Bootstrap Institute logo Doug Engelbart's
   Colloquium at Stanford
An In-Depth Look at "The Unfinished Revolution"
Session 7
Bootstrapping technology policy: Copyright
Barbara Simons1.*
- unedited transcript -

Scaling. I am made very aware of this as I log on each morning and see e-mails from the east coast have sent me in my in box and I try and get  even with them at night. I think that a lot of what Doug has been talking about and trying to accomplish is important and worthwhile. 

Basically the thrust of what I am going to talk about is that this is good and important stuff and we have to make sure that it can happen. Some of the issues that I am going to be discussing are of concern to me because they are going to impact some of the things that Doug wants to accomplish. 
 

Where are we going?
  • Policy and technological decisions currently being made will determine the options that are available to communities and institutions 

  • - Free speech vs censorship
    - Free libraries vs pay per view
    - Fair use and first sale vs contract law 
  • Will the Net become as regulated as radio?

In particular, I am sure most of you are being made aware of this as you read the papers. The policy and technology decisions that are currently being made will determine the options that are available to communities and institutions such as the kind that people have been talking about in this  seminar. Some of the issues are very basic and fundamental; so we need to consider issues like free speech and censorship, free libraries vs. pay per  view, and fair use and first sale vs. contract law. And I will define those terms later. Those are not related to intellectual property law that is what I am  going to focus on in this talk. But in fact, the issues are broader than intellectual property alone. The last issue about wills the net be regulated like the  radio. I have to confess that I don¬'t know much about the history of the radio, but I have been learning a little. In the old days when the radio first came  into play as a new technology, there were a lot of individuals who were broadcasting. In some ways, it was a bit like the net before it first grabbed hold.  Before e-coms became the major concern. My feelings are that there is a move to regulate the net, to tame it. To make it safer in some ways, depending  on what your definition of safe is. That we might find ourselves in the not too distant future where the net is as regulated like the radio. 
 

Will Bootstrap Communities need to hire lawyers?
  • What researcher is legal at

  • - universities
    - corporate research labs
    - independent
  • What can be copied legally by

  • - libraries
    - schools
    - individuals

Will everybody need to hire Lawyers if you are going to be doing stuff? I am going to illustrate this in the talk. Will researchers at the universities; corporate research labs and independents need to hire layers to see if what they want to do is legal. Are people going to be concerned  what can be copied, at libraries, schools, and for individuals? The point that I want to make ties into to the thrust of this seminar is that computing and  technology professionals need to make their voices heard on policy issues relating to computing and technology. 
 

Thesis:
Computing and technology professionals need to make their voices heard on policy issues relating to computing technology

I have been working as a dedicated amateur in this area for some time. When I started, it was clear to me that a lot of the policy makers did not have an understanding of the technology very well. It still is a major problem, because in fact nobody can understand all of the technology. It is too  broad, too fast moving. None of us can understand it all. So, you do have a situation of people devising and writing laws that neither they nor their staff  really understand all of the implications of what they are doing. So, the area I want to focus on is copyright. I am not a lawyer I am a computer scientist.  I am functioning very much as an amateur in this field so if you start asking me very complicated questions, I will have to refer to a lawyer in the room, if  there is one. 
 

Copyright
  • Congress shall have the power ...
  • To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.

So copyright was defined in the Constitution of the United States. It says that congress shall have the power "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writing and discoveries." Now  limited time was not underlined in the Constitution. 
 

Why does copyright matter?
  • Trade-off: limited time monopoly to encourage creativity and availability of information
  • What if information becomes privatized?

  • - Education
    - Democracy
    - Science

The idea behind copyright when it was established was a trade off. It was to encourage creativity. 

In order to do this the goal was to give rewards to the creators to make them want to do this. So, it was a trade off, a monopoly on the one hand, and making the information ultimately available on the other hand. So again, it is my personal belief that there is a move to privatize information. We are in  the information age, there are laws that are being passed or being considered, that has the effect of reducing the rights of the users in copyright or  moving away from copyrights all together, to contract law. Contract law does not contain the same rights as copyright. Again, it was a trade off, you get  a monopoly, but the user also gets some rights. 
 

UK/US history of copyright
  • Statute of Queen Ann (1710)

  • - first recognized rights of creators
  • US haven of copyright ¬"piracy¬" in 19th century

  • - Translations not covered until 1870
       - Harriet Beecher Stowe and German translation of Uncle Tom¬'s Cabin - 1853
    - International protection not covered until 1891
       - Dickens A Christmas Carol
          - $2.50 in UK; $0.06 in US

The history of copyright is very interesting. Again, this is a very brief history. It is US/UK because there actually was some stuff going on in other countries as well. So really, it started in the UK in 1710 with the statue of Queen Anne. Prior to then, the publishers would publish works by  authors, and not compensate the authors. They didn¬'t have, to there be not right to copyright. So, the statue first recognized the right of the creator. To  own what he or she has created. 

The US for many years was a haven for piracy. Given how a lot of people today are concerned about the piracy that has been going on in China. I am not condoning that, but in the 19th century, we were doing the same thing. 

Translations were not covered by copyright in this country until 1870. There is a famous law case where there was a German translation of Uncle Toms Cabin, and the judge looked at the English version and looked at the German version and said, "These are clearly not the same." So, the German version  is not covered by copyright. That wasn¬'t fixed until 1870 where a law was fixed that covers translation. Similarly, works published outside of the US  were not protected until 1891. So, Charles Dickens was furious at this country. His works were routinely sold in this country for a fraction in the example  I found, The Christmas Carol. It cost six cents in the US and two fifty in the UK. I don¬'t know what the US dollars that is but the point is that there was a  significant difference in price. 

His works were being published in basically pirated versions in the US. 
 

Length of copyright
  • 1790: 28 years
  • Copyright Act of 1976: retroactively extended to up to 75 years 
  • Sony Bono Copyright Term Extension Act 1998: extended yet another 20 years

When copyright was first established, it was for twenty-eight years. In 1976 it was retroactively extended to up to seventy-five years. Then some of you may remember that in 1998, the Sony Bono Copyright Term Extension Act of 1998 extended yet another twenty years. If you do the  arithmetic, you will see that there isn¬'t much of a gap there. If you are a Mickey Mouse fan, you might be able to do a little backtracking and you will see  that Mickey Mouse is staying copyrighted very nicely. Thank you very much. The question is basically is copyrighting basically going to be  unbounded? 
 

User rights under copyright
  • First sale: I can give you my copy 

  • - Early 20th century publishers attempted to kill used book market by "licensing" a minimum price
  • Fair use

  • - for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
    - A defense

User rights, first sale. If I by a book, I can give you the copy. 

Can¬'t do it to sell it to you cause that is contract law. 

It¬'s kind of interesting that there was an effort made to licensing books in the early 20th Century. Basically put books under contract law, to kill the first sale right. By licensing them and basically any resale was marked by the original retail price that it would cost. It would kill the used books market. This  was thrown out by the courts. This is similar to the things that are going on today with software, in my view. That is first sale. It exists in copyright, but  it does not exist in contract law. 

If we are going to publish books, digitally under shrink-wrap license provisions, we won¬'t have the first right sale necessarily. Fair use is not really a right but it is a defense. If you are accused of copyright violation, you can defend yourself by saying that what I did was fair use. And again, fair use is  defined in the seventy-sixth legislation. It¬'s a libel for purposes such as criticism, comment, news reporting, teaching (including multiple copies for  classroom use), scholarship, or research, is not an infringement of copyright. It¬'s subjective, how much did you copy and what are the purposes. These  things frequently get decided in court. 
 

NRC Report on Intellectual Property
  • Legislators should delay any overhauling of intellectual property laws and public policy until markets have had ample time to adjust to new models of doing business and until sufficient research on the issues is conducted,the report says.
  • Concern about "first sale"
  • Will copyright law be replaced by contract law?

There was a report that came out a few months ago of the NRC (National Research Council) and they are basically saying the same thing that I am saying in this talk. This is they are calling for delays in new laws on intellectual property. "Legislator should delay any overhauling of intellectual  property laws and public policy until markets have had ample time to adjust to new models of doing business and until sufficient research on the issues  is conducted" That is from their press release. They express concern about first sale and are concerned that copyright law will be replaced by contract  law. 
 

Where are we going?
  • Electronic publishing + Internet

  • - Movie, record, publishing industries feel threatened
  • Rights of copyright holders being increased
  • Rights of users could be restricted

  • - Stiff penalties

So where are we going? Basically what happened a few years ago is that the movie and record and publishing industries looked around and said we have the net, we have electronic publishing, people can make unlimited amounts of copies that are identical to the original that are as good as the original, and distribute them for free. This causes a lot of concern. As a result, there was an increase of push for legislation in the early 90¬'s. I do  believe that one of the reasons that this happened is that the people in Washington who are concerned about these things are mainly lawyers and not  technical people. Their main focus was how can we change the law to protect us, as opposed to how might technology protect us from the technology  that we have created. There was a push for legislation, and the legislation almost uniformly has restricted rights of users and has stiff penalties. This is  an example that I want to discuss for most of the remainder of the talk and that is the Digital Millennium Copyright Act (98). It was passed in 1998. This  is just one example of intellectual property legislation that has passed. There are other laws that are pending, but this is one of particular interest. 
 

Digital Millenium Copyright Act (98)
  • Implements World Intellectual Property Organization (WIPO) treaty and more
  • Passed in ¬'98 and signed into law
  • Criminalizes technologies and technological devices
  • Selected over alternative (Boucher/Campbell)

It was to implement the world intellectual property organization treaty on intellectual property. It was a treaty that was written in part in response to the net and changing technologies. It was passed in 1998 and signed as a law. It takes the approach of criminalizing technologies and technology  devises and it was selected over an alternative that many of us found to be far superior which was a bill proposed by Butcher and Campbell, a democrat  and a Republican. So, we will discuss both of the bills. The DMCA outlaws reverse engineering except for compatibility, encryption research (with  permission of copyright holder), privacy protection, and to protect minors against porn. It is kind of interesting because the encryption research carve  out was put in there when a number of companies in Silicon Valley looked at this bill and said that it could make some of the things that we do illegal.  So, they were able to get encryption research some thing worked in to the law. Notice it does require permission from the copyright holder. So if you  think that someone is selling you something with bad encryption and you want to try to reverse engineer it to see if it is breakable, this law makes it  illegal. Some of you know something that has been in the papers recently that involves a fifteen year old student. 

Since it primarily makes technologies or devices that are primarily designed for circumvention illegal, it could criminalize some routine computer security R&D. For example, computer system people will routinely try to break into systems because we can¬'t prove these are secure. You try to break  into systems, and if you are a professor of computer security, you try to teach your students how to break into systems. This is in fact circumvention.  This is the kind of thing that the law forbids. Looking at some of the definitions of the digital millennium that are kind of interesting. These theory  people try to get good definitions things. You read some of this legislation, and your head can start to spin. 
 

Digital Millenium ...
  • Outlaws reverse engineering except for compatibility, encryption research (with permission of copyright holder), privacy protection, and to protect minors against porn
  • Since makes technologies or devices that are primarily designed for circumvention illegal, could criminalize some computer security R&D

Technological measures for protecting copyright are what they talk about. That is basically effectively controls access to work. What does effectively mean? Is strong encryption effective control? What about weak encryption? What about data compression? What about obscure human language? Compilation? Could  Decompilations become illegal? It is not obvious because the people who were writing this legislation were not thinking about that. They were not out to make decompiliation illegal, I am quite sure. You worry about what the words are meaning. They are primarily designed with circumvention. Would  VCRs be illegal in terms of having the ability to copy? Or is breaking encryption illegal. I had an interesting conversation with someone from the  government. You know we use krypton for a lot of our stuff what would happen is someone was to break our SA our one of our encryption  log-rhythms. He said, "Why would you want to do that?" I said that you could get ten year. He said, "Well you could enjoy your ten year in prison." I  don¬'t think that he meant that I think he was half joking. But the concept that anyone would intentionally want to break an encryption had not occurred  to him. 
 

Digital Millenium - definitions
  • "Technological measure for protecting copyright"?
  • "Effectively controls access to a work"? 

  • - Strong/weak encryption?
    - Data compression?
    - Obscure human language?
    - Compilation? Could decompilation become illegal?
  •  "Primarily designed" for circumvention?

  • - VCRs? Breaking encryption?

???
 

Digital Millenium criminal penalties
  • Circumvention of ¬"copyright protection¬" or of ¬"integrity of copyright management
  • information¬" for commercial advantage or private financial gain:

  • - first offense: <= $500K or <= 5 years prison, or both
    - subsequent offenses: <= $1M or <= 10 years prison, or both

The penalties are pretty significant. This is for circumvention. The first offense you can be penalized up to $500,000 or five years in prison, or both. Subsequent offenses are doubled. That is the maximum. That does not mean that everyone is going to get these. This is a federal offence. 
 

Opposition and concerns
  • ALA (American Library Association)

  • - Will contract law replace copyright?
    - Will fair use and first sale rights be eliminated?
  • US Technology Policy Comm of ACM (USACM)

  • - Technology not taken into account 
    - Outlaws technologies instead of behaviors

The potential for being hit hard is serious. This legislation was opposed by the librarians. They were very concerned that contract law would replace copyright, and also fair use and first sale being eliminated. ACM was very concerned about this because we felt that technology had not been  taken into account. 

Also that it outlaws technologies instead of behaviors. 
 

Digital Era Copyright Enhancement (Boucher/Campbell)
  • Prohibits altering or deleting copyright management information for purposes of infringement
  • Prohibits enforcement of terms in "shrink- wrap" and "click-on" agreements when they reduce privileges recognized by copyright law
  • Incorporates fair use and first sale rights

Now the alternative bill that was also introduced in Congress took a different point of view. It prohibits altering or deleting copyright management information for the purposes of infringement. The purpose is not included in the bill that passed. Some of the things that we computer  scientists and technical people routinely think of as being legitimate things to do, and we are not trying to infringe on anyone, might, under this bill be  considered illegal. It would prohibit enforcement of terms in " shrink wrap" and "click-on" agreements when they reduce privileges recognized by  copyright law. It would have incorporated fair use and first sale rights. 
 

Digital Era Copyright Enhancement
  • Ensures right of librarians and archivists to preserve copies of copyrighted works using latest technology
  • Protects author's work under traditional legal understandings while allowing incidental copies for otherwise lawful use of a device.
  • Civil rather than criminal penalties

It also would ensure the rights of librarians and archivists to preserve copies of copyrighted works, using the latest technology. It protects author¬'s work under traditional legal understandings while allowing incidental copies for otherwise lawful use of a device. And it only had civil  penalties not criminal. A couple of final comments. ACM has a digital library and we have been investing a great deal of resources and time into  building this library. 
 

The ACM Digital Library: An Existence Proof

I like to think of it as an existence group because we are not depending upon this type of legislation to protect our intellectual property. We are taking a very different approach. In fact, our copyright policy is about as liberal as you can get. 
 

ACM¬'s copyright policy
  • ¬"Permission to make digital or hard copies of part or all of this work for personal or classroom use is granted with or without fee provided that copies are not made or distributed for profit or commercial advantage and that copies bear this notice and full citation on the first page . . . . To copy otherwise, to republish, to post on services, or to redistribute to lists, requires specific permission and/or a fee.

You can copy and of our stuff at anytime, so long as you is not doing it for commercial reasons. 

We consider ourselves to be educating society; we want to make sure that this is available. But we have to make sure that we get some income so that we maintain the library. You have to subscribe to a digital library. We want people to take this in light of our intentions. We want people to make use of  the material, but we want people to support us. What we are doing is important in showing that you can put your information on-line, you can make it  easily available, and you are not going to go after people for making copies or distributing it -you are not doing it for profit. And you can stay in  business. I think that is one argument against some of these bills that are being passed. 
 

ACM Digital Library Initiatives
  • Content

  • - Most Journals, Magazines, Proceedings, and Abstracts from 1985 to now
    - Eventually will include all ACM publications
    - Acquiring other content
      - Other societies
      - Third-party ¬"popular¬" content
  • Subscriptions by individuals, institutions, & consortia
  • Reduced rates for economically disadvantaged countries
  • High speed links via Digital Island

We have most of our since 1985 till now in our library. We going back and are eventually going to have everything that ACM has ever published. We are acquiring other society works; we are going to third party "popular content". We are subscribed to by individuals, institutions, and  consortia. We reduced dues and fees for tiers two and three countries that are the economically disadvantaged countries. In part because we want the  to have access to our work and it makes them available to afford. We have provided high-speed blinks that are costing a lot of money. It makes it  possible for people outside the US to download this material in a reasonable way. 
 

What you can do
  • If you are a researcher or editor, obtain policy of publisher with whom you work

  • - Copyright? 
    - Fair use? 
    - Pricing for libraries?
  • Be informed as consumer and producer of information
  • Work on educating policy makers and the judiciary about the implications of various proposals on technology

  • - Unintended consequences, e.g. criminalizing technologies that can be used for circumvention and the impact on computer security R&D

So what can you do? If you are a researcher or editor, if you do publish anything, check their copyright policy, their fair use policy and their pricing for library policy. I have not gone into that, but some of the for-profit publishers are charging libraries a great deal, and libraries are having a lot  of trouble being able to continue their subscriptions to everything that they want to get. This is also true at Stanford too. This was pointed out to me,  very strongly by some Stanford librarians. Be informed as a consumer and producer of information. Work on educating policy makers and the judiciary about the implication of various proposals on technology. About unintentional implications about criminalizing computer security R&D. I think we all agree that computer security is  very important. No one wanted to criminalize it. I don¬'t think that we are going to have midnight raids at Prude University on Jean Spackart who is a  very well known computer security expert. Having laws like this means that you may have university professors having to consult with lawyers in order  to see if they could conceivably be subject to prosecution for the research that they are doing. Hopefully, I am convincing all of you that it is important  to get involved with this. Thanks. 

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