TechTalks Transcript
Update on Copyright and Intellectual Property Issues
February 21, 2002
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 Steve Worona [SW] |
 Howard Strauss [HS] |
 Rodney Petersen [RP] |
SW: Welcome to the CREN Tech Talk series for spring of 2002 and today�s session, �Update on Copyright and Intellectual Property Issues.� You are here because it�s time�time to discuss the core technologies for your future campus. This is Steve Worona. I�m Director of Policy and Networking Programs for EDUCAUSE and today, I�m your special CREN Tech Talk co-host. Our session comes to you with the support of CREN member institutions. I�m delighted to be hosting today�s Tech Talk. Copyright is an extremely important topic for higher education and for our society in general and we�ve seen some fascinating developments over the past 12 months. And I�m looking forward to hearing more about them during the next hour! Our technology anchor for today�s discussion is Howard Strauss of Princeton University who is widely known for his own expertise in web technology, portals and many other areas. Welcome, Howard.
HS: Thank you, Steve. It�s really great to share this electronic podium with you today. As Steve mentioned, I�m the technology anchor for the Tech Talk series of technology webcasts. Today we�ll engage our guest expert, Rodney Petersen, in a lively technical dialogue that will answer your questions about recent developments relating to the DMCA, or Digital Millennium Copyright Act, and will ask those very important follow-up questions. You can ask your own questions by sending e-mail to expert@cren.net anytime during this webcast. If we don�t get to your questions during the webcast, we�ll provide an answer in the webcast archive. Bill Clinton once publicly pondered the thorny question of what �is� is. Today, I�d like to consider the even more difficult question of what a book is. Checking the online Oxford English Dictionary for the meaning of �book� results in so many pages of descriptions that they could literally fill a book! In its first two meanings, my simple desktop dictionary brings the conundrum into sharper focus. First, it suggests that a book is �a number of sheets of paper with writing or printing on them.� Then, in what I think is a complete reversal, it says a book is �a literary or scientific work, anthology, etc.� But it never mentions paper! Is the book the paper or the ideas on the paper? I think that a book is just the paper and the paper is just a transmission medium that allows the ideas printed on it to be preserved and distributed. By my definition, you can�t have an electronic book. Books have a physical structure; they�re composed of atoms and you can�t transmit atoms across a network�at least, not yet. My point in all this is that we should not be surprised that the rules for books and for the Internet and other networks are different. One moves atoms while the other moves bits and bits and atoms are quite different. I can, for example�with a few cents of electricity and a $500 computer�take a single copy of some bits and send 10,000,000 identical copies of them at the speed of light to 10,000,000 different people around the world. Try that with atoms! If bits weren�t so different than books, there would never have been any need for a Digital Millennium Copyright Act, for the sea of new case law that it has resulted in, or for us to be struggling with the issues that this simple change from atoms to bits forces us to face. I should disclose that I may have violated the law by not telling you that some of the definitions I quoted earlier came from Webster�s New World Dictionary, Second College Edition. It is also online, and I could have e-mailed all of you the complete text of those entries, or the whole dictionary for that matter, were I so inclined. But which of the many things that I could do cross the line from acceptable to illegal? How do we preserve the rights of the owners of intellectual property while not infringing on the free flow of scholarly information? Einstein said, �We can�t solve problems by using the same kind of thinking we used when we created them.� Our old way of looking at things has definitely got us into this mess and we need new thinking to get us out. We won�t be able to give you perfect answers for all your questions today, and you can quote me on that! But Rodney Petersen will dare to venture with us into the dangerous intellectual property rights triangle where many have been lost before on today�s webcast of Tech Talk. Steve?
SW: Thanks, Howard, and your observation about what a book is truly calls to mind the issue of �is the medium the message?� And should our society be regulating just the medium or just the message? And how so?
HS: I�m sure we�ll hear more about that!
SW: This is going to be fascinating. Now let me welcome to Tech Talk today�s guest expert, Rodney Petersen. Rodney is the Director of Information Technology Policy and Planning at the University of Maryland. Rodney�s an attorney, he�s been active in the area of copyright and intellectual property law for a number of years. He has spoken and written extensively on the topic and he recently testified before Congress about the Digital Millennium Copyright Act and, in particular, about something called Digital First Sale Rights which I think we�re going to hear more about over the next hour or so. Rodney recently accepted a part-time assignment with EDUCAUSE to work on our Task Force on Computer and Network Security and I�m very much looking forward to working with Rodney on that project. Rodney received his law degree from Wake Forest University and you can find Rodney�s entire bio on the CREN website which is www.cren.net. Welcome to Tech Talks, Rodney.
RP: Thank you, Steve, and thank you, Howard. I must say, by the way, that this lively technical dialogue might be technical in a new way to some of the listeners�technical from a lawyer�s perspective. I�ll try to keep it basic, but I just wanted to say that when we�re talking about IP, technologists and lawyers might have two different meanings. In the lawyer�s world, it means intellectual property.
HS: Yeah, I think actually, Rodney, we have been through this before and I think we can deal with your lawyerly stuff as long as you don�t take the Fifth Amendment here. I think we�ll be okay over here. I�d like to just start off by asking, why did we need a Digital Millennium Copyright Act anyway? What was wrong with the copyright law as it was that forced us to do this?
RP: Well, the most recent Copyright Act in the United States was developed in 1976 and we only have to think about what our world was like two and a half decades ago to realize that digital communications and particularly the Internet weren�t available and being used. And so many of the questions or issues that were anticipated under the 1976 law were really left open to interpretation. I think the fundamental premise of the 1998 act was to try to bring it up to date to address digital content and I think one of the key principles from the 1998 Digital Millennium Copyright Act is to affirm that the Copyright Act is, in fact, technology-neutral. But yet, as we�ll talk more about in these next few minutes, there are some real interesting ways in which digital material in fact is being treated differently.
HS: The DMCA was passed in 1998 so we�ve had some time to look at it and see what it�s done. As you look at it, are there things in it that you think should be changed?
RP: Well, I think the most concern�the thing that concerns me the most is the way it really is being far too restrictive on the users of information. I mean, we�ll talk more in a moment about a particular provision of the Act that really introduces what some people call para-copyright elements into traditional copyright law. What I�m talking about specifically is where we�re no longer talking about balancing the rights of the authors and the owners and the creators against the rights of users, but we�re setting up barriers to access to information regardless of what the particular rights of owners or users might be. I think that�s the issue that concerns me the most, that we have now introduced a whole other element of control based upon access to the information, particularly in digital form.
HS: Are you saying that�I mean, the copyright laws are designed to create some kind of balance between the free flow of information and the rights of the authors. Are you saying it has moved too far in the direction of protecting authors? Is that what you�re saying?
RP: Absolutely. That�s my concern and I think a concern widely held, certainly, by the library community and much of higher education, including many of our academics. You know, what brings this to light�in fact, may be an interesting time for the Supreme Court to actually get some insight on this�is this week�s decision for the Supreme Court to evaluate part of the DMCA, a provision that extended the term of copyright for an additional 20 years, which has been affectionately called the Sonny Bono Copyright Term Extension Act. It�s an issue that concerned many of us, but we weren�t sure if the Court would take it up or what its significance might be. I think the most interesting part of that ruling of the Supreme Court will be how it addresses the issue of what the appropriate balance will be. But the key issue in that case is whether or not Congress has exceeded its authority to extend the copyright when the Constitution itself says it should be granted to authors for a limited time. So I think it will be a very interesting case to follow and it will be interesting to see how the Court rules on that very fundamental issue.
HS: But that Sonny Bono provision, that was not part of the DMCA, was that? That was just some little rider that Congress passed?
RP: Well, many laws that come out of Congress are riders that are attached onto another law addressing a fundamentally different purpose. You�re right in that the Extension Act doesn�t just address digital content, it addresses analog or print materials as well. But it certainly did result from that same 1998 Act.
HS: Yes, one more question, a detail about the DMCA and that is, did the DMCA also address analog information or did it just address digital information? I mean, was there really a complete rewrite of the copyright laws?
RP: It wasn�t a complete rewrite of the copyright law. A couple key things that happened�one, as I said earlier in terms of saying that it�s technology-neutral, it really takes some new principles that apply not only to digital content but, in some ways, retroactively to analog content as well. I mean, the Sonny Bono Copyright Term Extension being one example, but theoretically the other rules, whether they deal with distance education or if they deal with these access restrictions will apply when we take analog materials when we digitize them and put them out there in new formats. So I think it really applies broadly.
HS: Okay, since this thing was passed in 1998, what�s happened? What�s been the practical implications of this thing?
RP: Well, I think initially a lot of enthusiasm was surrounded, certainly from the content community, but even some in the educational community who had trouble understanding what fair use was or how the 1976 law might apply to digital information. I would say that enthusiasm is increasingly being replaced by skepticism and concern. One issue is that the copyright�in 1998, they didn�t fully address the issue of distance education and so the Copyright Office was directed to do a study. They did so in 1999 and then that resulted in legislation introduced this year. Other aspects of the Act that weren�t addressed immediately but put off were the rulings on exactly what kinds of exceptions might be acceptable for circumventing technological measures and the Copyright Office held its hearings and issued rules with a very limited number of exemptions, not including the ones for fair use that higher education had introduced. And then finally, more recently, a study looking at the issue of first sale and in particular, whether or not first sale is the same for a print book vs. a digital product and what are the implications of the DMCA for the future of things like inter-library loan or libraries loaning out things like e-books. Those are some of the issues that have been addressed and there are certainly many other questions that surround those topics.
HS: Yeah, if e-books actually survive or stay around. Rodney, you mentioned para-copyright?
RP: Yeah.
HS: You want to tell us what that is?
RP: Well, para-copyright in the context that, you know, like your description of the Copyright Term Extension being a rider, the access restrictions that have been put into the Section 1201 of the Copyright Act really don�t fit with the fundamental premises of the Act and they�re about not controlling or monitoring use of information. They�re fundamentally about whether or not you can get to it to begin with. And so they�re really not about what we typically think of with copyright in terms of how we protect the exclusive rights of the authors and how do we permit appropriate uses by the users, but they�re about putting up barriers and limits to copyright materials in the first place. And so they�re really kind of a strange partner to the other fundamentally balanced provisions of the Act.
HS: If I could hop into one of the interesting cases to me that result in this thing, namely the Eric Corley case where essentially it was ruled that publishing instructions for decrypting DVD discs was illegal. To me, and I think to a lot of people, this seems to be an open-and-shut violation of the prohibition of technological measures of the DMCA. Why would anybody be upset about this?
RP: Well, there�s one fundamental thing we need to set straight right at the beginning and that is the Copyright Act, even back to its Constitutional premise, is designed to create an incentive for authors as well as to provide for the public good to be able to have information available to improve scholarship. The author�s rights that are contemplated in the Copyright Acts are the creators and the originators of those works. In today�s world and in the case that you described, the copyright owner is, more often than not, not the original author or creator. It�s some publisher or commercial entity to which the author has assigned the copyright and it�s being exploited for commercial purposes. So I think it�s not just a matter of an author or creator being concerned that somebody is breaking in and circumventing their technological measure and getting into their intellectual product. It�s the fact that commercial entities are being impacted by this and I think that puts a slightly different twist on it. The other issue, though, again is that there might be some fundamental acceptable purposes for doing that, and this is where I think it�s important also to understand intellectual property as a form of property is slightly different from real property or personal property in that it�s not tangible. I mean, it might be tangible in that you can hold a book, you can hold a CD-ROM, but it�s a kind of esoteric property right, if you will, and that property right comes with both privileges as well as exceptions and conditions. And I think again, the copyright law and case precedent over the years has recognized that there�s some fundamental balancing issues that have to go on here, that we�re not talking about locking up something entirely and locking it up permanently, that the public should have some rights of access to it.
HS: But I guess just to follow up on this, I guess I don�t understand why it shouldn�t be illegal to break into my stuff. I lock something away on a DVD disc or something and then somebody goes off and says, �Here�s how you break into Howard�s stuff.� Why shouldn�t that be illegal?
RP: Well, the key issues in the Corley case and also another case that has actually been both dismissed by the court and not pursued by Professor Ed Felton from Princeton is concerns about future impacts, particularly impact upon First Amendment statement, in that whether it�s for the sake of scientific research such as in the case of Professor Felton, where you�re trying to determine ways to make those products more secure or ways to limit other people�s access to protected works, that there�s a balancing that has to go on between what these Section 1201 Anti-Circumvention clauses are trying prevent vs. the First Amendment rights of scholars and the public more generally.
SW: Howard, if I can break in��
HS: Sure.
SW: �and just raise that and ask for Rodney�s comment, you sort of changed the terms there, Howard. You said, �Why shouldn�t it be illegal for somebody to break into my stuff?� But of course, that�s not what Corley was accused of doing. Corley was accused of publishing an algorithm which had a lot of possible uses and one of those uses might be to break into your stuff. And what has been done�and Rodney, I wonder if you�d comment on this�in the Anti-Circumvention Provision of the DMCA is to move from going after people who are violating copyright, who are actually misusing the intellectual property on the one hand vs. people who are dealing with technology that would make it possible for those people to misuse the intellectual property but who are not misusing it themselves.
RP: That�s absolutely right. In fact, your point is well taken, that one of the concerns that�s typically analyzed in any First Amendment kind of case is that if the restriction on speech is so restrictive and that there aren�t alternative means and it prevents legitimate speech, then those kinds of limitations are generally found to be unconstitutional. So first of all, the fact that technologies could be developed to allow you to do things that are perfectly legal is one of the reasons the courts generally�like in the Reno case�don�t permit that kind of prohibition. The second part, however, really goes to the fact that we�re talking about�you know, getting back to the original point�it�s really a restriction on access. You may have a fair use right to actually use the work, but that�s not the point here. The point is, it�s criminal to even try to get around the technology to make your fair use of it.
HS: Okay. Moving to a slightly different cast on this thing, Rodney, given that we have this Digital Millennium Copyright Act, what�s the effect of this thing on campuses? What�s the impact on people in colleges and universities?
RP: Well, to be honest with you, I think the whole discussion we just had, which I think�s extremely important and it will be interesting to follow, is not at the forefront of most people�s mind. I think the most practical impact in understanding people on campus have had is another provision of the Act that dealt with what is the liability for our institutions, particularly when we provide services to students as well as employees? And so there is an area of the Copyright Act that was amended in now Section 512 dealing with remedies as well as online service provider liability. And it�s in that respect that most institutions have paid attention to what the law required, namely, if you want to take advantage of this safe harbor, then there are certain procedural steps you must take including registering an agent and changing your policies and responding to complaints according to the statutory provisions. And so it�s in that light that complaints from the Recording Industry Association of America, the Motion Picture Association of America, if not individual copyright owners, are increasingly coming to the attention our institutions, identifying IP addresses, dates and times of infringement and institutions are invoking their policies to follow up accordingly. I think that�s probably the most obvious and the most apparent consequence of the Act, which many would say in some ways is a good thing in that it clarified the liability, if not limited the liability for institutions if they followed those procedures.
HS: Okay, we have a couple questions here that we got from e-mail here. This first one is from someone who has asked to remain anonymous, and I�ll do that. The question is, has the DMCA or any court determination conclusively established a teacher exception to the work for hire doctrine so that it is clear that faculty members, rather than the university employer, are the owners of online courses developed by faculty members at the request of the university?
RP: No, absolutely not. The DMCA did not address the work made for hire doctrine, certainly not the teacher exception rule, as many people have called it. And that is a critical campus policy issue that a lot of us are debating and deliberating, but certainly it�s not been addressed in the DMCA or any recent court cases. I will say, however, that another development, the New York Times vs. Tossini [?] case actually has some interesting parallels and issues that I think does bear on the issue of ownership of the copyright. And the New York Times vs. Tossini case, the issue there primarily involved the fact that the freelance authors were writing articles for newspaper and magazine publishers such as the New York Times and when the publishers engaged these authors, they were engaging them as independent contractors. So it wasn�t the traditional work made for hire scenario, but as independent contractors, the issue of ownership is typically dealt with in a contract or an agreement. And to make a long story short, the publishers did not obtain rights to make electronic�to put the information into electronic databases. And so when they did that and the freelance writers sued, essentially they prevailed, and there are some nuances certainly related to a section of the Copyright Act that distinguishes that the freelancer owns the individual copyright vs. the publisher owning the collective copyright. But the point is there that ownership is a critical issue. It�s a critical issue, obviously, in the case of online courses. It�s also a critical issue before you can use somebody else�s copyrighted works that you need to clarify who the owner is. So that�s the only case which really wasn�t directly on point to the issue of ownership, but I think it has some important lessons about how we develop agreements and address the issue of what rights a copyright owner holds.
SW: Let me break in a minute for a reminder for those listening. You�re listening to CREN�s Tech Talk with our technology anchor, Howard Strauss, copyright expert, Rodney Petersen, and I�m your host, Steve Worona. You can send your questions about copyright and intellectual property issues by e-mail to expert@cren.net, that�s expert@cren.net. Rodney, you were just talking about the Tossini case. There�s an interesting p.s. to that case that you might want to talk about, about what has now happened to some of that material that used to be in the online New York Times and other archives.
RP: Well, that�s right. That�s the other interesting implication of Tossini for the library and educational community. You know, I should say that the library community has obviously been very active and involved in trying to shape the federal information policy, particularly in the area of the Copyright Act, and I think they were a little torn in the Tossini case. On the one hand, their general premise is they want to protect information, make it accessible, make sure it�s preserved and available to the public. And yet they also were concerned about authors� rights. The concern, and actually the practical implication of the result of the holding of the court, was that the New York Times and other publishers were infringing the copyright of these freelancers and had to go back into the historical record, if you will, and to begin to delete or remove those articles that were infringing. And even though that was a threat made throughout the litigation, that that would be the consequence, there was a lot of discussion by commentators including the court itself and certainly the Copyright Office, that there were alternatives, that there were ways that the publishers could have reached agreements even after the fact with the freelancers to compensate them for their work. But there was an article, I think, in the Chronicle of Higher Education just a few weeks ago describing that there has been some real-life consequences for scholars and researchers because materials that used to be available in electronic databases have been removed. My p.s.s. to that story, however, is that librarians and preservationists would also remind you that even though they may not be available in the electronic databases, that many of those materials are preserved either in hard copy form or microfiche.
HS: In fact, we have a question that sort of relates to that from Murat Bengasou from the University of Missouri. Murat says, �Would there be any problem in reproducing old paintings, for example something from the 1800�s or older, that are published on the Internet or on a poster by a certain company or by a museum?��
RP: Well, the favorite answer of lawyers is, �It depends,� and my first �It depends� depends on how old is old? And that�s a critical issue, as we alluded to earlier, under the length of copyright which currently now, under the Copyright Term Extension, is the life of the author plus 70 years. So we�re talking about a pretty long period of time for paintings in terms of�or any other kind of works, for them to be in the public domain. The other interesting issue�which by the way, draws upon another case that�s happened and been announced recently�is the issue of it�s not just a matter of copying or reproducing, but it�s also displaying. And we often forget that when we talk about the exclusive rights the copyright authors have, it�s not only the exclusive right to copy and reproduce it and distribute it, but it�s also to display it. And that display right can be really significant, particularly for artists. The case that I�m referring to is Kelly vs. Arriba. And Kelly vs. Arriba involved Kelly, who was a photographer who filed a complaint against Arriba Software Corporation who actually now is better know as Ditto.com and Ditto.com is an Internet search engine that displays results in the form of small pictures or what we think of as thumbnail prints of images that have been obtained from other sites. And what this Court of Appeals judge held was that their thumbnail prints is actually a fair use. It�s a fair use because it went through the four-part analysis and even though it�s a commercial use, it�s a transformative use, transformative meaning that it provides a new functionality. They�re not reproducing the photograph, the image in and of itself, but they�re now creating a database where you can search it and putting a small print that you can use to help find the original. The other side of it, however, the display of it, they were also not only putting the thumbnail print but the full-size original prints, and the court did find that to be infringing because the display rights were being violated and that fair use didn�t exempt them in this case.
HS: Rodney, one of the instances involving intellectual property that I think lots of people used to hear a great deal about was the whole Napster case and that seems to have disappeared right now. My question is, is that over? And what lessons have we learned from that?
RP: Well, Napster is slowly fading into the historical textbooks as a case that maybe is past its time, but there�s a couple interesting developments that are still percolating. One is the fact that, you know, the downfall of Napster was that it really needed to create a business model where it licensed the works that it was making available and it�s been working for several months now to try to come up with appropriate license arrangements with the industry representatives. The reason that is continuing to be interesting is Napster has almost taken its own offense now, looking at a possible issue of collusion on the part of the content community, the music community and the way that they�ve been trying to kind of drag their feet and work together to create this kind of new business environment, if you will. It�s unlikely Napster in and of itself is going to take that battle on. I mean, ultimately, Napster�s a company who owes its commitment to shareholders and I�m not sure that�s in the best interest of shareholders to fight that fight. The second part, however, is that Napster really for the first time introduced to many of us a new kind of technology better known as peer-to-peer computing and it wasn�t the kind of issues, quite frankly, that the DMCA in 1998 was anticipating, where students would be putting music on our websites or on our university servers and making them available for others. But now, those music or movies are on their hard drives and they�re using peer-to-peer technologies similar to Napster�and certainly there are other variations of them now�to exchange and search for information on each other�s hard drive. I think that issue is far from over and, you know, whether it�s Kazaa or the various other brands that have been out there, it may be a losing battle for the music industry to get its hands around that.
HS: So you expect we�re going to see more Napster-like things out there as challenges to the music industry?
RP: Here�s an interesting anecdote. I wasn�t exactly sure what the consequence would be last year after the courts essentially forced Napster to shut down. My speculation was that after you go after the giant, the company, the place that�s facilitating this, then you go back to the individuals and you start pursuing them. I thought my prediction had come true when, this past August, we began to see a number of complaints coming from a company known as NetPD. NetPD was sending us not the typical complaint where we were being reported of 200, 300, 400 incidents of copyright infringements involving an individual user, but single incidents because NetPD was using a technology that allowed them to go out there and see, hey, this person at this IP address at this date and time is making this single song available or downloading this single song. And we began to process those complaints like we did all of the others until those complaints literally started to reach the numbers of hundreds per month. And quickly, I became concerned that my prediction not only came true, but it was my worst nightmare come true, that how were we ever going to deal with this? Well again, to make another long story short, a lot of us raised concerns and began looking at this more closely�including an excellent article done in the Chronicle last fall�and as it turns out, not only was NetPD not following the formal procedural requirements that people are supposed to follow when they complain about copyright infringement, it wasn�t even clear that they were authorized to represent the copyright holder. And I got a personal phone call, since I was quoted in the article that the Chronicle printed, from somebody from the Recording Industry Association the very next day after the article went to press, saying, �They don�t represent us as an industry, they don�t represent any of our label holders to our knowledge, and if you get any more complaints about music, let us know.� And the essential concern of RIAA and other groups like that is that the volume of complaints that were coming out was really going to interfere with them going after the few legitimate ones that had multiple violations that were occurring. So in the case of NetPD, that�s essentially evaporated and certainly, the volume of complaints against individuals is really back to a manageable level.
HS: It sounds like this DMCA is quite a complicated kind of thing, suitable for lawyers, it seems, and less suitable for IT people and faculty and people running around universities. Yet they�re the people who are going to have to deal with it. I mean, what do we have to do to make the people on campus know enough about this so that they�re not going out, violating the law?
RP: Well, you�re absolutely right in that it�s complicated. In fact, I would even go further to say that when it first came out, it was not well-understood, if not misrepresented as to exactly what we needed to do in colleges and universities. For example, the kind of transition from information residing on our servers to being on individual computers is the kind of issue that a section of this law�better known as Section 512A�anticipated and essentially said, �You don�t have liability for that when it�s just using your network and you�re just routing the information.� On the other hand, many of us�long before the DMCA�were concerned about the ethical implications, if not the policy implications of students violating copyright laws and not respecting the rights of authors. And we had incorporated policies addressing that, and so if you kind of forget the DMCA in general and do what we were doing already or what we should have been doing, it�s perhaps not all that complicated. But it truly does require some careful review and certainly, I would advise anyone who is planning to ignore a complaint or not deal with a complaint to make sure that they have the support of their legal counsel because the liability provisions could kick in and you want to make sure you�re on the right side of that litigation.
HS: Okay, we have a question from Ed Goray from the University of Illinois at Chicago related to this. Ed says, �How do you handle damage control? For example, when you first meet a faculty member who already has some web content online and he/she is breaking lots of copyright or intellectual property rules? Do you tell him/her to shut down the site immediately until all legal issues are resolved, or what do you do?��
RP: Well, interesting question, and it brings a couple immediate responses to mind. One is the reality that there�s great ignorance, quite frankly, on our campus as to what�s acceptable, not acceptable. And quite frankly, a lot of this violation or infringement or inappropriate use has probably been happening for years in the non-Internet world, but putting things on a web page or incorporating it into an online course both makes it obvious as well as raises it to the attention of the copyright holder. So I think we really do need to reeducate our community, if you will, and make sure that they understand the implications. The other thing it brings to mind is the fact that, you know, whether you happen across it or somebody asks the question, it brings it to the attention of the institution and there�s certainly parts of the DMCA that talk about what kind of knowledge is required. It�s not just that somebody complains, but that you have the knowledge that there�s copyright infringement on your systems that would require or invoke you to do certain things. I also think, quite frankly, the other concern that is not so much DMCA-related, but where the safe harbor is not going to protect you is the fact that might be your employee, whether it�s a faculty member or whether it�s a student employee or a staff member, institutions are going to continue to be vicariously liable for things that our employees do, although obviously we would also maybe want to argue that it�s not in the scope of their employment. I think a website that�s being used for a course or a part of a faculty member�s web page, it�s going to be hard to say that that�s not something done in the scope of their employment.
HS: We actually have lots of questions [inaudible], but we have one more here. Steve, did you want to��
SW: I wanted to remind the listeners that they are listening to CREN�s Tech Talk and today�s guest expert is Rodney Petersen. Our subject is Copyright and Intellectual Property and if anybody else would like to get their questions in, the e-mail address is expert@cren.net. Go ahead, Howard.
HS: Okay. Again, Ed has lots and lots of questions here, as he usually does, and we really appreciate that. But here�s one that I don�t think we�or at least I�haven�t thought about. Ed says, �When obtaining copyright permission and clearance, are e-mail messages and replies granting permission a sufficient paper trail?��
RP: Well, that is a good question! My first hunch response would be yes, they would be good, but of course, in today�s day and age it always raises the question of authentication and can you actually prove that the person who sends a message is the person who is authorized to approve it? But depending�a lot of this, quite frankly, not only with copyright and other legal issues in general, is risk analysis and I think you would have to make some judgment about depending on what you�re asking permission for, whether or not the e-mail message is sufficient to make you feel comfortable with doing it, and do you feel confident that if you had to produce that as evidence, that that would in fact be defensible to do that. If you�re asking for permission to take a motion picture and put it on your video server and make it available on the World Wide Web, I might suggest that that�s a little more riskier and certainly, if it�s going to require payment of royalties and the like, that maybe you want to get some other kind of communication to verify that.
HS: Is a fax any better than e-mail?
RP: Well, I��
HS: Faxes, fax machines can be spoofed pretty easily, too.
RP: Yeah. I mean, I think the fundamental issue here which we�re certainly dealing with now in the copyright area, but with all other kinds of electronic transactions, is what is the kind of signature you need to validate a contract or validate permission. And we know, certainly in the technology area and certainly based on some laws, that it doesn�t just have to be a physically signed document any more, that electronic documents may be sufficient, like a fax or an e-mail.
SW: In your answer to the last couple of questions, you used the word �you.� You should exercise some judgment about the e-mail. Who is the �you� in this case? I think the writer might have been a technology person or perhaps a faculty member. What types of roles should technologists, faculty members, counsel at institutions take in evaluating these questions?
RP: Well, I think certainly legal counsel are perhaps the most important persons to get involved in any areas where the risks may be great or where there may be any question as to which direction to go. I think technologists quite often are in the middle and I certainly wouldn�t want to propose that they should be the ones making the judgment or the decisions. And yet in my experience here at the University of Maryland, they are both a safeguard to prevent people from doing things that maybe they shouldn�t do or haven�t thought through as well as can certainly educate people and make sure they do get the appropriate resources and information that they need. I mean, I think ultimately the �you� is the individual who has the need to reproduce the copyrighted materials and they want to do it. And as I suggested, they may go to a technologist and say, �Here, digitize this for me.� That technologist hopefully will raise some red flags that they think copyright issues are at stake, but ultimately, if it�s an issue of legal advice or a legal judgment has to be made, the legal counsel is probably in the best position to do that. I will say, however, the caveat there is that there is a conflict of interest, if you will, because the legal office typically represents the institution and they are typically risk-averse and they are probably going to be pretty conservative in how they�re going to make those kind of legal determinations. I mean, I think that�s a fundamental problem that we have in the college and university environment is that managing copyrights is really tricky because it, you know, brings in academic issues, legal issues, policy issues and sorting out roles and responsibilities is very, very challenging. I think there�s two good models, if I can just say real quickly on Steve�s question.
HS: Yeah.
RP: One is the University of Texas system has a phenomenal person, far more expert than myself, named Georgia Harper who, fortunately for her, is the legal counsel and in a position to make some of those kind of legal judgments. And she certainly takes, I think, a very appropriate and educational view in how she approaches these things and has done a lot of proactive educational materials to help assist people. The other model is at Indiana University, IUPUI, where Kenny Cruz, a faculty member there who is also a lawyer and has a lot of expertise in copyright has created the Copyright Management Center to really serve as a resource, both in policy development as well as education.
HS: Okay, in the area of distance education, I understand there�s some legislation developed about distance education in response to the US Copyright Office study. Could you tell us something about that?
RP: Yes. In 1998, when they couldn�t essentially resolve the question of how do we bring the 1976 Act up to date to really deal with the current day issues of distance education, like most campus administrators, they punted and said, �Let�s form a committee! Let�s essentially have the Copyright Office do a study and a report.� And the good news is that that report was pretty thoughtful and really took into consideration some of the views and concerns of the educational community. Took a couple years, but this past spring, legislation was introduced called the TEACH Act�Technology Education and Copyright Harmonization Act of 2001. And the TEACH Act was really an attempt to deal with a couple specific provisions of the Copyright Act that causes a problem in not only distance education that we think of, but also distributed education, meaning asynchronous learning on the web. The two provisions of the Copyright Act known as Section 110 I and Section 110 II were problematic in the following ways: Section 110 I allows for the performance and display of copyrighted works in a live classroom and it�s really designed to cover the kinds of things you can do in a face-to-face instructional setting. And it�s pretty clear, based upon both case law as well as the legislative history, that the live, face-to-face classroom wasn�t going to apply to things we would do on the Web. So the essential provisions of the Act was to extend the concept of live, face-to-face classroom to include web-enhanced learning where the people on the other end of the Internet, if you will, are students enrolled in a course. The perhaps more complicating and difficult provision, though, of Section 110 II that actually is known as the Distance Education Exemption�but it�s a very limited exemption that, in 1976, was written to address the distance education of that time, which was primarily live satellite two-way television. So Section 110 II would be expanded in a couple significant ways. One would be to expand the kinds of works that are covered and secondly, to talk about displays of work that are comparable to that that might be typically done in the course of a live classroom session. So there�s lots of issues around the TEACH Act. I mean, it�s certainly not law yet, but there�s lots of good news, quite frankly, and in terms of how it might permit us to do some things in a distributed education environment that currently might be a little risky. Let me just say one more quick thing, though, about that. Even though the TEACH Act deals with extending these two provisions of the current copyright law, certainly principles of fair use apply whether it�s face-to-face or whether it�s distance education.
HS: Okay. You mentioned the TEACH Act. One of the other things I�ve heard about is something called UCITA (you-see-tah) where, as I understand, it�s trying to use contract law to deal with some of the things that traditionally copyright law has dealt with. Could you talk about that for a bit?
RP: Yeah, I think we have to look around us and notice what�s going on in our environment and that is, there�s a fundamentally changing business model for how information is both being used and being transacted. It�s not just the fact that information is increasingly in digital form and being available electronically, but the way that people access that information as well as transact for it is through electronic commerce. So for example, if I wanted to buy computer software two or three years ago, I would generally go to the bookstore, go to a retail store, and I would buy that shrink-wrapped software and put it on my computer. Now I can go on the Internet and probably download that same software. With my credit card, I can pay for that transaction and do it all electronically. This same transition has also been what we�ve witnessed in the area of library resources where the electronic databases and library resources aren�t the CD-ROM�s or aren�t the books that sit in the library walls, but they�re information that we access from a computer. And behind this change in technology and change in the form of information is the fact that we now license the information and that whether it�s library resources or your computer software, there�s a license agreement. The license agreement which many of us pull up on our screen and as quickly as possible click I ACCEPT or I AGREE and then go on to using it contains some terms that are potentially very troublesome, and that�s really the basis of UCITA is to say �We need a uniform��U stands for Uniform�the CI in UCITA stands for Computer Information. �We need a uniform law to deal with computer information� and the Transactions talks about the fact that that uniform law is in the context of contract law and contract law is a matter of state law. And we need to have not 50 different state laws, but a common, uniform law across the states. Let me just cut to the core of the controversy, particularly for higher education and libraries, is that these contract agreements now begin to talk about what you can and can�t do with that information. And more often than not, they restrict not only your rights to fair use or how you may use information, they may even include phrases that talk about how you can�t comment or criticize in the work or you can�t distribute the work or you can�t do things that under the other uniform law known as the Federal Copyright Law are certainly permissible and part of the whole balanced framework we talked about at the outset.
HS: Okay, we have a kind of interesting question from Reverend Richard E. Egleton from the University Life Church and he�s giving us, I think, a real situation that a lot of people might be in. He says, �I�ve been trying to track down the rights to air certain movies over a local cable system for one of our educational telecourses,� which lots of people have tried to do. He said, �I have called the major Hollywood right holders and checked with all kinds of people and nobody can track down the rights for this movie. What would be the consequences if I air it anyway?��
RP: Well, let me first go to the best-case scenario which is that you�re doing this in the context of an academic or nonprofit educational institution because, in addition to what we�ve already talked about, there is a section of the 1976 copyright law known as the good-faith exception for fair use. And the good-faith exception talks about taking appropriate steps, whether it�s to secure permissions or that you thought you�re doing things under a reasonable interpretation of fair use and it limits the liabilities and the monetary damages that might be assessed to you. So that�s one other kind of defense that might be invoked if you�re an academic and you�re being sued in that context. Secondly, however, let�s take it out of that kind of exemption. Certainly, this is a real life situation that many people deal with and the best advice that I or probably the legal counsel would offer you is to make likewise that good faith effort, document all steps that you take, use existing resources�whether it�s the Copyright Clearance Center or other formats to see if you can�t secure the permission. And if you don�t secure the permission, then proceed. I�ve heard many people say that the worst that�s going to typically happen when the real copyright owner finds out about it is they�re going to ask you to remove the material and the fact that they might eventually catch up with you might be a victory in and of itself in that you didn�t have to track them down, they tracked you down!
HS: You say, �Oh, by the way, can I have permission to use this?��
RP: That�s right. You know, again, that�s not the way to start getting permissions is to have them seek you out. Certainly that might be one of the down the road benefits.
SW: Rodney, do you want to say a couple of words about the penalties that might apply in either of those cases?
RP: Penalties in the context of what the Copyright Act provides for infringement?
SW: Yes.
RP: Well, the Copyright Act in general has a couple provisions. One is the criminal provisions that are fairly limited. In fact, another interesting development�not a part of the DMCA but the year before the DMCA�was the No Electronic Theft Act, the NET Act. And the issue at stake there was the fact that there were students�in fact, at an educational institution�that were making software available on the Internet and the previous law said that you had to be making a profit. You had to be commercially benefit from infringing on somebody�s copyright for it to be criminal, and the NET Act essentially expanded that definition of what benefiting might be to include the fact that you might be exchanging software and benefiting through trading and not just because you�re being paid for it. So there is a criminal consequence that�s fairly limited. The more typical consequence, however, is that there are civil damages and fines that are both based on the numbers of infringement or the amount of material that might have actually led to real damages. And again, that�s where educational and public institutions might have some different liability than a private corporation will have. I should also say that another area that�s controversial with respect to the Images and Copyright law is to what extent the Eleventh Amendment immunity doctrine might immunize public institutions from liability altogether. There is a Supreme Court case three or four years ago in the area of patent law that essentially suggested that Congress didn�t have the authority through the Patent Act and other intellectual property laws to remove that immunity from public institutions. I don�t think any of us are proceeding under the notion that we�re going to be exempt from liability altogether, but you can bet if a case is brought against an institution, that might be one of the defenses that�s levied.
HS: Okay, Rodney, rather than having the copyright law and all this legal stuff try to defend us against all these violations, what about having some technical solutions to control the flow of information? Is that a possible solution?
RP: Well, it certainly is a possible solution and, in fact, I think that�s exactly what the section that we started this conversation talking about anticipates, that we can put up access controls to limit who can get to the information and, as I�ve already suggested, I think that has a lot of problems and concerns that we�re going to see more cases about really to find how far that can go. On the other hand, I think there are some reasonable technological measures that can be used to kind of govern appropriate use of information. In fact, a couple of them are really embedded into the TEACH Act provisions. I described how the Act�s going to help us in the distance education realm maybe do things that may be currently a little more risky. On the other hand, it doesn�t come out without conditions. One of the conditions is that we must limit access to people who are enrolled in the course and we certainly do that in the academic context through passwords or through authentication that�s based upon course rosters. And secondly, that we must also limit the downstream distribution or re-use of the work and similarly, if we can set up technological environments that don�t get in the way of access but prevent people from easily reproducing and redistributing the work, that might be a reasonable compromise and certainly, that�s what the TEACH Act anticipates.
SW: We are approaching the end of this weeks Tech Talk and I wanted to ask Rodney to project himself into the future. One of the things we tried to do today was look at some of the interesting developments in copyright and intellectual property law and policy in the year 2001. If we were getting together a year from today looking back at 2002, what sorts of things do you think you�d be looking back at?
RP: Well, I think�I don�t know if it�ll happen that quickly, but an area that we�ve really not totally thought about altogether is, this is an international medium and in what ways is this DMCA, this United States Copyright Act amended law of 1998 really going to play out in other countries and what are the implications when we start crossing those boundaries? I think that�s certainly an issue for distance education where distance doesn�t mean across the campus or across the state or across the United States. It certainly means internationally, so I think there are a lot of issues that we�ve only just begun to think about and talk about with respect to the international dimensions of this. I think another issue that was alluded to earlier is that I think we will see some challenges about ownership, faculty ownership and student ownership, by the way. That to me is the biggest oversight in the institutional policies addressing copyright ownership is that they forget that our students who are creating course materials and developing assignments are also copyright owners too, and in fact, there is no work for hire arrangement with them. And I think that�s an area that we certainly are going to see some ongoing litigation and the earlier question, I think, will ultimately be answered for us through some probably rich case law. The third area that I think we really have to pay attention to is this evolving business model that I talked about. Even though I�m fundamentally concerned about the fact that licenses can be used to substitute for the basic provisions of the copyright law, we�ve got to realize that that�s the direction of the future and we�re going to be accessing and using and transacting in information electronically. The fact that we need electronic contracts and agreements to me is a given. What�s not a given and what we need to think through a little more carefully is what again is the appropriate rights and balances and ideally, how can we not make the issue of copyrights negotiable, which certainly in the context of shrink wrap or click through agreement, there�s not much negotiation that takes place before you click I ACCEPT or I AGREE. But how can we make it part of something more uniform and fundamental like the Federal Copyright Act? So I think that changing business model�s going to be something that we�re going to really have to pay attention to.
SW: Sounds like things are remaining in flux. Howard, do you have a final question for Rodney?
HS: I have lots of final questions today! It�s a question of which one to choose. Rodney, it seems like we�ve been talking for the last hour about this whole thing in the context of the university, and the university is a place where all this concentration of intellectual power tends to be. But it seems that today, anybody at home or anywhere they are can publish on the Web. My mother, who is not associated with any university right now, without a lot of trouble can go out, gather up things from the Web and publish out there. When this Digital Millennium Copyright Act was put together, was there this thought that anybody can do kind of little basement or home publishing and things like that? I mean, she has no access to legal counsel and things like that. How does this affect people sitting at home putting together little recipe books and things like that?
RP: Well, it absolutely affects them. In fact, the recipe books brings up some other interesting anecdotes, whether it�s copyright infringement or whether it�s trademark infringement. There have been many instances where trademarks are being infringed because of people just pulling Web [inaudible portion of tape] that area of intellectual property law. Some of the other interesting aspects of Web publishing, however, don�t really have much to do with copyright but have everything to do with defamation and other kinds of liability. And certainly people have taken for granted the fact that once they fire up that web page and proclaim whatever they want to say about somebody, especially critically and especially when it�s untrue, that they�ve opened up a whole other area of liability, being the defamation or the laws of libel. So it�s a very powerful tool. I think we�ve just begun to see the kinds of issues and litigation and legal and policy and ethical questions that it�s going to introduce into our society and we just have to�particularly in the educational world�work at trying to both comply with the legal and policy requirements, but also understand the social and the ethical implications as well.
HS: Okay, I�ve got to get another word in here, Steve. I know you want to hop in, but something kind of very strange just happened here and I think it just fits in perfectly here. I just got some e-mail to expert@cren.net and actually people at expert@ anything-under-the-earth also just got this message and I quote from my screen��Use your home computer to copy and DVD movie! Click here to download now!� So I�ve just been invited to download some software to copy any DVD movie and it�s being sent
SW: The question for you to ponder, Howard, is at what point in the process, receiving that e-mail, downloading the software or using the software to violate someone�s copyright, at which point should the law put a stop to that activity. We could rewind this to the beginning of the conversation and run it all through again, but we don�t have the time! That�s going to do it for this week�s edition of CREN Tech Talks. Thanks for joining us over the Internet, and thanks to technology anchor Howard Strauss of Princeton University; to our guest expert today, Rodney Petersen of the University of Maryland. I�m Steve Worona of EDUCAUSE. Join us again in two weeks�that�s March 7th�for a special live Tech Talk from MIT. Our experts at that time will be Phil Long and Vijay Kumar who will be talking about OKI�that�s the Open Knowledge Initiative. Watch for more information on a website near you. CREN Tech Talks are brought to you with the support of CREN member institutions and thanks to the help of a whole host of people including web guru, Terry Calhoun; our network support team at Merit with Jason Russell and Gayle Terkeurst; and our audio file transcriber, Susie Berneis. And again, thanks to all of you for being here. You were here because it�s time. Good-bye, Rodney. Good-bye, Howard. See you all on March 7th.
HS: Right, thank you. Bye-bye.
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