Alternatives to Intellectual Property
Very few observers of the Internet believe that it can be regulated
sensibly through the staples of traditional Intellectual Property
law, whether because they doubt its efficacy/enforceability, or
because they believe it's the wrong model for governing the sharing
of creative expression. Today's Internet - still in evolution, to
be sure - facilitates infringement of intellectual property rights
on an unprecedented scale. What can be done? Efforts have varied.
Some advocate expanding the scope of intellectual property law
in order to provide additional protection of digital assets that
had been formally omitted from IP's sweep. This can be accomplished
through the development of new legislation and through the novel
application (or expansion) of "conventional" doctrines
to digital rights disputes.
Others endeavor to use new legislation to shore up technological
shields developed by private industry. This powerful approach can
mandate the deployment of protective technologies and criminalize
efforts to circumvent them.
Lastly, some observers think that intellectual property law as
applied to the Internet is already overly protective. They argue
that we should be looking for ways to reduce impediments to the
use and reproduction of information. More broadly, they claim we
must lower our expectations concerning the protections to which
developers of ideas and information are entitled. Cyberspace, for
them, represents just the right opportunity to effect this change.
This module examines these three approaches and the extent to which
they have influenced the development of thinking and the law.
I. Pushing the law to protect digital assets
a. Applying "conventional" (non-IP) doctrines to protect
digital intellectual property
i. Online Contracts
A growing number of online businesses are attempting to shield
their assets, not through intellectual property law, but through
contracts. A good example is the online form of Martindale-Hubbell,
the leading directory of lawyers. A concise survey of other efforts
to create "private laws" governing online transactions
may be found in "Adapting
Contract Law to Accommodate Electronic Contracts: Overview and Suggestions"
by Donnie L. Kidd, Jr. and William H. Daughtrey, Jr. (The full article
is available here.)
Are so-called "click-on licenses" of these sorts enforceable?
There is no clear answer. Many courts in the United States have
considered the enforceability of closely analogous "shrink-wrap
licenses," which have been used for years by software manufacturers
to limit the ways in which customers may make use of their wares
-- but the courts' answers have varied substantially. A good review
of this tangled body of case law may be found in the attached excerpt
from Margaret Jane Radin's "Humans,
Computers, and Binding Commitment". The most famous of
the shrink-wrap cases is the decision of Judge Easterbrook (writing
for a panel of the Seventh Circuit Court of Appeals) in ProCD
v. Zeidenberg 86 F.3d1447. (The notoriety of that
ruling -- and the crispness of Easterbrook's prose -- unfortunately
has contributed to a widespread views that the enforceability of
shrink-wrap agreements is clearer than it is in fact.)
With respect to the enforceability of the online versions of such
contracts, the case law is very thin. In Hotmail
Corporation v. Van$ Money Pie, Inc. 1998 WL 388389, 1 (N.D.
Cal.), a District Court granted an injunction against a "spammer"
(a person who sends unsolicited commercial emails) -- largely on
the theory that the plaintiff had a valid contract claim arising
out of a click-on license. But other decisions on the issue are,
as yet, hard to find.
Reformers have been trying for years to secure the adoption of
legislation that would establish, once and for all, the enforceability
of these private agreements. The most ambitious of those efforts
was the attempt to add a new Article
2B to the Uniform Commercial Code. Fierce opposition -- partly,
though not exclusively from legal scholars -- ultimately blocked
this initiative. Unbowed, the reformers have been seeking analogous
legislative changes from the legislatures of individual American
states as part of the Uniform
Computer Information Transactions Act (UCITA). So far, only
two -- Virginia and Maryland -- have adopted it. For a careful assessment
of this subject, see the attached excerpt from Niva Elkin-Koren,
Policy and the Limits of Freedom of Contract". (Her full
article is also available here.)
ii. Trespass to chattels
Trespass to chattels is an old, common law tort that "lies
where an intentional interference with the possession of personal
property has proximately caused injury." Thrifty-Tel v.
Bezenek, 46 Cal. App. 4th 1559, 1566 (1996). A cyberspace version
of this doctrine has emerged to combat web "crawling"
(or site "spidering").
When an Internet user views a page within a website, his or her
browser sends a digital request for that page (and subsequent requests
for all of the associated images, sound files, etc.) to the server
designated by the site's operators as responsible for providing
content. This server processes the request and responds with the
appropriate content. "Crawling" technology is software
that automatically makes these requests and processes the returned
content in order to extract desired information. Using crawling
technology effectively, one can quickly extract vast amounts of
information from a website. This technology thus represents one
of the most serious threats to the propriety of information made
available online (see the discussion of online databases in I.b.i.
In May of 2000, online auction site
eBay became the first online company to successfully employ
a trespass to chattels claim when it secured an injunction preventing
Bidder's Edge ("BE") from crawling its site. 100 F. Supp.
2d 1058. eBay argued that the recurring deluge of unauthorized requests
made by BE's crawlers each time BE attempted to extract an updated
catalog of pending eBay auctions was siphoning off valuable eBay
computing resources, amounting to a trespass to chattels. In paving
the way for the application of this doctrine in the digital rights
arena, Judge Whyte of the U.S. District Court for the Northern District
of California (applying California's trespass to chattels law) made
two key conclusions. First, he found the electronic signals sent
by BE to request information from eBay's computer system "sufficiently
tangible" to support the trespass action. 100 F. Supp. 2d 1058,
1069. Second, Judge Whyte found eBay's allegations of dissipated
computing resources sufficient to allege "injury" proximately
caused by the trespass. 100 F. Supp. 2d 1058, 1071.
In Ticketmaster v. Tickets.com, 2000 U.S. Dist. LEXIS 12987,
Judge Hupp of the U.S. District Court for the Central District of
California faced a similar issue. He wrote:
The court is impressed by the original and resourceful
thinking of Judge Whyte; it is always difficult to attempt to apply
established law to brand new facts with other established policies
tugging and pulling one in various directions. Not only that, the
court agrees with much of what Judge Whyte says. The computer is
a piece of tangible personal property. It is operated by mysterious
electronic impulses which did not exist when the law of trespass
to chattels was developed, but the principles should not be too
different. If the electronic impulses can do damage to the computer
or to its function in a comparable way to taking a hammer to a piece
of machinery, then it is no stretch to recognize that damage as
trespass to chattels and provide a legal remedy for it. Judge Whyte
in eBay found the damage in the occupation of a portion of the capacity
of the computer to handle routine business and conjectured that
approval of that use would bring many more parasitic like copies
of the defendant feeding the computer to a clogged level upon the
information expensively developed by eBay, the net result likely
being severe damage to the function of the computer and thus the
business of eBay. Thus, the injunction was issued to prevent the
use of the spiders by the defendant in that case. It is noted that
the harm to the equipment foreseen was to its intended function,
not the physical characteristics of the computer.
2000 U.S. Dist. LEXIS 12987 at page 15.
Judge Hupp ultimately denied Ticketmaster's motion for a preliminary
injunction. (His opinion was affirmed by the Ninth Circuit Court
of Appeals. 2001 U.S. App. LEXIS 1454.) With respect to Ticketmaster's
trespass to chattels claim, he found "no showing that the use
[of Ticketmaster's computing resources represented by Tickets.com's
crawlers] interferes to any extent with the regular business of
Ticketmaster." 2000 U.S. Dist. LEXIS 12987 at page 17.
The viability of the trespass to chattels claim in this web-crawling
context thus seems limited to instances where crawling is egregious
and ongoing. The party seeking to protect its information must demonstrate
a significant taxing of its computing resources. Moreover, if the
information sought is not timely, or updated frequently, this doctrine
does not offer much protection; whenever only a single pass through
a site - at any given time - is required by the information acquirer,
a "crawl" can be executed slowly in order to avoid causing
any injury and does not need to be repeated with any frequency (repeatedly
crawling a site greatly increases the likelihood that significant
server resources are at stake). When the information sought derives
its value from its timeliness, however, and frequent, repeated,
extensive crawls are executed (like in the eBay case), a trespass
to chattels claim may succeed in protecting digital assets.
Misappropriation is a second example of doctrines employed by those
seeking to expand protections of digital assets online. Unlike trespass
to chattels, it originated as an outgrowth of unfair competition
doctrine to protect in the context of business competition quasi-intellectual
property rights in informational assets outside the scope of "pure"
intellectual property law (for example, facts, uncreative compilations
of data, etc.). Its application to the problem of protecting online
information is, thus, quite natural. Michelle L. Spaulding, author
of a brief summary of the law of misappropriation, writes in part:
The common law doctrine of misappropriation originates in the
1918 Supreme Court opinion International News Service v. Associated
Press, 248 U.S. 215. International News Service (INS) and Associated
Press (AP) were two competing news services that employed correspondents
to gather and report news worldwide.
The problem arose
when INS was barred from transmitting wartime information from
Great Britain. Since news of the war was a hot commodity, INS
began "lifting" AP's stories from AP's bulletin boards,
and from early editions of AP-affiliated newspapers on the East
Sometimes this resulted in INS "scooping"
AP's West Coast affiliates, if the INS edition came out on the
West Coast before the AP edition.
...The Supreme Court granted the relief AP was seeking, and the
misappropriation doctrine was born. In Justice Pitney's majority
opinion, he found that AP had a quasi-property right in the news
that it had gathered. This right existed not against the world
at large, because news is based on unprotectable facts, but against
competitors. He offered three arguments to support this conclusion.
The first is based on the labor-desert theory - AP invested substantial
time, labor, and money in its news-gathering efforts and should
be entitled to reap the benefits of this investment. The second
is that the news has market value; therefore it resembles other
forms of property and should be protected as such. The third is
a utilitarian justification - if AP's rights are not protected,
there will be no economic incentive to expend the effort to gather
the news, therefore the public won't receive the benefits of being
able to read worldwide news in the local paper.
Since INS two incompatible lines of cases have developed,
one restricting the doctrine, and one expanding it. The result
is a highly amorphous and unpredictable body of law.
(Spaulding's summary is available here.)
As Spaulding points out, misappropriation doctrine has had an "amorphous"
evolution, complicated by the fact that, as state common law, it
incorporates jurisdiction-specific nuances. A study of its modern
application to digital rights disputes logically begins with the
1976 Copyright Act and its preemption provisions. As described in
Bruce Keller's in-depth analysis of the reemergence of the misappropriation
doctrine in the Internet context (the full version of which is available
Since the enactment of the 1976 Copyright Act, with its broad
preemption provisions, most had regarded misappropriation as a
theory of liability that had lost its vitality [due to preemption].
At the beginning of the 1995-96 basketball season, however, the
National Basketball Association ("NBA") sued to enjoin
unauthorized dissemination of play-by-play information from NBA
games in progress, asserting not only an array of statutory claims
but also a common law claim for misappropriation. [See NBA
v. Sports Team Analysis & Tracking Sys., Inc., 931
F. Supp. 1124, amended by, 939
F. Supp. 1071 (S.D.N.Y. 1996), aff'd in part and vacated in
part on other grounds sub nom. NBA
v. Motorola, Inc.,
105 F.3d 841 (2d Cir. 1997).] Although the Court of Appeals
for the Second Circuit eventually rejected the NBA's misappropriation
claim, it carefully preserved common law claims for misappropriation
of "hot news," holding that such claims were not preempted
by the Copyright Act. Instead of adopting the preemption and First
Amendment defenses urged by
the defendants in that case,
the court articulated a multi-factor test capable of providing
significant protection to content owners in future cases.
Harv. J. Law & Tec 401, 401 (internal footnotes omitted).
The narrow surviving misappropriation claim described by the Second
Circuit represents, in a sense, the least common denominator of
most states' misappropriation doctrines. As the court held that
only this small kernel of misappropriation protection survives preemption
by the (federal) 1976 Copyright Act, the case has great significance
generally (though only New York's misappropriation law was at stake,
This surviving misappropriation claim, as described by the Second
Circuit, was employed in the "pure" Internet context for
the first time when several online news providers sued TotalNews.com
in February of 1998. TotalNews.com styled itself a "meta-news
site" that aggregated national news sources at a single online
destination. TotalNews used framing technology to display content
from various newspaper sites within their proprietary site, which
consisted primarily of revenue-generating advertisements and TotalNews.com
logos. The Washington Post (and several other news providers whose
content had been framed by TotalNews) brought suit, alleging that
TotalNews.com had misappropriated its content (along with claims
for trademark dilution and infringement, copyright infringement,
false and deceptive advertising and tortious interference with advertising
contracts). The case settled in June of that year without any adjudication
of the misappropriation claim. As of this writing TotalNews.com
still exists, but doesn't frame its links anymore - at least not
those of the original plaintiffs.
b. Legislative Initiatives
Many legislative initiatives have been proposed to expand the scope
of intellectual property protection on the Internet. Generally,
these initiatives aim either to explicitly fill in gaps of protection
or to offer alternative enforcement regimes. We will consider one
example of each type.
i. Legislation to protect databases
Many observers of the Internet believe that collections of data
("databases") should be shielded by law from nonpermissive
copying and that the shields provided by current copyright law are
ineffectual. This is especially true, they argue, in the United
States, where the Supreme Court has ruled that copyright protection
is available only for forms of expression that exhibit a minimal
degree of creativity. (A novel easily meets this requirement, but
an alphabetical telephone directory does not.) This principle means
that, in the United States, many nonpermissive uses of databases,
even if they could be detected, would not constitute copyright infringement.
Unless better legal shields can be devised, it has been argued,
companies will hesitate to create online databases -- which will
be unfortunate for everyone.
Moved by arguments of these sorts, the European
Union recently adopted a Directive compelling all of its member
countries to adopt legislation forbidding the extraction or reutilization
of a substantial portion of a database. Member countries are allowed
some -- but not much -- latitude in establishing exceptions (analogous
to the fair-use doctrine in copyright law) to this prohibition.
During each of the last few terms of Congress, two
sharply different bills that would create an analogous legal
regime in the United States have been introduced by rival groups
of interested parties. Neither of the bills has made it far in the
legislative process, but efforts to create a database statute in
the United States will likely continue for the foreseeable future.
For a survey and evaluation of these initiatives, read the attached
excerpt from "Database
Protection at the Crossroads: Recent Developments and Their Impact
on Science and Technology" by Jerome H. Reichman and Paul
F. Uhlir. (The full article is also available here
if you have time.)
ii. Tax and royalty system as an alternate enforcement regime
Another legislative initiative that thus far has received mot attention
in Europe involves supplementing (or, perhaps, supplanting) traditional
intellectual property systems with a taxation regime. Musicians
(as the previous module showed) fear that promiscuous Internet replication
of their creations will undermine their ability to make money. Some
observers believe that the best way to address this concern is not
by clamping down on Internet copying, but by providing an alternative
enforcement regime (affording musicians an alternative source of
revenue). Specifically, they propose imposing taxes on the objects
(CD burners, blank CDs, computer "hard" drives, etc.)
and services (especially Internet access) that are essential to
engage in that copying. The money collected from those taxes would
then be distributed to musicians (both composers and recording artists)
in proportion to the frequency with which their creations are copied.
The attached story from the New
York Times examines the extent to which these ideas are beginning
to take root in Europe.
II. Using the law to bolster technological shields
The preceding section considers efforts to expand through legislation
the scope of intellectual property protections for digital assets.
A related, yet distinct movement advocates the use of legislation
to bolster technological controls aimed at guaranteeing existing
Many Internet participants argue that technological shields of
digital assets offer a faster, cheaper and more reliable way of
regulating access to online information than does the law. All agree,
however, that technological shields have their inherent limitations.
Much like a classic arms race, each new generation of protective
technologies yields tools to overcome or circumvent these controls.
As the locks get better, so, too, do some of the lock-pickers.
The Internet's usefulness as a resource to develop, promote and
distribute circumvention technologies greatly exacerbates this problem.
Using the Internet, "hackers" (or those who labor to circumvent
technological controls) can coordinate efforts, share information
and promote their successes. The Internet also enables the wide-scale
distribution of circumvention tools with unprecedented ease at unprecedented
speed. (Consider, for example, the exponential distribution of an
email forwarding campaign.)
Another problem with technological shields is most succinctly summarized
by the maxim "a chain is only as strong as its weakest link."
Securing digital assets is extremely difficult given the diverse
range of platforms upon which digital content may be deployed. Security
measures deployed in DVD technology, for example, might render content
relatively secure when played on DVD players, yet that same technology
might offer little or no control when the DVD is accessed by a personal
computer. Significant, fundamental differences in operating systems
and hardware configurations among personal computers greatly heighten
the challenge of securing digital assets. Developers of technology
controls face the often daunting task of securing content on every
imaginable platform. This is especially important when - as is most
often the case - content compromised on any one platform can be
easily reproduced without technological controls in a form deployable
on all platforms.
In the face of these challenges, many argue that the law must operate
to bolster technological controls. This can be accomplished by penalizing
(criminally or otherwise) circumvention efforts and / or by mandating
compliance with technological regimes that enable the deployment
of private controls. The first approach aims to deter circumvention
by giving technological controls the weight of the law. The second
approach aims to solve the "weak link" problem by mandating
compliance with security standards. We will consider an example
of each type of initiative below.
Critics of this control strategy are many and have raised a variety
of ideological objections. Among these objections lies a fear that
this type of legislation will stifle innovation and research. Opponents
also argue that this approach will enable content providers to develop
in software "rights" in their informational assets not
protected by law.
a. Using the DMCA to criminalize anti-circumvention efforts
To date, the most important manifestation of the strategy of using
legislation to bolster technology is the Digital
Millennium Copyright Act ("DMCA"), which establishes
both civil and criminal penalties for circumventing technological
controls. A good review of the legislation may be found in the attached
excerpt from Jane Ginsburg, "Copyright Legislation for the
Digital Millennium." (The full version of her article is available
here.) The administrative interpretation of the statute by the U.S.
Copyright Office can be accessed here. Larry Lessig's assessment
Now I've made something of a career telling the world
that code is law. The rules built into software and hardware functions
as a kind of law. That we should understand code as kind of law,
because code can restrict or enable freedoms in just the way law
should... But in the anti-circumvention of the DMCA [Digital Millennium
Copyright Act], Congress has turned my metaphor into reality. For
what the anti-circumvention provision says is that building software
tools to circumvent code that is designed to protect content is
a felony. If you build code to crack code then you have violated
the US code... Code is law.
To date, the most important and visible application of this portion
of the DMCA has involved the effort to limit dissemination over
the Internet of DeCSS, a software program that disables the technology
that shields DVD discs from copying. For a review of the struggle
over DeCSS, see the Case Study presented at the ILAW 2001 conference.
Two other pending disputes have highlighted the potential reach
of the new anti-circumvention provisions. The first of these arose
when Edward Felten, a computer scientist at Princeton, successfully
"broke" the code for the SDMI watermark prototypes (discussed
below). When Felten made public his intention to publish an article
describing how he was able to do so, the RIAA sent him a letter
suggesting that such publication "could subject you and your
research team to actions under the DMCA." In response, Felten
brought a declaratory judgment action against the RIAA, the SDMI
Project, and the United States in federal court in New Jersey, seeking
a ruling either that the statutory prohibition on "trafficking"
in anti-circumvention technology did not apply to his proposed publication
or that, if it did apply, it would be unconstitutional. The defendants
backed down, insisting that they never intended to bring suit. The
New Jersey District Court is currently considering whether to dismiss
the suit as moot.
The second case involves Dmitry Sklyarov, a former developer for
the Russian software company Elcomsoft, and a program that enables
users to defeat the copy-protection system built into Adobe's eBook
Reader. While visiting the United States (for a Defcon conference),
Sklyarov was arrested and then indicted for violating the Digital
Millennium Copyright Act. He was subsequently released on bail but
must remain in the United States pending his trial. Among the issues
that will likely be contested in the case are: the meaning of "trafficking";
the jurisdictional reach of the DMCA; and whether the statute, if
construed to reach Sklyarov, violates the Free Speech clause of
the First Amendment. Dmitry Skylarov is discussed in greater detail
below in one of this module's case studies.
Lastly, consider the failure of Sony's latest technological initiative
to protect its digital music, the "copy-proof CD." As Reuters reported
on May 20, 2002:
Technology buffs have cracked music publishing giant Sony Music's
elaborate disc copy-protection technology with a decidedly low-tech
method: scribbling around the rim of a disk with a felt-tip marker."
… The new technology aims to prevent consumers from copying, or
"burning," music onto recordable CDs or onto their computer hard
drives, which can then be shared with other users over file-sharing
Internet services such as Kazaa or Morpheus MusicCity. On Monday,
Reuters obtained an ordinary copy of Celine Dion's newest release
"A New Day Has Come," which comes embedded with Sony's "Key2Audio"
technology. After an initial attempt to play the disc on a PC
resulted in failure, the edge of the shiny side of the disc was
blackened out with a felt tip marker. The second attempt with
the marked-up CD played and copied to the hard drive without a
(The full article is posted at wired.com, available here.)
Has Reuters violated the DMCA? Can using a marker to black out
the edge of a CD truly be criminalized as "circumvention technology?"
While no such claims have been reported as of the date of this writing,
the story highlights the potentially vast reach of the DMCA. Naturally,
the story also serves to illustrate the challenge industries face
in attempting to develop meaningful technological controls and the
monumental failures that often result. Should the DMCA bolster even
these utterly ineffective technologies?
b. Using the CBDTPA to mandate incorporation of a trusted system
i. The technology - trusted systems
An important example of efforts to deploy technological shields
is the development of so-called "trusted systems." Such
a system essentially embeds content in a software application that
is configured to follow rules specified by the programmer. Through
such rules, a content provider is empowered to determine the terms
and conditions under which a user may and may not gain access to
his or her digital work. For example, a trusted system might allow
you to listen to a perfect copy of a song only once. For a description
of this technology, please read one of Mark Stefik's two articles
on the subject -- the layman's version in Scientific
American or the more detailed version in the Berkeley
Journal of Law and Technology.
One of the most widely publicized efforts to replace crumbling
intellectual-property shields with newer, stronger technological
shields was the Secure Digital Music
Initiative (SDMI). Two years ago, after a development process
that lasted much longer than expected, SDMI made available to the
public prototypes of its new watermarking system - a type of trusted
system - and invited
hackers to try to break it. To the consternation of the developers,
the systems were broken promptly (by Edward Felten, discussed above).
To hear all sides of this story, you should listen to the panel
discussion on the topic at the recent Future of Music Policy Summit
Technological "solutions" of these sorts have been criticized
harshly by many scholars. For example, in the attached excerpt from
ID, Rights Management, and Trusted Systems," Harvey Weinberg
highlights the potential dangers to individual privacy and human
ingenuity by the uncritical adoption of trusted systems. (The full
article for your reference is available here.)
Lessig forecasts an even darker future for Cyberspace, where
the free flow of content is hampered by the rise of numerous technological
"fences". (Lessig's article can be viewed only with the
assistance of Adobe Acrobat Reader. Click here
to download a copy). Not everyone, however, agrees with Lessig.
Larry Doesn't Get: Code, Law, and Liberty in Cyberspace",
David Post argues that many of his conclusions do not follow from
his central argument that "West Coast Code" dominates
ii. The CBDTPA
In March of this year, Senator Hollings (D-SC) introduced the "Consumer
Broadband and Digital Television Promotion Act" ("CBDTPA").
Formerly known as the "Systems Standards and Certification
Act," or "SSSCA," the proposed legislation would
prohibit the sale or distribution of nearly any kind of electronic
device - including, most notably, personal computers - unless the
device complies with copy-protection standards to be set by the
federal government. The copy-protection standards envisioned would
mandate the incorporation of what is effectively a trusted system
architecture, specifying security and interoperability requirements.
McCullagh's Wired article for an interesting discussion of the
A diverse, powerful body of intellectual property interests (including,
for example, the music recording and film industries) heralds the
CBDTPA as an overdue, fundamentally necessary measure. Absent legislation
to overcome the "weakest link" problem, they argue, intellectual
property rights in digital assets can never be protected.
For the most part, academics and technology entrepreneurs oppose
the bill vehemently. Among other complaints, they argue that the
procedure set forth for developing the actual technology specifications
affords the content / media industries undue influence in the ultimate
legislation (the FCC would have one year to consider a compromised
proposal to be submitted by "digital media device manufacturers,
consumer groups and copyright owners"). They also take issue
with the extremely broad definition of "digital media devices"
contained in the bill (Senator Hollings himself has said, "any
device that can legitimately play, copy or electronically transmit
one or more categories of media also can be misused for illegal
copyright infringement, unless special protection technologies are
incorporated"). Lastly, they cite the risk that these technologies
can be "abused" to afford content providers protections
not guaranteed by law.
Most observers agree that the bill is unlikely to pass in its current
form, though not as a result of opposition based on ideology. Many
close to the issue think that the effort faces a greater likelihood
of overall success if the industries touched by the legislation
have more time to prepare and provide input before legislation is
passed. This timing consideration is most likely the one that would
have greatest weight in defeating the bill.
III. Alternate Ideologies
a. Cyberspace Self-Governance
In the background of many of the proposals outlined above is a
more fundamental debate over the extent to which Cyberspace can
and should be "self-governing." An early entry into this
debate was John Perry Barlow's article "The
Economy of Ideas," which argued that copyright and patent
laws are founded on characterizations of the nature of human expression
that are obsolete in the digital era. (You may wish to also read
his "second edition" of the piece, "The
Next Economy of Ideas," which was published in October
of 2000). In "A
Declaration of the Independence of Cyberspace," Barlow
builds on this argument to claim that all expression and transactions
on the Internet should be presumptively self-governing. For an illustration
of how this may work, check out Wendy Grossman's description of
Stephen King's new cyberspace-exclusive offering in "Would
You Pay $1 for this Article?". If you wish to inspect a
more conventional example of a self-policing online community that
appears to work, surf through eBay, the popular online auction site.
Barlow's attitudes pop up in odd places. For example, in a 1997
"Directive on Electronic Commerce," President Clinton
instructed federal agencies to "recognize the unique qualities
of the Internet, including its decentralized nature and its tradition
of bottom-up governance."
Such a view of "bottom-up private ordering" is not without
its critics. For example, in "Cyberspace
Self-Governance: A Skeptical View From Liberal Democratic Theory,"
Neil Netanel argues that it fails to promote the ideals of a liberal
democracy. (The full article is available here.)
We treat this subject more thoroughly in our discussion of ICANN
and the domain name controversy.
b. The Movement for "Openness"
Some observers of the Internet argue that we should not be concerned
with strengthening controls over digital assets, but, instead, moving
in a completely different direction. They argue for "openness"
of digital content - sharing and cooperation, not control and exclusivity,
should be our goals. Present in all openness-based movements and
initiatives is the idea that the Internet represents a unique and
valuable opportunity to advance these ideals.
The Open Source Software movement embodies this alternative view
of intellectual property in its application to the development of
software. One of its leading mouthpieces, OpenSource.Org,
describes the movement as follows:
The basic idea behind open source is very simple. When programmers
on the Internet can read, redistribute, and modify the source
for a piece of software, it evolves. People improve it, people
adapt it, people fix bugs. And this can happen at a speed that,
if one is used to the slow pace of conventional software development,
We in the open source community have learned that this rapid
evolutionary process produces better software than the traditional
closed model, in which only a very few programmers can see source
and everybody else must blindly use an opaque block of bits.
Intellectual Property Is It Anyway? The Open Source War,"
Peter Wayner provides a nontechnical overview of the current conflict
between advocates of the closed source and open source paradigms.
For more detailed introductions to the movement, please read either
of Openness" by David Bollier or this Introduction
by Chris DiBona, Sam Ockman, and Mark Stone. The former article
is also available at the Berkman Center's Open
Code site, a rich resource for information on the movement,
while the latter article is the preamble to the book, "Open
Sources: Voices from the Open Source Revolution." A defense
of the movement may be found in Lawrence Lessig's Code and Other
Laws of Cyberspace (distilled in relevant part in "Open
Code and Open Societies"). For constructive criticism of
Lessig's position, see Steven Hetcher, "Climbing
the Walls of Your Electronic Cage."
It should be emphasized that the Open Source Movement does not
call for the total abandonment of "intellectual property."
W. Gomulkiewicz explains:
The terms "free software" and "open source software"
might lead observers of the open source revolution to conclude
that hackers make software free or open by placing their code
into the public domain; however, hackers employ a different approach.
The proponents of open source software rely on owning the copyright
in the code and then licensing it according to a very particular
mass-market licensing model...
Open source licensing is based on several key principles. These
principles are embodied in The Open Source Definition, published
by the Open Source Initiative, and in sample licenses published
by the Free Software Foundation and others, such as the GNU General
Public License, the GNU Library General Public License, the Artistic
License, and the Berkeley Software Design-style license. If a
license does not comply with these principles, the software cannot
(at least according to the open source community) be labeled "opensource."
A current "definition" (Version 1.9) of what should constitute
open source software may be found here.
Each rule is accompanied by its rationale. For a glimpse of the
typical development process for this type of software, you may want
to peruse this excerpt from Marcus Maher's "Open
Source Software: The Success of an Alternative Intellectual Property
Incentive Paradigm". (You can read the entire article here.)
For examples of software that are based on the open source model,
see Opensource.org's representative
list of products that meet its definition as well as the websites
of the Linux Documentation Project
Communications (which released its source code to the general
public in 1998). See this module's case study below for an exploration
of the GNU Public License in the commercial software context.
Fundamental "openness" arguments are made more generally
to advance public access to and interaction with a wide range of
content. For example, it is argued that "openness" with
respect to creative works (a relaxing of intellectual property rights)
fosters creativity and collaboration in future development much
as open software development allows for improvements to code. Professor
Lawrence Lessig has championed this argument. (See, for example,
this CNET article
describing his "Copyright Commons" project.)
The Berkman Center has even launched an "Open
Law" initiative. It is "an experiment in crafting
legal argument in an open forum
[where they] will develop
arguments, draft pleadings, and edit briefs in public, online. Non-lawyers
and lawyers alike are invited to join the process by adding thoughts
to the 'brainstorm' outlines, drafting and commenting on drafts
in progress, and suggesting reference sources." This forum
has been successfully utilized to further the Berkman Center's efforts
I. Prosecution under the DMCA: Dmitry Sklyarov
With annual revenues of $1.2 billion and over 2,800 employees,
Adobe is the second largest PC software company in the U.S. In an
effort to create / lead the market for software that enables the
digital distribution of books, Adobe developed the Adobe
Acrobat eBook Reader. The eBook Reader gives users a friendly
interface with which to view the text and graphics of a book. Adobe's
product overview explains:
The free Adobe Acrobat eBook Reader enables you to read high-fidelity
eBooks on your notebook or desktop computer - no special hardware
is needed! Only this reader software displays eBooks with the pictures,
graphics, and rich fonts you've come to expect from printed books.
Combining a vivid, elegant reading experience with an intuitive
interface, Acrobat eBook Reader gives you all that eBooks have to
Adoption of the technology by users is only half of the puzzle for
Adobe. Development of the market for digital book distribution software
also requires adoption of the technology by book publishers. Where
end users demand a "vivid, elegant reading experience,"
book publishers (extremely weary of making their books available
digitally after witnessing the "Napsterization" of the
music industry) demand robust copyright protection. To this end,
Adobe's eBook Reader is designed as a trusted system (described
above), offering publishers a spectrum of copyright protection options
when encoding their content. Adobe's
FAQ (for readers, not publishers) explains:
Can I print and copy my e-books?
To protect copyrights, publishers establish their own guidelines
for how much of their e-books can be printed or copied. This means
that these permissions will differ from book to book. For example,
some of the free books from the Adobe Bookstore have no restrictions
on copying and printing. Or, a publisher might give users the ability
to print several pages of a cookbook within a set period of time.
Founded in 1990 and headquartered in Moscow, ElcomSoft is a software
company that (according to the
company's website) "specializes in producing Windows productivity
and utility applications for businesses and individuals." Among
the many software products developed by ElcomSoft is the "Advanced
eBook Processor (AEBPR)", which used to be available for
download from their site (but seems to have been removed). As explained
by an Electronic
Frontier Foundation ("EFF") FAQ:
ElcomSoft's Advanced eBook Processor (AEBPR) allegedly removes
the technological protection from eBooks that are in Adobe's eBook
format and converts them into Adobe's Portable Document Format [("PDF")],
so that people can use eBooks in more expanded ways than currently
available under the Adobe eBook format. It also allows the eBooks
to be read or processed by third-party software, not just Adobe's
eBook Reader software. In effect, the AEBPR program removes the
various restrictions (against copying, printing, text-to-speech
processing, etc.) that publishers can enable or disable under Adobe's
digital rights management system. The program is designed to work
only with eBooks that have been lawfully purchased from sales outlets.
To put it more succinctly, the program enables users to: i) disable
the copyright protection controls deployed by book publishers using
Adobe's software and ii) repackage their digital books in a variety
of common formats without copyright controls.
Dmitry Sklyarov is a 27-year-old programmer and cryptographer formerly
employed by ElcomSoft who has been researching cryptanalysis in
furtherance of a Ph.D. he hopes to earn from a Moscow University.
He is allegedly responsible for much of ElcomSoft's AEBPR, most
notably, the decryption algorithms it employs to circumvent Adobe's
copyright protection controls.
In its first criminal prosecution under the DMCA, the Department
of Justice ("D.O.J.") has indicted both ElcomSoft and
Sklyarov for violations stemming from the development and marketing
of ElcomSoft's AEBPR. (Adobe officers brought ElcomSoft's AEBPR
to the attention of the FBI on June 26, 2001.) Sklyarov was most
likely targeted largely because of his plans to enter the United
States (making it easier for the D.O.J. to persuade a U.S. court
to exert jurisdiction over him). The EFF tells the dramatic story
[Sklyarov] was invited to give a presentation at the DEF CON
conference in Las Vegas about the electronic security research
work he has performed as part of his PhD research. His presentation
concerned the weaknesses in Adobe's eBook technology software.
Dmitry was arrested at his hotel in Las Vegas, on 16 July, [2001,]
as he was leaving to return to Russia.
(For the D.O.J.'s description of Sklyarov's arrest, and the events
leading up to that arrest, read their July
17, 2001 press release.) In its August
28, 2001 press release, the D.O.J. reported:
The United States Attorney's Office for the Northern District
of California announced that Elcom Ltd. (also known as Elcomsoft
Co. Ltd.) and Dmitry Sklyarov, 27, both of Moscow, Russia, were
indicted today by a federal grand jury in San Jose, California
on five counts of copyright violations.
The defendants were each indicted on one count of conspiracy to
traffic in technology primarily designed to circumvent, and marketed
for use in circumventing, technology that protects a right of
a copyright owner, in violation of Title 18, United States Code,
Section 371; two counts of trafficking in technology primarily
designed to circumvent technology that protects a right of a copyright
owner, in violation of Title 17, United States Code, Section 1201(b)(1)(A);
and two counts of trafficking in technology marketed for use in
circumventing technology that protects a right of a copyright
owner, in violation of Title 17, United States Code, Section 1201(b)(1)(C).
This is the first indictment under the Digital Millennium Copyright
Act ("DMCA"), enacted by Congress in 1998.
Section 1201(b) of the Digital
Millennium Copyright Act ("DMCA"), discussed above,
(b) ADDITIONAL VIOLATIONS
(1) No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively
protects a right of a copyright owner under this title in a work
or a portion thereof;
`(B) has only limited commercially significant purpose or use
other than to circumvent protection afforded by a technological
measure that effectively protects a right of a copyright owner
under this title in a work or a portion thereof; or
`(C) is marketed by that person or another acting in concert with
that person with that person's knowledge for use in circumventing
protection afforded by a technological measure that effectively
protects a right of a copyright owner under this title in a work
or a portion thereof.
Sklyarov's arrest prompted outcries of outrage from software developers,
civil libertarians and all who generally oppose the DMCA (for ideological
or "practical" reasons). See, for example, the EFF
site dedicated to the controversy and FreeSklyarov.org.
He faced a maximum fine of $2.25 million and up to 25 years imprisonment.
Not surprisingly, the D.O.J. promptly reached an agreement with Sklyarov,
under the terms of which they have agreed not to prosecute him personally
if he assists in their (criminal) prosecution of ElcomSoft. The D.O.J.,
in its December
13, 2001 press release, describes the deal as follows:
The United States Attorney's Office for the Northern District
of California announced that Dmitry Sklyarov entered into an agreement
this morning with the United States and admitted his conduct in
a hearing before U.S. District Judge Whyte in San Jose Federal
agreement, Mr. Sklyarov agreed to cooperate with the United
States in its ongoing prosecution of Mr. Sklyarov's former employer,
Elcomsoft Co., Ltd. Mr. Skylarov will be required to appear at trial
and testify truthfully, and he will be deposed in the matter. For
its part, the United States agreed to defer prosecution of Mr. Sklyarov
until the conclusion of the case against Elcomsoft or for one year,
whichever is longer. Mr. Sklyarov will be permitted to return to
Russia in the meantime, but will be subject to the Court's supervision,
including regularly reporting by telephone to the Pretrial Services
Department. Mr. Sklyarov will be prohibited from violating any laws
during the year, including copyright laws. The United States agreed
that, if Mr. Sklyarov successfully completes the obligations in
the agreement, it will dismiss the charges pending against him at
the end of the year or when the case against Elcomsoft is complete.
The trial against ElcomSoft - the first criminal trial under the
DMCA - will begin on August 26, 2002 before Judge Ronald Whyte of
the U.S. District Court for the Northern District of California.
ElcomSoft faces a maximum fine of $2.5 million.
To date, ElcomSoft has moved to dismiss the indictments on the
grounds that (among others): i) the District Court lacks subject
matter jurisdiction, ii) the DMCA is in violation of ElcomSoft's
Due Process rights (unconstitutionally vague and arbitrarily enforced)
and iii) the DMCA is in violation of Elcomsoft's First Amendment
free speech rights. On March 27, Judge Whyte denied the motion to
dismiss for lack of subject matter jurisdiction. (A copy of Whyte's
order is available here.) On May 8, 2002, Judge Whyte denied ElcomSoft's
motion to dismiss the complaint on constitutional grounds. (A copy
of Whyte's order is available here.)
(For more information, visit the EFF's
website devoted to the controversy, an excellent resource for
information and documents.)
II. The viability of the GPL and commercial open source licensing:
MySQL and NuSphere
MySQL is an open source database application created by Michael
"Monty" Widenius and his colleagues. Consistent with the
tenets of the open source software movement (described above), the
source code for MySQL is available to the public and software developers
worldwide are encouraged to contribute improvements and additional
functionalities. The MySQL application was commercialized by MySQL
AB (a company formerly known as TcX Datakonsult AB) and is now available
for free under the terms of the GNU
General Public License ("GPL") or for
a licensing fee for those customers wishing to remain unconstrained
by the terms of the GPL. MySQL AB reports that it uses proceeds
from commercial licensing to fund continued product development,
including reviewing and incorporating contributions to the software
submitted by the public.
NuSphere is a subsidiary of publicly-traded Progress Software Corporation,
a "conventional" software development company. NuSphere's
main product is a software tool named Gemini. Most fundamentally,
Gemini is a proprietary "table type" for the MySQL database
product. In essence, it is a component that delivers a greater degree
of reliability and error-handling ("row-level locking, robust
transaction support and reliable crash recovery") to users
of the MySQL database.
Conflict between MySQL AB and NuSphere originated with NuSphere's
release of "NuSphere MySQL Advantage," an application
that combines the free MySQL database with NuSphere's proprietary
Gemini functionality. Section
2(b) of the GPL license for MySQL reads: "You must cause
any work that you distribute or publish, that in whole or in part
contains or is derived from [MySQL] or any part thereof, to be licensed
as a whole at no charge to all third parties under the terms of
this License." Section 2 of the license concludes with a safe
harbor from this provision, the effect of which the parties dispute.
These requirements apply to the modified work as a whole. If
identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works
in themselves, then this License, and its terms, do not apply
to those sections when you distribute them as separate works.
But when you distribute the same sections as part of a whole which
is a work based on the Program, the distribution of the whole
must be on the terms of this License, whose permissions for other
licensees extend to the entire whole, and thus to each and every
part regardless of who wrote it.
Thus, it is not the intent of this section to claim rights or
contest your rights to work written entirely by you; rather, the
intent is to exercise the right to control the distribution of
derivative or collective works based on the Program.
In addition, mere aggregation of another work not based on the
Program with the Program (or with a work based on the Program)
on a volume of a storage or distribution medium does not bring
the other work under the scope of this License.
The dispute, then, turns on whether NuSphere's Gemini is a derivative
work which can only be distributed under the terms of the GPL or
an "independent and separate work" entitled to safe harbor.
A MySQL FAQ
on the dispute reports that "[NuSphere MySQL Advantage]
contains MySQL under GPL and Gemini. Gemini is statically linked
to the MySQL code. This means that Gemini needs to be under GPL
as well, but is not." Naturally, NuSphere maintains that it
is in compliance with section 2 of the GPL.
In June of 2000, MySQL AB and NuSphere reached an interim agreement,
under the terms of which NuSphere would pay MySQL up to $2.5 million
in licensing fees while the parties negotiated a final agreement.
(MySQL reports that NuSphere has paid a total of $312,501 under
the interim agreement, with its final payment having been made in
September of 2000.) Approximately one year later, in February of
2001, negotiations of the terms of the final agreement between the
parties broke down and NuSphere filed suit against MySQL, alleging
breach of contract, tortious interference with third party contracts
and relationships and unfair competition. MySQL responded with a
counter suit alleging trademark infringement, breach of the interim
agreement, unfair and deceptive trade practices, and - most notably
- breach of the GPL license. MySQL AB promptly moved for a preliminary
injunction under its trademark and breach (of the GPL) claims. In
July of 2001, NuSphere published the source code for its Gemini
product - in what can only be seen as an act of retreat - and the
company has subsequently made representations that it will cease
commercial licensing of Gemini (in violation of the GPL).
Nonetheless, it came to be that the viability of the GPL as a binding
agreement in the commercial software context could be tested for
the first time in court. Judge Patti Saris of the U.S. District
Court for the District of Massachusetts heard MySQL AB's preliminary
injunction motion. On February 28, 2002, she granted MySQL AB's
motion under its trademark claim (NuSphere's product, previously
referred to as "NuSphere MySQL Advantage" is now simply
dubbed Gemini), but denied relief under the breach of the GPL claim,
With respect to the General Public License ("GPL"),
MySQL has not demonstrated a substantial likelihood of success
on the merits or irreparable harm. Affidavits submitted by the
parties' experts raise a factual dispute concerning whether the
Gemini program is a derivative or an independent and separate
work under GPL P 2. After hearing, MySQL seems to have the better
argument here, but the matter is one of fair dispute. Moreover,
I am not persuaded based on this record that the release of the
Gemini source code in July 2001 didn't cure the breach.
In any event, even if MySQL has shown a likelihood of success
on these points, it has not demonstrated that it will suffer any
irreparable harm during the pendency of the suit, particularly
in light of the sworn statement that all source code for Gemini
has been disclosed and the stipulation, given by [NuSphere parent]
Progress during the hearing, that the end use license for commercial
users will be withdrawn. Finally, because the product line using
MySQL is a significant portion of NuSphere's business, Progress
has demonstrated that the balance of harms tips in its favor regarding
the use of the MySQL program under the GPL.
Progress Software Corporation v. MySQL AB, 2002 U.S. Dist.
LEXIS 5757 at Page 3.
Adjudication of MySQL AB's breach of the GPL license claim will
turn on a finding of fact as informed by Saris's interpretation
of the GPL. The issue has been central to the dispute since its
inception: Is NuSphere's Gemini an integrated product or a "independent
and separate work"? Saris's order hints that "MySQL seems
to have the better argument here."
Commentators disagree on which interpretation would be most favorable
for the open source software movement. John Palfrey & Ed Kelly,
in an analysis of the preliminary injunction proceedings before
Judge Saris, explain:
The outcome of this dispute could have enormous implications. A
victory for MySQL would favor what some consider the spirit of the
GPL: the notion that code inspired by open source works should stay
open source. A victory for NuSphere, on the other hand, might cut
in favor of what some view as the long-term success of the open
source movement, by ensuring that those who build off of open source
materials can earn a profit.
(The full text of Palfrey and Kelly's analysis of the proceedings
is available here.)
What remains undisputed by commentators is that Judge Saris's order,
and the larger dispute, represents the achievement of a fundamental
milestone for the open source movement. Judge Saris's order embodies
treatment of the GPL as a valid, binding licensing agreement in
the commercial software context. In fact, NuSphere did not dispute
the validity or applicability of the GPL, an additional reason for
those behind the open source software movement to claim success.