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Intellectual Property and Other IT Legal Issues


Judith Boettcher
[JB]
Howard Strauss
[HS]
Margie Hodges Shaw
[MHS]
Steve Worona
[SW]

January 14, 1999

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JB: Welcome to the first CREN TechTalk for spring of 1999, and to this session on "Intellectual Property and Other IT Legal Issues," with Steve Rona and Margie Hodges Shaw from Cornell University. You are here because it's time to discuss the leading core technologies in your future.

This is Judith Boettcher, your CREN host for today, and I'm pleased to introduce Howard Strauss of Princeton, the technology anchor for TechTalk. Howard is a well-known Web and all-around information technology expert. In fact, you're probably all very familiar with Howard now.

Welcome back, Howard.

HS: Thank you, Judith, and thanks again to CREN for choosing me as the technology anchor for TechTalk. The job of the technology anchor is to engage our guest experts (we have experts today) in a lively technical dialogue that will answer the questions you'd like answered and ask those very important follow-up questions.

You can ask our guest experts, Margie Hodges Shaw and Steve Verona, both of Cornell, your own questions by sending e-mail to expert@cren.net any time during this Webcast. If we don't get to your question during the Webcast, we'll provide an answer in the Webcast archives.

If you've tuned into TechTalk Webcasts before, you know that we always discuss the leading-edge networking technical issues, so perhaps you're surprised to see that today we'll be talking about intellectual property rights and other legal issues. It turns out that these issues are just as important, and maybe even more important than issues of bandwidth or middleware, Java and other topics that we've featured here.

You might not think that understanding plagiarism and copyright, Fair Use, attribution, permissions or computer policies is important for technical people, but in today's litigious environment, dealing with these issues has become an all-too-common occurrence -- not to mention that in a university environment, First Amendment rights to free speech and the "everything is free" culture on the Internet clash sharply with the ownership of intellectual property and legal and ethical codes against slander, libel, pornography and electronic harassment.

In the news today, you are as likely to see stories about legal issues related to the Internet as you are to see technical issues discussed. Just yesterday, in the New York Times, a front page story had the headline "Anti-Abortion Site on the Web Has Ignited Free Speech Debate." This could be a headline in your local college or university paper. Are you prepared to deal with it?

Many technical people are already aware of the increasing importance of legal issues in computing. All of us will be required to join them soon. When I mentioned to Debbie Rundle, a colleague of mine, that I was preparing for a Webcast on computer-related issues, without a moment's hesitation, she handed me a book titled The Legal Environment of Computing. The book was shelved just to the right of her copy of a book on advanced Java programming. Will all of our bookshelves look like this someday?

Of course, every university has a legal counsel's office and has a set of policies defining the acceptable bounds for intellectual property and the use of computing technology on campus. At Cornell, the home of today's two guest experts, they have taken a giant step beyond that. Margie is actually a full-time attorney, working full-time with the Office of Information Technology since the fall of 1995. She serves as a bridge between the legal counsel's office and the OIT policymakers.

Is this where we are going? Will every IT department need its own lawyer? During our first planning meeting with Steve and Margie, they kept referring to IP. Of course, we all know that IP means Internet Protocol, but they were using IP in a context that I found incomprehensible and confusing until they told me that IP, to them, meant Intellectual Property. Now, I've asked them never to use IP in this Webcast in this context because it requires that we change our way of thinking. Yet, to deal with these issues, that's just what we need to do.

So for the next 45 minutes or so, put aside your technical three-letter acronyms and explore with Margie, Steve, Judy and me the strange but critical world of IP -- oops, I mean intellectual Property and other computer legal issues.

Judith?

JB: Well, thank you very much, Steve, and let's give our folks a little background.

SW: No, that was Howard, actually!

JB: Oh, I'm sorry. Thanks!

HS: Thank Steve anyway!

JB: Actually, Howard, thank you very much. I did say Steve because I was reading a little bit of your background, Steve. Let me just give folks a little background on Steve and Margie. In addition to their regular jobs, Steve Verona and Margie Hodges Shaw are co-directors of Cornell's Computer Policy and Law program, which coordinates and delivers many conferences and workshops on these topics each year.

Each is also very active as a speaker and contributor at academic-related information technology conferences and workshops. And in 1996, they co-published an article in CAUSE/EFFECT on "Legal Underpinnings for Creating Campus Computer Policy." (And I might add that there's links to many of those resources that they have authored on our Website.)

Margie is recognized as a national authority on the field of computer policy and law and a contributing editor to Synthesis: Law and Policy in Higher Education and also a contributing author of the monograph, "Contemporary Issues in Judicial Affairs."

Steve is the creator of Cornell's CU Info, the first campus-wide information system, and also serves on the editorial board of the Journal of Electronic Publishing.

Welcome, Steve and welcome, Margie. Thanks for joining us on CREN TechTalk.

SW: Thanks, Judith.

MHS: Thank you. Pleasure to be here.

JB: All right, great. Margie, do you want to mention your picture on the Webpage (just to let everybody know why you're so informal there)?

MHS: Why are my arms chopped off?

JB: Yes.

HS: That's what skiing will do to you, Margie.

MHS: Unfortunately. There is a better picture on the Website, and if you go to the Cornell Computer Policy and Law Website, www.cornell.edu/cpl, you'll see the complete picture which has my better half.

JB: Okay.

HS: (Inaudible) or your dog. Which is it?

MHS: It's my dog!

JB: Your dog! All right, very good. Well, we'll be referring folks to that Website because it does have just a treasure trove of various policies that they may want to use on their campus as a beginning point for dealing with many of these legal policies.

As we are getting started for our TechTalk today, I'd like to remind everyone that you can ask questions directly of Steve and Margie during our Webcast today via e-mail by sending e-mail to expert@cren.net -- and that also your friends can pick up archived sessions at the CREN Website after the session is over. Steve, Margie, Howard, let's begin our session on intellectual property and IT legal issues in general in higher education. This is a topic that causes a great deal of stress and anxiety on many levels, so we have a great many topics to talk about today. Why do IT folks need to deal with legal issues at all? Aren't they really in computing?

SW: Well, Howard did a reasonable job in his intro of summarizing all of the problems that can come up. One way to look at this is to realize that the population on the Internet -- in fact, I just saw a note that came out today (I believe it was in Edutech) pointing out that the people on the Internet are beginning more and more to mirror the overall distribution of people in society as a whole.

Ten, 15 years ago, the folks on the ARPAnet or the NSFNet were techies, and techies had a technology culture that they sort of all understood. It was more or less uniform. But the population of the Internet today is reflecting that of society -- and we've got good people and bad people and people doing all sorts of non-technical things. It shouldn't come as much of a surprise that we've got to get the same kind of legal structure going on the Internet that we've had to get going in the rest of society.

HS: But Steve, why IT folks? Why not just have the legal counsel -- I mean, every university has some Legal Counsel's office or has some way to get the lawyers in there. I think part of the question is why do IT folks have to get involved in this?

SW: Well, if for no other reason, the IT folks have to explain the technology to the lawyers. Right, Margie?

MHS: Right. It actually started out -- it's interesting, Howard. What generally caused IT folks to get involved is the complaints -- and I can't explain this, but complaints about behavior that happened over computers. You don't tend to go through the normal channels of complaints. They go to IT folks. So it is the System Administrators who are hearing about the problems and are being asked to solve the problems.

HS: Could you mention a couple of the kinds of problems that first started this thing off? What kind of things were happening?

MHS: Sure. Some of the first complaints that we received on our campus were complaints about threatening behavior or harassing electronic communication. Those were early ones. And then shortly after that were forgeries, which were sort of related. You'd get forgeries along with threatening behavior. Then we started getting a lot of copyright complaints, intellectual property.

SW: Howard, if you got a piece of e-mail that offended you in some way or that threatened you in some way --

HS: Happens all the time. No, it doesn't!

SW: Right, I'm sure it does.

HS: (Inaudible.)

SW: Some of them not even from me. But who would you send the complaint to? What is the immediate e-mail address that pops into your mind, if it came from fu.edu? Who would you send the mail to?

HS: Actually, I would send it to Rita (Inaudible.) Rita, if you're listening, that's who I would send it to.

SW: That's if it was princeton.ed.

HS: It doesn't matter where it came from, I would send it to Rita, actually, because Rita is our policy person.

SW: No, but I mean if it came from another campus?

HS: Yeah, I would still send it to Rita because she is the person who would track this thing down. We actually have a person who is responsible for dealing with that kind of thing on our IT staff.

SW: What I was going for, Howard, was postmaster@fu.edu and abuse@fu.edu, and in fact, these are well-known addresses around the Internet for receiving complaints about what happens. And those generally go to technical people. Postmaster@ a site is a technical person, and the Abuse Coordinator is frequently a technical person. So the techies need to know what to do when they get those questions.

HS: But, I mean, every university has a bunch of policies and procedures and things that even before the Internet or before computers and things covered issues like plagiarism and copyright violations and things like that.

So I guess the question is, what's special about what we're doing right now? Don't the policies and procedures that we have in place take care of this stuff? Or how do they have to be extended? What do we have to do to the policies that we had in place anyway to prevent plagiarism when we have all this Internet and electronic stuff? Margie?

MHS: In most cases, if the institution has adequate policies, they probably extend to behavior that can happen electronically and online. In most cases.

The problem is not that the policies fail to reach the behavior; it's that the administrators fail to apply the policies to the behavior. For some reasons, those users use technology because they think they can get away with it. They do things that they would not otherwise -- and also administrators treat it differently because of the technology, rather than rely on an existing disciplinary procedure.

JB: So, Margie, is one of the things in terms of your work with the IT folks at Cornell, are there some basic principles of dealing with IT legal issues that you kind of focus on when dealing with the folks?

MHS: The main thing is to remind the IT professionals that are handling these kinds of complaints that they don't have to answer all of these questions. There are already (just as Howard pointed out) trained professionals at the institution whose job it is to decide whether or not something is a violation of a campus code of conduct or a policy. They don't have to play that role.

HS: You've actually raised an interesting issue there, Margie, and that is that there's all these laws -- these legal issues -- and then you raise this issue of a code of conduct. And that's really outside. I mean, these things might intersect, but what you're suggesting or saying is that the university can have all kinds of codes and rules and regulations that have no basis in the law. And people sort of have to follow both of these -- both the code of ethics and the legal things. Is that what's going?

MHS: That's correct. It depends on the type of institution about how far removed from the law you can be, whether you're a public institution or a private institution. But both and all kinds of institutions can have regulations set forward about expectations of behavior of their population, their community members.

HS: Don't you run into legal issues, though, in setting up a code of ethics? I mean, aren't there things I can't say people have to do?

MHS: I'm sorry, Howard. Ask the question again.

HS: When universities are setting up some code of ethics or some rules and regulations, aren't there legal things they bump into in terms of what's permissible in a code of ethics?

MHS: Yes, very much so, and most codes of ethics or codes of conduct actually mimic the criminal codes in the state. Most codes of conduct talk about harassing behavior or threatening behavior or using others' intellectual property without permission. It's all civil or criminal already, but they want to put it in a code of conduct.

And then you have the codes of academic integrity, which some institutions merge as one document and some institutions keep separate, that deal with things like plagiarism and representing your work in certain ways.

HS: I know that in your Website, you pointed to the policies of, what, some 70 institutions.

SW: Seven hundred.

HS: Oh, 700. Okay, I left a zero off there.

SW: Yeah!

HS: To me, 70 was overwhelming -- seven hundred even more overwhelming. When we talked before, you said, "Gee, they're all different because every institution has different needs, ideas and things." But 700! Is there any move to kind of standardize this? Even in terms of codes of ethics and things like that -- aren't a lot of them alike? Can't we get some standardization so every university doesn't have to do this whole thing themselves? Or is there no move in that direction?

SW: Well, differentiate between standardization on the one hand and having to do it all yourself on the other.

One of the reasons that we point to the 700 and some-odd policies is so that when you're going out to create a policy, you can look at the policies created by other sites and pick and choose if you find language from another site that happens to match the philosophy of your campus -- that does what you'd like to do. You don't have to write it from scratch.

That's different from saying that they are all going to be the same or all going to be standardized. So you can have the best of both worlds.

HS: But 700 is a lot of things to look at.

JB: Yeah, I was going to ask you, too, is there any organization that might take the lead in terms of creating maybe? If you don't want to take the time to go and search out these -- that here's kind of a basic template if you don't -- just to start, if you don't have one in place and you need one to at least get started?

MHS: Well, a lot of folks have asked us to do that, and we haven't. I think it's a good idea. It's a difficult task because what Steve said I think is important. Each institution has to recognize that it is a unique institution and has to make sure that it selects policies that really are fundamental to its own mission. And therefore, you can't cookie-cut this. But there are issues that institutions ought to consider -- all institutions ought to consider.

SW: And the article that I think you mentioned in the intro, Judith, that Margie and I wrote in a recent issue of CAUSE/EFFECT magazine called "Legal Underpinnings for Creating Campus Computer Policy" --

HS: Actually, I have a copy of that, and it's a very interesting article. I'd recommend it to folks and it's linked from the Website.

JB: Is that a good place for folks to start, Steve, if they're --

SW: Yes, it gives you the legal background that you need to have. But one of the best examples --

HS: It's just too short. I've never said that about an article, that it's too short.

SW: Thank you, Howard! One of the best examples is one that we talk about in the programs that we give.

At Cornell, there is no restriction -- before the Internet, if you wanted to go downtown and buy a copy of Playboy or Playgirl, if you wanted to have adult material in your dorm room and read it, there was no restriction about that. On the other hand, at Brigham Young University and other universities, you will get bounced off of campus for having certain material in your dorm room. That's perfectly okay, those are perfectly reasonable ways for those two institutions to behave.

But for consistency's sake, Cornell would therefore want to have an electronic access policy that similarly allowed the possession -- the electronic possession -- of that type of material, whereas Brigham Young would not allow the electronic possession of that material. Both of those are perfectly reasonable policies to have, but they are very, very different.

HS: We don't run into First Amendment issues there? I guess we do.

SW: Well, which ones do you have in mind?

MHS: Are you concerned about -- remember Brigham Young's a private institution.

HS: Right.

SW: Private institutions --

HS: Can violate people's First Amendment rights?

SW: Absolutely. The First Amendment begins "Congress shall make no law...." The First Amendment tells what Congress shall not --

HS: But it doesn't say "Brigham Young University shall make no law...."

SW: You got it! The First Amendment indicates what Congress -- what the government can and cannot do. And only indirectly does it indicate what you as an individual can and cannot do by saying, "Here's what the government can't prevent you from doing." But Brigham Young is not the government.

MHS: Howard, I suspect the reason a lot of people forget that is that most private institutions of higher education -- most of them choose to give full First Amendment rights to their students, faculty, staff and members.

HS: Actually, I thought the reason was that there's probably no private university in the United States that doesn't receive a huge amount of government funds one way or another, either through grants or subsidies or something like that. And I thought the government put pressure on them.

MHS: Oh, no!

HS: That's not the case?

SW: Only by certain statutes. For example, Title IX says that because you receive government money, you have certain restrictions with respect to discriminating on the basis of gender and on other bases.

But it is not the same as saying that you -- by virtue of being at an institution that receives government money -- have the benefit of all Constitutional rights at that institution.

MHS: But while we're talking about the First Amendment and private institutions, it is important to point out that states -- particular states may pass legislation that does hold private institutions up to First Amendment levels.

The example that comes to mind, obviously, is California. And they have -- the California State Legislature has passed a law that does require that private institutions do not infringe upon First Amendment rights.

HS: But that's different state to state, right?

SW: That's right. So now let's wrap this back to where this started. And that is, can't there be a cookie-cutter policy?

And what we've now determined is that for any institution, before it figures out what its policy is at all, it has to figure out what the state laws are -- what any other applicable laws may be to that particular institution, what the institution has already established with respect to the rights of its students in other campus policies and codes. That's why you can't have one computer policy that will serve all institutions.

HS: Okay. Not to belabor this, I certainly see that, though I guess I still don't see that we need 700. I think we could cut down to some smaller number.

SW: Howard, you're just too much of a programmer. You want one subroutine that everyone can just call with a couple of parameters.

HS: No, I'd settle for half a dozen.

MHS: It is worth pointing out that of the 700-odd policies that we've linked, they are in categories, and they're linked by institution types. So you'll find that there are public, four-year institutions, public two-year institutions, private four-year institutions -- things like that. And you'll see, when you start looking at those, if you look at the policies by category and by policy type as our database allows you to do, you will find enormous similarity.

HS: Okay, that's at least a little encouraging. In the beginning, when I did my little opening monologue there, I mentioned things like plagiarism, copyright, permissions and attribution. I mentioned those four things, and I mentioned them because they're obviously problems, but also because I personally sometimes confuse the issues involved -- especially between plagiarism and copyright. I wonder if, Margie, you could talk about what those things are, the difference between them, how we get into trouble with these things.

MHS: Sure. Plagiarism is the act of using somebody else's words as your own. So we hear about that in the academic arena all the time. If I took Steve's words and I put them in a paper and tried to put them off as mine, that would be plagiarism.

Copyright is the use of anybody's intellectual property rights without authorization, and those rights include things like the right to copy, the right to distribute, the right to public performance. And so there sometimes gets to be confusion because of copyright, the right to copy, is a copyright infringement. But it doesn't have anything to do with attribution, like plagiarism does. I'm not necessarily trying to put it off as my own, I just don't have authority or the right of the copyright owner to use the material.

SW: So Howard, if you wrote a paper and if I made a copy of that paper and whited out your name and put my name on it --

HS: I've seen you do that! No, I haven't, Steve.

SW: That's right, I do that all the time, and I figured I'd give you a chance to take me to task for it.

But the whiting out of your name and the substitution of mine is a violation of plagiarism. I have plagiarized your words and presented them as mine.

But if I didn't white out your name and I left that paper attributed to Howard Strauss, the copying of the paper is an issue for a copyright violation. And now you get into questions of Fair Use and lots of other things in the area of copyright.

HS: Let's talk about the area of Fair Use. What am I allowed to do? How do I know?

SW: You ask the Supreme Court.

HS: Asking the Supreme Court is often inconvenient.

SW: Right.

JB: Are there good sites on the Web that really can provide some good guidance to faculty and students in this area?

MHS: There's some great sites on the Web. Georgia Harper is in-house counsel at University of Texas system and she has a fantastic Website.

HS: Why don't we link some of these off the Website? It's hard to read a lot of these things over the air.

MHS: I'm not sure I could pull it off the top of my head, but it's the Office of General Counsel at Texas.

JB: At UT Austin, then?

MHS: No, UTexas System, so we'll have to send it to you.

SW: We'll see to it that it gets there.

JB: All right, that sounds good. But that's a place you would recommend --

MHS: Highly.

JB: That people would start with for Fair Use types of issues.

MHS: Very much. Stanford University has a site that I would highly recommend on Fair Use.

HS: But could you talk just a little bit about the concept of Fair Use. Does this mean I can take somebody's work and use a small bit of it without attribution or without permission? Is that what that means?

MHS: Maybe.

SW: Let's be clear. Differentiate the attribution vs. permission.

HS: Well, I'm trying to get both of them involved. What am I allowed to do? What is Fair Use? I understand it has many ramifications and implications and little dark corners and things, but basically, does it allow me to sort of violate copyright laws or plagiarism restrictions or both or neither?

SW: Not plagiarism.

MHS: Let's start with if you fail to attribute a work. If you fail to do that, then you will have plagiarized.

HS: Even if it's three words?

MHS: Even if it's three words.

HS: Okay. So Fair Use is not an issue there. It doesn't matter.

MHS: Fair Use is not an issue. Now, when you say three words, I suspect in order for anybody to care that you've taken these words, they have to be enough of substance to be recognized.

JB: How about "You've got mail"?

HS: Sounds like a copyright issue to me.

SW: Well, in fact, there is a current case on that, and the current order, if I understand it correctly, is that AOL has not been allowed to assert intellectual property ownership of the phrase "You've got mail."

HS: Wait, which is a movie title!

SW: Yeah.

JB: But they did get permission to use it in the movie, I understand.

MHS: They did get permission.

SW: But the case that was raised, I believe, was from Prodigy using that same phrase (but don't necessarily quote me on that -- I may not have it right).

JB: On the copyright and fair issue, did the Congress just pass some new laws amending the normal rules that have been in place for a while?

MHS: Congress did just pass the Digital Millennium Copyright Act, and it does affect some of the issues around copyright that we're discussing. I have not digested the entire Act. Steve, I don't know that it does anything on Fair Use.

SW: No, I believe it does not. There's no Fair Use issues in the DMCA to the best of my knowledge.

The parts of the Digital Millennium Copyright Act that universities are looking at very carefully -- and again, it's new enough that I'm not sure that there's a lot of really definitive and comprehensive analysis of it -- but what the DMCA tries to do, among other things, is provide a safe haven for providers of Internet connectivity, for providers of Internet services, so that the providers of the service are not subject to complaints if some of their users violate copyright.

Now, there's a long list of things that you have to do as an Internet service provider to avail yourself of that shield, to avail yourself of the things in it.

JB: Is that something that our universities and our IT divisions ought to be looking at to protect themselves from that?

SW: Yes, I suspect that every university's legal counsel is currently right now writing a position paper for use within that university.

MHS: As a matter of fact, for those that are behind the eight ball, I can recommend a place to go, and that's once again Georgia Harper's Website at U Texas. She wrote a good summary of her expectations of the requirement of the Digital Millennium Copyright Act.

JB: That's great. We'll get that linked off our Website shortly after the session here then.

HS: Steve, back to this Fair Use thing. I keep -- there's people out there at Princeton and certainly all over the world right now building Webpages and grabbing a graphic or something from one place or another. And you're telling me, "Gee, go out and read about all this Fair Use stuff all over the Web." Again, are there any guidelines short of poking around all over the Web and finding out what's going on when I see somebody use a graphic on a Webpage that they borrowed from somewhere, of deciding whether that's okay or not. Do we go after those people?

SW: It's tough. It's tough to make those calls. There are four -- here is the process, and I'm sure Margie will correct me if I run afoul of any of the legal technicalities.

The idea is that you borrow -- you use somebody else's intellectual property, and they take you to court. And you say, "Wait a minute! My defense against your claim of copyright infringement is Fair Use."

And the way you have to make that defense is to go through the four factors for Fair Use:

These are four factors of Fair Use that are in the Copyright Act, and you have to stand up in front of the judge essentially and say, "This was a Fair Use because, for example, it was educational -- the material was factual that I used rather than fictional. Therefore there wasn't that much creativity. I used a very small percentage of it and it had a very small effect on the market value of the original." Those are the four things that you're going to have to argue.

HS: So it would make it easier if it, for example, was just restricted to use in one class rather than out on the Internet in general?

MHS: Absolutely.

SW: Absolutely.

MHS: It's interesting. We haven't as a society figured out what we think about the Internet and Fair Use yet. However, we can rely on our understanding of what Fair Use in the classroom is when we're talking about instruction and restricting things to a class. This will certainly be perceived as more appropriate than letting it out, available to everybody in the world.

JB: Along with this Fair Use area, we've got a comment from one of your colleagues at Cornell by the name of Bill Steele.

SW: I saw that come through.

MHS: Hi, Bill.

JB: Did you see it? Yes, he says the best way to find out what constitutes Fair Use is to ask the copyright owner, and I think that might lead us to a couple of other questions that have come in.

And that is, it used to be that faculty at universities did not keep copyright. In fact, most of them don't now keep copyright of many of their articles that they write -- that it goes in fact to the publisher. Is that changing and what comment might you have about that?

SW: Before you go to that, Judith, let me make a comment on Bill's question. It's a subtlety here, but one that I think especially the techies in the audience would appreciate because it's a reasonably well-defined subtlety.

Bill is saying the way to find out whether use is fair is to ask the copyright holder. In fact, if I'm understanding this correctly, it's just the opposite. If you have asked the copyright holder for permission, you have permission.

HS: Then it's not a Fair Use issue.

SW: That's right. The only time Fair Use comes up is if you haven't asked for permission and the copyright holder complains and you defend yourself by saying this was a Fair Use. So in a sense, they're opposite from each other. If you have asked for permission, Fair Use is no longer an issue.

MHS: I will point out, though, that I suspect the point Bill's trying to make is if you genuinely wouldn't mind somebody else doing this with your work -- if you use that kind of model, you might put yourself in a reasonable position to defend Fair Use if you needed to.

JB: In other words, only do to someone else what you wouldn't mind someone else doing with your work?

MHS: Exactly.

HS: I don't know how good a legal defense that would be.

MHS: No, it's not, and what it is, it's just a ballpark. And it won't always work because you'll find some faculty that would love to have people use their work in its entirety. So it has to be reasonable, but that's a place to start.

HS: Another interesting copyright issue that I think only appears on the Web is the issue of links. If I have a link to somebody else's work, do I need copyright permission to use that?

JB: You know, that's a really good question. I've wondered about that myself.

HS: A lot of people complain about that. I've heard -- in fact, I think I've heard Microsoft fuss about the fact that people had links to their site.

JB: Any wisdom on that?

HS: Am I correct, Margie, in pointing out that there is no case law on that? We cannot point to any judicial decisions answering that question one way or the other.

MHS: That's correct.

SW: And so I have heard legal scholars -- let me put it this way: All the legal scholars who I have heard talking about this have said if all you do is link to someone's page, that link itself is not a copyright violation.

HS: But if, for example -- and it's actually an example here at Princeton. I hope by telling you this, it doesn't mean the site goes away -- but in our Credit Union site, what they really wanted was some little financial calculators. And we don't want to write them ourselves, so we just hunted around the Web and found sites that had financial calculators. Now, we didn't just steal the little calculators -- we let you see the entire page, but we have links to these little financial calculators so you can figure out how much a car loan would cost and all this kind of stuff.

SW: You'd have to --

HS: They took a lot of work.

SW: You'd have to look at the page in question in order to even frame (no pun intended) the question as to whether there was a problem. If all you have is a blue underlined URL -- a blue underlined "Click Here" -- you're still just talking about a link, it seems to me.

HS: Well, we probably have a sentence or two saying what you're going to find once you get there. We don't make any attempt to hide who did the thing. But you know, we are kind of taking advantage of -- an interesting thing about the Internet is everything is out there and it appears free. So you could wander off and you could use these calculators to your heart's content -- nobody stops you from using them, they're on the Internet and things like that. So when we put a link to them, we sort of make them part of our Webpage in a sense, right?

SW: Yes, and what you're describing is nowhere near the most egregious types of cases.

There's a site called www.totalnews.com which essentially puts frames with advertising in them around frames --

HS: Other people's neat stuff.

SW: Exactly.

HS: Good idea!

SW: And the people whose neat stuff was being framed complained and took totalnews.com to court. And part of the reason that that hasn't turned into definitive case law is that the parties settled before a judge made a decision.

And the settlement -- essentially totalnew.com said, "Hey, if you don't want to appear within our frames, that's fine. When you click on the reference for -- I believe USA Today is one of them -- we'll bring you up in a window of your own and you won't be surrounded by the advertising from our site.

But we have no law, we have no case law yet that says that that's a requirement. There's a good chance that if you did that to USA Today on the Princeton site, USA Today would haul you into court.

HS: Steve, Margie, another interesting question that I think this whole Internet stuff brings up that didn't exist too much before was the question of who owns university data. Before things were online, the person who possessed the data owned it. If it was in my office, all of it was my data, but --

MHS: At least you thought so.

HS: Well, I thought so, and I think a lot of people in universities, unfortunately -- I mean, I kept trying to tell other people (and other people did) that data was a university resource. But pretty much, if stuff was in the registrar's office, it was the registrar's; and if it was in the controller's office, it was the controller's -- even if it was a university resource.

MHS: You're right, I think that has been a common misperception.

HS: But as soon as the stuff is in some online environment on the Web, hmm!

MHS: Right. It's actually now because of this change that it's a good opportunity for institutions to readdress this issue. We did on our campus, and the question was -- you can address it in a number of different ways, not just who owns it but who can have access to it, which is related.

HS: And by access, of course, you mean, who can delete it, who can change it, who can read it.

MHS: Exactly.

HS: The whole spectrum of access.

MHS: Exactly. And of course, you might have different policies depending on the different kind of access. You might want a very limited number of people to actually delete it or change it.

HS: You hope!

MHS: You hope, right. Or a larger number to view it. Or maybe not. Maybe even a smaller number to view it. It depends on the institutional perspective.

HS: With respect to university data, it seems like there's a whole bunch of special rights -- like the right to privacy, for example. Electronic mail, for example, is that university data? Can I expect that if I send e-mail that it's private, that the university can grab it and archive it, can do things with it?

SW: Shall we say in unison, "That depends"?

MHS: Right.

HS: So it might be that they could. I mean, is it just a matter of what policy they've written? What it gets down to is that if the university says it's part of their policy that "your e-mail belongs to me," then it does; and if they don't, it doesn't?

MHS: In part, that's accurate. Some institutions have to deal with the state Freedom of Information acts as well. And so there's a question about who can have access to any information that's been created electronically.

SW: And also public records acts. The University of California system has just finished writing a very detailed policy on ownership and access rights for electronic mail, and one of the key factors they had to take into account was California's Open Records Act that essentially gives access to the public to any records that are considered part of the job function of anybody employed by the state of California. And folks at the University of California are so employed, and the University of California (inaudible) would have a tough time even if they wanted to say that your mail was private. They would have to somehow craft an exception for anything that was considered official business.

JB: Steve, some of those are official university business kind of things. But what about moving from the administration area into the academic and instructional areas. Is the law in California going to apply to faculty-student communication as well? It seems to me that will be kind of a tough one.

SW: I don't know what -- Margie, do you know what decision was made with respect to student-faculty communication in that area?

MHS: No. Yes, it's still considered student educational records under the Family Educational Right to Privacy Act. So therefore student communication is private.

JB: Okay. Can we come back to the question about faculty and whether or not you would all recommend that faculty retain copyright of their materials.

MHS: Yes, if they can. Historically, there's been a real problem with that because faculty need to get published in order to get tenured. In order to get published, they have to give up their intellectual property rights to get a publisher to publish the material. I think that is probably still the case. Steve, you might want to talk on that a little bit.

JB: We'll let Margie cough her cold a little bit, right?

MHS: Sorry! I'm trying to hold away from the phone.

HS: Those who are listening to this, don't get too close to your computer when Marge coughs.

JB: Right.

SW: Yes, there's this issue of viruses. Reframe that question, if you would.

JB: Okay, there's a couple of institutions -- and in fact there's a question that came in that I was trying to come back. They posed the question about there's a couple of provosts --I believe it was a provost at, what was it, Cal Tech who said faculty really ought to retain ownership of their materials.

SW: Now we're not differentiating between retaining ownership from the university from retaining ownership from the publishers.

JB: Right.

SW: It is the norm in the publishing industry that when you publish a work, the publisher acquires copyright of that work and the argument is that they want full rights to re-publish it in various forms because it's costing them money to disseminate it, etc.

There is certainly a movement, fostered by a number of academic libraries around the country -- the Association for Research Libraries has a project called SPARC which is moving in that direction. SPARC stands for Scholarly Publishing and Academic Resources Coalition -- encouraging the creators of scholarly material not to assign all rights to the publisher but to retain the rights.

Some publishers are willing to accept that, others are not. Whether it's a trend or not, we're going to have to wait and see. The argument is that it is now so easy for people to self-publish that the value-add that the scholarly and commercial publishers used to provide is no longer quite so valuable as it used to be, and therefore the producers of the intellectual property no longer have as much reason as they used to to give away the ownership of that intellectual property. I think we're going to have to see how society goes on that.

MHS: I think we're a little early on it, but hopefully we'll move in that direction.

JB: Steve and Margie, you made a distinction between the publisher and the faculty ownership, but we've had a lot of faculty and IT folks ask questions too about policies in the area of universities owning the courses. If in fact large (or even small) sums of money are granted to faculty as part of a project to put a course on the Web, then who owns that?

HS: Not just the Web. CD, or all kinds of --

JB: Or on CD or whatever -- right, just to build material.

SW: It's interesting to look at the typical way that most universities handle the distinction between textbooks (let's go back to the pre-Web world) and software.

I remember 15, 20 years ago, when we were developing the PLC compiler at Cornell, we were trying to figure out who had ownership rights in that, and that led to a reexamination of the Cornell policy with respect to software ownership. And the Cornell policy essentially says (and I think most universities have a similar policy) that whereas textbooks that are produced by faculty are owned by the faculty, software that's produced by faculty are at least in part owned by the institution.

Now, can we all figure out why that distinction is made? It's made because most institutions don't think that a whole lot of money could be made from textbooks, but even ten 15 years ago, institutions recognized that there was a lot of money to be made in software.

The reason that the question is now coming up again with respect to courseware on the Web is we are beginning to see the rise of for-profit higher educational institutions -- University of Phoenix, Walden University down in Florida. Higher education is getting to be looked at by at least some institutions as a business. And that calls into question once again the ownership of things that might have appeared at one point to be like a book -- like a CD ROM with courseware on it -- vs. things that appeared at one time to be software. What is a CD ROM? Is it like a book or is it like software? Who knows?

MHS: This is the kind of question that institutions need to answer in their policy.

SW: And universities -- like any employer, it's pretty much a matter of negotiation between the employer and employee, who will retain what rights. When you go to work for a company, you are buying into their policies. If you don't want to buy into their policies then negotiate a separate deal for yourself or go to work for a different company.

JB: So in other words, again, is it safe to say that there's more and more examples evolving on this, and that there's not that many hard and fast rules on that?

SW: That's right.

MHS: I think that's right, and I think we'll see more and more policies online that we can review and decide whether or not we want to adopt a policy that's similar -- that makes a decision on where to draw the line on faculty ownership.

JB: Howard, we've got obviously many, many questions that we could ask of Howard -- pardon me, I did that again -- of Steve and Margie.

SW: Happens all the time, Judith, even if I'm standing right in front of you.

JB: And also a couple of the comments that have come in online. Would you like to take another question at this point, before we start looking at close?

HS: Yeah, there's one question I'd like to bring up before we close this thing up, and that's the question of the liability of the university.

If the university puts together all these policies and thinks they have everything in place, and then their students, faculty and staff (as they're often inclined to do) go do whatever they please anyway and violate, say, copyright laws or intellectual property laws, what's the university liability there? Or is it the actual people who do these transgressions who are liable? Does the university have any real exposure here -- even if they have policies in place?

MHS: Yes, they do. Universities do have exposure. It is important that they not only have policies, but that they follow their policies and they enforce their policies. If they fail to do that, then they may be liable to the same degree as the wrongdoer who is a student, faculty or staff member. It depends on how they respond when a complaint comes in, and whether or not they respond appropriately.

SW: Part of the provisions in the Digital Millennium Copyright Act, especially in the area of copyright, now define what you have to do to remain off the hook -- "you" as an academic institution.

HS: What act what that?

SW: The Digital Millennium Copyright Act.

HS: And is there a pointer to that from the Website anywhere?

MHS: Not from ours, but we can make sure that you have one.

HS: Yeah, because it would seem like when I talk to legal folks on campus and other folks around here that one of the things they're most concerned about is that universities -- especially a university like Princeton -- has deep pockets. And if we have any kind of liability for anything, it could be lots of dollars. And certainly, I think, universities want to avoid that.

MHS: This actually will bring us full circle back to why (inaudible) and I've just said that your liability depends on how you handle those complaints. So it's important to make sure that the folks that are going to be receiving the complaints about these kinds of violations know how to handle them. One of the reasons is to lessen your legal liability.

HS: Certainly anything that would cost universities lots of dollars would get their attention.

JB: I think that a good point to make at this point is that part of what the computer policy and law -- both the Website and the various conferences and workshops that you and Steve do is to help inform IT folks about how to help with the policies, and also help with implementing the policies. Is that fair?

SW: That's absolutely right. And one of the issues that we promote very heavily is the need for collaboration among all these areas of the university -- the IT people, the legal staff, the policymakers all have to work together, bringing in as wide a range of the university community as possible in order to produce policies that will be effective at the institution, that mirror the institutions culture, that will be accepted by all of the people that have to follow them. It's a difficult task -- and it's an impossible task if you don't bring in all of the constituencies who are affected by the policies.

JB: Okay, great. You know what's happened is that just as we talked in our preparation meeting, that we thought gee, we might run the risk of running over this session. It looks as if we just about have. I just want to make one other comment here. We do have one of the listeners who sent in a note following up on the question of the case law regarding linking, and that's from Edward Geringer.

SW: I've got that in front of me, and I'm glad you brought that up because I wanted to address that question before we close. What the person is noting is he says there have been lawsuits.

His first statement is there have been lawsuits on whether linking is a violation of copyright, and if anything I said suggested that there haven't been lawsuits, I apologize. My point is that all of the lawsuits (at least that I'm aware of, including the ones that are in his note) have not gone to a definitive judgement. They all settled. And in fact, he talks about the Ticketmaster case and Microsoft and that's settled.

Ticketmaster and Microsoft came to an agreement before a judge had to issue a ruling, and you cannot base a presumption on the way the case law will go based on how a particular pair of people settled. It's only when the case actually goes to a judgement and a judge decides who was right or wrong -- that's where case law comes from. In this case, the parties settled and you really can't infer much from that.

JB: All right. Good explanation, Steve, and I would encourage everyone to watch the Website and to explore that and for other follow-up questions -- that hopefully you and Margie will answer those and we'll post them up there.

MHS: Be happy to.

JB: Howard, any other comment or point before we finish up here?

HS: No, I think it's time for people now to make the transition back from all these legal issues, back to thinking that IP again means Internet protocol, if you're able to do that.

JB: Thanks to all of our Web participants for being with us here today, and I'm sorry we didn't get to all of the questions. But again, please send follow-up questions to expert@cren.net.

And also be sure to mark your calendars for two weeks from today, January 28, Thursday at 4:00. This TechTalk will feature a return of one of our original TechTalk experts, Doug Gale, and he will be talking about providing basic telephony over the other IP -- Internet protocol on the network. So do plan on joining the session and inviting your friends as well.

Check the Website too for the upcoming spring schedule, and as always, we welcome suggestions and feedback on what you might like to see or hear in TechTalk.

Thanks to all who helped make this show possible today: the Board of CREN; our guest experts, Margie Hodges Shaw and Steve Verona; technology anchor Howard Strauss; Terry Calhoun for the Web publicity and the Webpage; Paul Bennett at UM Web services for encoding; and for all of you for being here. You were here because it's time. 'Bye, Margie. 'Bye, Steve. 'Bye, Howard.

HS: Thank you, Judith. 'Bye-bye.

MHS: Thank you, Judith.

JB: Take care, and take care of yourself, Margie.

MHS: Thank you.

SW: 'Bye, everyone.

JB: 'Bye-bye.