Week 10: Trusted Systems: Fair Use vs. Forcefields
November 12, 1998
__: | Okay, we are honored to have
with us today, Tom Lipscomb (?), chairman of the Center for Digital Future, a New York
based public policy institute. I know other things about him, but since he just handed me
this wonderfully formatted biography, I will revert to my news anchor mode, and just read
it to you. Founder until recently, CEO and chairman of Infosafe Systems, Inc., a public company which uses proprietary technology to create advantaged systems for the secure distribution, marketing, control and auditing of valuable digital information. Perhaps the most vital issue in cyberspace today. Holds five patents in digital technology. And Infosafe has received three industry awards for its technology. And a whole raft of publications has covered it. Named one of Fortune magazines twenty-five cool companies in technology, along with Netscape and Sysco Systems. And Lipscomb has been listed by Newsweek as one of the fifty most influential people to watch in cyberspace. And here you are able to watch him in real space. Lets see. Been both a magazine publisher of consumer magazines, such as The Ladies Home Journal, a CEO in book publishing. He was responsible for top best sellers, by authors as diverse as Agatha Christie, Susan Isaacs, Craig Claiborn, Jack Anderson, and William Sapphire. Appeared on lots of t.v. shows, author of articles in the Times, the Post, Harpers, The Chronicle of the Nation, etc.; and, of course, has now to his credit, an appearance at Harvard Law School, to speak to a class on Internet and society. I will tell you, out of memory, what I have on the PowerPoint slides, that despite by best efforts running down to ITS to do a straight conversion from Mac to PC, are unreadable. But, hopefully, I will not be incomprehensible. If so, its a file format error, and you should all upgrade your brains. So let me just give a sort of framework for today, and then turn it over to Tom for some comments, and then get us all into it; because, in a way, as late as we are in the term, this shouldnt be as new seeming as it might otherwise. I mean, we have a sort of typical debate of code and law at stake here, and can just get right into it. John Perry Barlow (?) may be joining us at some point, but theres no sign of him yet. So speaking of John Perry Barlow, John Perry Barlow puts out an article in Wired magazine. Some of you may have read it. It was not assigned for today. We had too many other things to have you read. Although I may yet regret having assigned the Sony Betamax case instead of Barlows article. Barlows article was titled The Economy of Ideas and laid out as only Barlow can, in his wonderfully lyrical way, a sort of manifesto. And its what Jamie Boyle (?) calls the libertarian gotcha. And basically Barlows thesis said, Publishing and printing is not what is used to be. We are now in a digital age. These ideas are going digital. When you take expression and you digitize it, some things happen necessarily. Namely, you can copy it at almost zero cost. In itself -- he sort of anthropomorphized (?) -- wants to be copied. And before you know it, copyright is dead. And that the world hasnt -- or hadnt at the time he wrote this, which was several years ago -- realized this. Theyre just simply re-shuffling deck chairs on the Titanic, but theres just no way to keep the genie in the bottle, as soon as you start getting digitized stuff out on the Net. Its just too easy to copy. The copies are too true to the original. In fact, theyre identical. And thats the end of copyright. He then goes further. Thats an empirical claim he makes, about the nature of cyberspace. He then goes further and says, But thats okay. Why Im an author, and Im not shedding any tears. And thats because people can always pay to see me come live and talk. And in some ways, I can just adapt myself to this new economy, where the actual writings I have are given away. A Netscapesque strategy. But at the same time, it increases by celebrity. I get asked to do other things that I can only do in person. And thats some way that I can end up getting money for the ideas I have. And that even though copyright is dead, and theres no way to protect it anymore, it wont stop authors from creating. So this is Barlows sort of argument. Questions on that much? Does he actually seem reasonably persuasive? Im sure Ive completely butchered it in rendering it. It doesnt have his sing to it. It actually sounds good. All right. Well, Ill take the stony silence to be license to proceed to the next shoe dropping. Which is, after Barlow comes out and says this, you have some other people that are even, dare I say, more extreme. Richard Stulman (?), for example. Sort of paragon of the free software movement, says, You know, Im happy to write this stuff basically entirely for free. I dont even care if -- as Barlow says -- theres some reward in it for me, thanks to speaking engagements or other sorts of appearances. Theres a whole new culture, a gift economy, thats being created, where we have a commons to which we each contribute. We contribute according to our ability. We take according to our need. We have a new world upon us. I dont mean to suggest that Richard Stulman is a communist, but Im not sure he would be entirely unhappy to hear that term applied to him. Hes just down the road at MIT, by the way. And would no doubt be happy to come and speak about this at some convenient time in the near future. So, thats kind of the libertarian gotcha angle on things; which is, if youre going to let cyberspace in at all, if youre going to have an Internet, you are, by necessity, going to have a Net that completely rewrites the rules of copyright as we know them. And you could ask law to just get tougher. You could up your enforcement. You could have raids on ITS downstairs. Federal agents could kick in the door and start looking at computers, seeing if theres copyrighted software there. But that would leave us in a veritable police state. And we dont want to do it. And we wouldnt suffer that. And somehow, the wrong that happens, when someones intellectual property is taken, without her consent, is just not of the same character to many people, as the wrong that happens when a CD player itself is stolen, or some other typical crime is committed. And Barlow, of course, is happy to point out the cultural problems, where often those states most thought of as police states, those most able to actually impose a rule and keep people to it by sheer brunt force of state action, are the ones that have the least developed culture of intellectual property, wherein they would see this as a rule worth respecting. And China jumps out, as far as Barlows is concerned, as an example of this. Okay, so thats step one. Step two is a rejoinder to Barlow. Its a rejoinder to Barlow by people like we had in our reading. Mark Steffick (?). And Steffick says, I hate to rain on your parade, but just because things are digital does not mean they have to be eminently copyable and free. In fact, thanks to people like Tom Lipscomb and Mark Steffick, working together, entrepreneur and engineer -- is something beeping. Sorry, I hear something beeping. I guess maybe its the watermark thats going into this very speech. If you play it back, youll know where it came from. -- Stefficks response is, We can have things called trusted systems. Of which a subset of trusted systems are copyright management systems. These are systems that are designed working together, a server that has the original material, and a client, that is near the person consuming it; that can say the material doesnt necessarily have to be copied. In fact, Steffick takes it one step further. He says, Not only can you protect the material, and work with it to the degree that you can in the physical world, you can even overshoot that, and do a lot better. And you may have seen in the readings, a lot of discussion about rights management. You could actually very finely determine what people can do with the material. You could know -- I dont know, you could give people rights to see the material only after hours. That might be a nice form of price discrimination, because that means its probably students working on it. But if you want to see the material during the day, wherever the day is defined as your regional local time, it might cost you a bit more. If you want to give it away to somebody, maybe well allow that, but we can see to it that it is erased from your machine, or the right that you have to access on ours -- maybe it even never makes it to your machine -- is eliminated before it is transferred to somebody else. And Steffick basically goes through a whole taxonomy of ways about the software. So long as you have the system deployed, you can actually do a much finer grained cut at enforcing constraints -- abilities or not, with respect to the material youre looking at -- than you ever got through law applied to people that have a piece of paper, that more or less can be copied. So thats sort of the Steffick shoe that drops. Then after that, you have the Julie Cohen rejoinder. The Julie Cohen rejoinder -- and theres some history between Tom and I here on this, in that I moderated a panel on this subject at the Internet and Society Conference last May. Julie Cohen was one of the participants. And as I recall, it was during her speech that a gentleman in the audience -- who later turned out to be Tom -- was waving a note at me quite urgently, with a frowning expression that had something like, Your house is on fire on it. Thought you might want to know. Went up, took the note from him, and when I opened the note, is said, This is the most unbalanced panel I have ever seen in a major institution. You should be ashamed of yourself. Where is the copyright clearinghouse? Where is the Software Publishers Association? etc., etc. After Julie was done, and I thanked her, we still had about half the session left; I read Toms note aloud to the crowd -- |
TL: | There was wild applause. |
__: | Yes. He applauded wildly. I do give him that. [laughter] Joined by several intellectual property attorneys that had been deployed around the room in strategic places. |
TL: | And all the authors in the room. |
__: | And all the authors in the
room as well. And we thus had a lively debate for the remaining period of time. In which,
as I recall, I took on the position of defending Hollywood, along with the best, to a
panel that admittedly was pretty much bashing Hollywood. To the exclusion of one guy, from
I think Hewlett Packard, who wasnt sure why he was there; had gone through some
hastily prepared view graphs (?). Yes, he was sort of lost amidst it all. The real audio
archive of this entire debacle is available on-line. And I encourage you after this class
to look at Cybercon98.org, and see it for yourself, if you are, in fact, interested. So, anyway, this is, in some way, fair payback to Tom, in that hes the only guest today. And will therefore have some extra floor time to set this cosmic record straight. So, anyway, we were talking about Julie Cohen. Julie Cohen says, I believe that in the empirical disagreement between Barlow and Steffick, Steffick is right. You can lock this stuff up really tight, all of Barlows libertarian gotcha notwithstanding. And, in fact, it scares me. And, she says, What about the right to read anonymously? She thinks there ought to be such a right. She gives doctrinal reasons why the constitution may already recognize such a right through the First Amendment. And she says, Some of these systems, if deployed, actually record who you are before they will part with the material. And when they do, they then know what youve read. And she says, This is a fundamental threat to a free society, when people might, knowing that people know what they are reading, be inclined only to read mainstream things, rather than read things that would be unpopular or could be scandalous if it were known that they had read them. So thats one worry she puts forward. Theres a whole other passel of worries put forward. But, generally, the idea that these systems are completely detached from the policy balance that Congress purports to strike, when it takes rights to the author on one hand -- perhaps grounded in incentives from being paid back for the work that you do -- and rights to the kind of Commonwealth, on the other hand, the public good that comes when you can share information freely. Congress strikes some balance in terms of fair use, in terms of an expiration, at some point of copyright. As we know from the Steamboat Willy role, thats now up to a hundred years. And it looks like anything made after 1923 may forever be covered by copyright, if Congress has its way. But that aside, Cohen expresses a whole raft of concerns about this. You will also note the concerns range from this so-called right to hack. You have a copyright management scheme, as you might know from the question of today. One of the questions was on that. She says, You ought to at least have a right to hack the scheme. Because one way in which Congress -- which is to say the law -- has been called into play to protect the technological scheme that Steffick is happily trying to deploy -- with or without legal assistance -- the one way in which law is helping is through the recently passed Digital Millennium Copyright Act. Trying to say, If you hack such a scheme, well chop off your head. Dont do that. And through a fairly interesting process of revision and committee, and things like that, you had a kind of tug-of-war, where people at least tried to put in some exceptions, many of which had been punted to the Librarian of Congress to consider. By which, if you do hack, but for the right reasons, thats okay. And you have the text of the Act in the reading as well. So were left with sort of Julie Cohens worry. And along the way, she addresses some of the counter-arguments to her view, which is, Who needs Congress to balance these rights? Obviously, if it is a market, the people most inclined to lock this stuff up are the people who need to make money off it. To make money off it, you need to sell it. To sell it, you need consumers willing to buy it. So if consumers really cared about their anonymity, the market would respond and allow them to purchase anonymously. Or maybe even have a small surcharge, if you want to be able to purchase anonymously. Or maybe the better way to put it, would be a discount if youre willing to give certain demographic information at the time you buy. So theres some thought out there, that maybe the market will fix this. Cohen has her own answers to that. And now we are left both with an empirical debate, about just how far the technology can go; and whether theres anything innate about the digital age, that speaks to just how easily you can or cant lock up the fruits of your intellectual labor. And we also end up having a normative debate in an area that law had traditionally regulated, however poorly. Now you have possibly the code doing so, and should law have anything to say about that? So with that introduction, why dont I ask Tom if hes got anything to say. And then just open it right up. |
TL: | Well, Im speechless at
the cogency at which you pulled all that together. This has been an extraordinarily quick
confrontation here in cyberspace, on issues that have gone all the way back from
Parliament from England in 1704, when the British artist, William Helgarth (?), trying to
protect his engravings against illegal copying. It introduced the first author sensitive
or creator sensitive copyright. Most copyrights previously, as you probably all know, came
by someone trying to grab something that belonged to someone else, and expropriating it
for the king or for the cardinal, to make sure it was proper, etc. The issue that I think is -- there are several things that are very important to understand about the Mark Steffick position vs. the position thats being taken by the EFF, in the larger sense. One is, you have to understand that anything -- Mark Steffick is absolutely right -- anything technically is possible. For example, the biggest wet dream that Epic ever had -- theyre the electronic privacy guys -- was that what the European union would ever want to have, as far as privacy, is totally possible. Anonymous mailings, absolutely no ability to know whos doing what, but a transfer of property taking place legally, in a given domicile, with cash; or through wide mailings through banks, through Luxembourg, through whatever. All this is possible in the Internet. So any degree of privacy is possible, watching every mouse click is possible. The same thing is true of copyrighted material. Total protection and, you know, absolute utter protection for probably twenty years -- which is as long as anything needs to be protected -- technically is possible. Or total transparency is possible. So youre in one of those rare situations, where the medium itself -- think of the railroad as a medium, or oil and gas as a medium, or the other areas of law that we looked at in property -- the medium itself is not a barrier. Its really inconsequential. Theres total freedom in this area. So as people studying the law, this is sort of an -- its an ideal world, to think about the principles were talking about. So then when do we get done looking at equity, or looking at what is the purpose here, or what is the Commonwealths best interest, or what is all this about? We have a complete range to work with that. That, of course, is not what has happened. What has happened is we have a law that was passed. What, the twenty-eighth of October the President signed it. The Digital Millennium Copyright Law. That was a Hollywood coup, okay? Its an amazing situation. It surprised me. I was involved in the reform of 76, and I was very much for the innovations weve been doing to get U.S. copyright with European copyrights, and digital protection, etc. But this has gone too far. If we think of what copyright is supposed to do -- and well come back to the John Perry Barlow position in a minute -- its supposed to make sure the Commonwealth is enriched by compensating the productivity of creators sufficiently, whatever that may be deemed in a given society and in a given way. However, the basic idea is that theres a clock running thats reasonable, according to that society, on the standards of the Commonwealth. That it has, at a given time, when its legislature is working, does not think about impetuity here, and its not meant to be a cartel; theres a balance thats historically been set here. And whats happened in this new Act, is that balance has been disturbed. And the key area to look at is fair use. The fair use area is now severely out of whack. For years, librarians and publishers have been side-by-side. Theyve been total allies in protecting property, making things available public. Today, theyre at loggerheads, because the publishers were dragged into Hollywoods attempt to keep Steamboat Willy in perpetuity the property of all business ...(inaudible), for all time, okay? Like one of those Indian treaties, as long as the river shall run and the grass is green, this is the damnedest thing anyone has ever seen. So that throws in it. But lets got back to the so-called libertarian. I would argue its not a libertarian argument, because libertarians believe -- |
__: | You were just at the Federal Society last week? |
TL: | Yes, I was. Ive been
dosed with libertarianism last week. I gave a speech at the lawyers group down in
Washington. Their notion basically is, as closest one you can get to, is the relationship
between property and liberty. Individual liberty comes from the ownership of an individual
property. Of course, what is copyright, but supposedly a relationship between these two
areas? What really the John Perry Barlows and the Esther Dysons (?) of the world are
saying is they want it both ways. Theyre saying, You know, its really
neat being out here on the front tier. And I want to say something thats really
going to be radical, so I get a lot of press pick-up. And they got that. That will
get you one of the speeches, and that will make some money. Now, no one is buying the writings of John Perry Barlow, so far as I can see. So making them generally available to the world is a really good idea, because no publisher seems to be willing to pay money to do that. So good for him. Thats fine. On the other hand, he does have some lyrics of the Grateful Dead, and you should ask him at your next class, whether hes collecting royalties from those lyrics. You know, maybe hes turning them into the EFF or some kind of public domain deal, but I doubt it. Cause I know Esther Dyson whose -- isnt she the one who said that "information wants to be free? This is the first sign of desire by that of an -- you know -- amorphous creation in world history. But anyway, if information wants to be free, she, nonetheless, sells Release 1.0 for about twenty-five hundred bucks a year. And when I volunteered to put it up on the Web and give it to everyone in that spirit, she was not intrigued with that concept. So its a funny thing. Art is forever, and any writer is an artist, even though they may be a business person. Artist privacy (?) have been willing for you to make your work available for free to the masses. Theyre very generous with those peoples works. Whenever you come down to what theyve got, they want to protect it. But theres another aspect here. The medium, this transparent medium, the one with the complete rate were talking about, is not ready for prime-time medium. It still isn't. Anybodys ever done any work with telescopes -- I know when I was a kid, I was fascinated by going from my little field glasses of eight magnification, up to something that can do twenty-five times. Wow, you know? That was really great. So then I ground some stuff and I got a hundred times. You know, the stars look exactly the same at all those magnifications. Theyre so damn far away, that theres no apparent change. And the difference between 300 baud and 56.6 aint that great, either. Were just about to go into outer, you know, hyperspace, as far as the speeds; when youve got T1 speeds, when youve got full motion video, the whole game changes radically. Now if valuable consumer information can come into this. But lets look at whats not in the Internet right now. West Law (?), okay? Valuable information from MacGraw-Hill. The really big buck stuff isnt there. Its not there. Its not there because, basically, the rules of protection are just happening right now. This is stuff that people pay a lot for. Pathfinder can lose money as long as they want to. People can give it away as long as they want to. But the time that this is going to get interesting, is when people are actually selling information in this area. And when you can buy a movie through an ADSL deal, where youre working off a twisted pair, or youre working off a cable system, youve got a totally different marketplace. Now we were talking about Steve Cases (?) prediction, theyll be one billion Internet users by the year 2001. Another prediction that went down two or three days ago was -- we were talking about having one thousand times the Web sites we have right now by 2003. Now add on that, a data rate at, say, T3 speeds. You could really move information, right? You could really move it fast, and people could do it. And you got a worldwide marketplace here. Now youre in an area of which intellectual property -- which is now, by the way, the fastest growing part of the U.S. economy, and certainly our largest export sector. Were really going to talk about this stuff being free? I dont think so, okay? So I think the question you really need to look at and address, and think about -- its good for discussion -- is, with all these things happening, were now coming -- this is the point at which these things will be settled at law. We have a half-assed Millennial Digital Copyright Act, which is too strong, I would argue in many ways. We have all these players not in the game yet, because the medium really isnt there yet. And we have a lot of people opining about copyright, who really arent in the business of being proprietors of copyright. Thats my summation of the current situation. |
__: | Okay. So Tom tells us only losers want it to be free. [laughter] The only way to get their stuff out is to give it away. Perhaps even Barlow someday will pay you to read his writings. I do hope he manages to come before the end of the class, and speak to the question. |
__: | ...(inaudible) pay him enough. |
__: | Maybe thats it, actually. I have some thoughts, but I want to throw it open. We might as well keep it interactive, if people are feeling like they have something they want to say. Melanie? |
Melanie: | I would start by asking, you said the current copyright protection that Congress just enacted was too strong; what do you think about the use of compulsory terms and licenses? So the idea that you're posing, I think, is that you would combine technology with contracts. And technology would be used to protect the information; contracts would be used between the person who sells the information, and the information consumer. So, does Congress have a role in setting out compulsory terms for licenses to protect something like fair use? |
TL: | Thats a very interesting point. I thought we mixed two items. (?) I think fair use is one item, and I think individual contracting rates between a proprietor and a user is another area. |
Melanie: | Right. One is public interest, and one would be -- |
TL: | Yeah. Lets take the
individual one, because I have a patent in exactly that. Ive created a patent which
made sure that if you said to me that you want to buy program X, that I sent it to you in
a mailer, and it was encrypted, should you pull it down and open the mailer, you would
have to agree first, in an irrevocable transaction taking place, to the terms of the
license, okay? And once you did that, I have a legally enforceable contract. Thats
point one. Thats obviously possible. We got a patent for it. The other area, however, on fair use, is tricky. Because, basically, the good news is, we got rid of the media cost. And this is great news, because what we can really do now, is we can put information in the same marketplace NASDAQ has. That is to say, I can have prices changing every split second for information. I can set up a deal whereby West Law, in saying, Gana (?) is free, but West Law in London costs money. And we change local pricing rates. We can drop the price on the floor, etc. But fair use is where all this begins. There used to be a lecturer in mathematics here at Harvard. His name was Thomas Learer (?). I dont know if any of you are familiar with his work. He gets royalties, by the way. And we got sued, I think, by Verna Vongram (?) for a great sum of money for one of his lyrics. Another lyricist, local lyricist. And he said something about, Give the kids free samples, because you know full well, todays young innocent faces are tomorrows clientele. And he was talking about Adobe (?). But, in effect, isnt that what fair use is, okay? Fair use has a commercial application, as well as a public good. And I dont think the trade-off in the current law is good on either side. |
Melanie: | So what would you suggest? |
TL: | I think, basically, we have to find a way of looking, seeing and researching, in a valid form that takes some thinking, that publishers and librarians can agree upon, that I think will go down. I think were very close to it, but Hollywood pushed this through while they still had their boy in office (?). |
__: | Yeah, Glen. |
Glen: | Did you ask that question about one of the last things you said, of the giving kids free samples and the commercial uses of fair use; could you go over that again, because I didnt follow that at all. |
TL: | Okay. My point is that -- what is fair use? Fair use also involves research. You kids are all given, I guess, passwords for West Law, right? And for me, right? Hopefully, someones going to hook you with their interface; and you, as you go on to glorious fame and fortune in the future, will become a customer, I only use the West Law system, or whatever. Thats classic. Is that fair use? No, thats unfair use. Theyre actually letting law students have something that other people in the library cant get. But the same thing takes place in libraries, where by looking at materials, you decide what you choose to use in your research or in your other information activities. So its a selling. |
__: | So, now one interpretation of what youre saying, this theory that fair use is the crack-pipe of intellectual property; say, to have a little bit of give between the author and the potential reader, to have people, say, to wander into a Barnes & Noble, and read for a bit; but if they stay there all day and they start to smell, and theyre rumpling the book, at some point they are led to the door. So they either have to buy it or not. |
TL: | Except in New Jersey, at the library. |
__: | Where they dont do that? |
TL: | Have you ever heard of the bum who was living in the library and was allowed to continue to live there? |
__: | Yes. And all the money he
would have otherwise spent on books, is no longer recoupable by the authors. So, one
theory says, fair use naturally takes place in a market where somebody wants to hook you
on the information. They want you to browse. They want to give you a sample, and thereby
get you hooked into the rest of it. And as a result, maybe what you could say -- or at
least what others could say from this -- is, we dont have to be as fretful as Julie
Cohen, say, along the fair use dimension. Maybe the anonymity point is another one. Forget
about that for a minute. Along the fair use dimension, maybe we dont have to worry so much, because even if the author is empowered by the technology to lock it up tight, the author wont, because fair use actually rebounds to the economic benefit of the author, as well as to the reader. Thats the argument. |
TL: | Whats the place where you can play tracks of CDs? |
__: | You go into Tower Records, you put on the headphones -- |
TL: | You can do that on the Internet. |
__: | Go to Amazon.com, theres a little musical note next to the tracks on some of the albums, and you get thirty seconds of real audio of the song you want to hear. Glen? |
Glen: | Is that really fair use, though? Isnt that just the owner of the ...(inaudible) agreeing to let you have a sample. I dont understand how its fair use? |
TL: | Thats true. |
Glen: | You give out free samples for marketing. Its not part of Section 107. |
TL: | I think hes quite correct. And from a commercial point of view, thats advertising, isnt it? |
Glen: | Yeah. |
TL: | Okay, youre quite right. Fair use is the question of, basically, what part of something can I peruse or use without having to pay for it? Classic library situation, right? Youre in a library -- youre shaking your head. How would you define it? |
__: | I would define fair use as what part can I distribute without having to pay for the right to distribute it. I think that once you have it, the use is a totally different question. Cause like if I buy a book thats been copied by someone, unless Ive crossed the line into contributory copyright infringement, Im really not likely to get sued by the author. |
TL: | So what percentage? Historically, theres been a percentage for fair use. Two hundred and fifty words used to be the percentage that publishing got. It would allow it to be used and distributed for a work. And then we run into the Xerox litigation, which youre probably quite familiar with, okay? But theres really no fair use under this new law, is there? |
__: | Well, it certainly suggests
that -- here we are, by the way, we have Yellow Submarine, strains of it
coming from this IBM Thinkpad. I went to the Amazon.com site. I asked for the album
Yellow Submarine. Theres a picture of it. It says, Listen to
samples. To hear a song sample, click on the song below. I actually clicked on
Yellow Submarine, and instead of getting the familiar jangling kind of Ringo
music, I got whats on the flip-side that no one listens to of this particular album,
the George Martin kind of elevator music. Thats actually what I just heard. Now, Glens point, I take it to be great. You just showed a free sample of music intended to get your to buy the album. But when you look at the range of things for which fair use is deployed, particularly the ones that we think of as helpful in a society in which the debate over issues comprises borrowed ideas and chunks from the popular lexicon. We did that a little bit last week. This doesnt account for that. For example, Negative Land (?) wants to put out its -- how many people actually listened to the Negative Land clip? |
__: | I crashed my computer. |
__: | You crashed your computer?
[laughter] Maybe we can use ITSs computer after break to hear it. Its an
interesting clip. And it, actually, it has two elements. One, is its using --
its sort of a guy with a kind of squeaky voice, reading off the lyrics to I
Still Havent Found What Im Looking For, as if hes sort of a
nebbishy Seinfeld-type. Sort of saying, Yeah, I really havent found what
Im looking for. And while thats going on, you have out-takes from a
smuggled tape out of an American top 40 recording session, in which Casey Kasem is
swearing up and down. Hes upset because he just had to do a dedication to a dead
dog, and it didnt happen right, and hes just incredibly upset. And you hear
Casey Kasem swearing about this. Neither Casey Kasem nor U2 was very happy with that. Arguably, thats for criticism or satire, falls squarely within fair use. Now, Negative Land says, If you lock up the property, we cant do it. I mean, if fair use is only going to be that which you hear when Amazon lets you hear a snippet of a song, why, thats a very lower case F and U. |
TL: | I agree with that. Im actually even called as an expert witness for an outfit called Free Republic. Does anybody know what this case is about, the Free Republic case? This is a kind of right-wing Web site that is now taking entire articles in The Washington Post, New York Times, and other places, and theyre running them on their Web sites with comments. And theyve been sued by The Washington Post and The LA Times, I think together; against, basically -- |
__: | I hear theyve even ripped off parts of the Constitution. [laughter] |
TL: | ...(inaudible). |
__: | Yeah. Have they no shame at all? |
TL: | If you cut down to -- scroll down a ways a little and well take a look at what they do. Okay, take a look at Click for Latest Whitewater Archive News, right up there. New York AP, CBS, Free Republic. Keep going down. Lets find a publication of some kind. And youll see they take the entire thing up. Okay, theyre going to take an entire article right out of The Chicago Tribune, and there it sits. If you continue to scroll down, youll see its followed by commentary. Now Im going to argue thats fair use. Its a newspaper, for Gods sake. But theyre taking more than two hundred and fifty words. Theyre going way beyond what used to be fair use in this area. |
__: | And yet at the same time, you are developing the technological means by which The Chicago Tribune -- assuming a trusted client, a trusted server -- could prevent the Free Republic from getting that article without having to laboriously retype it. |
TL: | Absolutely. Because the other point is, since theyre not using a trusted system arrangement, they are putting their own product in a -- |
__: | You left your door unlocked. You left the pie on the windowsill. |
TL: | Thats right. If you wore the short mid-drift -- bare mid-drift dress, its the old argument. ...(inaudible) [laughter] |
__: | Thats thought of as a not very effective line of argument. |
TL: | I couldnt agree with you more. Thats why we have trusted systems. |
__: | Yeah, Darryl? |
Darryl: | Is there any difference, I mean, if theyre sort of arguing on your half, and theyre sort of ...(inaudible), I dont see what the real difference is between doing this, and having just commentary with sort of click through sites. That, you know, if you went to The Chicago Tribune site. And what is the real difference -- |
__: | You mean, why not frame it? |
Darryl: | Yeah. |
TL: | This is framing. Theyve captured Chicago Tribune copyrighted material in their proprietary site. And you cant get to The Chicago Tribune. When you get out of this, you go back into a captive site. So youre framed. This is a classic framing. |
Darryl: | I mean, I understand why The Chicago Tribune has a problem with this. But isnt there sort of social purpose argument to be made here. I guess this is what your argument is. It furthers the public discourse, rather than having somebody say, Okay, you go out and go buy The Chicago Tribune. Read this article. And then look at my commentaries ...(inaudible). |
TL: | Here we are. Were on the front line of a new world. And youve put it very well. The reality is, The Chicago Tribune has not decided to sell its stuff yet, has it? Its not selling this article, except by buying the newspaper. |
__: | Were selling ad space to advertisers, whose ads arent seen when they rip that off and not the ads. |
TL: | But no company so far has sold on the basis of clips on their Web sites. So we dont have any damages. Lets assume we want to take a position -- since I used to work for The New York Times, Ill take the newspapers position -- we get clips on our Web site, and besides, we have allied advertising and other sales that we make through this Web site. And my response is, Prove it. And they cant. And this approach, the newspaper is taking, Were putting it out there on our Web site, and were making it available, were not trying to sell anything. Were just making it available. We are trying to sell our archives. |
__: | But in the event that they could show that ad space had actually been sold -- |
TL: | Now at least youve got some damages. |
__: | David? |
David: | Im not sure if this is related to exactly what weve just been talking about. Im curious, why are we encouraging this sort of arms race of trusted systems? You said here, the error The Chicago Tribune made was in not protecting its material via some sort of trusted system. Well, for each trusted system, theres presumably some way around it. You know, some hacker fix that gets around the trusted system, which then creates a new trusted system to protect against that hacker fix, and so in and so on. |
TL: | No, no. Youre wrong about that, that part of your conclusion. Trusted systems are good enough -- you can create something called the commercial defense. Its something that for commercial purposes is good enough, so it isnt worth the bother, okay? Theres a hacker defense for everything. Just like theres no such thing as a secure safe. Theres never total security in anything that involves protection. |
David: | But theres security -- |
TL: | Theyre secure enough. Right now, theyre secure enough. Lets assume Mark Steffick is right. We can make it secure enough, so its commercially really not worth hacking. Now whats the point? |
David: | I guess the point Im trying to make -- |
TL: | No arms race, in other words. |
David: | One avenue is legislative decisions. Like whats going on against Free Republic here. Theyre being sued for what theyre doing. And theyll be some answer at the end of this, whether yes or no. And this provides no money to the people in the market for producing trusted systems, or far less. |
TL: | Correct. |
David: | And so I kind of see that -- the money that goes to trusted systems makers is wasted in some sense. If you can come up with a similar effect, via legislation and judiciary, or via cases, patents. |
TL: | We still are in the process. Now, tomorrow, The Chicago Tribune says, Damn it, Im going to buy one of them trusted systems of Mark Stefficks. Thats the way to deal with this. So now theres a trusted system there. |
__: | Because surely, The Chicago Tribune, right now, is living in a somewhat Barlowesque world. Where they have the libertarian or Barlow gotcha to deal with. Where if they want to put their newspaper on line, they have to suffer the idea that people can highlight it, ignore the ad, and then paste it onto their own site. |
__: | Ideally for The Chicago Tribune, they would love to have to pay nothing for this, and get their material protected. |
TL: | Okay. |
__: | Its illusionary that they pay nothing for it, if were using a purely legislative/judicial solution to this. In fact, everyones paying for it. So what weve done, is weve spread out the costs of intellectual property protection, rather than placing it on -- I guess Im more in favor of spreading out those costs. Im definitely non-libertarian. |
TL: | Well, we could do that by not having safes and banks, okay? We could basically get rid of enriching the Moser Safe Company, and letting society pay for more police, right? |
__: | True. |
__: | Go ahead. |
__: | I was just going to say, am
I understanding you correctly, that what you see as kind of a this -- theres like
...(inaudible) choice. There is a world of trusted systems. And going forward, there is
this world of trusted systems; or there is the libertarian, you know, as it is now. Which
is that its kind of, you know, a jumbled thing. That theres some pay service,
like West Law, and theres some free service, like all these newspapers; they would
continue that way. I guess Im wondering -- I guess my concern is, Im a little bit afraid of the concept of everyone moving to this proprietary standard of the trusted systems. I mean, if every company that adopts this trusted system, I fear this kind of -- everything is bought, everything has a price on the Internet at that point. Because you can regulate who uses it, when you use it, in order to circumvent that ...(inaudible) to meet your needs, you have to pay, when they dont want you to pay. Like say, for example, we were talking about prices (?) commission, they give it free during the day, but they pay at night. So if youre a student, you have to change your whole -- you have to change the way you work in order to get what you want. And that seems to me, contradictory to the -- at least the current premise on the Internet. Which is, that its totally free, totally open. You can, you know, go from one site to the next. I mean, I understand there are copyright issues, but Im wondering if we might be going too far with nickel and diming everything, or allowing people to nickel and dime it, especially when you think about -- |
TL: | Okay. I think your point was very interesting. I dont think its an either/or situation. I think, basically, media is a plural. The Internet looks like the medium. Its not just one medium, okay? And were just defining the laws as we go through it. I did an op-ed piece called The Closing of the Electronic Frontier. Whats happened here is that Perry Barlow, I mean, they used to be able to write any way they wanted to. You know, they could take their guns to town. They had a great time, you know? And now theyre school marms, and the train, you know. And theyve got barbed wire. Jesus Christ, whats happening to civilization. Were civilizing this new frontier, is what were doing. |
__: | Well, its true that -- you put it as the convergence point of all this. That the future to which we are now going, thanks to the quantum leap in bandwidth, is pay-per-view. |
TL: | Were going to nesters. Were going to farmers that own their own property. Were going to people who are truck (?) farmers and selling this, and people who are wheat farmers, and sheepherders. This is awful whats happening to cow country. The reality weve got here is, a culture is being created. Some will be pay-per-view. Some will be free, because I want you -- Im really selling you something else, okay? The old Netscape distribution. I think youre going to see a plethora of different sales modalities. And the best place to see these at work, is pornography, okay? Some of the most inventive marketing schemes that show a variety of sin, is the porno Web sites. Theyre way out ahead of the marketplace in understanding this. |
__: | James, then Leah, then Paul. |
James: | Dont you see actually whats going to happen, is sort of the same thing thats happening in the commercial life span of anything else. Steven Speilbergs new film comes out, the only place you can see it is by paying eight bucks at the cineplex. Next it moves on to, you know, HBO pay-per-view, then it moves onto free cable, then its on network television, where anybody can copy it and put it in their personal library. And there its free cause, you know, youre loading an hour's worth of commercials into two hours of programming. Isnt the same thing going to happen here with the technology, where theyll be -- some things will be protected initially in this stringent way, eventually to the point of the freebies, you know, for those -- you cant give it away by this point, because its such old news? |
TL: | Mm-hm. I agree with you.
Absolutely. Remember, its a world in which anything from total protection to total
freedom is possible. Its a world in which discreet packeting -- information is
redefined in the Internet. Walt Steven (?) said, Things as they are, are changing in
front of the blue guitar. I mean, youre in a world here in which -- what is it
that I buy? I buy a book. But I dont want the book. I want ...(inaudible) biography,
and I dont want to pay three hundred and sixty-five dollars for that. What is it
really? Its seventy-nine thousand packets. Theyre all bios. I want to buy one.
In a book medium, I cant do that. I can on the digital medium. Not only can I do
that in a digital medium, I can use it to drive printers for direct mail. I can do all
kinds of things with digital media, that did not exist in the previous media. And were going through a migration process. Theres a convergence. John Skully (?) did one decent thing in his lifetime, he came with a concept of digital convergence. And thats very important, because were now seeing that video move into digital media, as well as the way we buy it by going out and renting it. There are going to be digital rentals, so they can do digital purchases, and everything else. So this amazing medium, with incredible latitude, is going to become an experimental ground as media moved into it. Now that the ...(inaudible) rates are fast enough, and theres going to be enough valuable material in there -- and the things youre talking about are very serious, because this is where the largest growth in our economy is, and the largest growth in the world economy. Its intellectual property. Theres no longer gold or oil. |
__: | |
__: | Leah. |
Leah: | It sounds to me like -- I liked your bank robbery and safe analogy. It sounds like youre a safe salesman. You just invented a really good safe. And youre saying, We dont need criminal law anymore. And I guess what Im curious about, is just because its gotten easier to rob the bank, and just because youve learned a better way to protect the bank, why should we wipe out the law? What is it that makes the Internet different? That what youre saying, essentially, is that these total extremes are possible. Extreme protection and extreme freedom. |
TL: | Correct. |
__: | And because its possible now to create this protection and purchase it, I guess Im wondering why we should change the law. I dont see its possible as a particularly good policy argument. |
TL: | Did you think I was for total protections? |
__: | No, not at all. What Im seeing is, theres been sort of a sea change in this realm, and youre saying theres some extremes that are possible now. Why dont we take away the law, and let me sell protection to people? And Im kind of curious -- |
TL: | If I said that, it wasnt what I meant to say. Im saying thats a tool. Its one tool. In this range, Steffick is correct. Weve started out with Steffick vs. Barlow and the right and left limits of the possibilities here. What Im saying, is that Im confirming that, in my opinion, Steffick is correct. And Im going back to the original question. Yes, but what does this mean? And youre saying that youre asking the same question. And I think this is the -- we dont get rid of the law. Lets assume that copyright only lasts the life of the author plus twenty-five years; but Stefficks system lasts for two thousand years. Is there still no right to hack that system? Remember, the new copyright law says that youre not allowed to hack systems. But this system is against the law. Can I hack that? |
Leah: | Im still not seeing the policy. So you said you dont have a free republic? That it should be permitted -- |
TL: | In my opinion, thats fair comment. You know what theyre not doing right? |
Leah: | Are you arguing that more than two hundred and fifty words has always been fair comment? |
TL: | No, Im saying that in the digital world, we have to look at fair comment in a different way. The two hundred and fifty words, when there was the manufacturing side of moving information around, when we had to make a book. I mean, if one book costs three dollars and fifty cents to manufacture, in addition to seventy-five hundred (?), we have huge media costs in the old media. In the new media, we have hardly any media costs at all. Thats both the benefit and the problem that were addressing here, okay? |
Leah: | So youre saying because theyre in the media cost, thats why more than two hundred and fifty words? |
TL: | Because, basically, the publisher has huge benefits today than he didnt have in the old system. The same way the FCC has given broadcast companies huge benefits in digital technology, by giving them six channels, where they had one analog channel before. |
Leah: | So what is it thats justifying the more than two hundred and fifty words? |
TL: | Im saying that I think its fair to ask the proprietors who are getting these kinds of benefits from technological development, to get back more. |
Leah: | So youre saying that The Chicago Tribune is getting more now than it was before? |
TL: | Im saying that I think it is a responsible public policy to look for more fair use rather than less fair use, in the new copyright law; and I dont think thats what we got. |
Leah: | So, youre saying, for some reason, that there should be more fair use of The Chicago Tribune? |
TL: | Im saying of any publication that has copyright, granted under our copyright laws, that there should be a more lenient fair use standard rather than a less lenient fair use standard. |
Leah: | I mean, Im just trying to find out, why should there be more fair use? |
TL: | Because, basically, they are enjoying huge profits in the media, by factors of thousands of times over the old ...(inaudible) theyre in, in which they did require more protection, because the manufacturing costs were so high, that they had an investment component that had to be retrieved. Thats what Im seeing -- I see as an equity point. |
Leah: | So your argument depends on the fact that The Chicago Tribune is making more money now than it was before? |
TL: | My argument relies upon the fact that any digital distributor will enjoy huge increases in profits compared to what he did before, in distributing his information; and if Im looking at it from a public policy point of view, its as if oil companies suddenly only -- it costs of twenty-five cents a barrel, and they were maintaining a seventeen dollar and fifty cent a barrel cost; and at some point, I take a look at taxation as a way of addressing the balance from a public policy point of view, towards the public benefit. |
Leah: | So, essentially, your argument depends on people like The Chicago Tribune generating more money in the new digital age? Thats -- |
TL: | My sense of the equity of it depends upon the profitability of upgrading the digital age, yes. |
__: | So notice that that still is speaking to a policy balance. You may disagree on how the balance actually gets struck -- |
TL: | Sure. |
__: | -- but that you agree should
be struck by government officials trying to do the best they can, as they are elected or
as they consult with policy wonks and technologists, that say, This is the right
amount of return to make sure that we still have incentives for creating intellectual
property. Now as against that, they want to carve out some ability for the public at
large, because information is a special good. Its not like most other things in the
world, even though were still calling it property. And it has value as a commons,
and as a bedrock of our kind of political system, that we need to preserve. So then we
somehow strike the balance again. Now one lingering question, I think that Tom leaves, is, if you have, say, the new regime at Random House is a take-no-prisoners, lockem up type regime, and they get the best possible high priced system they can from Tom, to lock up the books that they put out. In fact, they cease publishing books at Barnes & Noble. They do it all digitally, cause thats what everybodys doing nowadays in this slightly future world. And it turns out its very hard to hack, cause its a really good system. Its too expensive for anybody to really get up the gumption to hack it. So that being the case, while the Act we have now might not criminalize someone who hacks to get around the twenty-five year, or now two thousand year lock-up of this intellectual property; its a pointless privilege, because you cant hack it anyway -- at least in a cost effective way. And in the meantime, there is, as yet, no way that you can take fair use that originally was a privilege -- which is to say youd already taken it, theyre coming after you with the law, and then you assert it as a defense to copyright infringement -- there is, as yet, very little thought that you should be able to take fair use and assert it as an affirmative injunction against -- serve Random House with a piece of paper that says, Two thousand years is too much. I hereby -- its like a foyer (?) request -- I hereby request two hundred and fifty words out of Chapter 2. And I want to see it by tomorrow because its my fair use. Theres no judge yet that would say, Oh, yeah, thats fair use, you can do it. It might be an interesting question, whether that should be the case. We should take a break. But, Paul, is there anything you wanted to add on those other -- hands up. Have we kind of passed you by? |
__: | Yeah, I dont know if I want to take up all this time. Ill just take a second, actually. I sort of want to address your whole world view -- [laughter] |
__: | Okay, why dont we take a break. Thirty seconds and then well take our break. |
__: | And basically ask that -- part of your argument is that this will promote this utopian universe, that you give for your idea of the future of the Net; where weve all got inch-thick cables running to the back of our computer and T3 speeds and so forth. And thats really a world vision, of which the same information providers right now are the ones that -- if youre talking about in the future -- that its all going to be Disney on the Net, producing this information. Because Disney will be the only person will the technical and financial capacity to take advantage of this world. |
TL: | Thats not my world view, thats a view of hell. [laughter] |
__: | Yeah, but thats a hell that I think youre proposing. |
TL: | No, not at all. Not at all. Basically, dis-intermediation (?) will lead to dis-mediation. Authors will be able to reach audiences without either Random House or Amazon.com. |
__: | Not if Random House spends a lot more money on advertising, and produces a lot more thick, full motion video, to go along with their books; that the authors cant afford. |
TL: | The cost of all this is now disappearing like mad. Weve got authors popping up today, distributing through the Net, doing their own PR, creating incredible presences -- |
__: | And theyre not just losers. |
TL: | Uh-uh, theyre not losers at all. Publishers then chase them down and try to offer them lots of money, okay? So youre going to a key -- |
__: | Its because Random House isnt competing with them. And, in effect, creating -- its sort of a market system in perfect competition. It goes to the marginal point. And if Random House can drive it up, to the point where they spend enough money. But its still cost effective -- drive up the cost by producing more and more bells and whistles, they can drive up the cost -- |
__: | So you buy into the view, expressed in earlier sessions in debates, that theres going to be an economy of attention, even if there isnt an economy of band-width (?), for which Random House may have the advantage. They can invest in getting attention. And then I can be the still small voice in the corner, with wonderful poetry to sell, but nobody will even stumble across my Web page. If things arent through Amazon.com portals, and other mechanisms designed to keep attention away from anything but the high traffic areas. |
TL: | I think weve been putting that argument on its head. Actually, whats happened is exactly that. The consolidation of imprints at these monster companies. That your worst dream is coming true before our very eyes. I once ran a company, in which I had published sixty books a year, and I had five books on the best seller list at any given time; and we were relatively small. We beat out Random House and other large companies all the time, because publia (?) which is the root word of publisher, does not mean print, it means, basically, to make noise, to announce. The effectiveness of a publisher is their ability to announce and advertise the point that youre making. And that its not just about money. If it had, the republicans would be much happier today than they were a few weeks ago. |
__: | So, all right, let us -- |
__: | ...(inaudible) big corporations more incentive to get on the Net? By giving them more money? |
TL: | Look, weve got all kind of small guys coming on the Net. Weve got brand names that are -- |
__: | And they dont need the incentive. |
__: | Okay, we have an economy of bladders that says were going to take a break right now. And well reconvene in seven minutes. |
[pause] | |
__: | All right, why dont we reconvene. This is what you missed if you did not go to the Negative Land site. Well, Casey Kasem was not happy to have that on a disk. And you can read about it, too. Youll find it maybe in Amazon.com. After the disk, known as U2, was put out by Negative Land, with a picture of a U2 spy plane. And not only did they successfully sue for damages, but they actually had the record recalled and destroyed. [laughter] Negative Land wrote a book about it, called The Letter U and the Numeral 2. And featured in the back a CD-ROM of some of the music that was excluded. And now they just serve this up off their Web site. |
TL: | Can you get us Laura Schlessinger? |
__: | Maybe. Even with the break as long as we had, I did not queue it up. So, anyway, when we left there were lots of hands up. And maybe there still are. Yes. |
__: | When we were talking about the way the law applies to code, it seems to me that you were talking about an affirmative right to fair use. It seems what were talking about is, if you can totally exclude people from information with your code, like you say you can effectively do, then the law would be redirected more to limit what you could do with the code, rather than limit what individuals can do with the -- |
__: | Copy duty instead of copyright. |
__: | Exactly. You would effectively limit the extent to which you could protect information. And you wouldnt need the law at all, if people who would be using the information could say, You couldnt get at it unless you ...(inaudible). |
TL: | Sounds sensible to me. I mean, I see nothing wrong with making sure whatever security that its put in reflects the law. I mean, you have guards around factory properties, but they do not shoot trespassers, okay? There are other functions which they exercise. So I think thats very sound thinking. |
__: | Its interesting, because very few, again, certainly in the scholarly literature that was assigned for today, and for which Julie Cohen really represents the boundary on one side in the thinking; even she does not yet go so far as to suggest copy duty. Yeah? |
__: | I want to know what Mr. Lipscomb thinks will happen to price? Like if youre going to sue for a distribution system, where a CD can be operated at zero marginal cost to anyone -- |
TL: | So youre manufacturing yourself, arent you? |
__: | Right. Whoevers manufacturing it has a centralized wide distribution, so theres no manufacturing cost for the disk itself, theres no cost for the distribution -- well, there would be advertising costs. But the costs are substantially limited. And so with the marginal cost of close to zero, and with perfect protection of the digital distribution through your software or somebodys software; how much are we going to be paying for CDs? |
TL: | The guys who like marketing
of economics, theyre going to have a ball. Because, basically, there can be
thousands of prices for the same CD in this kind of marketplace, under various conditions.
Because, basically, weve taken the hard cost down to an irreducible ...(inaudible).
And this is true across the entire spectrum. Thats another thing to keep in mind,
the range of choices here is vast. You know, a book that might have gone for $19.95, in
printed version -- Im involved in an outfit called E-writes (?). Youll be able
to look at their Web-site to see what theyre doing. Theyre simply proprietors
of literary rights to books. I mean, you want to get A Boy and His Dog,
its on the E-write site. And you can buy the writes to that book. Lets assume it is two dollars and fifty cents, and you take on the onus of either reading it on screen or publishing it, or putting it on one of these new e-book things thats coming out. Somebody else might have Dickens, which has no copyright at all. And it might be sold for fifty cents. So theres a huge range of possibilities here, that law has nothing to do with as being market determined. |
__: | And just to tie this back to
the dis-intermediation class, which was in the middle, the heart of fly out (?) month, so
I dont know how many here actually were here for it; but it is an amazingly open
question. What model will apply? Once the technology, again, gives you a complete range of
options, what model might triumph? Theres some thought that bundling is the way to
go. Give somebody a flat rate, and that gives them access to the entire Time/Life library
of classical favorites. And you can choose what you want. Thats actually most
efficient for the seller, because as long as theres something of high value to you,
and then something else is of low value, and somebody else has the opposite profile; they
can charge the sum of the two prices and get both of you, and complete two sales that way.
Of course, perfect price discrimination is a world that Tom is referring to, that might be possible. And he says, There might be a whole range of prices, this flies exactly in the face of the idea of the Internet as a perfect, friction-free market, where youll go in with your bargain finder agent, theyll just find you. You say, Hi, Im an anonymous purchaser. Whats the bid I can find? Its not like NASDAQ. Its actually, Well, whats in your wallet? What can you tell us about yourself, before we tell you how much its going to cost? And that actually makes it a lot more like a plane; where, you know, the guy sitting next to you on the plane is flying for free, and somehow you got stiffed for twelve hundred dollars because, you know, youre on a half-bereavement fair or something and you just had to travel immediately and coming back the next day. So its a great question, as to what would shake out of it. And, again, a question overlying all of it is: Is there something special about information as the bedrock of a free society? That says there are certain outcomes from the market, that while they might be most efficient if youre thinking of it as a good, somehow are not acceptable as appolity (?). |
TL: | ...(inaudible) |
__: | Yeah. |
TL: | One thing that everybody forgets, something like seventy percent of the high value information thats being sold by vendors today, is public domain information created by your taxes by the U.S. government. |
__: | And youre talking about West Law, say? |
TL: | West Law, etc. |
__: | West Law, by the way, tries
to protect, perhaps by rough code, because when you try to download something from West
Law, it doesnt work. But apart from that, while they have no copyright to a rig
goved (?) works on every page, they did, until extremely recently, claim legal copyright
in the star paging system -- which you might not care about, but there they are. You take
them when you get the document from West Law. And for any typos they happen to correct in
a judicial opinion. And you dont know where the typos are, because theyve corrected it. They dont put sic next to it. And, therefore, went the West argument, If you take something from West Law, that is a government document -- its, I dont know, Section 106 of the Copyright Act. And you copy it and put it out there, West might come after you because they fixed a typo, and they have a copyright interest in that fix. Now theres a recent court decision that said B.S. [laughter] West Law, thank you, try again. |
TL: | Thats a very important point. How are we going to tap this hug source of public value, existing in government information? And it should be a major information priority for our government. |
__: | Right. And you see the
traditional arguments. Kind of a sweat of the brow argument in this case; where West Law
says, Look, were going to all the trouble to put it together, what do you mean
you can just rip it off as soon as we sell it to the first customer? What that means
is that its the ultimate bundle. We bid a zillion dollars for one copy of the entire
U.S. code, and then, sure, copy it all you want. And then its the person to whom we
sell it that has to worry about how to protect it. The one other angle on that is the angle of contract. If you have a West Law account, either by opening the package, or by breathing on the disk, or somehow existing in the world; theyre going to say, You assented to a scheme, whereby by contract -- not by copyright, which are default rules in the absence of contract -- but by contract, you agreed to take this information, otherwise, unprotectable, and not treat it in certain ways. Alex? |
Alex: | And, you know, other than from what happened to Monica Lewinsky, wed have to wipe out a scheme whereby the whole database would be protected, even though its ...(inaudible). But my real question was about why, as a group of authors -- I mean, the Web is just a group of authors publishing their work -- why if authors want copyright, why we arrive this standard called HTML (?), which is extremely untrusted? Not only do you see all the information, but the information that wed use to generate the information, all the code underneath, you also get complete access to. Is it not that -- I mean, you talk a lot about possibility, and everythings possible; the real question, it seems to me, is: Sure, everythings possible, but what would be the standard? |
TL: | Okay, well, I think if we were having this conversation in 1986, we would have all decided that, you know, that WordStar kind of has it, any way you looked at it. WordStar is just great. And we have Visical (?). That does everything there. And the thing to remember, weve got to separate the information from the medium expression that may appear to us to be the inevitable future, or were going to have to buggy whip business. Im not trying to be loosey-goosey or idealistic about this wide range of stuff -- this is true, okay? The reality is, the media will change. |
__: | So what youre
suggesting is that there be a bug in HTML. I mean, not a bug that isnt in its
design, but just real quickly, we were looking at the Negative Land page, from which we
played a thing. I just asked Netscape to view source, and heres the code that
generates. This is what Netscape parses in order to get you to this -- that page. And Alex
is saying, Look, why would Tim Burners Lee (?), or as we know it, the Tim Burners
League -- why would Tim Burners Lee have written code that is so readily accessible and
sharable, if the audience for whom he was creating it was one that was so concerned about
locking it up tight? Now one explanation to -- that Tom may offer, although he wont, since Im just about to do it; although he may agree wholeheartedly is, Hey, Tim Burners Lee was part of the Barlow frontier. They were doing stuff just to have interesting hyperlinks and documents, in an economy that for Tim Burners Lee, was all about sharing. I mean, hes at the W3C, okay, hes sharing stuff. But now were moving into a new economy, where he says, Forget about this buggy whip that youre all looking at right now. This is nothing. Wait again until you see the full motion video and all the stuff, like West Law, that has yet to be introduced, waiting for the medium to change. |
__: | Theyre not on the frontier. Usually, they dont give out their stuff for free. But theyre still using HTML because its the standard thats been agreed upon by the community. The question is: Who controls the standards that the community sets? And thats one of the big, I guess, threats to any non-governmental organization like, and it could ...(inaudible) system. I cant, but you can imagine the ITM -- |
TL: | Were all over this
issue right now. Mr. Gaines is answering that question as we speak. And a dear friend of
mine, whos totally insane because hes so brave, Steve McEdys (?) been up
there testifying for Intel. Hes got some very interesting things to say about
whats beyond the HTML, okay? And youve all been bored to tears. Why, every
magazine has an article on the cover of whats beyond HTML. Im sure as hell not
going to get into it. I dont care. Im going to find some way to get that novel
in whatever that is, or that legal brief, or that bio, or that video, whatever.
...(inaudible) three, ...(inaudible), I dont care what it is. I just know that some
slimy marketing guy is going to find a way to use that as we move down the road. As data rates go up, we go to broadband, we go to satellite transmission; all thats going to happen. What counts is, what do we own here? What are the social effects of this structure? Is information different then oil or gas or real estate? And if were moving into an information age, is it really a lot different? Its suddenly been given, in my opinion, components from a public policy point weve never had before. It now is not only something that we regard as a lifeblood of a master spirit, so to speak, Eltonian (?) direction; but it also happens to be the entire functioning cutting edge of our economy, and of the global economy as well. So we have to have an integrated system that works in the global marketplace. And thats why the packetization nature of digital technology is just ideal. But I would argue, that to use it in one analogy, railroads have been what weve been worrying about so far. Weve been building railroads, and weve been building railroad trains, and weve been leveling things out, and were very pleased about the railroads. But the railroads isnt where the money is. The money is in the freight. Its what these railroads, that weve now built, carry; and how we treat the property there thats going to really matter in the next burst forward. That we move with faster data rates and the kind of environment Im talking about. |
__: | James? |
James: | Yeah, I was wondering of your thoughts on the future of copyrights. The way I was looking at most of the arguments, Im sort of assuming that I would still want to give the government sanction and copyright material when they release it. And there may be a legitimate concern about someone taking the time to physically transcribe and then re-code or lease the information to do that. But otherwise, in the trusted system Ive got a superior enforcement mechanism, and to avoid all the issues of fair use why dont I just not want -- or not claim -- any of the copyright law benefits? And so my concern would be the issues of the limited time in the public domain. Do you see, then, a need to regulate either the contracts or the trusted system itself? |
TL: | Such an evil idea. I just hate you for proposing it. Isnt that delightful? |
__: | Well, its interesting to see copyright itself as a bargain entered into with an author and a -- |
TL: | Well, Id like a
patent, but that requires you to disclose a great deal trade secrets do not. -- and the time shifting that you know that goes on in code generation in that area. And he said, You know, we really must do more to enforce intellectual property laws here in India. And I nearly fell over in a faint. I mean, the idea that Bangalore -- and now theyve got something to lose, okay? Ireland has something to lose now. Were talking about a heavily digital nation. As this technology and the benefits of it spread around -- and I would argue, that often in developing countries, finally, there has been a change in the economy that makes sense for them. Capitalism didnt work. Communism didnt work. But the digital economy requires -- as Paul Romer (?) at Stanford puts it, he said Its the greatest lever of capital in history. If you add up all the money it took to found the great American corporations of the industrial age, whether its US Steel or the Pennsylvania Railroad, huge amounts of capital went into creating those kinds of -- if you look at the amount of money to create the digital world were in today, its a tiny amount of money. So we dont have investment capitalist Gods who were running these companies. Weve got people who really bootstrapped their way in. That works in the developing world as well. So I think one of the interesting things on the copyright front, on the intellectual property front, is how readily endorsed it will be by those countries who normally would have sat it out, and were the greatest pirates in the past. |
__: | Just to answer your question a little bit doctrinally, too, until we start talking about copy duty -- which weve been able to talk about quite casually here. But again, I want to emphasize that its not yet in the public vernacular, not yet at least. The only duty, I think, that adheres from -- accepting the bargain with the government and saying, Okay, I do want a copyright. I want the protections to apply that come from copyright. When it lapses, youre back where you started. Its not as if anything has been lost. The only duty, I think, is to deposit a copy into the Library of Congress. So, unless you just dont want, you know, people in the stacks, you know, right on Pennsylvania Ave. to see it, theres actually no other duties, as yet, that attach from getting the boon, the added protections of copyright. Glen? |
Glen: | What if the Library of Congress put everything on-line? |
__: | Good question. |
Glen: | And then you could just use anything there ...(inaudible). |
__: | Good question. And they would then have to -- I mean, of course the laws of copyright apply to the Librarian of Congress. If the Librarian of Congress were to start Xeroxing everything and handing them out pell-mell, it would be a short lived job. But you would just have an interesting kind of political vantage point from which to watch an argument, between the Librarian of Congress saying, Im just lending it, you know? At the point that somebodys viewing it, no other person is allowed to view it, including in the physical confines of the library. So its just taking the same thing and lending it out. And then youd get into one of those, All right, what is to lend, what is it to copy, kind of thing. At which itd just be kind of a straight doctrinal debate, with policy in the background. Yeah, Emilou (?). |
Emilou: | There isnt even a requirement to register and deposit anymore, is there? |
__: | Only if you want to exercise the right. Obviously, the copyright law is attached -- its a right without a remedy -- the moment you create the work and put it out there, and then if you actually want the remedy that comes with the right, youve got to put the copyright in the bottom and register it at that time. Yeah? |
Emilou: | I mean, I guess just my concern there is that, I sort of definitely have, I guess, more of the patent type view when I look at copyright as well. That the clause in the constitution, I would think, it has something implicit in it about public domain, about the limited nature. So thats why Im very curious about the regulation and trust systems, because in effect, I wouldnt care any more about the copyright regimes, and I would -- as long as it was within the digital mediums where I was going to release information -- I wasnt too concerned about someone taking it and transcribing it, and re-releasing it. That you could see a loss of public domain rights to that information. |
__: | Right. And, indeed, some
argue that thats what you see in software, as treated identically to other creative
works, when it is put under intellectual property protection. And you say, Great,
youve got a hundred years protection for DOS 2.1. Its like, great, after
that, you know, is there going to be a party when that comes in the public domain?
[laughter] And some might suggest that the anti-trust dilemma were in right now,
Microsoft would actually evaporate if we just adjusted the scale of the protection to suit
the typical pattern of recoupment for having invested in the software. What if you only
got eighteen months instead of a hundred years? God bless you, Bill, make what you can out
of Windows 95, because eighteen months later, that source code is fair game. That
might lead to a more competitive market. Now his best argument against it would be,
But then it wouldnt be worth it to pay my programmers to do it, because I
couldnt eke out enough in the eighteen months to make it worth my while. They
say, Okay, you can have nineteen. But another thing thats worth exploring -- and in a way, it would be helping Glen out here. Glens paper topic is on the subject. He thought he actually had come up with copy duty sort of all on his own, and was disappointed to see it bandied about so readily today. And he said, Well, there goes my paper. I said, Well, it can still be an introduction to the paper, but the rest of the paper now is, All right, solve the problem. Whats the law you write that imposes an enforceable, reasonable copy duty upon somebody, whether they get into the copyright scheme or not, is entering into commerce using one of Toms trusted systems? And Glen said, Thats a really hard question. I dont know how to do that. So, I mean, lets have a collective brainstorming session. How do you do that? |
TL_: | Lets also understanding something before we take that on. What are we really talking about here? Were talking about the changes in the nature of capital, and intellectual capital, as a result of this economic thing. Alan Greenspan is forever saying these days, Well, I dont know how to answer your question, because all the guidelines have changed. You cant see what the risk/reward ratio is, we know pretty much between trademarks and trade secrets how to play that game -- or, about patents and trade secrets, how to play that game. But we arent in the world of one billion Internet users yet, with high data rates and huge amounts of volume moving through this international marketplace. |
__: | But we do have a default regime right now? We have an answer right now. |
TL: | Yeah, but I expect that to last about as long as the marginal line, you know, once this starts, okay? This game -- once the money is clearly on the table, its wonderful. No Internet taxation, isnt everyone marvelous? I mean, the sheer decency, the milk of human kindness running throughout the world right now. Wait til the volume starts picking up there, and people start finding out whats really happening. Right now, retail sales in the Internet represent one percent of retail sales in this country. That is not getting anyones heart beating about taxation opportunities. So I think thats my point. That we can be abstract about this as much as we want to, but dont expect the government to sit idly by once we get down the road. |
__: | And, indeed, I mean, the Internet Tax Freedom Act, which we didnt really discuss at length this term, sadly, has built within it the idea -- not that there shall be no taxes on the Internet, but that there shall be no unjust discriminatory taxes on the Internet. I mean, hey, if youre taxing it in the real world, sure you can tax it on the Internet, too. The Internet Tax Freedom Act does not preclude that. So theyve already built in their escape hatch there. Tim? |
Tim: | Are we even sure -- just to talk about the copyright issue, the copyright law -- are we even sure that -- or maybe it is clear, Im just missing then -- copyright law would apply to authors who created works on their computers, and then instantaneously and marketed them over the -- you know, it was only saved on their hard drive, and then instantaneously marketed it, or eventually marketed it, over the Web, through HTML, over the Internet. My understanding is that copyright, whether you register it or not, applies once you fix it in a tangiblemedium. Its fixing a tangible medium, I think. This isnt what it was (?). And then if you look at like the Lotus case, or the software cases, the courts will say, Well, its only the nugget. Its a combination of, you know, what in a code -- |
__: | So you think somewhere theyve secretly printed out the source code to Lotus on a tangible medium, and put it in a safe, and thats copyright? |
Tim: | Well, no, not at all. I think what they were saying is that, the courts have said -- like I said, I took it last year -- but I thought it was that in software, what the court was protecting was like what some of the courts have said, was this nugget, cause the ...(inaudible) part hasnt been clearly set. But its like the nugget of creativity, whatever, but its unclear that a code itself, just a programming code is copyrightable, because its not -- theres no creativity. Theres no creative element. So Im just wondering, if all that paper is, if somebody writes a paper on the computer -- |
TL: | Well, youre getting back to the old concept of common law copyright, I think, basically. |
__: | Id say its a slam dunk at this point. To be the really kind of headline seeking judge, that would say, Im sorry, because you didnt put it onto a sort of dead tree -- , you know, you didnt fix it in a real medium. You just put it on the Internet for millions to see. It doesnt count. I dont see any judge -- |
Tim: | So then copyright attaches to anything you write on your computer at any time? |
__: | The only way in which it wouldnt is if you -- I mean, it gets into the, What do you have to do to show that you mean for it to be protected? So people dont reasonably think you intended introducing it in the public domain. That comes out most clearly when you talk about messages posted to UseNet or something. And then people come and do the best of Use Net, or Deja News (?) scoops it all up. But apart from that, if you have -- I dont know, you write a paper. You put it in Adobe Acrobat PDF format. And you put it there. And at the bottom, you know, youve made it clear its a work. Its a coherent whole. The fact that its stored on a hard drive, I think is actually explicitly now in the Act, Id have to review it; but I think they have kind of electro-mechanical meanings right under audio Victrola recordings, as things that count for a medium. |
__: | So in that case, what youre saying is, you have to go that extra step and put it in another kind of -- put a special non-digital imprint on it, saying, Look, I really -- |
__: | No. I mean, you actually dont have to put your copyright notice on it. |
__: | No, no, no. But what Im saying is, put it in Adobe Acrobat. Do something to it that its -- I mean, its like another step that -- so it is kind of new -- its a new -- |
__: | Id suggest doctrinally that theres a line as yet on that, somewhere between the casual use of that message on one hand, or the lines offered into a chat room, on one hand. |
__: | What if its a whole three pages offered on the -- |
__: | Yeah. Heres my story, what do you all think? |
__: | Yeah. |
__: | All right, now youre at the line. |
TL: | Let me take you to another interesting case. William Gates, boy genius, bought the Betman (?) archive for three hundred and fifty million dollars. The Betman archive is about ninety percent public domain, okay? Winslow Homer engravings from the Harpers Weekly, of a sniper in a tree during the civil war. You can go cut it out and make a copy of it. What he supposedly is copyrighting is the digital rendition that hes making of these things. Its interesting. |
__: | A derivative work to the public domain. |
TL: | To the public domain information. When he looks at his balance sheet, and he tries to express why he has three hundred and fifty million dollars worth of assets there, thats what its based on. |
__: | Thats three days worth of profit right there. [laughter] Yeah? |
__: | How does that work? I dont know, I didnt quite follow that, its being translated .(inaudible) from English into French. |
TL: | Im talking here about photographs. These are graphic works, okay? Theyre graphic works that were created and are from old newspapers. Everything in it is out of copyright. Okay? |
__: | Yeah. |
TL: | It has no copyright value whatsoever, and yet that Betmans been selling them to publishers, -- because the convenience of taking a picture, engraving a plate, and then running it in a book -- beat going out and chasing down that particular copyright. |
__: | Again, were getting sort of into the battles of doctrine. But you take a picture of the tree, the tree was not a copyrighted work, but yet the picture might be. Its a representation of an object -- |
__: | So hes talking about photographs of drawings? |
TL: | Yeah. |
__: | I mean, can we argue thats just a translation, basically? From a physical or ink and paper format, into a digital format? |
__: | This is a good moot court. I mean, this is doctrine now at work where you say, All right, which is it? And how do you decide between it? I mean, that is classic -- |
__: | And photocopies of pictures, too. |
TL: | Were both carving (?) out the same thing. If you used a photocopy machine to create a digital imagine of something, now youve created -- youve created a rendition. Okay. Can you patent that? Or can you copyright it? |
__: | I mean, it cuts both ways, too; because to the extent that a derivative work, the right to make a derivative work is a right that adheres in the copyright holder. If somebody actually takes a picture, and then they make a derivative work out of it. They cut it up with scissors and re-arrange it to make a new paper -- new picture, they have violated copyright. |
TL: | Right. |
__: | Which is quite extraordinary. |
TL: | How can a copyright holder, who does not hold a copyright to something thats out of copyright, own something if he makes a digital copy of it? So should we write down Microsoft by three hundred and fifty million dollars? |
__: | I think not. But, anyway, its a good doctrinal question. But, I mean, Glen, you of all people should be interested in solving the problem of your paper, of how to implement copy duty. |
Glen: | Oh, yeah, sorry. |
__: | Bill? |
Bill: | I was just thinking of Glens problem. [laughter] |
__: | Which one? You mean -- oh, okay. |
Bill: | Can you just argue in the broad sense, that if Congress has supposedly staked out this balance between protecting an individual authors works, and getting information in a public domain, and now that trusted systems have come along, theyve upset the balance; do you just argue to restore the balance? There should be some sort of copy duty? Some sort of mandatory, you know, access to fair use, uses of copyrighted work? I mean, its kind of a simplistic argument, but I think that, basically, you just have to go back to the purposes of copyright. If the balance has been upset, you need to restore it somehow. You just need to argue that the technology has changed things, and wed need to go back to the balance we had before; or maybe the technology has changed things so much, that there should be a new balance. |
__: | So one thing right back at
you would be that the value of that argument -- I mean, you can argue about it at a
completely theoretical level, and get into, you know, hafeldi (?) and acrobats, acrobatics
-- about, All right, you know, this is why it should be. Theres been changes
in the world, so we need to bring it back to the way it was, etc., etc. But I would say the real power of the argument would be in how articulate an actual implementation scheme you could come up with. Who would file what document, in what court, to start the wheels going? As against somebody who has implemented Toms nightmare lock-up scheme? And how would it work in a way, that if you size it up, doesnt say, My lord, thats intrusive. Or, That doesnt make any sense. Thats unenforceable. What scheme would it be that would actually, fairly cleanly, discourage people from locking up tight, from respecting the contours of copyright, that doesnt just have it be a technical and litigious mess? Yeah, Glen? |
Glen: | Well, I was just kind of thinking that, after we talked about at the break, and maybe instead of thinking about it in terms of discouraging, think about it in terms of encouraging, in some kind of incentive thing. |
__: | This is like the campaign finance solution sort of thing. Well give you matching funds to write your book, if you will forswear the following rights that would otherwise be available to you, such as to lock it up tight. |
Glen: | Maybe. But it seems -- I dont know, it leave a bad taste in your mouth. You kind of have to reward somebody to give up something that they should have to give up anyway. |
__: | Its called like broadcast spectrum. Its a common thing to do. |
Glen: | What does everybody think about that? Incentives to get people to give things up for fair use? |
__: | Well, what you could do, is
to imagine a single government approved scheme. Tom lobbies the Congress. They approve his
scheme as the U.S. government copyright patent trademark office accepted scheme for
protecting intellectual property that, coincidentally, has the feature of mapping the
protection very nicely to the current contours of copyright protection. And by subsidizing
his scheme, they try to get it to be the one that pretty much is in use anyway. Right, this is just a page out of the failed Clipper Chip play-book, whereby the government doesnt require everybody to use a clipper chip, but says, Wed sure like it if you would. And for government procurement, thats what were going to use. So if you want to get the government documents, you need Toms scheme. Tom likes it. And maybe that would be some way to get it done, to actually just use the network to effect power of a single standard -- government both as a purchaser and as a provider of information itself, to get the standard cooking. That would say, You can use other schemes, but nobody will respect them. Yeah, Alex? |
Alex: | First, Microsoft and Netscape have a much better handle on actually doing things like that other than the U.S. government. That Netscape tomorrow wanted to make everything trusted. They probably could do a pretty good job at it, or at least allow the option from publishers. Netscape and Microsoft ...(inaudible). |
__: | Its interesting to imagine the incentives for Netscape, to come up with a trusted browser, with a new version of HTML, for which view source is disabled. Its the first tag in the HTML pages, Please enable/please disable view source. |
TL: | Its less likely for a Netscape or a Microsoft to do that, because theyre down market customers. In other words, it would be more likely for a Dow Jones to do something smart like that. Although Dow Jones has avoided the opportunity to be smart for so many times, that its unlikely theyll get smart now. Nonetheless, I think youll find that, for example, Steve Case (?) -- look at the services that he bundles inside of AOL. These are definitely not your higher IQ functionality. And he doesnt want it. His market doesnt want it. So I think that the kind of thing were talking about here, projecting high value material and moving through, is one kind of cap. Low value stuff is easily projected, because, basically, the commercial value of breaking it is so minuscule, that its not a big problem. Protecting rhinestones and cubic zirconia. |
__: | So what I hope we take from
today, at the very least, is the idea that it really may be different with this
technology, changing kind of the state of the world, with respect to ideas and
information. Whether its the Barlow view that says, Everything is now you
know, the cat is out of the bag. Theres no putting it back in. Or
the other view that says, The cat is stuck in the bag, theres no way to get it
out. And the previous world is one in which the cat freely entered and left the bag
as it pleased. [laughter] Theres some sense -- as Tom says -- that, anything is possible, thanks to the malleability of the code. And then beyond that, the implications it has, both for Congress or parallel bodies wanting to make some kind of policy, because this is, I mean, constitutionally grounded trafficking and information, though of as somehow far more keystone to our society than carts or rails, or nuggets of gold, even. And the different tools that might be available to a government that wants to re-assert its control in this area. Be it control against those who want to hack the scheme, as we see legislatively written in the Digital Millennium Copyright Act; or control against those who want to, in policy terms, over use the scheme, if thats what Congress decides. The variability of tools available to them, some of the most appealing of which, may be ones that try to influence the code itself, rather than just saying, If you try to lock something up too tight, well come and lock you up. Or well have some kind of lawsuit filed. But, actually, preemptively trying to shape the code, so that the world that comes about is one where the typical author wont realistically have the option, even though technically it could be so, to lock it up completely tight. And that seems to wonderfully illustrate the kind of themes of the power of code, and the different means of governance in this area. And, surely, weve also seen the ramifications, both for the big guy/little guy publisher, as weve been talking about. And theres been debate about just whos benefited by this scheme. And the big guy/little guy reader. The person who just wants to come in and read the offbeat, perhaps, embarrassing thing; and have a means to do it, both to be able to afford it, and to be able to do so anonymously. So with that, we only have two sessions left. So Ill see you two weeks from now for Law, Code, and Kids, and then the wrap-up. And good luck on the rough drafts for Sunday. |
__: | Can I have a quick second? |
__: | Yes. |
__: | The rough draft address that Johnson will hopefully put up there, is rough draft, not drafts at cyber.law.harvard.edu. Please try to save something as an RTF file, thats a Rich Text Format file, in one of the e-mails. I detailed how to do that. And send it to yourself. Make sure it gets there before Sunday night. Im probably going to still be writing my paper on Sunday night, so Im not going to be taking too kind to people who e-mail me on Sunday. I will hold a session here at four, if anyone actually wants it, please e-mail me, on how to save RTF. Well meet outside the door at four oclock tomorrow. |