Bootstrapping technology policy: Copyright
Barbara Simons. 1.*
- 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.
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 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.
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
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.
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.
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
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, 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
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
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.
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.
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.
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.
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.
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
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
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.
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.
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
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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