal study of cyberspace that we're going to be looking at. When we came along with the automobile we didn't call it an automobile, we called it a "horseless carriage" because we were used to horse-drawn carriages and now we had one without horses. We were used to the telegraph and this appeared to be "wireless telegraphy." We thought it was only going to be used for sending messages between the shore and the ships. The Navy thought they should control it. ATT saw it and they thought it was just part of the telephone business. Radio amateurs thought it was a great hobby -- and they still do. It was kind of like the story of the six blind persons and the elephant, as you may know, all feeling this animal, some thinking it was a brick wall, some thinking it was a rope, some thinking it was a tree trunk. It was not obvious in the early days what this thing was.
Iowa's Herbert Hoover, one time president, was prior to that Secretary of Commerce when the broadcasting industry came to him and said, in effect, "Please put the government on our backs." If you inquire into the early history of most efforts at federal regulation you will find they were instigated, not by federal bureaucrats, but by members of the business community who wanted federal regulation -- primarily to drive their competitors out of business and create something more of a monopoly for themselves. That was the function of the early Radio Act, which limited the number of broadcasters and put some people off the air.
Every nation that has looked at broadcasting has concluded that this is something clearly more powerful, more influential, than any other influence in the society and that it needs to be regulated accordingly. So most countries simply nationalized it, as they did their railroads and other major industries. We always try to compromise and pretend that we have some form of private ownership, so we came up with this public trustee concept.
It's important that you understand -- since the current members of the F.C.C. and Congress do not -- that the very first section of the 1934 Act having to do with broadcasting, Section 301, expressly provides that there will be no rights of ownership in these frequencies. You have no more right to have your broadcast license renewed than, as a member of Congress, you have a right to be reelected. As a practical matter you may be reelected, and as a practical matter you may have your broadcast license renewed, but you don't have a right to that. You own the studio, the transmitter, the antenna tower. You do not own the license. You do not own the television station, the radio station, in the sense that something can be broadcast. The rights to that are owned by people in the community. The station is there to serve the needs and interests of the people in the community. That is what the clear legislative history provided, and what the early law clearly provided, and what the initial intention clearly was on the part of broadcasters as well as the government.
There was tremendous Congressional concern about monopolies. As one member of the Congress said -- and bear in mind that this was at a time when nobody knew what this radio was, nobody knew where it was going, nobody knew what it could do -- he said if there should ever be those who would gain power and control over the ideas circulating in America as a result of radio, then "Woe be to those who would dare to disagree with them." It was out of that concern that there were limitations on the number of stations that one could own, the power of those stations, prohibitions on joint ownership of stations by newspapers, a real concern about monopoly control and the marketplace of ideas, a concern which has today, as you know, largely disappeared.
In 1934 the Radio Act was reenacted. To it was added the jurisdiction of the Interstate Commerce Commission over telephone and telegraph. We had the Federal Communications Act, and the creation of what was then called the Federal Communications Commission instead of the former Radio Commission.
The F.C.C. does many things besides broadcasting. I'm not going to dwell on any of those, but I think we need to keep it in context. There's telephone, telegraph, communications satellites, under-ocean cables, global communications networks that we are now dealing with. There are all kinds of portable communications: police, taxi, portable radio of all kinds, citizen's band radio some of you may still have. Cellular phones are a new, burgeoning industry and the alternative to the cellular phones which is coming right on its heels. There's a function of "type acceptance": equipment, electronics equipment which is sold in this country needs to be approved by the F.C.C. that the design is safe, that it meets standards for electromagnetic radiation from the device and so forth. Cable television came to be regulated by the F.C.C. It's a long story about jurisdiction over that you are probably aware of.
And again, I mention amateur radio. Those of you who are thinking about going into this profession in some way, if you have any inclination to do it, I would certainly urge you to consider getting an amateur radio license. It's a wonderful way to keep up with the new technology as it comes along. It's not essential , but it's a lot of fun and I think you'll find it professionally useful.
Let me just say a word about the broadcasting sub-government, because I think we operate under some misconceptions about how Washington works.
We learn as undergraduates that there's an executive, and its powers, and the President. There's a legislative, and its powers, and the Congress. It turns out that none of that is correct. It turns out that the power in Washington is located for any given industry in a "sub-government." It was true when I was U.S. Maritime Administrator for the shipping industry, they had their own sub- government.
I'll use broadcasting since that's what we're talking about.
The point is that the President of the United States is not admitted into this charmed circle, this subgovernment. Members of Congress are not admitted unless they happen to be on the subcommittee.
What kind of benefits do the subgovernments hand out to their clientele? They may be tax benefits, they may be defense contracts, they may be tariffs or import quotas. In the case of broadcasting what is it? It's that you give $100 for a broadcast license and by return mail you get a $100 million television station. Now where did that $99 million come from? It wasn't paid for by the taxpayers. It wasn't paid for by consumers, in the way that one hike in the support price of milk cost the American consumer an additional $400 million a year. It comes from what is called "medallion value." There can only be so many television stations and once they're gone, they're gone. If you get one you get monopoly rents and profits. When I was on the F.C.C. the industry averaged a 100% return per year on depreciated capital. Not bad for a business venture.
That's the subgovernment. I want you to understand that if that hadn't been explained to you before.
I understand you're currently on the last chapter of the book dealing with cyberspace law.
Since I've gone on at some length here let me click on "teacher" [on the ICN console] and then you see me instead of my little piece of paper. Let me ask at this point if any of you have questions or comments about what I've said so far.
First of all, let me ask for a show of hands so I can get some idea of who you are and where you're from. How many of you went to high school, grew up within 50 or 100 miles of Wartburg? Most of you. My only tie to Waverly, as I mentioned on my little summary sheet, was that I once campaigned for Congress in what was then Iowa's Third District. You are within the district and you provided -- probably your great, great grandparents is who it was who would have voted back then.
LM: I don't it's that far back.
NJ: Oh, it was a long time ago, long before any of these folks were born. Anyway, Waverly was very kind to me so I've always remembered it accordingly.
Now do you all have any questions or comments about what I've said so far or have I been talking about things that you've already well learned and read about and discussed and memorized under Liz Mathis' divine leadership?
LM: I've got a question about the F.C.C. in particular. We've been talking about the far-reaching arm of the F.C.C.. A few years ago there was an argument about the F.C.C. getting involved in hiring practices of television stations. Where do you fall on that, and why do you think that it's important, or perhaps not, that the F.C.C. be involved in minority hiring?
NJ: I think it's terribly important, because there's no force in any society that's any more powerful than the mass media. You may have already quoted to them the Scotsman from a couple hundred years ago who said in effect, "Give me the power to write a nation's ballads and I care not who writes its laws." The media is terribly important, whether we're talking about song lyrics or episodic television or soap operas or whatever. The picture we get of ourselves, of our society, that comes from the media plays out in the society.
At the time I went on the F.C.C. the broadcasting industry was, I believe without exception, the single most racist and sexist industry in America. It was dominated by white males and that was pretty much it. After the riots in 1965, 1966, and the Kerner Commission was created, the Kerner Commission devoted two full volumes to the role of the mass media in contributing to worsening race relations in the United States, as well as what the mass media could do to improve. Of course, the most dramatic and obvious and immediate thing they could do to improve would to be to take some of those African-American janitors they were employing who had Ph.D.'s, and had majored in communications studies, and were brighter than anybody they had on the air, and use them in some substantive way in the industry -- which is what they gradually began to do. We required reporting of employment numbers at that time. If you view the broadcasting business as a community asset, that the broadcaster is a public trustee, and so forth, then I think it makes a lot of sense.
LM: You did get a lot of argument, however. Can you tell us about how it generated kind of a fire storm within the period of time of the Reagan and Bush Administrations?
NJ: I wasn't there during Reagan and Bush. I was there from 1966 through 1973. I was a holdover into the Nixon Administration. As some said, "The last bit of evidence that Lyndon Johnson did, after all, have a sense of humor." Nixon tried to get me impeached, and discovered there were no procedures for impeaching F.C.C. Commissioners, you serve your seven years.
LM: What was that all about? How did he try to get you impeached?
NJ: How or why?
LM: Why. Let's start with the why.
NJ: I think they did not like what I was doing. I got assassination threats from the broadcasters, too.
As Nixon subsequently discovered, there are impeachment procedures for the President and I sort of enjoyed that. He was not able to remove me during my term.
I just spoke up for the public interest. I often said that it seemed to me it was kind of sad that a newspaper would run a headline, "Public Official Serves Public Interest." It always seemed to me that should be routine. That should not be news. There was something controversial about someone actually taking the trouble to read the Communications Act of 1934 and then to repeat to the American people what it said -- that they have an interest in this. That these folks are licensed, that they are to serve the public interest, that their license renewal procedure is like a Congressional election during which the audience can participate. Those are things the broadcasters and their friends, the F.C.C. Commissioners, did not want being said publicly.
LM: You revisited the Fairness Doctrine several times. If you did have to take a look back during your tenure there, what would have been the case between 1966 and 1973 that you feel made a huge difference in the broadcast industry?
NJ: One made not only a huge difference in the broadcast industry but throughout our society. I was not totally aware of its impact until an institution was set up at the University of Iowa called the "Institute for Health, Behavior and Environmental Policy." One of the nation's top public health persons, Dr. Dick Remington, was the director of that and I was the first person he employed. I said, "I'm quite flattered to be considered by you, but why on Earth do you think I would have anything to contribute to public health?"
He said, "Don't you know? You've done more for public health than anybody in the 20th Century."
I said, "What on earth are you talking about, Dick?"
He said, "It was that Fairness Doctrine ruling that you had on cigarette smoking." He was an empiricist; he gathered statistical data. He said, "We can still see the effect in the numbers of smokers in this country of the anti-smoking spots that were run during the time the F.C.C. made that Fairness Doctrine ruling."
Incidently, it was brought about by a young person who was about your age, a couple years older maybe, who was concerned about cigarette smoking and its impact on health. John Banzaff was his name. He knew nothing about the F.C.C. or the Fairness Doctrine, but he was trying to do something about cigarettes. He got thinking, "Why do people smoke so much -- young people take up smoking. Doesn't it have something to do with the advertising, maybe? Well, who regulates advertising? The Federal Trade Commission doesn't seem to have anything they are going to do about it. Maybe the Federal Communications Commission."
He got looking through the law and he found this thing called the Fairness Doctrine. He said, "It seems to me that they're running these cigarette ads saying that smoking cigarettes is associated with fun and sexuality and football and good times; perhaps that's a controversial issue because it's also associated with lingering, miserable illnesses and death. That would be the other side of this controversial issue of public importance which should be put on the air."
So I grabbed hold of that. There were two or three Mormons on the Commission at the time, and we actually got the darned thing through, much to my surprise. And John got back by return mail $100 million worth of free television time.
So then we were off and running. We tried to expand it to other unhealthy things. Then they brought a halt to that.
LM: One more question on this and then we have to get to cyberlaw.
We're talking about the hard liquor advertising law. That's a very hot topic. I noticed one of the committees that you served on, or one of the organizations you were part of, had something to with that -- coming down on one side or another. What's your view on hard liquor advertising right now?
NJ: Banning hard liquor advertising gives me no problem at all. Even the broadcasters conceded that it should not be advertised on television for years and years. An informal agreement was worked out by Senator John Pastore, who was then Chairman of the Senate Commerce Committee.
Nobody questioned that until recent years in which time greed has overtaken all other highly valued American family values. As you know, greed is now number one in terms of things we value most. That being the case why not sell hard liquor to kids. We can sell them cigarettes and they're not going to die until they're in their forties. Meanwhile, we can make alcoholics out of them and sell them all kinds of liquor. There's a tremendous marketing opportunity that has simply been overlooked by them before, and they're now picking up and moving in on that. There's a lot of advertising revenue to be made by the broadcasters, a lot of sales to be made by the liquor folks.
My standard would be that I would apply the public interest standard to advertising as well as programming. It seems to me that it is very hard to make the case that the public interest in America is somehow disserved by the low quantities of beer and wine and other alcohol that are consumed. "What we need in this nation is greater consumption of alcoholic products." It just seems to me that case is very hard to make. With advertisers standing in line, there are plenty of products to be advertised, we don't have to advertise alcohol.
By any rational standard more harm is done by alcohol than all of what I call "the lesser drugs" like heroin and stuff like that. There's more harm done by alcohol than all those drugs put together. Alcohol is involved in roughly half, sometimes 35%, sometimes 55%, but roughly half of all wife beatings, all child abuse, all crime, people in prison, automobile accidents, homicides and suicides. You go across the statistics, all across the board, alcohol is there. Why is the public interest served by increasing the consumption of alcohol?
I would have absolutely no problem in banning beer and wine advertising as well. Bear in mind I'm not talking about banning the sale of the product. I'm saying, "How do we use this precious resource that is mass media/television time?" It seems to me hard to make the case that the public interest is served by using that precious time to try to increase the consumption of alcohol, particularly by among people.
LM: Very good answer. I wish we had an applause meter that you could hear. Maybe we'll add a canned laugh track to this later.
On the subject of cyberlaw and cyberspace there's a section in there that deals with international problems in that the U.S. would dictate perhaps what another country would see, or another country, like Germany, would dictate what the U.S. would see. Where is that going to fall? How are we going to deal with that?
NJ: Would you like me to go through my little presentation on cyberlaw and then take questions on cyberlaw?
LM: Excellent idea. I've tried to lead in the dance here, so you go ahead.
NJ: I've always looked forward to the opportunity to dance with you, Liz. I've never had that great pleasure.
All right, here we go back to the overhead again.
Cyberlaw and automobile law. Why do I say that? I say that because as a law professor I'm telling you there is really no such thing as "law," except in a course we call "jurisprudence." For the most part it's always the law of something else. So you would have the law of automobiles.
In the law of automobiles you would have contract law, tort law, property law. You'd have to license cars, and regulations about cars, and so forth.
The question is: does it make sense to talk about cyberspace law? I hope so because I teach a seminar called Cyberspace Law Seminar. We have the task of sorting through some of these things and figuring out in what respect is the fact that we're talking about cyberspace of any relevance in terms of the law that would be applied to it.
For example, do you have a Best Buy store up there? I know you have a Wal- Mart.
LM: Yes, it's open 24 hours.
NJ: Twenty-four hours, my golly. Lot's of things to do now in Waverly.
Suppose a Wal-Mart truck backed up to unload a bunch of computers into the Wal-Mart store and in doing it backs into your pickup truck. The fact that they're unloading computers has nothing to do with it. Exactly the same law would be applicable if they were at a supermarket and they were unloading groceries. There's no cyberspace law there, really.
Or a contract; say you sign a contract with Wal-Mart, or Best Buy, that you're going to pay off this computer on time and you don't pay off. Again there is no real difference between that and a vacuum cleaner, automobile, or anything else you might have purchased.
Defamation. You've got some materials in your chapter about defamation, about obscenity. For much of what defamation is about it doesn't make any difference.
What's that old country song about the fellow who paints the water tower in John Deere green? You don't listen to country music. I thought you were one of us, Liz. What can I say. Anyway, he painted something on a water tower. It was perfectly clean, mind you.
Anyhow, it doesn't make any difference if you're going to say something defamatory about somebody whether you spray paint it on the side of a barn or you put it up on a bulletin board system, so far as some of the standards associated with defamation are concerned. The same thing with obscenity. It doesn't really make a lot of difference whether you're selling a book that has been classified as obscene in a bookstore, or whether you're scanning the text of that book and putting it up on a Web site.
Now there are going to be some differences in a moment that I'm going to come to that are terribly important and are discussed in your assigned material for today.
We have theft and other types of crimes. We have theft of cable service. Somebody taps into a cable and is getting television programming they're not paying for. Or you get a descrambler for a satellite dish and you're not paying for the satellite programming. You copy software. What I'm doing is describing a range of theft situations which, in many respects, we don't think of as such. You may make an audio tape of some of your favorite music and give it to a friend of yours. You don't think of that as a copyright violation. Or you might make a copy of some computer software. You don't think of that as a copyright violation or a crime. The same kinds of things can occur in taking material off of the Internet or Web.
I'm now down to this line called "'Precedent': putting old law into new battles."
We tend as lawyers to use the law we've already got on the books, and try to apply it to the problem currently before us. So we're constantly putting round pegs in square holes and usually they don't fit.
Sometimes we go back to legislative intent. We try to figure out what was the purpose behind this law enacted by the Iowa legislature. Or what was the rationale of this court decision that, based on the reasons they used, would make it apply in this situation.
More often it makes more sense, as my friends say in Hollywood, to "take it from the top." Let's just rethink the whole thing. What is it we're trying to accomplish? Forget about the old law.
But we're always dealing with precedent in the law.
Now we come to an aspect of the question Liz put to me.
I'm calling it "the presumption of geography." The reason I have it after precedent, "putting old law in new battles," is that one of the presumptions of the precedential law we have on the books is that most people are located in time and space in a place that can be identified geographically.
Many of those who originally settled Iowa, or at least their offspring, would be born and raised and live and die without ever leaving the county they were born in. For most of us travel outside of the United States is a relatively rare thing. Even travel outside of Iowa is a relatively rare thing. Coming out of that kind of a society and those kinds of expectations it makes sense to have an Iowa legislature, or a county board of supervisors, making rules which are applicable within geographical confines. Certainly that is what we do with our federal laws that are applicable within the United States.
Then we have a lot of international treaties, and a lot of NGOs, non- governmental organizations, which are making rules. Like when you fly internationally somebody has to decide what rules are going to apply to airports and pilots all around the world. Some of that, at least, is done by the International Air Transport Association.
One of the problems we have with cyberlaw is that we don't have a geographical place. You're everywhere at once.
The Web page that I have up -- I gave you the address -- can be accessed by people anywhere in the world. I was interviewed by a reporter in Santiago, Chile, and he came to the interview with a big stack of paper under his arm. I said, "Gee, Raoul, what is that?" He said, "I download your book How to Talk Back to Your Television Set. I've been reading through it." A publisher in Australia, when I came back last fall, wanted me to write an article and sent me an e-mail saying he needed a picture. I said, "Do you have access to the web?" He said, "Yes." "Well, you can just go there and download the picture and I don't need to FedEx it to you."
People found out about the Cyberspace Law Seminar. I'm having the students emphasize countries in Southeast Asia. They are now getting inquiries from people in Malaysia, and a country we used to call Burma, wanting to know more about what we're dong in that Cyberspace Law Seminar. So I put it the pages from my little computer at home, but suddenly there it is in Burma, in Switzerland, in Chile, Costa Rica, Australia, New Zealand. All around the world people are seeing this material -- which is, of course, also available to you there in Waverly.
How does that relate back to defamation and obscenity?
You have a section in your chapter for today on jurisdiction. That's a really tricky one. Originally, a court would have jurisdiction over someone because they're physically there. If somebody wants to sue you in Waverly they serve papers on you there in class, or at your home, at your workplace, or wherever, and the court has jurisdiction over you because you've personally been reached by the court.
What if you're not personally in Ohio, but you're doing business in Ohio. At what point can an Ohio court make you come to Ohio and defend a case?
Then the question comes up with cyberspace. What if I have something on my Web page which I created in Iowa City, I put on a computer in North Liberty, there's another computer which has my archives out in California, but somebody gets access to that in the state of Florida. And for some reason they want to sue me. Can they make me go to Florida, because somebody in Florida got access to my Web page in Iowa, or a page in California? Those are the jurisdiction questions.
The defamation and obscenity questions come up because the law in both of those areas has also presumed a geographical base. That is, whether or not you have been defamed will turn, in part, on the impact on your reputation in a community that is important to you. For those of you in this class that community could be the student body at Wartburg College. If something were put in the college paper, or on a poster up on the campus somewhere, that was defamatory of you you would have been injured in that community. Suppose somebody put a poster up out at the University of Washington in Seattle, and it happens you've never been there. Nobody there knows you. Word of that does not get back to Wartburg. Have you, in fact, been injured? Well, not in your community.
This is not everything you need to know about defamation law in five minutes, but it at least makes the point that suddenly we've go a geography question here. We have a law that came out of a geography presumption that is now dealing in an environment where there is no geography.
The same is true, as you know, for obscenity. Obscenity is defined in terms of community standards. The question is: what is the community when you're dealing with cyberspace? Suppose someone puts an obscene photograph on the Internet that by anybody's standards would be considered obscene or pornographic, but they put it in a news group, the members of which deal in nothing but obscenity and pornography. Those people are in no way offended by it. So far as that community is concerned, the community of that news group, there's nothing offensive about this. That's what they all do. That's the business they're all in. Should it be relevant that some ten-year-old kid in Frankfort, Kentucky, can get in to that news group and see that material? Should the members of that news group be judged by the standards of Frankfort, Kentucky, or should they be judged by the standards of their own cyberspace community?
Those are just a couple of examples.
The international questions you raised I touched on a bit, Liz, in the sense that we are still primarily a planet of national laws, but increasingly we have all kinds of international agreements. Sometimes these are between nations, sometimes global organizations like the United Nations, but often as a result of groups that have nothing to do with any government. The work that was done on the Law of the Sea treaty, what we're doing in Antarctica, the world-wide weather watch, getting rid of small pox globally. There are a great many things that are done among professional groups that have no tie to any government in particular.
Gradually the power of the nation states, not incidently, is eroding. It's going down to local groups. We see that in all kinds of ethnic regional strife. And it's going up to these non-governmental and other global organizations of various kinds. So "nations" are becoming less and less relevant in this whole matter.
LM: There's a section on use liability on page 49, for those of you with your texts. I think the students for practical purposes here, the students may have some questions for you about how much use is "fair use" for students at an educational institution. And then, when these students leave school, let's take a hypothetical, a graphic designer taking things off the Internet for use in putting together a publication. Where does the law start and where does the law stop for something like that? Let's start with fair use. Do any of you students have any questions for him about what you can use on the Internet?
Student: I was just curious. We use a lot stuff on the Internet just for our publication, for the Trumpet, our campus newspaper. Do you have ever have to [include] a disclosure or [indicate] where that came from in the newspaper?
NJ: What's your name, first of all?
Student: My name's Michelle.
NJ: Michelle? What's your last name? Oh, there you are. Van Dorn. Right?
LM: Michelle Van Dorn.
NJ: OK, Michelle, let me preface this by saying that although I am a member of the Iowa Bar, indeed a great many bar organizations, I am on "inactive" status because I'm not practicing law. So I cannot be legally giving you legal advice. Even if I could be legally giving you legal advice I wouldn't. If I had copyright question like that I would go to a lawyer who specialized in that area. I would even though I know quite a bit about copyright law. Indeed, I did have questions like that because on my Web page I wanted to put up the full text of books that I had written that were out of print. I needed to get the publisher's permission to do that even though I was the author, even though I took no royalties on them at the time, and even though I was not going to make any money out of them now.
I think it's terribly important to understand that because you've had this course, as wonderful as Liz Mathis is, and as much as she knows, and as good as your text is, you would be doing yourselves a grave injustice if you think that now you understand the law and you can make these judgements for yourself. I think if you have anything at stake at all, and at minimum you have your reputation at stake, you do need to get good legal counsel on these questions.
Having said that let me go ahead and continue to flap my mouth anyway.
"Fair use" is an exception, or a permitted use. It, nonetheless, involves a copyright violation -- just one for which there is an excuse. It's like you can murder somebody in self defense. It's still murder, it's just that you have a defense to it. Anytime you copy anything, you make a xerox copy of one page, that is a copyright violation. You make a copy of a photograph, that is a copyright violation. You call up a Web page on your computer screen, that is a display. That is a copyright violation. You print it out. That's another copyright violation. You send it to a friend, that's another copyright violation. You put it on your Web page, that's another copyright violation.
The thing you need to understand up front is that the copyright law starts off by protecting any use of material of somebody else's. All you are legally permitted to do is buy the book, pay for it, and read it. You can read it as many times as you want for the price of the purchase, but that's because that's implied.
If you're interested in the way in which I've ended up handling this, if you check into any of the texts which I have put up on my page or the memorial Web page for my father, you will see the kind of copyright notice I have. It starts off by saying I reserve all rights, but what I'm granting you is the right to call this up on your computer, read it, and print out one copy for yourself -- so long as you keep the copyright notice and you don't change the text. But you don't have the right to make multiple copies.
For example, I put up the full text of How to Talk Back to Your Television Set. Nobody has the right to take that off the Web and make a hard copy book out of it and sell it. What they have a right to do is what I have expressly granted them.
In terms of fair use, in general, the notion is that if you're quoting a passage out of a novel because you're writing a book review about that novel, and it's important to have that passage to make a point you're trying to make in your review, you have the opportunity to do that.
The question you put about attributing the source is not only a copyright question, that is really a question of good academic practice, of common courtesy, it has to do with plagiarism, whatever. You credit the sources that you use for reasons not having to do with copyright. You may not be violating the copyright law because you simply refer to the fact a source exists, or you summarize some facts that they have there. You're not copying what they have, it's not a copyright violation.
The law is not clear. Part of the reason for my giving you this fuzzy stuff is that I'm giving you an accurate transmission of fuzzy stuff because that's what it is. You cannot predict exactly whether or not somebody wants to prosecute you, they will be able to do that.
The kinds of things that are relevant are:
If you're taking stuff off the Web for the newspaper I think at a minimum you want to credit where you got it, if for no other reason than that would be interesting to your readers. Let them know what the Web site is and they can go there and see the rest of it if they want to.
I think that's both more and less than what you asked for, but that's what you get when you ask me.
LM: Tom Hausmann is with us and he's with computer services. He has a question for you.
Tom Hausmann: I'm the director of academic computing. Getting back to your discussion concerning jurisdiction.
NJ: You're also off camera for reasons I don't understand. I thought the camera was automatically supposed to go to you.
LM: It is, but he pulled it off to the side. If you pull it over.
NJ: Sneaky little fellow, isn't he? This is a privacy issue right? I won't tell anybody you were here.
TH: My question has to do with jurisdiction and what we would characterize as employee and employer rights. In particular, there is the notion that what the college or what the employer is paying for entitles us to certain restrictions or obligates us to certain restrictions for employees. However, this being an academic institution how can we generalize this to the student body?
NJ: Your question is so general I'm not sure what you're asking. You could be asking, for example, "Can you close off certain Web sites to students that they want to get access to?" You might be asking, "Do we have the authority to monitor and read everybody's e-mail?" I'm not clear what you're asking.
TH: A specific example: our college policy explicitly states that although the college essentially pays for the Internet access we will not go into people's mail and monitor all that sort of stuff. However, what we do have as part of the college policy is a limitation as to how people can go about publishing Web content.
NJ: What is that limitation? I have a limitation on the Web server I use. I can only have up to 15 megabytes. Is that what you mean?
TH: That's just one example. However, we actually state that it is not within the realm of possibilities of the students, although it's technically possible, for them to go out and generate their own Web sites, that is, bring up a Web server and begin publishing massive amounts of Web content. The college is paying for the conduit, the T-1 line access. It's as if a faculty member decides that they are going to establish a Web server on my personal computer and then threw out 50 megs worth of data or content and begin using that material or archiving that material for whether it be their students or some other people's students or another institution. We have explicitly stated that no one can establish a Web server independent of the college's Web server at this time.
NJ: I don't quite understand why one would want to do that. You're saying that if I were teaching at Wartburg that you would forbid me to have my Web page on the North Liberty Internet service provider's Unix machine?
TH: No, because that gets back to the jurisdictional areas. Say if you have a server that physically sits on our campus and uses our telecommunications infrastructure to be out on the Internet.
NJ: Then I would have a substantive question. I would think that you would want to do everything within your power to encourage more and more people to create their Web pages. Why on earth would the college want to have a policy discouraging that?
TH: Say, for example, that I establish a server as an independent contractor. I elect to use the telecommunications infrastructure of this college. I set up a server that starts conducting commerce and I make money from that.
NJ: That's your concern; that people will start making money from their Web pages?
TH: No, my concern is that if I were teaching at the University of Northern Iowa and I establish a Web server in my office for the purpose of conducting commerce completely independent of my responsibilities as a faculty member to the University of Northern Iowa, to what extend is the University of Northern Iowa then obligated to restrict, or entitled to restrict, use of its capital equipment and telecommunications infrastructure?
NJ: Let me say that that's an example of one where you really ought to talk to whoever is your local counsel who advises you about stuff like that. My horseback kind of common sense, but expressly not a legal opinion, would be that if you want to have a policy of discouraging people's making commercial use of your facilities that you could probably do that as much as you could prevent a faculty member from setting up a hotdog stand on the campus if you didn't want them to do that.
TH: When you establish a hotdog stand you're not limiting or preventing access to other facilities at the college campus. If I establish a Web server for the purpose of conducting commerce or for whatever reason, there's a limited, a scare resource, the capacity of the telecommunications resource for the entire college. By establishing my Web server in my office I'm, in fact, using a portion of that information conduit or information capacity that comes into that college.
NJ: Yes, but no more so than if some people talk on the telephone more than other people talk on the phone. Some people send more e-mail than others send e-mail. The Internet, as you know, for a time a year ago was growing at the rate of 20 percent a month. One of the great beauties of the Internet is the lack of scarcity, it's the abundance, the ability of the thing to grow, the fact that it is not controlled by anybody. There is no headquarters. I'm kind of surprised that you have that problem.
TH: It isn't a problem now. Perhaps I could liken it to using a public road for the purpose of conducting my own commerce. By using a public road to conduct commerce I block off six streets in Waverly for my hotdog stand. Thereby I'm preventing people from getting to other resources, getting around the community and such.
NJ: That would be an incredibly long semi-truck. I just don't think this is a problem, but obviously I don't see it from your perspective. If I were sitting in your chair perhaps I would see it differently. I have probably already told you far more than I know.
TH: I'm just trying to engage you in a discussion here that part of the motivation -- I'm an academician so I'm all for open access -- being on the administrative side I have to deal with the practical reality of limited disk space, of limited network capacity, of limited number of computer terminals which are available to the students and such.
NJ: I would assume the solution to that is get out there and battle for a greater share of the budget and get some funds from off campus and get some free equipment from firms. That's what everyone is having to do all around the world as demand is increasing. I don't see the distinction between someone sending ten times as much e-mail as somebody else and somebody putting up a Web page. I wish I had enough traffic on my Web page that it would become a problem for the University of Iowa, but it hasn't.
LM: Nick, we have about five or six more minutes left and I'm just going to change the discussion here. Scott Harves has another question.
Scott Harves: I have a question that will branch off a little bit. Say a student at the school on their own computer using the school system is making their own home pages. Does the school have the right to set standards for what can and cannot go on these pages that the student has? I guess what I'm asking is if the school has the right to censor student home pages.
NJ: There again there is not an easy answer to that. I would hope that common sense would reign on both sides, but that would really be the triumph of hope over experience, because that has not been the practice either with rebellious and creative students or with oppressive and unimaginative academic administrators. I would hope the policy would be one of encouraging students, patting them on the back, saying "atta boy, keep at it," rather than trying to discourage people. But as I said earlier I'm not sitting in that chair. As the old line goes, "Where you stand is a question of where you sit."
LM: I think Eric Allen has a question for you.
Eric Allen: My question would be along the lines of maybe someone in a foreign country doing the painting in John Deere green, "Billy Bob loves Irene" or something like that. What do you see happening as far as setting up a ruling body on this kind of thing? Will America set up some sort of blocking v-chip for the Internet so they can set up their own rules on things from other countries? Because there's this statistic that, say, something like there's 40 percent of the smut coming from other countries on the Internet. What do you foresee happening in that jurisdiction, jurisprudence?
NJ: As I mentioned earlier, the legal system on Planet Earth is pretty much a national system, so I would presume the law here as elsewhere will evolve nation by nation.
There are a variety of ways of dealing with these problems available. Your book mentions what happened to Compuserve in Germany. They don't quite have it right, but they almost have the story. You mention the v-chip. There are ways in which you can block certain sites, scan for certain words. So there are many solutions in technology.
Some nations that have been very oppressive and heavy-handed in the past are now coming around and deciding there's a lot of good stuff on the Internet and they'd rather open it up than close it off to their people. In any event, they say, leave the choice in the hands of the individual, in the hands of the parents, rather than have heavy-handed standards that apply to everybody across the board. That's going to be worked out one nation at a time. China, for example, is trying to create an intranet, so called, within the nation of China that would give Chinese people on the mainland access only to material which has been approved by the government. Some nations ban Internet access all together. It's a hodge-podge out there right now.
LM: I think the big frustration is that, you know, you gave Michelle the advice, "call some legal counsel," and sometimes when we do there is such a gray area and there's so much confusion. When do you foresee that there will be more manageability of this?
NJ: More clarity in the law. Well, that's been promised for four or five hundred years, something like that. It's like that alien spaceship, it's coming any day now.
No, these things are inherently complicated. There aren't easy answers. There often are not very good questions, and if there are not very good questions there certainly aren't going to be very good answers. These are not easy matters. You're balancing all kinds of interests, and we have a legal system where we work out these on a case-by-case basis, one at a time for the most part. The Supreme Court may split five to four. What was the law? Were the people who guessed it was going to come out the way the four thought it should, are they dead wrong or were they just missing a vote? We just do the best we can.
Use some common sense. If you have a question in your mind then there might be a problem. You might call the person who has the rights. I haven't found it difficult, for example, to get rights from the publishers of my books, or of my father's books and material I'm putting up on his memorial Web page, the entirety of one book and chapters out of others. They're pretty cooperative on that. They know you're not trying to make money out of it. You're not trying to reissue the book, and if anything it may bring more business to them. Don't be too afraid. Of course, you always have the problem that when you call one of these companies you end up talking to a fourteen-year-old whose job it is to say "No." That's what a lot of people are employed to do, you know, or at least that's the way they view it. I've been very lucky.
LM: OK, one more question. I know I said one more question last time. We have until 1:15 until we lose your picture. Kerry Wright, a student here is going to do an internship at the White House this summer so she has the last question for you.
Kerry Wright: I was wondering if you could tell us briefly about your days at Covington & Burling and your days clerking for Supreme Court Justice Hugo Black?
NJ: Gee whiz, I don't know if I can do that briefly. Both were wonderful experiences in very different ways.
Justice Black came out of Alabama and was a member of the Senate when he was appointed by Franklin Roosevelt. He took his job as a Senator and as a Supreme Court Justice very seriously. He spent his afternoons over in the Library of Congress reading Greek and Roman and American and English history. Clerking with him was very much like clerking with Thomas Jefferson or James Madison. You felt like he knew what those folks said and what they believed and what their purposes were. He spoke with such authority you assumed he must have actually been there at the time, but it's just that he really internalized that history. We would meet out at his house in his study and talk over the cases and work on opinions together. It was quite an experience.
Covington & Burling was at that time, and still is, an extraordinarily well regarded law firm. But at that time there were even fewer of these large multi-hundred lawyer law firms than there are now. I was the first person who did not go to law school at Harvard, Yale, or Columbia who was hired by Covington & Burling. They took a great chance with this boy from Iowa who had gone to school in Texas. I was there for a summer, like you're going to the White House for the summer. After that they kept after me every year trying to hire me. I said, "No, I'm going to go clerk for Judge John R. Brown." Then they wanted me to come. I said, "No, I am going to clerk for Justice Black." Then they wanted me to come. I said, "No, I'm going to go out to the University of California Berkeley law school and teach.
They kept after me, and I decided "I'm never going to get rid of these guys." So I wrote them a letter saying I would come only on these terms: They were going to have to pay me this enormous amount of money, I was only going to work for them for two years, they were going to have to pay my moving expenses to Washington and back to Berkeley, and I was going to pick all the cases I was going to work on. I figured that would be the end of that -- "I won't have to worry about them anymore" -- and went back to preparing for class. Back by return mail comes a letter, "Terms accepted." There I was, I had a job at Covington & Burling.
What I was wanted to work on was administrative law, which is what I was teaching, so I wrote an administrative procedure act for "dumping" cases. I won't bother you with what dumping cases are, except it was a way that a backwater steel industry in this country was trying to save itself from foreign competition.
Liz is telling me my time is up?
LM: Almost.
NJ: I was going to tell them about going over to the White House the first time.
LM: We go off at 1:15 and we're about four minutes away.
NJ: Not if you're on Universal Time Coordinated. The atomic clock in Boulder, Colorado, says its 13:09:24 right now and that's only one second fast. I always set my watch one second fast so I won't be late for meetings.
Anyhow, I was supposed to go over to the White House and meet with Bill Moyers. I'd never met him before, although you can read newspaper accounts that he and I were roommates in Texas. In fact, we had never met, let alone been roommates, just to let you know how reliable newspapers are -- unlike television which always gets the story straight.
So I went over there and he kept me waiting about an hour. This fellow came out and grabbed me by the arm and took me down a corridor, shoved me in this room, and said "Sit down," and he left. I looked around and realized I was in the Oval Office. Then I realized that was Lyndon Johnson over there watching TV. So I just sat there quietly. I didn't know what you did when you were in the Oval Office with the President except sit quietly and wait to be spoken to. It's sort of like meeting the Queen or something. So I just sat there and was quiet, and he started talking about the Maritime Administration.
Here I was. I had majored in political science, and taught administrative law, and had never heard of the Maritime Administration. The more he told me about it the more I realized I wanted nothing to do with it. The more I wanted nothing to do with it the more he realized I was the only one on the short list of 35 being considered who was eligible, because all the rest wanted the job.
He told me to see these Senate members of the Senate Commerce Committee, and I did. They called me up for a hearing, and they wanted to know what shipping experience I had had. I said, "I once operated a canoe on the Iowa River, but not very successfully." They allowed as how that was enough shipping experience, and they made me Queen of England and Ruler of the Seas and it was the neatest job I ever had.
I was then 29 years old. I had my own flag. I was a three star admiral. I was chairman of this secret NATO group, and had a four year college I was responsible for, and the 3,000 ships in reserve fleets. Then I became director of the War Shipping Authority.
So you tell Kerry to watch out over there. They have quite a crew over there. I'm not sure I'd want to go into the White House any more, but I don't think.I'm going to have to confront that question.
LM: I think she's going to be filing information this summer. They might stick her on the press so we'll see what happens.
Nicholas, thank you so much for doing this for us. We are very honored that you did this and took time out to do this. If we sent you a Wartburg sweatshirt would you wear it?
NJ: I would wear it with pride, Liz. I'd have embroidered on it, "Given to me by Liz Mathis."
LM: Some of our students would sure like to meet you in person. Maybe we could set up a dinner date or something like that in late May, or maybe in early June before some of the students leave. Would you want to accept an invitation if we took you out to dinner as a thank you?
NJ: Would that be coming to Waverly, or would we meet half way, or would you come to Iowa City? You see, I don't get to Coralville very often. That's just a couple miles from Iowa City.
LM: How about if we took you out to dinner at the State Room at the Union?
NJ: That's a little fancy for my taste. We can do a notch above McDonalds. The State Room has those little curled up tomatoes and carrots and stuff. I have to go eat there next week. I'm going to stuff myself before I go.
LM: OK, we'll take you to Joe's. How's that?
NJ: That would be great. Thank you Liz, it was great fun. Bye everybody.
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