By Chris Mincher '11
Associate Features Editor

In 1787, Thomas Jefferson, then the ambassador to France, had the skeleton of a massive moose shipped to Paris and installed in his house. Unquestionably one of his more eccentric moves— along with maintaining records about fruit in Washington markets and keeping grizzly bears on the White House lawn—but not without purpose: He brought the bones not for himself, but for European biologists who believed animals in the New World were simply smaller versions of those in the Old World. Jefferson’s colossal moose made them think again.

So when David Post was striving for a way to reframe the debate on Internet copyright law, he thought, “I need a moose.” Jefferson wanted scientists to stop thinking of the New World in terms of the Old World; Post, a former Ginsburg clerk, wants law professionals to stop thinking of the Internet in terms of traditional communication. An author and musician (yes, with a MySpace page) who’s worked in Internet law for 15 years, Post wrote the new In Search Of Jefferson’s Moose: Notes On The State Of Cyberspace to portray “the Internet through Jefferson’s eyes,” he told the audience Wednesday while speaking at Caplin Pavilion.

Post asked a full crowd to imagine a new, uncharted frontier where laws could be created anew—in this context, a “Planet Internet.” He then envisioned a new code of copyright law for this place, and what wouldn’t be in it. His answer? Most of what makes up current copyright law.

Today, copyright protection begins at creation and continues from there, with no requirement for registration or notice. That wouldn’t seem to be a fit with the Internet, which is by its nature designed to distribute information without impediment. “That is its job,” Post said, “getting information from one corner of the network to another.”

With billions and billions of copyrighted works existing and constantly being created online, “it’s self-evident to me that this would not be the rule we would choose if we were starting fresh . . . It’s a system that would be impossible to keep track of,” Post, a graduate of Georgetown Law with a doctorate in physical anthropology from Yale, said. “The amount of processing you would need to process this system is astronomical. Why would we, starting out fresh, set up a system that way?”

Post suggested setting aside many of the principles of current copyright policy, including copyright status depending on the intent of authors and the four-factor, case-by-base balancing test of the fair-use doctrine. In their place, he offered basic principles in which to shape a new legal scheme; for example, that copyright law should incentivize people to do things they otherwise wouldn’t do, and allow for wide distribution of created materials.

Those issues don’t arise in the current policy discussions, most of which focus on heightening enforcement of current copyright law on the Internet. But such enforcement, Post argued, is utterly unrealistic. As evidence of this, he played a YouTube video clip entitled “Remix” from Thru-you.com. Splicing together other video clips of people playing music, the purported creator, “Kutiman,” pieced together a complex, stunningly coherent jazz-funk song. But for a lawyer, clearing the rights for such a song would be nearly impossible.

The Internet is simply incompatible with current regulations, which are “supposed to be about empowering creators,” Post, a former Columbia professor, said. “That’s why we have copyright law.” Given that assumption, In Search Of Jefferson’s Moose is meant to spark debate about where the law should go from here.

“I’m asking you to begin that conversation,” Post said to a student during the question-and-answer period. “What’s going on out there that might make us look for a different type of copyright law?”