6.805 | Fall 2005 | Undergraduate

Ethics and the Law on the Electronic Frontier

Readings

Information and Intellectual Property

[The 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; 
-- U.S. Constitution, Article I Section 8

Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances. 
Most of the people who actually create soft property - the programmers, hackers, and Net surfers - already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with nonmaterial goods to understand why they are so problematic. They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong. 
-- John Perry Barlow (“The Economy of Ideas”, March 1994)

Browsing through a borrowed book, lending a magazine to a friend, copying a news article for your files - all seem innocuous enough. But the Clinton administration plans to make such activities illegal for works distributed via digital networks. 
-- Pamela Samuelson (“The Copyright Grab”, January 1996)

Initially, respect for copyright protection needs to be highlighted – intellectual property needs to become a “household word.” … Not only must a curricula be developed and made available for all educational levels, but also a methodology must be established for the continual reinforcement of the importance of intellectual property throughout the lifelong learning of every NII user…. Certain core concepts should be introduced at the elementary school level – at least during initial instructions on computers or the Internet, but perhaps even before such instruction. … At the same time that children learn basic civics, such as asking permission to use somebody else’s pencil, they should also learn that works on a computer system may also be property that belongs to someone else. 
-- White House Information Instruction Task Force (“Intellectual Property and the National Information Infrastructure”, September 5, 1995)

Recommended Readings

Note: Some of the links in the list above connect to the place on this page where each item is described, so that you can see it in context. Follow the link from there to the actual reading.

Background on Intellectual Property Law

The laws regarding patents and copyrights are extremely complex and technical. What else would you expect with so many lawyers involved? Here are some resources to help you get oriented:

  • The law firm of Oppedahl & Larson maintains an Intellectual Property Law Web Server that has an excellent collection of basic material.
  • Stanford University Libraries maintains an extensive Copyright & Fair Use Web Site with material on copyright statues and legal precedents.
  • The U.S. Patent and Trademark Office provides information via its Web site, including an extensive collection of general information and an excellent introduction called General Information Concerning Patents.
  • The Association of Research Libraries’ Timeline: A History of Copyright in the U.S. summarizes aspects of U.S. Copyright Law, with special emphasis on the evolution of the principles of “fair use” and the rights of libraries.

Software as Intellectual Property

Computer programs are poorly matched to traditional categories of intellectual property. Are programs inventions, and thus covered by patent law? Are they “original works of authorship,” and thus covered by copyright law? Both? Neither? The sections below on the legal cases dealing with software patents and software copyrights illustrate how problematic software can be for intellectual property law. Before delving into those details, however, here are some more general perspectives:

  • League for Programming Freedom. “Against Software Patents.” February 1991. (also in Communications of the ACM, January 1992). This paper argues that patents are flatly bad for development of software and that software should not be patentable. (Copies of this paper were distributed in class on October 9.)
  • Heckel, Paul. “Debunking the Software Patent Myths.” Communications of the ACM, June 1992. This paper was written as a rebuttal to the paper above. (Copies of this paper were distributed in class on October 9.)
  • Davis, Randall, Pamela Samuelson, Mitchell D. Kapor, and J. H. Reichman. “A new view of intellectual property and software.” CACM 39, no. 3 (March 1996): 21-30. The authors argue that neither patent nor copyright is an appropriate legal mechanism for restricting computer software, and they propose a different model. This article is a summary of the much more lengthy piece, “A Manifesto Concerning the Legal Protection of Computer Programs,” which appeared in the December 1994 issue of the Columbia Law Review.
  • Finding a balance: Computer Software, Intellectual Property, and the Challenge of Technological Change, Congress of the United States Office of Technology Assessment, May 1992. This is a(nother) comprehensive view of intellectual property law as it relates to software and other digital information. The report tries to lay out options rather than make recommendations. It is interesting to compare this with the White Paper.

Digital Media and Intellectual Property

The problems posed by digital media for intellectual property may have first become apparent with software, but the digitization of information, and the resulting ease of duplication and transmission on the Internet, is upsetting the balances struck by intellectual property law. Some people fear that rampant copying on the Internet will make it impossible for authors and publishers to be fairly compensated for their works. Others fear that a tightening of copyright law will destroy the regime of fair use. In addition to the pieces listed here, also look at the material below on the NII White Paper.

  • Barlow, John Perry. “The Economy of Ideas.” Wired, no. 2.03 (March 1994). This is a wonderfully written piece, which claims that networks and digital media make traditional notions of intellectual property senseless. Barlow has summarized his position more succinctly as “copyright is dead.”
  • Dyson, Esther. “Intellectual Value.” Wired, no. 3.07 (July 1995). This is an attempt to look at future business opportunities and implications of digital networks, rather than worry about how to fix current law. Dyson argues that intellectual property issues will become less important, because “value” in the information economy will shift from information per se to information-based services.
  • ———. “Intellectual property on the Net.” Release 1.0, December 1994. The paper above is an abridged version of this article, which appeared in Dyson’s monthly newsletter. (Copies of this paper were distributed in class on October 9.)
  • Branscomb, Anne W. Who Owns Information?, Basic Books, 1994. This is a good overview of the thorny intellectual property issues raised by communication networks and digital media. The chapters on “Who owns your electronic messages?” and “Who owns computer software?” are especially relevant to the course, but it’s worth reading the entire book.

National Writers’ Union. “Authors in the New Information Age: A Working Paper on Electronic Publishing Issues.” September 14, 1995. This paper advocates positions that writers should take in view of the changing relationships between authors, publishers, and distributors made possible by information networks.

Software and Patent Law

Software is particularly troublesome for patent law. On the one hand, machines are patentable, and on the other hand, mathematical algorithms are not. Computer programs are both like machines and like mathematical algorithms, so judges have had to split hairs to distinguish between patentable and non-patentable software elements.

The result of this hair-splitting is highly confusing. It rests on complex and – to be honest – technically questionable decisions of the Court of Appeals for the Federal Circuit. If you delve into any of the patent cases described below, you will find them tough going. The following pieces can help get you oriented:

  • Durant, Stephen C. “Patents in Cyberspace: Impact of recent Federal Circuit decisions.” The Computer Lawyer 12, no. 1 (January 1995). This is a good overview of the current status of patentability of software and the impact of recent court decisions. (Copies of this paper were distributed in class on October 9.)
  • Kuester, Jeffrey R., and Ann K.Moceyunas. Patents for Software-Related Inventions (March 1995). This is a another good overview of the current status of software. It also includes an overview of the patenting process, and the discussion centers on the history of problems with the definition of “algorithm”.
  • Examination Guidelines for Computer-Related Inventions (February 1996) These are the official guidelines used by the Patent Office’s examiners to determine whether software inventions are patentable.

Supreme Court Rulings

  • Gottschalk v. Benson, 409 U.S. 63 (1972). In this decision, the Court ruled that a program to convert binary-coded decimal numbers to binary was not patentable, since it was merely an algorithm, This decision laid the basis for the view that programs are not patentable, which held sway until 1981.
  • Diamond v. Diehr, 450 U.S. 175 (1981). Here the Court ruled that a process (for curing rubber) that used a computer program could be patentable, even though it made use of a mathematical algorithm.

Appeals Court Rulings

  • Arrythmia v. Corazonix (PDF) (1992), decision by the U.S. Court of Appeals, Federal Circuit. This major decision also includes a review of the Benson and Diehr decisions, and establishes that mathematical algorithms may be patentable if they are used in relation to a tangible physical physical process.
  • In re Alappat (PDF) (1994), decision by the U.S. Court of Appeals, Federal Circuit. This decision extended the basis for algorithm patentability established in Arrythmia. The Court declared that a method for smoothing waveforms in a digital oscilloscope is patentable, even though the patent claim was written so broadly as to cover any general-purpose computer performing the same method. The Court held that “a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.”
    • Software Patents, by Jonathan Rosenoer, reports on and criticizes the Alappat decision.
  • In re Lowry (PDF) (1994), decision by the U.S. Court of Appeals, Federal Circuit. This holds that a computer memory with data structures stored in it is patentable subject matter, i.e., that the organization of information in memory can be patentable invention.
  • In re Trovato (PDF) (1994), decision by the U.S. Court of Appeals, Federal Circuit. This decision restricted the basis for algorithm patentability, saying that algorithms (even when they are realized as computer programs) may not be patentable if the domain of application of the algorithm is too “abstract”.

The material on this is extensive, and appears on a page of its own.

U.S. copyright law derives from a bargain, provided for by the Constitution, whose goal is “To promote the Progress of Science and useful Arts,” whereby authors are given a limited monopoly on their works. This has evolved into a balance that permits authors to profit from their works, while still allowing the public to have access to them and build upon them. For example, the “first-sale doctrine” provides that if George buys a book that has been copyrighted by Harry, George can later give or sell that book to Liz without asking Harry’s permission. “Fair use” provisions allow libraries and educational institutions to do limited copying. More importantly, much of what technically is copyright infringement by private citizens no one really cares about, because there is no way to casually print or distribute large numbers of copies, and making and sharing small numbers of copies generally has no economic consequence.

The Internet upsets this balance, because it trivializes the task of copying digital information and making it available worldwide. This issue first became apparent in the 1980s with “software piracy”, since software was the first kind of information to become generally available in digital form. Consequently, what was once viewed as simple software “sharing” is now widely considered reprehensible, even criminal behavior. As the Internet expands, the same issues apply to all kinds of information. Finding a new balance will require making difficult political choices.

The NII White Paper

These tensions surfaced in September 1995 with the publication of “Intellectual Property and the National Information Infrastructure”, a report by the White House Working Group on Intellectual Property Rights, part the of Secretary of Commerce’s Information Infrastructure Task Force, chaired by chaired by Bruce Lehman, Commissioner of Patents and Trademarks. The NII task force was frankly worried that content providers will not place anything of value on the Internet, for fear of massive copyright infringement.

The report characterized its recommendations as “no more than minor clarification and limited amendment” to the copyright statute. But there are several significant changes proposed. One would give copyright owners exclusive rights over “transmission” of information, not just copying. Another would eliminate the first-sale doctrine for digital works. Another would criminalize any tampering with copyright protection mechanisms, or with copyright identification information. Several bills have been introduced in Congress to implement the White paper’s recommendations, but none have been passed yet.

The White Paper was roundly criticized by the academic and library communities as a sell-out by the Administration to large publishing (and especially motion picture) interests, and a significant erosion of fair use. Some of the critiques have gone on to examine the appropriate role of copyright in the Internet era.

“Intellectual Property and the National Information Infrastructure.” The report of the Working Group on Intellectual Property Rights. September 5, 1995 This is a massive document (250 pages plus appendices and over 500 footnotes), but it is worth at least skimming, because it gives a comprehensive (critics say biased) overview of copyright, patent, trademark, and trade secret law, with special emphasis on the implications of networks and digital technology.

  • Samuelson, Pamela. “The Copyright Grab.” Wired, no. 4.01, January 1996. As the title suggests, this article severely criticizes the White Paper as an erosion of fair use.
  • Jessica Litman. “Revising Copyright Law for the Information Age.” 75 Oregon Law Review 19 (1996) This article critiques the White Paper, but more importantly, it argues that digital technology has made “reproduction” untenable as a basis for copyright law.
  • ———. “Copyright Noncompliance (or why we can’t “Just say yes” to licensing).” 29 New York University Journal of International Law & Policy (forthcoming, 1997). Here Litman builds on her criticism of the White Paper to emphasize how Internet has upset the traditional balances in copyright law: “The trouble with the [White Paper’s] plan is that the only people who appear to actually believe that the current copyright rules apply as writ to every person on the planet are members of the copyright bar.”
  • Fujita, Anne K. “The Great Internet Panic: How Digitization is Deforming Copyright Law.” 2 J. TECH. L. & POL’Y 1, (1996). This is another study of the White Paper and copyright law, with an emphasis on how the Internet is upsetting the traditional balances.
  • Lutzker, Arnold P. “Commerce Department’s White Paper on National and Global Information Infrastructure.” September 20, 1995. This is a review and analysis of White Paper, commissioned by the Association of Research Libraries, the American Library Association, the American Association of Law Libraries, the Medical Library Association, and the Special Libraries Association.
  • National Writers’ Union. “National Writers Union Critiques Government White Paper on Intellectual Property & The National Information Infrastructure.” October 9, 1995.
  • Galkin, William S. “Extinction of the digital lock picker.” The Computer Law Report. October 20, 1995. Legal analysis of the White Paper’s recommendation to outlaw devices that bypass copyright control.

The WIPO Treaties and Enabling Legislation

In December 1996, 96 nations participated in treaty negotiations in Geneva under the auspices of the World Intellectual Property Organization (WIPO). “WIPO Copyright Treaty.” and “WIPO Performances and Phonograms Treaty.” Diplomatic Conference On Certain Copyright And Neighboring Rights Questions. Geneva, December 1996. 
These were the first substantial revision of international copyright law in 20 years (since the Berne Convention). The U.S. signed the treaties in April, 1997. Implementing the treaties in the U.S. currently awaits enabling legislation.

  • December 21, 1996, New York Times (Seth Schiesel), “Global Agreement Reached To Widen Law On Copyright.” Newspaper report on passage of the WIPO treaty.

A major motivating factor in negotiating the treaties was “the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works.” The treaties clarify that copyright protection extends to computer programs, and they require signatory nations to provide legal remedies against any person who removes or alters electronic copyright information.

Implementing the enabling legislation has proved contentious, with several competing bills now before the House and the Senate. In July, legislation was introduced at the request of the Department of Commerce (H.R. 2281 and S. 1181) which critics say goes much farther than the treaties require in imposing strict copyright enforcement. Competing legislation seeks to clarify the liability risks of internet service providers and other issues, such as that search engines, links, and browsers are not infringing devices. Much of this activity is being tracked by the Digital Future Coalition, a coalition of nonprofit educational groups and commercial trade organizations representing computer and telecommunications industries.

  • The Digital Future Coalition’s archives on Copyright Legislation in the 105th Congress and statements and position papers on the proposed legislation.

The path set out by the NII White Paper represents one kind of response to the challenges the Internet poses for the copyright regime. But there are other views. For example, the the papers by Barlow and Dyson described above argue that copyright will simply become less important in the information economy.

Yet another view looks to digital rights management technologies as a way to salvage copyright. The idea here is that if the basic issue is that copying is so hard to control on the Internet, then we should implement technologies that make copying difficult. This can be accomplished using encryption techniques, which assure that information can be accessed only by intended (licensed) recipients, and trusted systems that will not perform unauthorized copying. A second class of technologies include digital watermarking, which “indelibly” mark information so that unauthorized copying can be detected.

As you might expect, there are both utopian and dystopian predictions about this technology. Some people view this as engendering an outpouring of creativity and productivity in the information economy, while while others fear that fine-grained, strong control of copying will kill fair use totally.

  • Stefik, Mark. “Letting Loose the Light,” in the book Internet Dreams, available from the MIT Press. This lays out the basic idea of trusted systems and rights management, and presents the utopian view.
  • ———. “Trusted Systems.” Scientific American (March 1997). This is a brief synopsis, based on the paper above.
  • Zhao, Jian. “Look, It’s Not There.” Byte (January 1997). A description of digital watermarking technologies.
  • Bell, Tom. Fair Use vs. Fared Use: The Impact Of Automated Rights Management On Copyright’s Fair Use Doctrine. Bell reflects on the copyright regime and argues here that the growth of digital rights management really will erode fair use – but that it will replace this with a better arrangement.

Other Material

1994-forever?: The Church of Scientology vs. The Net. This interminable series of copyright lawsuits and other antics is notable in demonstrating the lengths to which people can go if they are determined to push intellectual property law to its fullest extent in order to restrict the distribution of information on the Net. I stopped following this case in 1995, but even a short summary of the events up to that point deserved a page of its own.

The Electronic Frontier Foundation archives has a section on intellectual property which is worth browsing for articles and source material.

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