Yes, that’s right: 1997 in review – looking back at the year that could be.
By Erik J. Heels
First published 4/1/1997; Student Lawyer magazine, “Online” column; publisher: American Bar Association
Wow, what a year it has been! Maybe because 1997 was the year when hourly per capita Internet use finally exceeded television viewing. Or maybe it was the new streaming video patents that were generously donated to the public by the Apple-IBM-Microsoft-Netscape consortium. Or maybe it was because the bugs were ironed out of cable modems. Whatever the reason, 1997 was the year that lawmakers, lawbreakers, and lobbyists settled their differences and brought order to the formerly wild and untamed final frontier know as the Internet. Here, ripped from the year’s headlines, are my top 11 news stories of 1997.
1. The Unites States Supreme Court, in a rare declaratory judgment, reversed its 1993 decision regarding how courts should determine the admissibility of scientific evidence. In Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2786 (1993), the Court rejected the old “Frye test,” named after Frye v. United States, 293 F. 1013 (App. D.C. 1923), which had required that scientific evidence be generally accepted by the scientific community before it could be admitted in court. The Daubert case established a much looser standard, allowing (i.e. requiring) judges to act as gatekeepers in admitting or rejecting scientific evidence, and allowing (i.e. requiring) them to consider many factors when deciding whether purportedly scientific evidence, is, in fact, scientific.
In its startling 1997 reversal of Frye, Justice Blackmun noted that the main reason for the reversal was that he had been inundated by mail from hundreds of federal judges who begged him to reverse Daubert. “Turns out that most judges went into the judiciary because they didn’t like – and weren’t very good at – math and science,” commented Blackmun, “and having to determine what was ‘scientific’ was bringing back terrible memories of fractions, algebra, and, for one judge from Chevy Chase, Maryland, calculus.” Blackmun’s concise reversal conceded that scientists are, in fact, the best judge of what is scientific. The Maryland judge commented to Blackmun that it was his understanding that there would be no math in his job.
2. As a condition of continued accreditation, the ABA required that law schools make intellectual property education mandatory for all law students. The ABA Report, entitled “In the Medieval Age, Land was the Source of Power; In the Industrial Age, Rivers were the Source of Power; In the Information Age, Ideas are the Source of Power,” traces the evolution of the definition of the term “property” from ancient times to today. And while the report does not favor abandoning teaching “land law” as part of law schools’ “property” curriculum, it favors emphasizing a basic understanding of patents, copyrights, trademarks, and trade secrets. “In 1997, an individual is more likely to be sued for violating intellectual property rights than for breaching a negative easement,” the report continues, “and besides, who can afford to buy a house with all those student loans?”
3. Congress passed the One-Step-Forward-Two-Steps-Back bill. Long championed by Libertarians, conservative Republicans, and Democrats who were getting tired of doing so much reading, the so-called One-Step-Forward-Two-Steps-Back (OSFTSB) bill requires that for every new law that Congress passes, it must repeal two old laws. “I had no idea just how long the US Code was,” commented Clinton, “until I – I mean until a friend who was moving some of Hillary’s files from her old law firm told me that he’d pulled his back out.” To date, the OSFTSB has worked like a charm. “We set up a form on the White House Web site where users can tell us which laws they want to have eliminated,” continued Clinton,” so when we enacted the 1997 Comprehensive Health Care Act in October, we eliminated tobacco subsidies and stripped the FBI of its authority to conduct wiretaps.” States such as Vermont are considering enacting legislation based on the OSFTSB to clear its codes of laws that require the state to escort release prisoners by horseback to their home of record, or that prohibit underwater whistling.
4. West Publishing donated its citation system to the public. Citing the need to build company goodwill and its desire to save judicial resources for other matters, West Publishing donated its copyrights to its citation system to the public this summer. West President Brian Hall summed up West’s reasoning: “Remember the ad for Mercedes Benz, where the announcer with the German accent talks about donating the patents for safety-related improvements to the public because it was the right thing to do? Same idea.” In an oddly worded, but neatly typed, press release, West explained its reasoning in detail. Emphasizing that the issue was not one of “ownership” of a citation system, but rather a simply matter of compilation copyright, the press release emphasized the need for law schools to teach basic intellectual property law to all first-year law students. “We kept winning in court because we were right on the law,” a West spokesman commented, “but we got tired of explaining our case. Besides, it turns out that people were buying out books for the headnotes, not for the page numbers.” (In a related development, the ABA adopted a new requirement regarding intellectual property education. See item 2, above.)
5. Iowa, Florida, Georgia, and Texas Bar officials eliminated restrictions on lawyer publication on the World Wide Web and joined the 46 other states in narrowing the definitions of advertising. Speaking for the four states, a representative from the Iowa bar announced, “Iowa’s advertising restrictions were and are designed to protect the public from fraudulent advertising claims. But after seeing that many Web sites themselves contain advertising, we now join with Florida, Georgian, Texas, and the other states in recognizing the Web as a being more like a publication medium that an advertising medium.” As part of their announcement, Florida and Texas eliminated the requirement that law firms register their Web sites with the bar, and Georgia repealed its Computer Systems Protection Act (the so-called “Internet Fraud Act”). Said Georgia Governor Miller, “I have been informed that there are federal laws regarding copyright, and there are other state laws that adequately protect the public from fraud.”
6. The United States Department of Justice (DOJ) apologized to David LaMacchia and cleared his record. Indicted in 1994 under a 1952 wire fraud statute for running a computer bulletin board system from which copyrighted software was copied, LaMacchia found his record cleared in the spring of this year. The DOJ agreed to stop its practice of trying to prosecute individuals based on old outdated laws that didn’t fit the acts in question, and instead chose to focus its efforts on writing new laws to address new acts that could be considered criminal. “We realized that running a BBS is not wire fraud,” said Attorney General Janet Reno, “but it’s hard work to write new laws. We would rather that the people just give us wide discretion to prosecute people for acts that we dislike, and to simply trust us to use our discretion to go after the really bad actors. But since I like my job, I decided that, in this case, the will of the people should prevail.”
7. President Clinton created the Department of Science as a cabinet-level organization and named Mitch Kapor (former Lotus CEO and EFF cofounder) as Science Secretary. The mission of the Department of Science is to pull together the country’s science-related organizations into one department with the goal of increasing funding for scientific research, development, and education. Within a week of establishing the new department, the Clinton administration was immediately able to triple spending on scientific research and development by cutting funds that had been allocated to fund the Clipper Chip.
8. The DOJ ended Microsoft’s dominance of the computer software market by splitting the company up into three businesses, Micro Inc., Soft Inc. and Network Etc. Inc. The DOJ’s decision was based on a DOJ agent’s discovery that DOS, Windows, and NT operating systems were all made by Microsoft and that all three were so-called “operating systems.” The new company Micro Inc. will focus on operating systems products. Soft Inc. will produce application programs for various operating systems, including those produced by Micro Inc. And Network Etc. Inc. will focus on products and services that are neither operating systems nor application programs, such as The Network Etc. Network (formerly “The Microsoft Network”) and SoftNBC (formerly “MSNBC”). Network Etc. Inc. has licensed the term “Soft” from Soft Inc. for SoftNBC, its cable-television-plus-Web-site product line. The DOJ promised the break up Network Etc. Inc. into separate companies if it determines that Network Etc. has a monopoly in the booming cable-television-plus-Web-site market.
9. The InterNIC eliminated fees for domain name registration and returned to its first-come-first-served policy. The InterNIC is now supported through advertising revenue and via licensing fees from renting its “whois” database. The InterNIC became a nonprofit organization and donated all past profits to the newly formed Department of Science. After litigation over domain names virtually came to a standstill over the summer, many InterNIC employees found that they had nothing to do and quit in disgust. The sudden downturn in domain name litigation was reportedly due to an increased understanding of intellectual property laws by a new crop of young lawyers (see item 7, above). “We had never actually read the Lanham Act,” conceded an InterNIC spokesperson, “and if we had, much of the confusion we’ve witnessed over the last two years could have been avoided.”
10. Congress passed the Truth in Internet Reporting Act. The law is designed to put reporting about criminal activity associated the Internet in its proper perspective. For example, if a television news show want to report that somebody was hurt with a bomb created by a recipe found on the Internet, the law would require the network to first read the story aloud with the phrase “on the Internet” replaced with “at the library” or “on the telephone.” If the story is still newsworthy, the station may run it. If not, the law requires the station to pull the story or delete the reference to the Internet. As a result of the law, reporting of so-called “Internet affairs” has virtually ceased. Also, due to the operation of the OSFTSB (see item 3, above), the Communications Decency Act and laws restricting the export of US encryption technology were repealed.
11. The Electronic Frontier Foundation closed it doors, stating “our work here is done.” “Do you remember 1989 in Eastern Europe, when all of those countries declared independence?” asked longtime EFF counsel Mike Godwin. “That’s what 1997 was like for us at the EFF. We now feel that civil rights are and will be respected and protected in cyberspace,” lamented Godwin “so there’s nothing left here for us to do.” Some unconfirmed rumors on the Net indicated that the EFF was going to set up shop in Canada, but Godwin could neither confirm nor deny the rumors. Godwin was last seen headed north with a bumper sticker that read, “Civil Rights, Eh?”
Until next year, see you on the Net!
