From daemon Mon Nov 14 15:02:18 1994
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                    WELCOMING STATEMENT FROM 
            DEPUTY SECRETARY OF COMMERCE DAVID BARRAM

Welcome to the Virtual Conference on Universal Service and Open
Access to the Telecommunications Network.  In hosting this
conference we seek to broaden our reach beyond the physical
limits of any conference room or auditorium.  The NII will tear
down the barriers of time and distance.  This conference, like
the NII itself, is meant to be inclusive and your ideas are
welcome and encouraged.  Your participation will help make it a
success.

This effort is jointly sponsored by the National
Telecommunications and Information Administration (NTIA) and the
Information Infrastructure Task Force (IITF), as part of the
Administration's National Information Infrastructure initiative. 
Through the NII, the Administration is focusing on the ability of
computer mediated communications to enhance the life and work of
every American.  The NII is a harbinger of change, both economic
and political, and holds great promise for the future of America. 
Some benefits of the NII include telecommuting, distance learning
and active life-long education, remote consultations with expert
medical professionals, as well as new forms of art, entertainment
and culture.

This conference continues the dialog started by NTIA's five field
hearings, held over the past nine months in cities throughout
America.  Unlike the field hearings, this conference allows for a
much wider participation, and more in-depth discussion on the
issues.  There are over 80 public access points in 25 states.

With this conference we are hoping to:

    Garner opinions and views on universal telecommunications
     service that may shape the legislative and regulatory
     debate.

    Demonstrate how networking technology can broaden
     participation in the development of government policies,
     specifically, universal service telecommunications policy.

    Illustrate the potential for using the NII to create an
     electronic commons.

    Create a network of individuals and institutions that will
     continue the dialog started by the conference, once the
     formal sponsorship is over.

This conference is an experiment in a new form of dialog among
citizens and with their government.  The conference is not a one-
way, top down approach, it is a conversation.  It holds the
promise of reworking the compact between citizens and their
government.

I thank you once again for your participation.
                             A BALANCING ACT:
                      COPYRIGHT IN THE ELECTRONIC AGE

                            Carol C. Henderson
                   Executive Director, Washington Office
                       American Library Association
                              cch@alawash.org

The legal framework for intellectual property is based on a
provision in the U.S. Constitution that empowers Congress to
grant limited rights to authors and creators in their
intellectual works for the purpose of promoting science and the
useful arts.  The Copyright Act of 1976 was intended to be 
technologically neutral,and to strike the essential balance 
grounded in the Constitution between rewarding creators and 
promoting growth of new knowledge built upon the work of others.  
One of the roles of the federal government is to foster maximum 
creativity by maintaining this equilibrium.

The library community, which has long provided opportunities for
the public to benefit from the lending and use of a wide variety
of copyrighted and public domain materials, is especially
concerned that this balance among legitimate interests be
maintained in the digital environment as well as with respect to
traditional formats. 

To that end, representatives of several library associations
drafted the following statement, "Fair Use in the Electronic Age:
Serving the Public Interest."  The document is still a draft in
progress, but the organizations listed at the end of the
statement would welcome comments from participants in the
intellectual property discussion of NTIA's virtual public
conference.

---------------------------------------------------------
D R A F T in progress                              11/08/94

                      FAIR USE IN THE ELECTRONIC AGE:
                        SERVING THE PUBLIC INTEREST

     The primary objective of copyright is not to reward the
     labor of authors, but "[t]o promote the Progress of
     Science and useful Arts."  To this end, copyright assures
     authors the right to their original expression, but
     encourages others to build freely upon the ideas and
     information conveyed by a work....This result is neither
     unfair nor unfortunate.  It is the means by which
     copyright advances the progress of science and art.

           --  Justice Sandra Day O'Connor
               (Feist Publications, Inc. v. Rural
               Telephone Service Co., 499US340,
               349 (1991)

The genius of United States copyright law is that, in conformance
with its constitutional foundation, it balances the intellectual
property interests of authors, publishers and copyright owners
with society's need for the free exchange of ideas.  Taken
together, fair use and other public rights to utilize copyrighted
works, as confirmed in the Copyright Act of 1976, constitute
indispensable legal doctrines for promoting the dissemination of
knowledge, while ensuring authors, publishers and copyright
owners appropriate protection of their creative works and
economic investments.  

The fair use provision of the Copyright Act allows reproduction
and other uses of copyrighted works under certain conditions for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship or
research.  Additional provisions of the law allow uses
specifically permitted by Congress to further educational and
library activities.  The preservation and continuation of these
balanced rights in an electronic environment as well as in
traditional formats are essential to the free flow of information
and to the development of an information infrastructure that
serves the public interest.

A long-standing principle is that copyright exists for the public
good.  The benefits of the new technologies should flow to the
public as well as to copyright proprietors.  As more information
becomes available only in electronic formats, the public's
legitimate right to use copyrighted material must be protected.
In order for copyright to truly serve its purpose of "promoting
progress," the public's right of fair use must continue in the
electronic era, and these lawful uses of copyrighted works must
be allowed without individual transaction fees.

Without infringing copyright, the public has a right to expect:

  o  to read, listen to, or view publicly marketed copyrighted
     material privately, on site or remotely; 
  o  to browse through publicly marketed copyrighted material;
  o  to experiment with variations of copyrighted material for
     fair use purposes, while preserving the integrity of the
     original;
  o  to make a first generation copy for personal use of an
     article or other small part of a publicly marketed 
     copyrighted work or a work in a library's collection for 
     such purpose as study, scholarship, or research; and
  o  to make transitory copies if ephemeral or incidental to a
     lawful use and if retained only temporarily.

Without infringing copyright, nonprofit libraries and other
Section 108 libraries, on behalf of their clientele, should be able:

  o  to use electronic technologies to preserve copyrighted
     materials in their collections;
  o  to provide copyrighted materials as part of electronic
     reserve room service;
  o  to provide copyrighted materials as part of electronic
     interlibrary loan service; and
  o  to avoid liability, after posting appropriate copyright
     notices, for the unsupervised actions of their users.

Users, libraries, and educational institutions have a right to
expect:

  o  that the terms of licenses will not restrict fair use or
     lawful library or educational uses;
  o  that U.S. government works and other public domain materials
     will be readily available without restrictions and at a
     government price not exceeding the marginal cost of
     dissemination; and
  o  that rights of use for nonprofit education apply in face-to-
     face teaching and in transmittal or broadcast to remote
     locations where educational institutions of the future must
     increasingly reach their students.

_______

This statement was developed by representatives of the following
associations:

American Association of Law Librarians
American Library Association
Association of Academic Health Sciences Library Directors
Association of Research Libraries
Medical Library Association
Special Libraries Association





From daemon Mon Nov 14 15:05:38 1994
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Date: Mon, 14 Nov 1994 15:10:49 -0800
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From: Christine Sundt <CSUNDT@OREGON.UOREGON.EDU>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:9] Who owns culture?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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Questions for the NTIA Virtual Conference -- I would be pleased if anyone could
address any of these issues.

1. Who owns popular culture vis-a-vis copyright?
      Who can prohibited artists from using or reusing in their own
creative works icons of popular culture, such as the Mona Lisa,
Warhol's Brillo Pads, or the Empire State Building?   Whose copyright
is being protected in these examples?  Who benefits from either
protection or prohibition?  When do icons of popular culture enter
the "commons" and thus the property of all members of the cuture?

      On what grounds can humanist teachers and scholars be
required to pay permission fees to use or reproduce these same
popular icons in their scholarly discourse (e.g., in the classroom, in
their books or scholarly journal articles) from which their "financial
return" may be only the assurance of a job for the next year or so?

2. What is a "fair use" of an *electronic* image of art or culture?

3. How can information consumers retain their current rights of
access to information once the same information is presented in
digital form?  How can we be assured access comparable to what we
currently enjoy once cyberspace is under the control of licenses and
contracts where fair use has no legal equivalent?     


Christine Sundt
csundt@oregon.uoregon.edu

From rbarry Mon Nov 14 15:33:12 1994
Subject: Definition
To: intellec@virtconf.ntia.doc.gov
Date: Mon, 14 Nov 1994 15:33:12 -0500 (EST)
X-Mailer: ELM [version 2.4 PL24]
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Could someone post a legal definition of a "Section 108" library please.
And perhaps an opinion if a free public access Bulletin Board owned and
supported by a business or individual would qualify.

Much appreciated.  
-- 
 
 rbarry@hopper.itc.virginia.edu    Freeware Hall of Fame BBS  
 The only thing Americans have     Hayes Optima 288 - 804-293-4710 
     in common is paranoia.        Free BBS - 1st call downloads  

From rbarry Tue Nov 15 01:46:56 1994
Subject: Password
To: intellec@virtconf.ntia.doc.gov
Date: Tue, 15 Nov 1994 01:46:56 -0500 (EST)
X-Mailer: ELM [version 2.4 PL24]
MIME-Version: 1.0
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set intellec password 784854584 fhof1194

-- 
 
 rbarry@hopper.itc.virginia.edu          Freeware Hall of Fame BBS  
    The only thing Americans       Hayes Optima 288 - 804-293-4710 
   have in common is paranoia.       Free BBS - 1st call downloads  

From rbarry Tue Nov 15 10:30:03 1994
Subject: password
To: intellec@virtconf.ntia.doc.gov
Date: Tue, 15 Nov 1994 10:30:03 -0500 (EST)
X-Mailer: ELM [version 2.4 PL24]
MIME-Version: 1.0
Content-Type: text/plain; charset=US-ASCII
Content-Transfer-Encoding: 7bit
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SET INTELLEC PASSWORD 784854582 fhof1194

-- 
 
 rbarry@hopper.itc.virginia.edu          Freeware Hall of Fame BBS  
    The only thing Americans       Hayes Optima 288 - 804-293-4710 
   have in common is paranoia.       Free BBS - 1st call downloads  

From rbarry Tue Nov 15 10:39:51 1994
Subject: pswd
To: intellec@virtconf.ntia.doc.gov
Date: Tue, 15 Nov 1994 10:39:51 -0500 (EST)
X-Mailer: ELM [version 2.4 PL24]
MIME-Version: 1.0
Content-Type: text/plain; charset=US-ASCII
Content-Transfer-Encoding: 7bit
Content-Length: 255       

SET INTELLEC PASSWORD 784854584 fhof1194

-- 
 
 rbarry@hopper.itc.virginia.edu          Freeware Hall of Fame BBS  
    The only thing Americans       Hayes Optima 288 - 804-293-4710 
   have in common is paranoia.       Free BBS - 1st call downloads  

From daemon Tue Nov 15 17:39:25 1994
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PASSWORD mode reset to FHOF1194

From daemon Tue Nov 15 20:04:23 1994
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Date: Tue, 15 Nov 1994 20:09:10 -0800
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From: Christine Sundt <CSUNDT@OREGON.UOREGON.EDU>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:10] Who owns culture?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
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Questions for the NTIA Virtual Conference -- I would be pleased if anyone could
address any of these issues.

1. Who owns popular culture vis-a-vis copyright?
      Who can prohibited artists from using or reusing in their own
creative works icons of popular culture, such as the Mona Lisa,
Warhol's Brillo Pads, or the Empire State Building?   Whose copyright
is being protected in these examples?  Who benefits from either
protection or prohibition?  When do icons of popular culture enter
the "commons" and thus the property of all members of the cuture?

      On what grounds can humanist teachers and scholars be
required to pay permission fees to use or reproduce these same
popular icons in their scholarly discourse (e.g., in the classroom, in
their books or scholarly journal articles) from which their "financial
return" may be only the assurance of a job for the next year or so?

2. What is a "fair use" of an *electronic* image of art or culture?

3. How can information consumers retain their current rights of
access to information once the same information is presented in
digital form?  How can we be assured access comparable to what we
currently enjoy once cyberspace is under the control of licenses and
contracts where fair use has no legal equivalent?     


Christine Sundt
csundt@oregon.uoregon.edu

From daemon Tue Nov 15 20:05:19 1994
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Date: Tue, 15 Nov 1994 20:10:27 -0800
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From: "Freedman Richard" <freedman.richard@mail.ndhm.gtegsc.com>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:11] Transitivity of permissions
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A local group publishes a newsletter in traditional printed form, and mails
it to a membership list of about two hundred.  In the last couple of years it
has included small copyrighted items for which the contributors had "granted
permission".  Now this local group wishes to contribute its past issues to an
electronic archive for a "net" group.  Does it have to seek permission again
from each of the contributors, or is this merely the same publishing event
for which permission was already granted?
[For the curious, the actual example involved "The Trumpet Bray" published by
the New England Gilbert and Sullivan Society, and shortly to be contributed
to the archives of SavoyNet.  As a matter of courtesy, permissions were
requested - and granted - but was this necessary?]


Richard Freedman, president, NEGASS
(freedman.richard@mail.ndhm.gtegsc.com)


From daemon Tue Nov 15 20:07:48 1994
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From: rothman@clark.net (David H. Rothman)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:13] Re: Modifying existing Copyright law probably insufficient
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At 02:49 PM 11/14/94 -0800, DOUG MASSON  <DMASSON@ucs.indiana.edu> at the
Indiana University School of Law wrote:

>It is usually the habit of legislators to modify old law in order
>to deal with new problems.

     The above is all too true, except you should lump Commerce bureaucrats
in with legislators. I testified at an interagency NII hearing on
intellectual property, in November 1993, and I suffered through the
transcripts from this year's round. Depressing. Most of the witnesses were
lobbyists for, say, publishers or the recording industry. Assistant Commece
Secretary Bruce Lehman, Bill Clinton's intellectual property czar, made love
to the IP interests with the notorious Green Paper--itself drafted by an
aide with past ties to the latter industry. The Green Paper tried to
digitize the present, obsolete laws, reflecting the prejudices of Lehman
himself. His hearings, pre- and post-GP, were a conspiracy against the
commonweal. 
     I am a professional writer, and I'm especially ashamed of the group
behavior of some of my peers. The most sickening dialogue took place when a
representative of a writers' group talked joyfully about Americans having to
go to the library to read electronic library books that bore copyrights.
Lehman, rather than keeping an open mind about alternatives, encouraged the
man to make his desire known to librarians. At one point he himself told the
Washington Post that Americans might have to visit to the library to read
copyrighted electronic library books. In the context of things, his
statement across less as a prediction than as a wish. So much for Lehman's
objectivity and for his concern for rural people and disabled citizens. A
wit on the Internet said Lehmanesque e-books for libraries would be like
theft-proof cars without wheels. The simile, alas, fits. All in all, the
Administration's hearings belied the pieties that Vice President Gore had
uttered about his little neighbor-girl in Tennessee being able to dial up
the Library of Congress. I suppose, of course, that she could confine
herself to public domain material such as the speeches of Al Gore. 
     Almost surely the Administration will be as oblivious to logic as it
was when I testified last year, but I now suggest, among other things:
     --A national library fund to help protect e-text, the most vulnerable
medium and the one that most contributes to the literacy that Bill Clinton
and Al Gore claim to be promoting through the NII. Writers and publishers
could be paid according to such criteria as the number of accesses, to give
one example. Members of the public could dial up the books directly or
obtain them at local libraries. The fund could take advantage of super
distribution, but not to bill readers. Instead they would be required to use
convenient mechanisms to report past accesses--in order to enjoy future
ones. Privacy protections could be in effect, such as the opportunity to use
the equivalent of anonymous digital cash for future dial-up credits. Without
read-o-meters, there would be less incentive to defeat technological
protection. Thousands of public and university librarians could participate
in the acquisitions process for the fund; in effect, we would be putting our
library system online. We could even let CompuServe-style services use the
material for little or nothing (all the better to spread it around); what's
more, bookstores and print shops could make paper copies of books from the
fund. And, yes, we could guard against Big Brotherism. I believe that by
gambling enough money up front, publishers and writers should have the right
to see their offerings treated as if the librarians had chosen them. We
could also strengthen the Internet as an alternative to this system; in
fact, the Web just might work out as a testbed of sorts, once the proper
software was available. 
     --Cost-justification of the above fund through a *focused* procurement
program for schools and libraries to encourage the development of
tablet-style computers for such applications as e-text, networking, and
electronic forms. With private production ramped up, the program in effect
would help slash hardware costs for anyone buying the machines. TeleReaders
could eventually sell for as little as calculators, according to a
calculator expert at a major vendor and my own judgment as author of a guide
to portable computer technology. So how does the cost-justification enter
the picture? We've got a $6-trillion-plus GDP. Reduce private and public
paperwork just a fraction and we'll justify the national library. The cost
of government is not just in taxes--it's in paperwork; think of all the time
and money that Americans devote right now to pleasing the IRS and the like.
Smart e-forms on tablet-style computers would be so much easier to work with
than paper forms or control sticks on televisions. Needless to say, such
forms could also encourage home shopping and other forms of commerce and
bring new efficiencies to them. And along the way, writers and good
publishers could come out far ahead compared to the present Lehmanesque
plans. This more imaginative alternative could be phased in slowly, perhaps
on a subject-by-subject basis in part, so that the new expenses didn't occur
until cost jusfication was present.
     Of course, the above is a way to shift wealth from bureaucacy to
knowledge in the most systematic of ways, and despite all the talk about
Re-Inventing Government, isn't bureaucracy what Washington is all about?
Too, lawyers such as Lehman tend to think of laws, not more comprehensive
solutions. But perhaps the public sooner or later will catch on to the
possibilities and tell Washington to think of the whole country, not just
the lobbyists' clients. Yes, as shown by recent electon returns, Washington
has disappointed millions of us Democrats. But that is nothing compared to
what's ahead if special-interest advocates like Lehman keep conspiring with
the copyright holders against schoolchildren and library patrons--and
otherwise give American families the finger.

>Of course, I don't have a comprehensive vision of what the new
>regime should look like,

     I've just passed on the basics, which will appear as an essay in an
information science collection from M.I.T. Press. 
     Bill Buckley, not exactly a socialist, wrote a column last year
endorsing the basic concept. I'm waiting for Bill Clinton to catch up.

> but I suspect that, in order to preserve
>the rights of both society and the copyright holder, the whole
>of copyright law will end up looking like the fair use exception.

     And that's as it should be--as long as writers and publishers receive
fair compensation for their labor. I myself am in favor of copyright
holders' rights. In fact, I see the Green Paper as a threat to my
prospersity  because it is so much outside the laws of human behavior and
cannot be properly enforced. Bruce Lehman doesn't want you even to share
*one* electronic copy of copyrighted material. He can't even stand the old
model of the library Xerox machine--you know, the present vagueness in the
law, which, in effect, lets Americans make informal clips for personal use.
Especially I hate the harm that the Green Paper, if made into law, will
inflict on American schools. It will discourage sharing by law-abiding
schoolchildren and turn the not-so-tractables ones into little criminals. 
     Those children are my future market. I want a copyright system that
lets students dial up my copyrighted works of interest to *them*. Ask any
literacy instructor and you'll hear the obvious: Children are more likely to
become lifelong readers if they can find books on their favorite subjects.
That means easy, affordable access to copyrighted material. Children needn't
visit the library to watch television; why must they go to read copyrighted
electronic library books, especially students who live in rural areas and
dangerous urban neighborhoods?
     Meanwhile I have a friendly suggestion for Bruce Lehman--a former
lawyer-lobbyist for intellectual property interests--and all other
policymakers dealing with copyright law. They should disconnect their Mead
Data terminals, rip out their SLIP/PPP connections to the Internet as soon
as this virtual conference is over, and rely entirely on information from
the public library. That might give them a little more empathy with
schoolchildren they propose to shaft. More than one pol has spent time in a
public housing project to research the needs of the Have-Nots. I heartily
recommend the public library experience for Bruce Lehman. 

-David "Voted for Clinton, but not 
for kangaroo-style copyright hearings" Rothman
rothman@clark.net

[Reposting encouraged]


From daemon Tue Nov 15 20:08:19 1994
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Subject: [INTELLEC:15] existing Copyright law and digital information
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The fundamental reason that existing Copyright law cannot be modified to be
relevant to digital information is because existing Copyright law relies upon
an object's extension in space and time for its efficacy. This is what I
assume Doug Masson means when he refers to a "...fixation of a work in the
physical realm, subject to all the limitations of physical objects...". If
this is the case, then an appropriate vision for the future must take into
account the real nature of the material that is to be protected. If this
material is the idea as such, one can never really protect it. Rather, one
ends up with overly-burdensome regulation and legislation that is difficult
if not immpossible to enforce.

Rather than persure an unproductive legislative path, then, one might instead
focus upon the nature of digital information itself. Along these lines, is
anyone familiar with Phil Agre's argument as presented in a WIRED editorial
(No.2.11. Nov 94. "Living Data," pages 94-96) regarding data? He envisions a
new type of data that includes the characteristics he calls Ownership, Error
bars, Sensitivity, Dependency, and Semantics. I am intrigued with his
argument and think that this may be the only productive and creative route
that combines all of the issues at hand.

Timothy Kent Parker

From daemon Tue Nov 15 20:08:55 1994
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>
>The basic reason why copyright can no longer operate as it does is
>because at its base, it assumes fixation of a work in the physical
>realm, subject to all the limitations of physical objects (ie
>scarcity and difficulty of transportation).>
>===Doug Masson
>   Indiana University School of Law


I also think that we need to redefine the basis of what we protect with 
copyright laws and go back to first principles.   Here are some of my thought... 

1.  We want a system to reward creators of original material and maximize the 
benefit to society (and promote the progess of science and the useful arts).  

Right now the existing copyright system reward the creator with some benefits, 
but the lion share usually goes to some publisher (for promoting, printing, 
marketing costs and risk).  Most struggling authors would probably agree while 
our richest billionaire list is filled with media owners.  Are we rewarding the 
right person in the right porportions?  Can this be redefined to "create" a 
diversity of publishing resources while meeting society's goal of fair return 
for work.  

The electronic media redefines relationship between creator, "middleman" and 
users.  The users should have a say in the "value" of the original material and 
the $ share to the middleman should drop.  We need an infrastructure that would 
allow anyone to draw a political cartoon, be able to post it for viewing, have 
users vote with their reaction to the cartoon, and be paid in proportion to the 
enjoyment of the work of art.  Why do we need to force all cartoonist to go 
through syndicates, newspapers, etc.?  Do we need pay so much to all those 
gatekeepers when software can perform the function and the users can vote with 
their patronage. 

Right now the link between user and value is very diffused.  A cartoon in a 
newspaper may only be read by a small group.  But the newspaper does not have a 
fast and easy way of measuring that value.  Thus we suffer from a derth of 
options.  If the marketplace is redefined, a lot of creator artists could make a  
good living from create works of art that are "valued".  Isn't that the meaning 
of creating jobs from the NII.   

2.  We want a system to reward people that contribute to piece of the total 
original work instead of letting one "winner" take all.  Einstein said that 
technology is built upon the shoulders of giants.  We need a reward system that 
is commensurate with the value each giant adds.  The final creator that pulled 
it all together can get the bulk of the reward for a short period of time - a 
few years (until they recoup their investments by x numbers of time).  Then  the 
payment for the technology should be shared among the contributors. If the 
technology advance is general in nature, then the funds should be used by the 
industry to fund cross-industry cooperative reasearch.  Universities with basic 
research should be able to reaping the benefits of their research.  In the long 
run, universities should be able to use funds from previous original works to 
fund new research.  Why do we make universities beg for funding from a public 
purse or migrate to become one firm's R&D arm? Why force our politicians to pick 
winners or losers?  Why not redefine how people get paid and let universities 
compete with diversity of options.  

3.  The system of deciding what is the original work of art should involve 
participation from the "experts" of the industry.  Perhaps the industry 
association should take a more active role. And we need some way for measure the 
votes of experts to come to some consensus.   But we really don't want judges 
and lawyers unfamilar with the technology trying to decide who has the patent to 
a work of art.  This is espically true in the software industry.  


Shirley Tseng


"Opinion expressed are purely my own."


From daemon Tue Nov 15 20:09:46 1994
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Reply to Doug Mason on the physical limitations:

The lack of physical limitations on the digital transmission of
information is not so new.  We have used photocopy and
facsimile machines for years, and these machines produce nearly
identical copies without altering the original.  However, the law
has managed to keep up to date with this newer technology with
rules like it is OK to photocopy and distribute the listing of
articles of a publication, but not to photocopy and distribute the
entire publication.  This "rule" was a result of real world
considerations, fair use legal rulings, and enforcement by
publishers.  While we do not have a set of "rules" for
transmissions, the law may figure out what works in cyberspace.
I suggest that it is OK to let a few interested parties litigate
these issues to determine what the electronic transmission "rules"
are for cyberspace.

Reply to Christine Sundt:

1.  Who owns popular culture vis-a-vis copyright?
     The textbook answer is the creator of the original expression
of the creative works icons owns them.  The more difficult
question is how much expression is in the author of the icon?
While only minimal creativity is needed for copyright, two authors
could create very similar icons if both based their icon on, e.g.,
the Mona Lisa.  Besides the copyright questions, there is also the
issue of entities acquiring trademark/trade dress rights from the
use of the icons in commerce.
     As for humanist teachers and scholars, they should be able to
use the icons for purely academic purposes.  However, it would be
possible to cross the "purely academic" line, for example by
publishing a book on "Mona Lisa in Contemporary Culture"--possibly
OK by itself--and still violate the copyright of the icon by
reproducing the copyrighted Mona Lisa adaptation on the front
cover to promote the book.

2.  What is a "fair use" of and *electronic* image of art or
culture?
     Would a "fair use" of an *electronic* image be the same as
the "fair use" of an hard copy image.  Depends on the
copyrightability of the underlying work and the amount, if any, of
expression involved in transforming it to digital.  My gut feeling
is that an electronic image of a public domain artwork would
receive very minimal copyright protection, so the parameters of
"fair use" would be broad.

3.  How can information consumers retain their current rights of
access to information once the same information is presented in
digital form?  How can we be assured access comparable to what we
currently enjoy once cyberspace is under the control of licenses
and contracts where fair use has no legal equivalent?
     One way is to ensure full market competition so that
consumers will have the choice of licenses and contracts and can
vote with their pocketbooks.  Unfortunately, the market solution
depends on the economics of cyberspace being able to allow
numerous information providers.  Another recourse would be to
legislatively extend fair use to any license or contract for
copyrighted materials.




From daemon Tue Nov 15 20:10:54 1994
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From: jn@tommy.demon.co.uk (John Nissen)
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Subject: [INTELLEC:18] Re: Modifying existing Copyright law probably insufficient
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Doug Masson raises the issue of copyright for electronic information
in the message appended.
 
The publishers' fear of indiscriminate copying (pirating) must be 
the biggest barrier to making more information available in electronic
form.  This barrier must be lowered if one is to equalise opportunity
for information access, and hence education and employment, across 
the whole population. This is especially true for blind people.
Blind students would benefit enormously if more books were
available in electronic form.  If publishers were confident that
access to an electronic version of a book was effectively restricted 
to a group of disabled people and/or subscribers, then they would 
be happy to publish such a version. This is now possible with a
combination of encryption and other techniques. However the US 
government seems to be actively discouraging use of the kind of 
encryption required.

Cheers from Chiswick,

John Nissen

---------------

In message <199411142248.OAA02332@virtconf.digex.net> Doug Masson,
via intellec@virtconf.ntia.doc.gov writes:

> It is usually the habit of legislators to modify old law in order
> to deal with new problems.  Normally, this is somewhat desirable since
> it provides continuity and a degree of predictability.  However, in
> the case of fashioning a copyright law that can deal with the
> exigencies of the new digital technology, I'm afraid the standard
> approach will be like trying to pound square pegs into round holes;
> sure it can be done if you pound hard enough, but you normally
> end up breaking the frame work.
> 
> The basic reason why copyright can no longer operate as it does is
> because at its base, it assumes fixation of a work in the physical
> realm, subject to all the limitations of physical objects (ie
> scarcity and difficulty of transportation).  Physical limitations
> play a very small role in the digital transmission of information,
> ideas, and the like.  Any limitation based on physical existence
> must now be ineffective.  It seems to me that the only way to
> protect the economic investment of the copyright holder must be
> rigidly limiting to the uses to which a work can be put without
> the express consent of the copyright holder if we are to play by
> the old rules in a digital age.
> 
> Of course, I don't have a comprehensive vision of what the new
> regime should look like, but I suspect that, in order to preserve
> the rights of both society and the copyright holder, the whole
> of copyright law will end up looking like the fair use exception.
> But, then again, I suppose I'm falling into the trap of thinking
> in the old fashion, but it seems like without the existence of 
> the physical product as a limiting factor, all decisions will
> have to be based on considerations of the nature of the work and
> the use.  
> 
> In any case, since my thinking is obviously drifting to the level
> of ramblings, my time is running short, I have a desire for feedback
> considering my premises before moving forward with them, and since 
> I know my reading becomes less careful after the first couple of
> pages and I don't expect more from others; I shall pause this 
> discussion in the hopes that others have thoughts on the matter.
> 
> ===Doug Masson
>    Indiana University School of Law
> 
> 

-- 
{-: John Nissen, Chiswick, London.  Telephone +44 81 742 3170 :-}

From daemon Tue Nov 15 20:10:50 1994
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From: ab147@virgin.uvi.edu (Gary M. Goodlander)
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Subject: [INTELLEC:19] A Writer's Viewpoint
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I am a freelance writer. The only thing that I have
to sell are my words. I am, thus, quite concerned aboard
matters of copyright. 

However, I think that there is a difference between
copying a work for personal use, and copying a work
for profit and/or distribution. 

In essence, I don't mind 'sharing' much of my work
for free on the internet... but I certainly don't 
want anyone to copy that work and redistribute it or
profit from it. 

I think this can be worked out legally. 

I hope so. 

I want to make the world a slightly better place...
while making my living with... words. 

I want to be able to sell them, protect them, and yet
still share them. Surely this is possible...

Gary, aka Cap'n Fatty


>From news Tue Nov 15 10:17:58 1994
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From daemon Tue Nov 15 20:11:39 1994
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From: "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
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Subject: [INTELLEC:20] Introduction to a Framework for Public Policy and Intellectual
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As a public policy analyst I find it difficult to deal with a
subject as complex as intellectual property without a thorough
analytical framework.

Our Center has gone on record about the need for better public policy
analysis:  See our "Public Policy Research, the NII, and the Public
Good," September 26, 1994 at gopher.eff.org (related organiziations,
under Center for Information, Technology & Society: Newsletters

In the spirit of the value of strong frameworks for policy and action
we are posting our study for the U.S. Congress, OTA, called
THE CHARACTER OF INFORMATION: CHARACTERISTICS AND PROPERTIES OF
INFORMATION RELATED TO ISSUES CONCERNING INTELLECTUAL PROPERTIES.

This report provided the cornerstone of OTA's report to Congress on
Intellectual Property and new information technologies of 1987.

Unlike the much of the chatty material on the Internet, this is a
description of the science of information economics and how that
relates to policy issues of intellectual property.

We suggest the report be archived and reviewed when the reader has
sufficient time and interest to encounter many new terms that
hopefully will the reader comprehend public policy aspects of
information and information technology

Due to its length, we have divided the report into seven parts.

The report is provided for both the public record and to aid all
of us in appreciating the many public issues involved in new forms
of information media.

_______________________________________________________________________________
|               W. Curtiss Priest, Ph.D.             *********************** |
|      Center for Information, Technology, & Society *  Improving humanity * |
|                                                    *  through technology * |
|                  466 Pleasant Street               *********************** |
|                Melrose, MA  02176-4522                                     |
|                  Voice: 617-662-4044     Gopher to our publications:       |
|                   Fax: 617-662-6882      GOPHER.EFF.ORG
_____________________________________________________________________________|

From daemon Tue Nov 15 20:16:51 1994
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Archive Information: gopher.eff.org, Related Organizations, CITS, Reports



Circulation Title: An Information Framework for the Planning and
                   Design of "Information Highways"

                          Dr. W. Curtiss Priest
             Center for Information, Technology, and Society
                           466 Pleasant Street
                            Melrose, MA  02176
                               617-662-4044
                           BMSLIB@MITVMA.MIT.EDU

NOTE: This is a seminal work for the design of the National
      Information Infrastructure (NII).  Contained in the
      14 characteristics of information are the seeds of how
      to build better information systems.  In particular,
      the 8 characteristics related to market failure provide
      the rational for non-profit and government involvement.

      Contact us if you are interested in supporting or partic-
      pating further development of this work.

NOTE: Report has been converted to ASCII.  Underlining of text
      has been removed and subscript/superscript are indicated
      by >text< and <text>, respectively.




                      THE CHARACTER OF INFORMATION:
                      Characteristics and Properties
               of Information Related to Issues Concerning
                          Intellectual Property

                            February 10, 1985
               (Revised September 2, 1985, October 1, 1994)

            In Support of the Office of Technology Assessment
                     Project on Intellectual Property
                           Contract 533-1510.0

       (c) Center for Information, Technology & Society, 1985, 1994

      Parts may be copied in derivative works with full attribution
      under the Doctrine of Fair Use.

                                 Author:

                         W. Curtiss Priest, Ph.D.
Submitted to:

Congress of the United States
Office of Technology Assessment
Washington, DC  20510








                      The Character of Information:
                      Characteristics and Properties
               of Information Related to Issues Concerning
                          Intellectual Property


                            Table of Contents

                                                                    Page

1.  An Operational Definition of Information                         1
        1.1  The Function of Information in Achieving Outcomes       1
        1.2  Information as Intellectual Property                    3
        1.3  Conclusion                                              5

2.  Characteristics and Properties of Information
    in Commerce and Transactions                                     6
        2.1  Market Related Characteristics of Information as        6
             a Commodity
                2.1.1  Intrinsic Co-production                       6
                2.1.2  Time Constrained Consumption of Information   7
                2.1.3  High Investment to Reproduction Cost Ratios
                       for Information                               7
                2.1.4  Relevance of Information More Variable
                       Across Consumers                              8
        2.2  Market-failure Related Characteristics of Information  10
                2.2.1  Public Good Characteristics                  11
                        2.1.1.1  Inappropriability                  12
                        2.1.1.2  Non-depletability                  13
                2.2.2  Externalities                                13
                2.2.3  Indivisibilities (of supply)                 15
                2.2.4  Economies of Scale and Scope                 16
                2.2.5  Inherent Uncertainty and Risk in Information
                       Production                                   17
                2.2.6  Information/Knowledge About the Information  19
                2.2.7  Intangibility                                19
                2.2.8  Transaction Costs and Information            21







                                                                    Page

        2.3  Non-market Related Characteristics of Information      23
                2.3.1  High Intrinsic Relationship to Human Welfare 24
                2.3.2  High Intrinsic Relationship to Freedom and
                       Privacy                                      26

3.  Relationship of Information to Products and Services            28

4.  Rewards, Incentives, and Funding Sources for the
    Creation of Intellectual Property                               36
        4.1  Rewards, Incentives, and Funding for Science           36
        4.2  Rewards, Incentives, and Funding for Culture           39
        4.3  Rewards, Incentives, and Funding for Products
             and Services                                           40

5.  Structural Role of Intellectual Property in Maintaining a
    Viable Economy                                                  43

6.  Summary                                                         45

Appendix A - Bibliography                                           46






                            EXECUTIVE SUMMARY


        To comment on issues concerning intellectual property it is useful
to identify what distinguishes information from other forms of property.
Fourteen distinguishing characteristics of information are identified and
discussed in relation to property rights.
        These characteristics, however, are not only useful for
considering issues concerning intellectual property but for more generally
inquiring into the nature and purpose of information in society.
Summarized below are brief definitions of the fourteen characteristics and
introductory remarks about the general importance of the distinguishing
characteristic.

Definitions and Introduction to Fourteen
Characteristics of Information

As a Commodity:

 1.  Intrinsic Co-production
        The character of information to be instrumental in achieving other
        goods and outcomes.  This character makes information inherently
        more valuable than goods that are not instrumental in character.

 2.  Time Constrained Consumption
        The character of information to occupy more consumer time per
        dollar expenditure than other commodities.  This characteristic
        combined with the relatively low reproduction cost characteristic
        (3) has long run employment implications.

 3.  High Investment to Reproduction Cost Ratios
        The creation costs of information divided by the cost of
        reporducing one unit of the good.  The implications of this
        characteristic are economies of scale and scope, and resulting
        market structure.

 4.  Relevance, More Variable Across Consumers
        The character of particular information be be acquired usually
        only once.  The results is high variability in consumption by each
        consumer.  This characteristic tends to work in the opposite
        direction of low reproduction costs, since it implies that
        information will become more and more customized and
        particularlized.

Market-failure Related Characteristics:

 5.  Public Good
        The same information can be used by many consumers without
        interference.





        Inappropriability
                The difficulty in receiving full market compensation for
                the creation of infor mation due to the problem of
                exclusion.  The result is under-production and
                under-compensation.

        Non-depletability
                Information does not dissipate with use.  Producers must
                compete with past producers but society benefits with an
                accumulation of knowledge.
        Goods with substantial public good characteristics such as
        national defense,  recreational parks, and safety facilities such
        as lighthouses are usually supplied by the government to reduce
        the "free rider problem" associated with inappropriability.

 6.  Externalities
        The effects of information, usually positive, that are not
        accounted for in its price.  The effects of information,
        especially as education, have considerable positive externalities
        in terms of reducing unemployment and increasing general social
        welfare.

 7.  Indivisibilities (of supply)
        Information must be purchased in lumps; these lumps may be vastly
        greater than the information actually sought.  This characteristic
        along with the variable relevance characteristic will contribute
        to utilization of information technology that reduce
        indivisibilities and permit customization.

 8.  Economies of Scale and Scope
        1)  Decreasing unit costs when the scale of operation is
        increased; and 2) decreasing costs associated with joint
        production.
        Historically, information distribution such as telegraph,
        telephone, radio, and television have exhibited sufficient
        economies of scale and scope as to require government regulation
        to reduce problems associated with natural monopolies.

 9.  Uncertainty and Risk in Production
        The inability of firms to produce information when risks and
        uncertainties are present.  A problem, in particular, in the
        generation of basic knowledge that requires substantial investment
        in research.

10.  Information/Knowledge
        Information about information is less likely to be available
        because of appropriability problems.  This leads to
        under-consumption of information due to problems of search.





11.  Intangibility
        The character of the value of some information to be
        non-monetizable.  Information is the basis of education,
        communication, and other activities which are difficult to value
        because the contribution of these activities to the welfare of
        society is largely intangible.

12.  Transaction Costs
        The additional costs incurred by the producer in appropriating the
        value of information.  [Transaction costs, in the economic sense,
        are those costs associated with negotiation, contracting, and
        enforcement, and does not refer to the the general costs related
        to distributing or transmitting information.]  Transaction costs
        are a major contribution to indivisibilities in the supply of
        information since contracting and enforcement costs are difficult
        to reduce below a certain minimum.

Non-market Related Characteristics:

13.  Intrinsic Relationship to Human Welfare
        Human welfare is a product of individuals and groups achieving
        desired outcomes.  Thus, information is intrinsically related to
        human welfare in that it inherently facilitates the achievement of
        outcomes.

14.  Intrinsic Relationship to Freedom and Privacy
        Freedom -- Information affects the range of choices available to
        the individual.  Freedom is a lack of restriction on choices.
        Thus information leads to greater freedom.

        Privacy -- Incomplete information may result in defamation of
        character.  Therefore, information must be selectively made
        private to reduce the probability of defamation.








                       The Character of Information
                      Characteristics and Properties
               of Information Related to Issues Concerning
                          Intellectual Property


1.  An Operational Definition of Information

        The common-use definition of information refers to the act of
informing or the condition of being informed.  But how can we really judge
if some arrangement of bits, words, etc. really does inform?  To answer
that we should look at what it means to inform -- we should see what is
different about a person after information has been communicated to him or
her.
1.1  The Function of Information in Achieving Outcomes
        As the section title implies, it is useful to think in terms of
the function of information to define it.  Indeed, the common-use
definition states a function -- "the act of informing."  Once "informed",
what is different about the person?  The choices that a person might make
are different.  For example, if I inform a shopkeeper that it may rain,
the shopkeeper may choose to cover-up outside merchandise or may choose to
close the shop's windows.  By informing the shopkeeper I have provided
"... a basis for choice -- that is, a belief in the greater efficiency of
one choice compared to another" (Ackoff, 1972, p. 153).  The concept of
"efficiency" is a very key one.  It is tied with a fundamental purpose of
information and human activity.
        Nearly all human activity is directed toward achieving outcomes.
Outcomes include getting to the bank on time, relaxing, getting an A in a
course, and cheering a friend.  These outcomes can be achieved with more
or less efficiency.  Now there are two basic attributes about a person
that affect the efficiency of achieving an outcome -- 1)  The ability to
choose among alternative ways of achieving the outcome, and 2)  The
capability to make sure the choice succeeds.  Returning to the shopkeeper,
the outcome is keeping rain off the merchandise.  Informing the shopkeeper
of the possibility of rain changes his choices -- he can now know to
protect the merchandise before it rains.  But having chosen to, say, cover
an outside table with plastic, his capability to keep the plastic in place
(using lead weights or whatever) also determines the efficiency of
achieving the outcome.  For if the plastic were to blow away the
efficiency of protecting the outside merchandise has gone to zero.  If
information affects the basis for choice, what affects the capability of
ensuring success?  Success comes from practice, instruction, and other
activities that affect capability.<*>

---------------------
<*> In accounting for the shopkeeper's actions we said, as a result of the
information about rain, he could now "know" to protect the merchandise.
The literature on information often refers to the related term knowledge.
Indeed, Macklup's general term in his writings is the word knowledge
rather than the word information (Macklup; 1962, 1980, 1984).  Also,
Lamberton's anthology of writings was on "economics of information and
knowledge" (Boulding, 1971, etc.).  With the concepts introduced so far we
can relate information and knowledge.
A person's "degree of knowledge" is his efficiency in achieving an outcome
by making choices -- i.e. his ability to make good choices.  Information
-- by informing the person of possible choices and their relative
potential for achieving outcomes -- improves a person's degree of
knowledge (cf. Ackoff, 1972, p. 48).
                                   -2-




        Thus the fundamental function of information in human activity is
to affect the efficiency of achieving outcomes.  The effect need not
always be positive for if I am poorly informed, I will make less efficient
choices and my efficiency will decline.
        By defining information in terms of outcomes, the value of
information follows immediately.  Take the expected value (EV) related to
achieving an outcome -- this is the sum of the probability of each
particular choice, times the efficiency of each choice, times the relative
value of the outcome (cf. 2.3 for relative value).  Considering the
expected value (EV>1<) without the information and the expected value
(EV>2<) with the information, the value of the information (EV<i>) is:
                   EV>i< = EV>2< - EV>1<
In economic terms, EV>i< = P (price), but only:
      1)  When there are no market imperfections, and
      2)  For those consumers where the marginal utility (the utility of
          the last unit) equals the market price.
        Examples of where the price is not a proxy for value include
situations where the information provides benefits to other than the
purchaser (a positive externality) or where the purchaser would have paid
more than the market price.  In the latter case, with no market
imperfections, we know that the value to the purchaser is at least the
market price and we could attempt to use a "willingness-to-pay" measure
(how much the person says or indicates he might pay) for the information
as a better proxy for its value (cf. discussion in 3).
        This choice based approach to the value of information differs
from Machlup's approach where he uses the opportunity cost of the
productive factors as a shadow price for the value of information
(Machlup, 1980, p. 208).  The approach is more like Hall's -- "[the] value
of a specific message is equal to the utility gained from shifting to a
better choice among terminal actions" (Hall, 1981, p. 161) and Taylor's
description of information value in decision contexts (Taylor, 1985).
        We can now define information as:
          Information: A communication that produces a change in the
          tendencies to choose certain actions over other actions
          (where a change in tendency can be observed by noting
          changes in the probabilities of choice). (cf. Ackoff, 1972,
          p. 144).

        Mackaay (1982, p. 107) states, "[i]nformation is the essential
ingredient in choice..."  Cherry (1966, p. 170) states, "Information can
be received only where there is doubt; and doubt implies the existence of
alternatives -- where choice, selection, and discrimination is called
for."
        At the recent Elsevier Symposium on Information Policy and
Scientific Research, Manten and Timman examine "external" and "internal"
definitions of information.  An external definition of information
presented by Vinken (Manten & Timman, 1983, p. 154) defines information as
something someone is willing to pay for.  Internal definitions of
information are typically: "Information consists of data, that change the
world view of the receiver" (Manten & Timman, 1983, p. 7).  The internal
definition is rejected because "it is impossible to say which data are
information and which are not."
                                   -3-



        The above definition, however, is not an internal definition but a
different and more fundamental external definition.  The problem with the
strictly economic external definition is that it excludes all information
for which pecuniary (monetary) measures are inapplicable and all
information which a person wouldn't pay for.  For example, if I inform my
daughter that she must stay in at night, I doubt she would pay me for that
information.  Manten & Timman, similarly, reject the external economic
definition.
         We can also define communication as:

          Communication: A message between sender and receiver that
          affects  1) the choices of the receiver (information, as
          above), 2) capabilities of the receiver (instruction),
          and/or 3) affects the receiver's values (motivation).<*>


1.2  Information as Intellectual Property
        To what extent is intellectual property a piece of information?
We should investigate some particular forms of intellectual property and
see how they meet the definition.  Some forms are:
        An invention -- An invention is the embodiment of many new
        choices.  The invention combines parts and processes in new
        combinations to produce the desired effect.  A description of the
        invention, such as a patent, or the invention itself in practice
        is informing since it conveys to others how a desired effect can
        be attained with new choices or different combinations of choices.
        For example, to create a letter printer, the invention may relate
        to spraying ink rather than transfering ink by impact.  (The idea
        of spraying ink, per se, cannot be patented, rather the embodiment
        of the idea in a specified set of choices for making the printer
        is what is patentable.)  Thus, invention clearly is information.

        A song -- The music and score are copyrightable under law.  Songs
        can evoke past feelings and evoke new feelings by providing a
        vicarious experience and stirring empathy as well.  They can be
        symbols and images to identify with and emulate.  A sense of
        catharsis is common as difficult situations are experienced
        at-a-distance.


---------------------
<*> This, like the definition of information, is an "idealized"
definition.  We determine whether communication took place by whether
behavior changes.  The difficulty in actually observing changes is a
secondary issue.  Also, communication may have occurred but not resulted
in an observable behavior change.  This is also a secondary issue since we
could construct a situation for the individual to test for changes in
choices that would reveal whether communication took place.  The advantage
of the approach is that it distinguishes between communication and noise
-- if a message is heard but does not result in behavioral change the
message was noise rather than communication.  Similarly, a message is said
to contain information only if there are resulting changes in choices,
otherwise there was no information, only noise.
A message is a set of one or more signs intended by its producer to
produce a response in the receiver (where a sign is anything that is a
potential producer of a response to something other than itself).
                                       -4-



        Since much of the effect of a song is affective (affecting
        feelings) the relationship among feelings, outcomes, and
        information should be identified.  A feeling is the sense of
        satisfaction or dissatisfaction associated with a particular
        outcome or potential outcome.  For example, the feeling of anxiety
        is a sense of dissatisfaction with the uncertainty of a potential
        positive outcome.  (If I sense that the actions of a co-worker
        will jeopardize my getting a promotion, I will feel anxious about
        my job.)  Thus, feeling is an evaluation associated with an
        outcome (cf. Ackoff, 1972, p. 100).
        A song provides the listener with a synthesized experience that
        temporarily replaces (or becomes) "reality."  The experience can
        be mainly vicarious, mainly empathetic, or both.  If it is
        vicarious, the experience substitutes for one's own; if it is one
        of empathy, the experience becomes like a close relationship to
        another.  There are two behavioral effects of these experiences 1)
        The positive and negative feelings can be "consumed", for example,
        a stirring piece of music can evoke exhilaration and that can
        simply be felt, and 2)  The feelings evoked can influence future
        choices.  Feelings influence choices mainly by becoming attitudes.
        For example, marching music can be used to build up strong
        attitudes of nationalism.  A strong nationalistic attitude will
        then result in loyalty to country and other forms of patriotism.
        Thus a song is partly information but not obviously so.  A song,
        by creating synthesized experiences, creates feelings and
        attitudes that influence choices to achieve outcomes and is,
        therefore, by definition information.  Songs also are motivational
        (i.e. produce changes in a person's values) and are consumptive
        goods -- to be enjoyed for the immediate sensate.

        A Textbook -- Textbooks are subject to copyright.  The material in
        the textbook directly changes the reader's available choices
        through the knowledge that it brings the reader.  For example, if
        the reader needs to show a correlation between crop growth and
        rainfall there are varying degrees of efficiency he can achieve in
        obtaining the outcome -- a statement of the correlation.  He might
        have no notion about how to go about making this statement.  A
        textbook on statistics would provide information about the
        technique of regression analysis and the R<2> term that expresses
        correlation as a number from 0 to 1.  With this new information,
        the reader would choose that analysis and his efficiency would
        significantly increase.  (His capability may still be low and
        require practice and instruction to be very efficient in achieving
        a correct outcome.)
        Thus, a textbook squarely fits the definition of information.

        In summary, while most intellectual property is mainly
information, there are exceptions.  In particular, music, movies, and
similar products that create synthesized experiences are part
informational, part motivational, and part consumptive.  Further, the
proportion of these three components depends on the response of the viewer
or listener.
                                   -5-



        What remains is the question of what is it that intellectual
property rights are really given for.  As technology continues to change
the medium of expression, it is important to distill what is fundamentally
being protected by patent law, copyright law, etc.
        It is commonly stated that what is being protected are not these
ideas but the form of expression.  While this loosely pins things down, it
is too vague to apply to many new situations resulting from technological
change.  Let us consider the textbook again.
        Paul Samuelson's Economics is an excellent textbook.  Why do I say
that?  Because it is comprehensible, anticipatory, progresses logically,
is well illustrated, and is comprehensive.  These features make it easier
for me to improve my knowledge.  This comes back to a notion of
efficiency.
        As indicated above, what makes information valuable is how it
changes  my efficiency in achieving an outcome.  Thus, what is valuable
about a piece of intellectual property is how effective it is in changing
my efficiency.  The list of positive features on Samuelson's textbook all
relate to how effective it is in changing my efficiency.  It is this
aspect of the work that is unique and can be protected.
        As a short cut, however, copyright protects the work by preventing
copying.  Of course, a good copy would have the same efficiency
characteristics as the original, and by preventing copying the work is
"protected."  Can we, however, generalize the notion of efficiency to get
a more fundamental protection approach?  Particularly when "bits and
pieces" of various works can be combined on wordprocessors, in film
editors, etc. problems of copyright and royalties become difficult.
        To accomplish this, the concept of efficiency would have to be
generalized to include not only information but motivation and consumption
so we can account for synthesized experiences.  With these in place, we
could deal with issues of imitations, replicas, and partial copies.  As a
guide, it would be useful to compare court decisions on copyright and
patent infringement with the evolving theory.
1.3  Conclusion
        The definition of information permits us to identify the extent
that information is embodied in intellectual property.  The value of
information follows readily from the definition.  The definition, by tying
messages to outcomes, is not suceptible to the problems associated with
definitions of information that are defined in terms of bits.  The
definition is also a reasonable extention of the common use meaning of the
word.

_______________________________________________________________________________
|               W. Curtiss Priest, Ph.D.             *********************** |
|      Center for Information, Technology, & Society *  Improving humanity * |
|                                                    *  through technology * |
|                  466 Pleasant Street               *********************** |
|                Melrose, MA  02176-4522                                     |
|                  Voice: 617-662-4044     Gopher to our publications:       |
|                   Fax: 617-662-6882      GOPHER.STD.COM (under nonprofits) |
_____________________________________________________________________________|

From daemon Tue Nov 15 20:14:06 1994
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                                   -6-




2.  Characteristics and Properties of Information
    in Commerce and Transactions

        Information in commerce has different characteristics from most
economic commodities.  In a society whose commerce is based increasingly
on buying and selling information these characteristics will have
increasing significance.  Also, there are inherent characteristics of
information that relate to non-economic transactions such as the role of
information in maintaining human relationships.  Fourteen different
characteristics of information are identified and their implications to
commerce, transactions, and intellectual property are described.
        The characteristics are grouped in three categories.  The first
category, "market related," pertains to commodity characteristics that set
information apart from other goods in market activities.  The second
category, "market-failure related," pertains to characteristics of
information as a commodity that cause markets to behave inefficiently (or
not at all).  The third category, "non-market related," pertains to
characteristics of information in non-economic transactions -- primarily
those comprised of human relationships.
2.1  Market Related Characteristics of Information as a Commodity
        Drawing on the definition of information in Section 1, information
as a commodity can be examined.  Fundamentally, producers of information
are in the business of increasing the efficiency of choices made by the
purchaser of information.  Their products are the instruments by which the
purchasers increase their efficiency by "consuming" the product.
2.1.1  Characteristic I -- Intrinsic Co-production
        Information is not typically the object of consumption as are
apples, coal or umbrellas.  In contrast, information has an instrumental
value -- it aids in attaining desired outcomes.  We thus refer to
information as an intrinsic co-producer.  Information inherently is a
co-producer of outcomes.  New information works in tandem with the
knowledge already possessed by the person and with the capabilities of the
person to achieve outcomes.  The same applies to groups, families, firms,
and other organizations.
        There are many classes of commodities that are co-producers.
While we do consume pencils as they wear down, the pencil is a co-producer
of the written word.  Cosmetics are co-producers of romance and cars are
co-producers of transportation.  But all of these co-producers are
dissipated as we use them.  Perhaps the closest parallel to information is
the chemical catalyst.  The catalyst is not consumed in the reaction and
yet accelerates the process.  But even most catalysts become contaminated
after a while and need to be replaced.
        Some writers have termed information a resource (Levitan; 1980,
1982, Cleveland, 1982).  A resource is something that can be drawn on for
help.  Most resources are depleted with use -- oil, iron ore, etc.  A
non-depletable resource such as solar power is a closer analogy to
information.
        Cleveland (1982, p. 36.) describes two characteristics of
information that are directly related to intrinsic co-production.
Cleveland refers to the "expandability" of information.  "[I]nformation
expands as it is used."  Information is co-productive of more information
-- knowledge builds upon existing knowledge and news often repackages
                                   -7-



older information with newer information.  The proliferation of
information has been referred to as the information explosion and has
resulted in "information overload."  Indeed, the production of information
for information's sake is not necessarily co-productive of other desired
outcomes.  Thus there is a need to manage information to keep it relevant
and make it efficiently co-productive.
        Secondly, Cleveland refers to the substitutability of information
(Cleveland, 1982, p. 37).  "It can replace capital, labor, or physical
materials."  This primarily emphasizes the co-productive capacity of
information through invention.  As information contributes to the
transformation and automation of manufacturing, capital will further
substitute for labor.  To refer to this as information replacing labor is
perhaps euphemistic.
        In summary, we can define the intrinsic co-productive capacity of
information as:
          Intrinsic Co-production -- The character of information to
          be instrumental in achieving other goods and outcomes.  This
          character makes information inherently valuable.

        Since information is inherently valuable it is significant whether
the information can be held as property.  Property rights will enable the
owner to gain some return from its creation (cf. 2.1.1.1 --
Appropriability).
2.1.2  Time Constrained Consumption of Information
        For a message to be information it must affect the choices of an
individual (see def. Section 1.)  To affect choices, the receiver must
take time to assimulate the information.  This process involves reception,
memorization, thinking, and reflecting.  (Even the process of synthesized
experiences, such as watching a movie, takes considerable time.)
        In relation to many other goods, more consumer time is occupied by
information than most other goods per dollar of expenditure.  For example,
$2.00 of beef can be consumed in ten minutes while a $2.00 movie can last
two hours (and $2.00 of basic cable service can occupy days of time).
        The economic significance of this characteristic of information
has not been specifically studied.  In general, it would operate to reduce
the demand for information.  Reduced demand would work against the
potential for economies of scale (cf. 2.1.4).
        In summary, we can define the time-constrained consumption of
information as:
          Time-Constrained Consumption -- The character of information
          to occupy more consumer time per dollar expenditure than
          other commodities.

        Reduced demand would result in reduced prices, making the value of
information as property less valuable to its owner.
2.1.3  High Investment to Reproduction Cost Ratios for Information
        The initial costs for creating information are high relative to
the costs of reproduction.  This contrasts sharply to most other goods
where the production of multiple units of a good require considerable
factor inputs of capital, labor, and materials.
                                   -8-



        Returning to the definition of information, the reason for this
large difference relates to the necessary facilities needed to affect the
choices in behavior.  The informing process is mainly one of
communication.  Communication primarily consists of transferring audio and
visual images.  For the written word printed paper is quite effective and
very low in cost.  For motion picture images, the VCR cassette is less
than $5.00 plus recording or pre-recording costs.
        Equipment for accessing information such as VCR's, television
monitors, computer terminals, and communication lines are not low in cost.
If one amortizes the costs of these devices over the media costs, the
reproduction costs are noticeably higher for some types of information.
For example, the cost of a basic VCR over five years would be around $700
including maintenance and the cost of capital.  Allocated over a film
library (and rentals) of 200 tapes, this would add another $3.50 per tape.
While appreciable, the additional cost is not large.
        The literature abounds with accounts of dropping prices for
terminals, minicomputers, and other hardware.  Though this is not expected
to continue to drop as steeply in future years, even the costs of the more
expensive devices will probably not swamp the situation.  Nonetheless,
there is still considerable room for improvement in picture resolution,
3-dimensional display, and the instant accessibility of large quantities
of information.  The question remains, how much more effective would the
communication be with these types of enhancements and what will be the
costs of these improvements?
        High investment costs put pressure on the industries to search for
the means to reduce these costs.  The development of information is labor
intensive.  Some film footage can cost $2000 a second to produce.  Because
of the skill and intellect required to produce information, these costs
are not likely to drop soon.  Thus the investment/reproduction ratio is
likely to remain high.
        In summary, we can define the investment to reproduction cost
ratio of information as:
          Investment/Reproduction Cost -- The creation costs of
          information divided by the cost of reproducing one unit of
          the good.

        The implications to issues of intellectual property are important
and one of the main problems today.  Since investment costs are high and
it is so relatively costless to reproduce the product, it is extremely
important to protect the owners of the investment (cf. 2.1.1.1 --
Appropriability).
2.1.4  Relevance of Information More Variable Across Consumers
        There are various factors that determine the relevance of a good
to a consumer.  The most common factor is the consumer's preferences (or
values).  Consumer goods that are purchased out of preference are
generally consumed again and again.  Further, while many goods are
slightly differentiated by styling, the demand for many basic goods is
consistent across consumers.  Combs, pencils, shovels, lumber, etc. are
demanded consistently by many consumers.
        Information, by contrast, is peculiarly different.  The basic
goods of information, such as the alphabet, vocabulary, etc. need only be
consumed "once."  The consumer does not generally go back for a second
helping of learning arithmetic.  He does go on to learning more
                                   -9-



arithmetic.  Thus at any time, each consumer of information has a stock of
knowledge that he or she is adding to and makes selections for more
information based on an assessment of what further information is useful.
Only when "memory fails" might the consumer go back and then usually to a
familiar reference already on the shelf.
        The "synthesized experiences" (cf. Section 1), if they are
consumed again and again (like seeing a movie many times), become less and
less information each time and more a simple consumptive good like food.
        Thus, a second factor that determines the relevance of a good is
its utility in building up a stock of knowledge.  If the person reads
something that is completely redundant to what he or she already knows,
the material is not information at all -- for there will be no changes in
the future choices of the individual as a result of the message.  If the
person persists in re-reading it we can only assume there is a consumptive
value in doing so.
        This characteristic of relevancy produces high variability in the
"consumption" of information as a commodity.  What I require for
information today I will probably not require tomorrow.  Only if we look
at information in the aggregate, over time, does its variability
substantially decrease.  Everyone will learn the alphabet at some time;
everyone will probably read Romeo and Juliet.
        In summary, we can define the variable-relevance of information
as:
          Variable-relevance -- The character of particular
          information to be acquired usually only once.  The result is
          high variability in consumption by each consumer.

        The implication of this to property is striking.  Basically a
producer of information gets "one shot" at his consumer.  The market
segments for information as a commodity are much more tightly drawn than
for other goods.  The success of a "reader" for five year-olds is very
dependent on previous learning environments and the age-group.
        But because of the variability in prior information, it encourages
product differentiation -- information can be packaged and repackaged to
fit the particular circumstance of the consumer.  (Computer-assisted
instruction, with the ability to branch as required by the student, is a
good example.)
        But product differentiation is problematic to establishing
property rights.  I must continue to copyright each variant to try to
protect it and if someone else produces a variant for a slightly different
market segment, that producer might be able to take most of my product
without compensating me.

From daemon Tue Nov 15 20:24:24 1994
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2.2  Market-Failure Related Characteristics of Information
        The failure of markets has been a subject of public finance study
for many decades.  Market-failure and the role of government are closely
entwined since a major role of government is to provide what the market
cannot.
        In the early part of the twentieth century, market-failure
problems associated with transportation (railroads, trucking and
airlines), communications (telephone, radio, and eventually television),
public utilities (water, gas, etc.), and food, drugs, and cosmetics were
closely studied and the associated industries were subjected to "economic
regulation."  In the mid-part of the twentieth century market-failure
problems associated with health, safety and the environment were addressed
with "social regulation."
        Economics, as a discipline, primarily concerns the operation of
markets.  Market-failure, therefore, represents exceptions to the rules of
the discipline.  The basic concepts of Pareto optimality and cost/benefit
analysis, however, transcend market operation and are thus useful economic
concepts in the analysis of market-failure.  (But even these concepts
seldom address the form of market-failure associated with the distribution
of wealth.)
        In a short space it is not possible to describe all of the
economic concepts related to markets and market-failure.  To provide some
common reference, however, the following terms are germaine:
          Allocating Resources -- Using labor, raw materials and capital
             in production
          Efficiency -- Allocating resources to their most valuable use
             (also called allocative-efficiency)
          Pareto Optimality -- The condition where all resources are
             allocated to their most valuable use
          Pareto-move -- a change in allocation that increases the net
             value to society
          Market-failure -- a situation where the operation of markets
             will not result in pareto-optimality or the fair
             distribution of wealth
          Perfect Competition -- many producers and many buyers, where no
             individual producer or buyer can affect price; the absence
             of market-failure in a competing market
          Imperfect Competition -- competition under forms of
             market-failure
          Good -- Something bought and sold
          Consumptive Good -- A good that is acquired mainly to be
             consumed
          Instrumental Good -- A good that is acquired mainly for its
             co-productive capacity
          Marginal -- the last unit of production or consumption
          Marginal Cost Pricing -- Usually a firm operates where:
             marginal cost (the cost of producing the last unit) equals
             the market price for that good
             (Stated as MC=P)
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          Marginal Utility -- The utility derived from the last unit of
             a good
          Rate-of-Return -- the income (or benefit) derived from an
          investment
             (Typically expressed as a percentage of the original
          investment)

        Information as a commodity is subject to many forms of market
failure.  The recognition of some of these in economics date back to the
mid-1920's when Pigou (1924), and Marshall before him, recognized that
knowledge provided benefits to society as well as to the purchaser (cf.
2.2.2 -- externalities).  The recognition of externalities of information
and knowledge was continued by Viner (1931), Meade (1952), Scitovsky
(1954), and Bator (1958).
        In 1962, Arrow (1962) wrote a seminal piece "Economic Welfare and
the Allocation of Resources for Invention," in which he recognized three
forms of market-failure associated with information: indivisibilities,
inappropriability, and uncertainty.  This was one of the first treatments
of "information as a commodity."  Others who have addressed information as
a commodity and the subject of market-failure include Braunstein (1976,
1981), Levitan (1982), Mackaay (1982), Cooper (1983), and Priest (1984a,
1984b).
2.2.1  Public Good Characteristics
        Public goods include goods like national defense, parks, and
lighthouses.  They are goods that multiple consumers can enjoy at the same
time (sometimes referred to as jointness-of-consumption).  Information has
the characteristic of a public good -- the use by one consumer does not
prevent the use by others.
        Public goods are often provided by government.  Since consumers
cannot be excluded from enjoying the benefits of a public good, use of
tax-payer money to supply the good can be often justified.  Economists and
public administrators are quick to point out that government is not
obligated to provide all public goods -- there are situations where the
waste and distortion of government in trying to counteract the market
failure results in more inefficiency than the original inefficiency (cf.
Machlup, 1984, p. 157).
        The market failure associated with public goods relates to the
concept of marginal-cost-pricing described above.  For maximum profit and
maximum social efficiency, the firm should set the price of the good equal
to the cost of producing the last unit (P=MC).  But for a pure public good
the cost of the last unit is zero and the firm should charge nothing at
all.  Thus for public goods social efficiency and private efficiency
diverge.  Pareto-optimality would be achieved only if the good were given
away but then no firm could stay in business to produce it. (Baumol and
Ordover suggest that the analysis is not this simple.  "Resource
allocation may benefit by the imposition of positive prices for public
goods in cases where such prices are collectable" [1975, p. 1]).  One
common prescription for the situation is to have government subsidize the
firm to an amount equal to the cost of creating the information.  Another
is to have government supply the good.
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        In summary, we can define the public good characteristic of
information as:
          Public Good Characteristic of Information -- The same
          information can be used by many consumers without
          interference.

        Before exploring the relationship of this characteristic to
property, it will help to explore two closely related characteristics --
inappropriability and non-depletability.
2.2.1.1  Inappropriability
        The term inappropriability is from the word appropriate.  To
appropriate something is to take possession for use by oneself.  In the
economic sense, it means to be able to take possession of the worth of
something -- typically by selling it at the market price.
Inappropriability is the difficulty in taking possession of the worth of
something.
         As indicated in the public good discussion, there is difficulty
in excluding people from using information who have not paid for it.  This
occurs in two basic ways:
          Exclusion 1 -- Materials such as books and films are often
          passed along.  This is particularly the case when they are
          provided by libraries or rentals.  Fifty percent of computer
          software is copied (Frazier, 1985).


          Exclusion 2 -- The information contained in any one material
          often represents the embodiment of prior work.  For example,
          while I give credit to those writers from whom I have drawn for
          this piece, I have not financially compensated them.

        The major result of inappropriability is under-production of
information.  If the producer of information cannot appropriate its full
market value the producer will only produce information where he can
recover costs and make a profit.  This results in fewer books, movies,
information systems, etc. than is socially efficient (all other things
being equal).  Further, the types of information that are produced are
distorted toward those types that can be subject to exclusion.
        In summary, we can define the inappropriability characteristic of
information as:
          Inappropriability of Information -- The difficulty in
          receiving full market compensation for the creation of
          information due to the problem of exclusion.  The result is
          under-production and under-compensation.

        Problems of appropriability have been recognized by Arrow (1962,
1971), Boulding (1971), Braunstein (1976, 1981), Cleveland (1982), Gordon
(1982), Hall (1981), Macklup (1962, 1984), O'Brien (1980), and Priest
(1984a, 1984b), and in inventive activity by Dutton (1984), Nordhaus
(1969), Mansfield (1977), and Scherer (1977).
        Cleveland (1982) refers to information as diffusive, easily
shared, and transportable.  He relates Colin Cherry's comment that
information by nature cannot give rise to exchange transactions, only to
sharing transactions (p. 37).  Some of the positive effects associated
                                   -13-



with ease-of-sharing and transportability are discussed in Section 2.3
(Non-market characteristics).
2.2.1.2  Non-depletability
        Information is a very durable good.  It does not dissipate with
use.  It may become less valuable when "better" information is generated
but the original information is still present.
        Information and knowledge can therefore accumulate over centuries
and millennia.  From society's standpoint this is a very positive
characteristic but from a firm's standpoint this is a negative
characteristic.  A producer of information must not only compete with
other present producers of information but also with all past producers.
During periods like the twentieth century this is not an insurmountable
problem because of the enormous increase in scientific and technological
information, and the significant changes in media technology.<*>
        In summary, we can define the non-depletability characteristic of
information as:
          Non-depletability of Information -- Information does not
          dissipate with use.  Producers must compete with past
          producers but society benefits with an accumulation of
          knowledge.

        In relation to property and property rights, the public-good
nature of information makes holding information as property very
difficult.  Thus the assignment of rights in the form of patents,
copyrights, trade marks, and mask works, directly addresses the
public-good nature of information.
        Appropriability is a serious problem for the producers of
information.  The 1976 Copyright Act tackled Exclusion 1 (above) by
establishing the Copyright Clearance Center to collect royalties for
photocopies (McDonald, 1983, p. 19).  Also, the Act established the
Copyright Royalty Tribunal to collect payments from cable operators for
the importation of distant signals.  Valenti (1982) notes how low these
royalties are in relation to other income.  Besen (1978) points out that
royalties set by a tribunal are unlikely to resemble real market
valuations and will result in social inefficiency.
        Solutions to Exclusion 2 are more difficult.  The fair-use
provision of the copyright law generally assures that exclusion will not
occur.  (For a most comprehensive discussion of fair-use and
market-failure see Gordon [1982]).
        Non-depletability can result in dwindling markets for information,
particularly if new information cannot be readily generated.  It is
generally believed that extending the seventeen years of patent protection
will not provide the inventor significantly more return on the invention's
value.  Within seventeen years newer inventions tend to take the older's
place, but with notable exceptions such as xerography and the instant
camera.<*>
2.2.2  Externalities
        If there is an effect associated with a good -- positive or
negative -- that is not accounted for in its price, there is an
externality present.  For example, the polluting of a stream by a pulp and
paper mill represents a negative externality.  The production negatively
affects others and the good is more cheaply produced than if the pollution
were controlled.  We refer to internalizing the externality if there is
------------------
<*> Patent life extensions have been suggested for products where
government regulation delays the product's entry.  FDA requirements can
hold back a new drug or device for up to ten years.
                                   -14-



some way to have the firm more fully account for such effects.  A set of
water quality standards could be established that the mill must meet by
law.  The presence of negative externalities was a major impetus for
health, safety, and environmental legislation.
        Information, in contrast, has few negative externalities, but
significant positive externalities.  The non-depletability character of
information leads to positive externalities that extend for generations --
the "wealth of knowledge" that has accumulated over time.
        To determine the value of a positive externality we can turn to
cost/benefit analysis.  Cooper (1983) reviews a number of C/B studies
which include assessments of various information science activities.  A
study by Goddard assesses the benefits of public and school libraries.
These libraries are seen as promoting education and therefore resulting in
externalities in education -- the benefit to more than just the person
being educated.
        The positive externalities of fine arts has been a subject of
congressional debate for decades.  For example, in introducing a bill in
1953 to establish a National War Memorial Arts Commission, Charles Howell
of New Jersey said, "There is a philosophical difference in viewpoint
which must be considered in the evolution of the measure I have sponsored.
The debate is between the proponents of the belief that the arts are
living and must be encouraged with every resource at hand, and those who
regard the arts basically as the product of a past age, which must be
preserved rather than encouraged" (Larson, 1983).
        The positive externalities of science have been recognized in the
massive support the government provides for it.  Alvin Weinberg commented,
"society expects science somehow to serve certain social goals outside
science itself.  It applies criteria from without science -- broadly,
criteria concerned with human values -- when it assesses the proper role
of science as a whole relative to other activities" (Reagan, 1969, p. 34).
Reagan reviewed congressional hearings, journals, and other sources and
found five basic reasons for support of science (four of them
externalities):
          1.  Intellectual and cultural values of science
          2.  The utility of basic research as the foundation
              of all technological development
          3.  Research as an essential component of graduate
              education
          4.  The high costs of scientific research, and the
              unlikelihood of adequate private financing
              (appropriability, risk, uncertainty)
          5.  The political values of science, especially in
              international affairs.

        Positive externalities and appropriability are closely tied
concepts.  Whatever the producer of information cannot appropriate will
be, by definition,  a positive externality.  The appropriability of
invention (see 2.2.1.1) has been a subject of considerable research.
        Nordhaus (1969, 1985) estimated the ratio of marginal social
product to marginal private product using data on American agriculture.
He calculated ratios of 12.7 for 1949 and 8.5 for 1959.  These ratios
imply very high social rates of return on research and verify earlier work
by Griliches on the magnitude of the rate of return on hybrid corn.  I.e.,
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Nordhaus found very high positive externalities to agricultural research.
        Mansfield (1977) performed an empirical study on social and
private rates of return from industrial innovation.  For seventeen
innovations the median private rate-of-return was 25% (before taxes) and
the social rate-of-return was 56%.  Mansfield's ratio of social to private
return was 2.2.  The highest social return was 307% for a "thread
innovation" (private return of 27%)  and the highest private return was
2l4% for a "household cleaning device" (social return of 209%).
        Calculations of positive externalities, at best, are fraught with
methodological difficulties.  Thus these data should be considered
suggestive of the possible externalities associated with information.
        In summary, we can define externalities associated with
information as:
          Externalities of Information -- The effects of information,
          usually positive, that are not accounted for in its price.

        Externalities refers to the non-property aspect of information.
Higher economic efficiency can be achieved by internalizing externalities,
i.e., providing the producer of information greater appropriation.  This
can be achieved by the creation of property rights and corresponding
payments to owners.
        For information, however, the transaction costs (see 2.2.8) of
"keeping book" (adding up who owes what to whom) are likely to be high,
thwarting attempts at increasing the appropriability.  Perhaps in the era
of the information utility, where computer information systems can keep
track of many minor transactions, full accounting will be possible.
Before that, we must struggle with clearinghouses and tribunals to attempt
a solution.
2.2.3  Indivisibilities (of supply)
        Information users are confronted with an all-or-nothing option:
they may either acquire the whole amount of information available at the
prevailing price or buy no information at all (Pethig, 1983).  At some
level, all information is indivisible.  Four years at college, a year, or
a course can be purchased, but not a particular lecture.  To have the
editoral page of the New York Times the entire paper must be purchased.
To have the telephone numbers of those I want to call, I have books mainly
filled with the numbers of people I do not want to call.
        The problem of indivisibility relates to the organization of
information and knowledge.  To obtain new information I must continually
pour over old information in search for new.  So not only do I incur the
cost of purchase but also the opportunity cost of search.
        In summary, we can define indivisibilities associated with the
supply of information as:
          Indivisibilities (of supply) -- Information must be
          purchased in lumps; these lumps may be vastly greater than
          the information actually sought.

        In terms of property, it is easier to provide legal protection for
a large lump of information than many small pieces.  This tendency will
help perpetuate the generation of larger lumps.  This is not socially
efficient since the consumer is forced to purchase unwanted information.
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2.2.4  Economies of Scale and Scope
        For some goods, increasing a scale of operations results in
decreasing costs per unit.  This condition is called economies of scale
and explains why so many of the goods we buy are produced by large
companies.
        As an example, Braunstein (1981) notes that daily newspapers have
high set-up costs and low costs associated with the production of each
copy printed.  As a result, the vast majority of daily newspapers have no
competing daily newspaper published in the same city.
        Economies of scale are usually associated with production
involving high set-up or fixed costs, decreasing unit costs, or both.  If
economies of scale are substantially present when the output of the
producer is equal to the total market demand, there is the condition of
"natural monopoly."  A monopoly in these cases can be more socially
efficient than competing producers.  Unfortunately, the monopoly can make
higher profits by under-producing and thereby inflating prices (Samuelson,
1973).  Public policy towards this situation has been to permit the
monopoly to exist but to regulate rates so that price equals average costs
plus some reasonable return on investment for the stockholders.  Typical
regulated monopolies are local gas and electricity distribution companies
and local telephone companies.  (Regulated monopolies have also been
criticised for being socially inefficient because 1) They have little
incentive to minimize costs, and 2) They often display lower innovative
capacity for new inventions, features, etc.)
        Economies of scope arise when it costs less to produce several
different products by the same firm.  This can occur when one product
utilizes a by-product of another or when both products draw from the same
intermediate product.  "Information, because it can be packaged in so many
ways, is often produced or distributed under conditions of economies of
scope (Braunstein, 1981, p. 59).
        The presence of economies of scale and scope is often indicated by
industry concentration -- the presence of fewer, larger producers.  Homet
(1984) finds the electronic information-delivery sector increasingly
characterized by concentration.  He notes that in 1980, fewer than 100
corporations controlled a majority share of each of the mass media: daily
newspapers, periodicals, books, records and tapes, radio and television
distribution and sponsorship, and movie distribution.  "Cross-ownership
trends among these media drew the net even tighter:  Time, Inc., with book
publishing and cable (not to mention HBO), Times-Mirror with TV and cable
and videotex, CBS with book publishing and records and magazines" (Homet,
1984, p. 14).
        Dertouzos and Wildman (1981) made a historical study of
concentration in the recording industry.  They found that the percentage
of sales controlled by the top 4 firms declined from 1947 to 1972 from 79%
to 48%.  In 1972 a full 15% of sales were made by firms smaller than the
largest fifty.  But concentration in distribution and marketing of
recordings has occurred as the major recording companies have increasingly
been relied on by independent recording firms for distribution.
        Valenti (1982, p. 75) agrees with Homet about concentration in the
cable area, [t]he 'Giants' are taking over the cable industry,
concentrating power and increasing revenues."  As of 1980 the 25 largest
multiple system owners (MSO's) controlled over 60% of all U.S.
subscribers.
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        Concentration and monopoly in telecommunications is not
unexpected.  Telephone was recognized as a monopoly and regulated in the
first part of this century.  The recent attempts to increase competition
in telecommunications may be working against the condition of natural
monopoly.
        In summary, we can define economy of scale and scope with regard
to the production of information as:
          Economies of Scale and Scope -- 1) decreasing unit costs
          when the scale of operation is increased; and 2) decreasing
          costs associated with joint production.

        In relation to property, economies of scale and scope appear to
mainly affect the distribution portion of the value-added process of
information production.  In those cases where property rights are given to
independents and distribution occurs by "majors" there is little
additional concentration effect.  However, in vertically integrated firms
that own both information creation and distribution processes, providing
strengthened property rights will increase their monopoly.
2.2.5  Inherent Uncertainty and Risk in Information Production
       (particularly basic knowledge such as science and technology)

        A producer of information takes inputs such as capital and labor
(e.g. medical instruments and physician-researchers) with some expectation
of an output (e.g. a medical advance).  In some cases, when there is
sufficient prior experience, the producer knows that a particular
percentage of the projects will be unsuccessful.  This percentage is a
statement of risk, e.g., 80% of the research projects will be
unsuccessful.  Using statistics, the producer can then determine how many
projects must be supported to produce a success, say with a 95%
confidence.
        This approach to risk employs the standard theory of portfolio
selection to decrease the riskiness of investments by diversifying among
projects with statistical independence (where the success of one is not
dependent on the likely success of another).
        Risk has been termed a "mild uncertainty" (Nordhaus, 1969).  We
are uncertain about which project will succeed, but we are fairly
confident that some will succeed.  In some areas, however, there is not
even sufficient experience to judge the probability of success.  These are
cases of full uncertainty.  Cancer research and interstellar
communications are subject to large uncertainties.
        If the risks and uncertainties are small, private investors will
continue to produce.  What they appropriate for the successful projects
must cover not only the costs of the successful projects but also the
costs of the unsuccessful projects.  The costs of unsuccessful projects
are part of the costs of doing business.  When risks increase to the point
that the producer lacks the ability to diversify enough to assure a
success, the producer will withdraw.  When there are sizable uncertainties
the producer will also withdraw because there is insufficient information
to justify the activity to stockholders or other investors.
        Under these conditions of risk and uncertainty, information will
be under-produced.  The problem is exacerbated when the size of firms in
the industry is small.  Smaller firms have less capacity to handle risk
and uncertainty.  In contrast, firms like IBM and AT&T can "afford" some
                                   -18-



ventures that a smaller firm could not.  Unfortunately, larger firms also
tend to be more risk averse than smaller firms -- that is, they require
greater potential return to risky ventures than a smaller firm does.
Whether the degree of risk averseness of the larger firm negates its
greater capacity to absorb risks is a point of current debate.
        If individual firms cannot bear risks or uncertainty, in some
cases it is socially efficient that society do so.  "In operational terms
this implies that the government do all R&D or that the government have
R&D done by firms or individuals on cost plus contracts" (McFetridge,
1977, p. 16).  Other mechanisms include partial subsidies and forgivable
loans where the state bears part of the risk associated with a given
project.  Finally, some projects are too risky or uncertain even for
society to undertake.
        The public policy response to risk and uncertainty is fraught with
unknowns and debate.  The social rate-of-return must be sufficient to
justify the risk and uncertainty.  Thus, government tends to support basic
science and R&D to a lesser extent.  The greater the potential
"co-productive capacity" of the resulting information (cf. 2.1.1) the more
government involvement can be justified.
        In summary, we define the risks and uncertainties in information
production as:
          Inherent Uncertainty and Risk in Information Production --
          The inability of firms to produce information when risks and
          uncertainties are present.  A problem, in particular, in the
          generation of basic knowledge.

        For an extensive treatment of uncertainty in the production of
information see Arrow (1962,1971).
        The issue of property and uncertainty and risk relates to the
interesting area of debate on property and government funding.  Until
recently, depending on the enabling legislation of the various federal
agencies, patent rights are often assigned to the government.  This
follows from the argument that if the government pays for the information,
the government (the tax payers) should own the information, not the
private contractor.  With the 1980 amendments to the Patent and Trademark
Laws, universities and small firms were given rights to patents provided
they would be developed; large businesses' patent rights must be reviewed
on a case-by-case basis (Peyton, 1981, p. 80, 84).
         Supporters of these types of changes point out that government
ownership of patents is not socially efficient.  Since a major purpose in
assigning property rights is to encourage invention and exploitation of
the invention, government ownership greatly reduces the development of
invention.  This is particularly true when the government cannot issue an
exclusive license.
        Providing property rights for information does not solve the
problem of under-production under conditions of uncertainty and risk.
This is because, for the property right to be useful, the invention, etc.
must be forthcoming.  But it is the very uncertainty in whether there will
be property at all that is the source of market-failure -- protection is
only useful once the property exists.
                                   -19-



2.2.6  Information/Knowledge About the Information
        Arrow noted a fundamental paradox in the determination of demand
for information, "its value for the purchaser is not known until he has
the information, but then he has in effect acquired it without cost"
(Arrow, 1971, p. 148).  If the seller could maintain property rights to
the information this would not be a problem, but given problems of
appropriability, "the potential buyer will base his decision to purchase
information on less than optimal criteria (p. 148).
        The problems of "search" is a well known related topic in
economics (cf. Kwon, 1982; Stigler, 1971).  Perfect competition presumes
the presence of perfect information -- that all buyers are aware of all
sellers, their products, their quality, and their prices.  Perfect
information does not typically exist and the result is potentially
inefficient: some products may be purchased at too high a price for their
level of quality, performance, service, etc.
        Information is subject to the problems of search but the problem
is compounded by the appropriability problem discussed by Arrow.  A
producer of information will hide information to the extent that it is not
appropriable.  But hiding information greatly increases the problem of
search.  The less the buyer knows about a product, the less likely the
buyer is to purchase it, or to purchase it at the "correct" price (the
price under perfect competition).
        To counteract this problem, producers of information rely on
"brand recognition."  Producers of information develop a reputation for
the value of their information.  For example, Standard & Poor is respected
for its appraisals of the stability of firms and bond offerings.
        This tendency raises again the issues of monopoly and
concentration addressed in 2.2.2.  It is difficult for a new entrant (a
firm that attempts to sell in the new market) to succeed.  Thus
information about information leads to "barriers to entry" and industry
concentration.
        In summary, we can define the problem of information about
information as:
          Information/Knowledge About Information -- Information about
          information is less likely to be available because of
          appropriability problems.  This leads to under-consumption
          of information due to problems of search.

        With regard to property, the more property rights the producer has
the less a problem information about information will be.  Property rights
will enable the producer to attain higher appropriability and thus will
encourage the producer to provide more information about information.
However, to the extent that property rights cannot be enforced, this form
of market-failure will still be present.
2.2.7  Intangibility
        Thus far we have referred to the market price of information as
some reflection of the marginal utility of information to the consumer.
For simple consumptive goods (cf. definitions at 2.2) the price of a good
is a reasonable proxy for its marginal utility.  For instrumental goods,
such as information and knowledge, the price of the good may have little
resemblance to its marginal utility.
                                   -20-



        This problem has been referred to as the inability to monetize
(set a monetary value on) a particular good.  For example, what is the
monetary value of good health?  Good Health is the co-producer of many
desired outcomes -- it permits thinking, locomotion, stamina, etc.  The
impact of an acute illness, an illness of three months or less, may in
some circumstances be monetized but the impact of chronic illness cannot
be monetized (Priest, 1981).
        What is the monetary value of education, libraries, guidance
counseling, or church attendance?  All of these activities involve
substantial levels of information.
        Boulding (1971, p. 23) interprets the problem of intangibility as
one of the problem of information measurement.  "One longs, indeed, for a
unit of knowledge, which perhaps might be called a 'wit', analogous to the
'bit' as used in information theory; but up to now no practical unit has
emerged."
        The problem of intangibility and measurement relates back to the
definition of information.  Information derives its utility by changing
the efficiency of achieving outcomes by changing choices.  An activity
such as education involves millions of changes in potential choices.
"Education produces possibilities."  To faithfully arrive at the utility
of education then I would have to consider two situations, the attainment
of all outcomes without the education and the attainment of all outcomes
with the education.  I would have to measure the efficiency with which
each outcome was achieved under the two conditions, and sum the
efficiencies to attain a single value of merit.  Further, I should perform
this exercise, not after the impact of the education has been seen (ex
post), but before (ex ante), because this is the circumstance in making
the purchase.  This means forecasting the efficiencies and outcomes under
the two situations.
        When a consumer is faced with purchasing education, however, it is
exactly this calculation he must make to make the correct buying decision.
But this is not how education is "sold."  The U.S. adopted compulsory
education for grades 1-12 because the value of the education was believed
to be at least worth the cost (and effort).  Much college education is
purchased with the faith that the value of college education is at least
worth the cost. (Occasionally this wisdom is questioned.)
        In summary, there are many forms of information, such as
education, that affect a great many potential outcomes and are, therefore,
largely non-monetizable.  We can define intangibility of information as:
          Intangibility of Information -- The character of information
          to be non-monetizable.

        Intangibility and property are antithetical terms.  Property is
usually concrete and well defined.  But something that is intangible is
not.  Specific components of education such as textbooks, film strips, and
study guides can be copyrighted.  But it is difficult to assess the value
of these components, since they contribute to the "building process" of
education.  What is the value of a primer on the alphabet?  What if
another primer costs twice as much -- is it worth it?  These questions
have faced educators and others who have dealt with the intangibility of
information.
                                   -21-



2.2.8  Transaction Costs and Information
        Besen (1977, p. 87) notes, "[i]t is unfortunate that, in the
economics literature, the term "transaction cost" is used to describe two
quite different phenomena."  In the first sense "... the term is applied
to the costs involved when agreement must be reached among a large number
of parties in order to carry out an activity.  Transaction costs are said
to be high in such situations because the free-rider problem raises the
cost of reaching an agreement.  A second meaning of the term involves the
costs of negotiation, contracting, and enforcement which exist even when
exchange is bilateral" [first emphasis added].  Sometimes the term is
misapplied to mean "the cost of transmitting information which has already
been produced" (cf. O'Brien, 1980, p. 452).
        In this discussion we refer to the second meaning of the term.  In
this sense, transaction costs and indivisibilities (cf. 2.2.3) are
related.  As we attempt to reduce indivisibilities by breaking information
into pieces, we increase transaction costs as we attempt to appropriate
its value.
        In summary, we can define transaction cost and information as:
          Transaction Cost of Information -- The additional costs
          incurred by the producer in appropriating the value of
          information.

        The reduction of transaction costs was the explicit goal of the
compulsory licensing of distant signals by cable television operators.
According to Ladd (1982, p. 946) in congressional testimony:
          ... it would be impractical and unduly burdensome to require
          every cable system to negotiate with every copyright owner
          whose work was retransmitted by a cable system.
          Accordingly, the [House] Committee [on the Judiciary] has
          determined to ... establish a compulsory copyright license
          for the retransmission of those over-the-air broadcast
          signals that a cable system is authorized to carry pursuant
          to the rules and regulations of the FCC.

Further testimony of Monroe M. Rifkin agreed:

          There are 4,350 cable systems, each carrying an average of
          five distant signals, (2 networks, 2 independents and 1
          educational) each with a minimum of 6 - 17 hours of
          programming per day.  Although it would be impossible to
          estimate the number of transactions that would be necessary,
          it is clear the the simple multiplication of 4,350 cable
          systems times 1,000 program suppliers seriously
          underestimates the probable number.  While most program
          suppliers offer several programs, the number of contacts
          required to program five channels, 17 hours per day, 365
          days a year would be enormous.

        In contrast, Valenti (1982, p. 86) argued that transaction costs
are not sufficiently high to warrant compulsory licensing.  In 1976, many
cable operators were independents and there had not been the full scale
use of "packagers" for pay TV.  Valenti describes the marketplace for
cable's licensing of its own programs as:
                                      -22-



          First, middlemen could package programs for basic cable
          systems and program suppliers just as they now package
          programs for existing cable origination services.  The
          Satellite Program Network, a service of Southern Satellite
          Systems, is already providing such a program service to over
          300 cable systems.  The marketplace would quickly adjust to
          the new procedures.

          Packagers of cable programs would license programming
          material, take it to a satellite, and make a variety of
          programming available to cable systems.  By catalogues and
          price lists, based upon a per subscriber rate, the packager
          would beam to the cable system whatever programming that
          system owner has chosen.  Paperwork would be at a minimum.
          There would be no need for a forest of bureaucratic filings.

          Second, advertiser-supported programs, purchased by basic
          cable systems, are growing in number and revenue.  It is one
          of the hottest phenomena in an industry that is full of
          tremendous changes... This will be a boon to the cable
          operator and will provide an additional source of large
          revenue without relying on an increase in subscriber costs.

          Today there are at least 35 "cable networks," ranging from
          Cable News Network to Home Box Office ... These networks
          include both "pay TV" operations such as HBO and
          advertiser-supported operations such as the Modern Satellite
          Network and the Satellite Program Network.

          Third, direct negotiations between program suppliers and
          cable operators.  Right now, as noted earlier, 25 MSO's
          control some 60% of all cable subscribers.  This
          concentration will grow even faster in the future, as large
          companies merge and/or buy out smaller operators.  This
          concentration will simplify direct negotiations between
          program suppliers and cable systems.

        The attempt to reduce transaction costs through compulsory
licensing is claimed to reduce the income to the property of the movie
producers.  Yet if transaction costs are "prohibitive ... exclusivity of
property rights may ... reduce rather than increase the efficiency of a
resource use (R. Posner in Gordon, 1982, p. 1608).  Clearly a difficult
balancing is required.
        The granting of property rights such as copyright reduces
transaction costs (cf. Gordon, 1982, p. 1613).  Without such explicit
rights, contracts would have to be established under common law.  This
process would be far more tedious and time consuming.

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                                   -23-




2.3  Non-market Related Characteristics of Information

        As the discussion on intangibles implied, information has dominant
uses in non-market situations as well as market situations.  Writers such
as Boulding (1971), Priest (1972), and Cleveland (1982) have described the
qualities of information for wisdom, reduced conflict, encouraging sharing
relations, employment, and welfare.  As the discussion in 1.1 showed,
information is integrally tied to a person's efficiency in achieving
outcomes.  It is this integral link to achieving outcomes that gives
information its two non-market characteristics.
        To cover non-market characteristics it is necessary to shift to a
non-market set of concepts.  Again, it is necessary to work with a few
basic terms which may be unfamiliar to the reader.  These are briefly
defined here for reference<*>:
          Choice -- An individual displays choice when he produces one
          particular action from a set of possible actions.

          Courses of Action -- structurally different behaviors (different
          physical actions involving different objects, etc.) of an
          individual whose behaviors have one or more common functions
          (i.e. toward accomplishing the same ends).

          Co-productive -- an instrument is co-productive when it
          facilitates the achievement of an outcome. (Instruments are
          rarely valued for themselves, but for their co-productive
          capacity.)

          Outcome -- the product of an individual's or system's action

          Efficiency -- the degree of success in achieving an outcome

          Belief -- inferences drawn from past and present perceptions

          Value -- Value is defined relatively.  Relative value is
          determined in an "intention situation" as the probability that
          the individual selects the course of action that has a maximum
          efficiency for a particular outcome.  (Where an intention
          situation is one in which (1) there are the same number of
          available courses of action and outcomes, (2) each course of
          action has maximum efficiency for one outcome and hence no
          efficiency for any other, (3) each outcome has associated with
          it one course of action that has maximum efficiency for it, and
          (4) the alternative courses of action are equally familiar,
          known, and understood by the individual relative to the possible
          outcomes.)




---------------------
<*> If the economist reader finds these behavioral and management science
terms difficult, he or she should be reminded that, like the discipline of
economics, it is important to carefully define terminology in science, for
otherwise a discipline must be termed art.
                                        -24-



          (This particular definition requires considerable patience to
          comprehend but (relative) value is a key concept.)

          Capacity to Achieve -- The efficiency with which an individual
          achieves an outcome using a particular course of action.
          (Proficiency)

2.3.1  High Intrinsic Relationship to Human Welfare
        This concept is parallel to the High Co-productive Capacity
(2.1.1) for the market.  We begin with the basic behavioral science model
of human behavior (cf. Ackoff, 1972).  A choice is made from various
courses of actions with an attendant outcome.  Associated with an outcome
is a relative value -- what the outcome is worth to the person, how well
or poorly the outcome will make the person feel.  The individual "models"
the world by drawing on "beliefs" (inferences drawn from past and present
perceptions).  Using the model the individual attempts to predict the
results of various choices.  The individual is also guided by feelings and
attitudes, as these represent "evaluations" of past outcomes in similar
situations.
        There are three basic components of behavior 1)  Tendencies to
choose certain actions over other actions, 2)  An efficiency to which a
particular course of action will achieve the outcome, and 3)  The expected
value associated with the outcome.  As we defined in 1.1, information
changes tendencies in choosing certain actions over other actions -- a
change in component 1:
          Information: A communication that produces a change in the
          tendencies to choose certain actions over other actions
          (where a change in tendency can be observed by noting
          changes in the probabilities of choice).

        One way information changes tendencies to choose is by modifying
the beliefs used to model the results of choices.  Returning to the story
of the shopkeeper, information that it may rain changed his beliefs about
whether the merchandise should be left uncovered.  While there was a small
chance he would cover the table just to be safe without the information,
the information greatly increased the tendency to cover the table.
Nonetheless, the information did not make his covering the table an
absolute certainty since a fire could break out and the shopkeeper would
then do other things.
        The linkage between human welfare and information can now be
drawn.  Human welfare is a product of individuals and groups achieving
desired outcomes.  Thus, information is intrinsically related to human
welfare in that it inherently facilitates the achievement of outcomes.
        Information contributes to knowledge and understanding.  Knowledge
and understanding are venerated terms and by seeing how they are defined
we can better understand why.  These two terms can be defined in relation
to the concepts of outcomes, efficiency, and choice:
          Degree of Knowledge: For a set of possible actions that can
          be used to attain an outcome, degree of knowledge (of the
          individual) is the efficiency with which the outcome is
          attained by the individual choosing one action compared with
          the efficiencies of all other choices.
                                   -25-




Knowledge is an awareness of the efficiency of alternative subcourses of
action when the person's capacity to achieve the outcome by a particular
action is held constant.   Understanding is responsiveness to whatever
affects efficiency.  "If, for example, when a change occurs in the
environment or the [individual] to reduce the efficiency of his behavior,
he modifies his behavior so as to increase his efficiency; then he is said
to understand what has happened." (Ackoff, 1972, p. 50)  The response
consists of 1) changing his course of action to another, 2) changing the
capacity applied in the course of action, 3) or both.  Understanding can
be defined as:
          Degree of Understanding: For a set of possible actions and set
          of different capacities that can be applied to the actions,
          degree of understanding (of the individual) is the probability
          of an outcome compared with efficiencies of all other choices
          and applied capacity.

        These definitions are at first counter-intuitive.  We tend to
think of knowledge and understanding in terms of something the individual
holds or possesses.  Definitions of knowledge and understanding that are
based on a state of a person's perception are too internal -- they provide
no external verification of the knowledge or understanding.  Here,
however, knowledge can be ascertained by the appropriate choice of action
and understanding can be ascertained by the appropriate choices of action
and application of capacity.  Furthermore, these definitions are
operational.  With those it is possible to know whether and by how much
some information increases understanding -- by changes in the degree of
understanding.
        In summary, the intrinsic relation of information to human welfare
can be defined as:
          Intrinsic Relation of Information to Human Welfare -- Human
          welfare is a product of individuals and groups achieving
          desired outcomes.  Thus, information is intrinsically
          related to human welfare in that it inherently facilitates
          the achievement of outcomes.

        Cleveland (1982, p. 34) describes an intrinsic relation to human
welfare using a less structured approach.  He describes an
"information-knowledge-wisdom hierarchy" as a process where information
accumulates and results in more integrated knowledge.  Cleveland notes
that information is shareable, that the same information can be used by
many at the same time in achieving human welfare.
        Property rights for information with regard to human welfare are
incompatible in a major way.  While it may be necessary to provide
property right to spur the production of information, the holding of
information as property thwarts its free and easy use in achieving human
welfare.  The fair-use provision of 1976 Copyright Act was in response to
this tension.  It provided more emphasis towards human welfare and
weakened property rights.
                                   -26-



        The distinction drawn in 1.1 on information and "synthesized
experiences" is germaine.  Information is universally positive to human
welfare as an instrumental good.  Thus, the instrumental goods should be
easily and freely accessible to the public.  Synthesized experiences like
many "pop" movies are mainly consumptive goods.  They lack universality
and should not be accorded the same free accessibility (at least for
reasons of intrinsic welfare).

2.3.2  High Intrinsic Relationship to Issues of Freedom
       and Privacy

        The 1st Amendment provides guarantees of freedom of speech and
freedom of the press.  What is the function of this right?  Freedom and
choice are integrally tied -- freedom is a lack of restriction on choice.
Since information changes the available choices, information is
intrinsically related to freedom.  Governments of societies that restrict
freedom find that they must restrict communication of information.  They
are attempting to maintain a certain set of choices and exclude others.
        Privacy is mainly a problem of information and understanding.
Perfectly upright citizens, who have "nothing to hide", insist that their
privacy be protected.  Unprotected privacy has two results 1) Interference
due to unwanted publicity, etc., and 2) Interference due to
mis-understanding, mis-interpretation, etc.  We will concentrate on the
second form of interference.  Why does someone who has nothing to hide
insist on privacy? -- because if there is 1) not full information about
his actions, and 2) not full understanding of his actions, his actions may
be misconstrued and the result may be defaming.
        Thus a major issue with privacy is an "all or none problem."  It
is not possible to give everyone enough information to properly judge,
therefore, information must be selectively made private to reduce the
probability of misjudgement.
        In summary, the intrinsic relationship of information to 1st
amendment rights and privacy can be defined as:
          Intrinsic Relationship of Information to Freedom --
          Information affects the range of choices available to the
          individual.  Freedom is a lack of restriction on choices.
          Thus information leads to greater freedom.

          Intrinsic Relationship of Information to Privacy --
          Incomplete information may result in defamation of
          character.  Therefore, information must be selectively made
          private to reduce the probability of defamation.

        Pool (1983) recognized the relationship between freedom and
information in his Technologies of Freedom.  In particular, Pool saw the
regulation of the channels of communication under the FCC as abridging
free speech.
        Property rights for information and freedom can be in conflict or
in harmony.  If the property right is used to withhold information,
freedom can be abridged.  In contrast, if property rights encourage the
production of new information, freedom can be increased.
                                   -27-



        Property rights are conducive to privacy.  A property right gives
an individual the power to withhold and, thereby, achieve privacy.

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                                   -28-



3.  Relationship of Information to Products and Services

        Talking about information is like talking about a calorie, no one
buys a calorie, they buy food.  To trace information as it becomes
embodied in products and services one must follow the life cycle of
information production.
        A simple version of the life-cycle model has the following steps:
Through the generation of information there is created an information
source; then through institutionalization of the source there is created
an information resource; then through maintenance & enhancement there is
created information products & services; then through dissemination the
information becomes used (Levitan, 1982, p. 47).  For example, a reporter
writes up a story; the story is sent to UPI; an editor picks up the story,
combines it with other information in the files; a newspaper article
appears; the newspaper is delivered to the front door.
        More complex versions of the life-cycle model include various
additional stages or components of "value-added" activity.  Value-added
can be considered in two ways.  The strict economic definition can be
defined as:
          Value-added -- The sum of the input factors of production
          excluding all purchases of materials and services from other
          firms.

Returning to the example of the reporter, the value added by the editor is
his labor, some percentage of management's labor, and depreciation on the
editor's word-processor.  But as so defined, we have not included
"intermediate inputs"  of the business such as telephone service, office
space, paper, etc.
        This exclusion makes the economic definition of value-added
appropriate to avoid double counting in performing the "national
accounts"<*> but is not complete enough to give a sense of the full added
value.  To remedy this problem we can define a second term, full
value-added, to be more complete:
          Full Value-added -- The sum of the input factors of
          production excluding all purchases of materials and services
          from other firms except intermediate inputs.

        This definition is reasonably workable.  It provides the sense
that everything a producer adds to information is his value-added
contribution to the product or service.
        But like the economic definition of the value of information
referred to in 1.1, even the full value-added (say stated in dollars) will
not reflect the actual value added to information when there are forms of
market-failure (cf. 2.2).  Returning to the definition of the value of
information in 1.1, we can state what value-added is in terms of final
outcomes.  The value-added is the increment of efficiency increase in
achieving outcomes due to changes the value-added activity makes in the
information.  This can be defined as:


----------------
<*> The concept of value-added was developed to avoid double counting
when the entire economy's activities are being tallied up -- as the
U.S. Dept. of Commerce does for the National Accounts.  For example,
if Firm A makes dough and Firm B makes bread, we must avoid counting
the dough again when we count the bread (cf. Samuelson, 1973, p. 183).
Intermediate inputs must also be excluded since these too will be
counted elsewhere.
                                      -29-


          Value-Added -- There is an expected value (EV) related to
          achieving an outcome -- this is the sum of the probability
          of each particular choice, times the efficiency of each
          choice, times the relative value of the outcome (cf. 2.3 for
          relative value).  Considering the expected value (EV>1<)
          without value added to the information and the expected
          value (EV>2<) with value added to the information, the value
          added to the information (EV<i>) is:
                             EV>va< = EV>2< - EV>1<

        In those cases where the value-added activity makes otherwise
unaccessible information available to the user, the value-added is at
least equal to the value of the information.  The economic definition
defines value-added as an accounting of inputs, regardless of outputs.
The behavioral and management science definition defines value-added as an
accounting of output, regardless of inputs.  For example, by the economic
definition, there may be considerable value-added (labor, etc.) but the
result, let us say, is confused, this added confusion would result in a
negative value-added by the second definition.  The individual would be
better off consuming the information before the value-added step than
after.
        One technique to attempt a quantifiable measure has been the use
of willingness-to-pay (cf. Griffiths, 1982, p. 274).  In
willingness-to-pay, the individual is being asked to quantify in dollars,
the perceived value of the information.  I.e., he is being asked to
translate the incremental increase in expected value into dollars.
Willingness-to-pay, as a measure is subject to large uncertainties but in
some situations provides useful data.  Let us consider two extremes.  The
individual is about to go to a $5.00 dance club.  A promotion service
(value-added) calls the individual and says there is a free $5.00 ticket
to the same dance club waiting for him.  The individual's
willingness-to-pay for this information would be $5.00 (ceteris paribus).
In another situation, an individual is chronically depressed, irritable,
and angry.  The individual is informed that central sleep apnea (a form of
sleep disorder) can cause these symptoms.  Subsequently, the individual is
cured.
  What is the willingness-to-pay of this individual?  He might have hocked
his soul.  When intangibilities are high (cf. 2.2.7), there are
significant externalities (cf. 2.2.2), or there is poor information about
the information (cf. 2.2.6), willingness-to-pay is an unreliable measure
of value-added.
Products and Services
        Different types of value-added activities are associated with
products and services.  It is useful to distinguish between product and
service, though as information technologies become more interactive, the
distinction becomes blurred.  We can define these as:
          Information Product -- An information product is usually a
          tangible piece.  It may be bought and sold, if an external
          commodity, or it may be charged back, if internal within an
          organzation (Taylor, 1982b, p. 345).

          Information Service -- Services are intangible, they are
          usually provided on demand, are a performance rather than a
          product, are nearly inseparable from their production
          (Stankard in Taylor, 1982b, p. 345).
                                      -30-



        Taylor (1982b, p. 345) notes that products generally are
mass-produced, i.e. there is little or no variation.  In contrast,
services are usually custom produced with large variation.
        Cuadra (1980, p. 98) recently compiled a list of the primary
activities of 122 Information Industry Association members.  In that list
he distinguishes producers of products from producers of services.  Table
3-1 shows the numbers of producers in 64 classes of products and services.
        Taylor (1982, p. 342) developed a value-added spectum for
information.  This appears as:

   DATA ----|: INFORMATION ----|: INFORMING --|: PRODUCTIVE ----|: ACTION
                                  KNOWLEDGE      KNOWLEDGE
      grouping
      classifying       selecting        presenting       matching goals
      relating          analysing          options        compromising
      formatting        comparing          advantages     bargaining
      signaling         interpreting       disadvantages  choosing
      displaying
     -------------     -------------      -------------   --------------
      ORGANIZING       SYNTHESIZING        JUDGEMENTAL       DECISION
       PROCESSES        PROCESSES           PROCESSES        PROCESSES
                                              Source: Taylor (1982, p.342)

Taylor suggests that products are situated to the left side of the
value-added spectrum.  Services, being more unique and customized, are
located to the right since they are based principally on human
interpretion and intervention between system and client.
        Value-added is thus identified in terms of what is done to the
information -- made accessible, enhanced, etc.  For example, King and
Zaltman performed a value-added analysis of scientific and technical
information (STI) communications (1979, p. 17).  They arrived at the
following list of dimensions of "value":
          o  Identification of User Needs.  Does -- or could -- a
             component provide insight into the kinds of information
             desired by users or potential users?
          o  Creation/Production Data.  Does a component stimulate the
             development of new data and ideas?  For example, symposia
             might stimulate the creation of new STI.
          o  Creation of Awareness of Data.  How many users become aware
             of STI only as a result of a component?  How much earlier is
             awareness established among users as a result of a component
             such as preprints?
          o  Quality Control: Validity of Data.  Does a component such as
             refereed journals impact the quality of the data transmitted?
          o  Quality Control: Potential Usefulness of Data.  How helpful
             is a component in enhancing the usefulness of data?  Does a
             component such as an abstract journal allow the practical
             relevance of data to become evident?
          o  Storage.  How valuable is a component for warehousing
             purposes?
          o  Retrieval.  How easily can data be recalled via a particular



                                   -31-



                                Table 3-1
      Primary Activities of Information Industry Association Members


26  Document Acquisitions and Delivery  8  Cataloging Services (S)
    (S)                                 8  Engineering Information (P)
26  Periodicals-publishers (P)          8  Environmental Information (P)
25  Publishing (P)                      8  Legal Information (P)
22  Consulting Services (S)             8  Television Information (P)
22  Data Bases - Design and/or          7  Clearinghouse (S)
    Management (S)                      7  Library Automation Services (S)
22  Data Bases - Information (P)        7  Medical Literature (P)
    (Publishers of Information About    7  Newsletters-Publishers (P)
    Data Bases)                         7  Typesetting Services (S)
20  Indexing Publishing (P)             6  ASIA (P)
19  Data Bases - Searching (S) (firms   6  Economics (P)
    that carry out data base searches)  6  Electronics Information (P)
19  Information Systems - Design and    6  Forecasting Services (S)
    Evaluation (S)                      6  Microform System Design Services (S)
19  Market Research Services (S)        6  Micrographic Services (S)
18  Business Information (P)            6  Records Management Services (S)
18  Micropublishing                     6  Reprint Publishers (P)
17  Current Awareness Services (S)      5  Accounting Information (P)
17  Data Bases - Vendors/Lessors (S)    5  Agriculture (P)
    (Companies that Produce or Sell     5  Book Information (P)
    the Use of Data Bases)              5  Bookselling Services (S)
17  Government Information (P)          5  Chemical Information (P)
17  Literature Searches (S)             5  Computers-Hardware (S)
16  Corporate Information (P)           5  Conferences-Information (P)
15  Directories (P)                     5  Drug Information (P)
13  Abstracting Publishing (P)          5  Education (P)
13  Indexing Services (S)               5  Europe (P)
13  International Business Info. (S)    5  Financial Information (Intl.) (P)
12  Energy Information (P)              5  Information Industry (P)
11  Abstracting Services (S)            5  Looseleaf Services (P)
11  Financial Information (P)           5  Management Information (P)
10  Marketing Services (S)              5  Patent Information (P)
10  Software (S)                        5  Product Development (S)
 9  Scientific Literature (P)           5  Social Science Literature (P)
 8  Audiovisual Materials (P)           5  Statistics (P)
---------------------------------------------------------------------------
(S) -- Service        (P) -- Product            Source: Cuadra, 1980, p. 98
                                        -32-


             component.
          o  Translation of Data into Implications.  Does the nature of a
             component permit a statement of the way in which the data are
             important?  Can bibliographics be retrieved on the basis of
             implications?
          o  Translation into Action.  Does a component permit statements
             about the actual use of the data once its relevance is
             determined?
          o  Feedback.  Does the component permit feedback from the user
             to the disseminator and creator of the data?  How many
             journal channels must be altered to facilitate feedback?

        Taylor recently completed a major work on the value-added
processes in abstracting and indexing services (1984a)  He notes that
abstracting and indexing services do not alter input.  The references,
papers, documents remain the same.  What they do is provide a "whole
series of tangible signals and intangible values that make it easier for
customers to make choices (p. 131).  Taylor identifies 24 specific ways
value is added by abstracting and indexing services.  These are listed in
Table 3-2.
        Porat (1977) has developed the most comprehensive study of
value-added in the economic sense.  While the study provides little sense
of what particular value is being added, it spans the entire information
economy. (Recall also that intermediate inputs are not included.)  He
divides the information economy into two major sectors: the primary
information sector -- "includes those firms which supply the bundle of
information goods and services exchanged in a market context" (Vol. 1, p.
4), and the second information sector -- "includes all the information
services produced for internal consumption by government and
noninformation firms" (Vol. 1, p. 4).
        For the primary sector, he presents value-added (VA) by two-digit
SIC (Standard Industrial Classification) categories (Vol. 1, Table 4.8, p.
55).  For example, VA in 1967 for Services: Motion Pictures is $1,525
Million; for Service: Educational - $5,170 Million; and for Communication:
Radio Broadcasting and Television - $1,580 Million.
        For the secondary sector, a similar table is presented but only at
the one-digit level (Vol. 1, Table 9.2, p. 155).  A second table is
presented in the Appendices (Vol. 8, Table 10, p. 18-21) contains
value-added at the two digit level.  For example, VA in 1967 for all of
Transportation - $8,115 Million; for all of Manufacturing - $57,880
Million; and for Agriculture, Forestry, and Fisheries - $467 Million.
        For more detail, the value-added process in particular information
industries can be constructed from business books on the industry.  While
these books are mainly focussed on how to get into and keep in business,
they cover the activities of business and from those activities the
value-added process can be constructed (cf. Gomery, 1982 p. 82).  For
highly promoted products like soft drinks, cosmetics, and perfume the
information components include the development of image and a market
niche, the use of advertisement and promotion, and the use of
"industrials" (film productions presented at sales conferences, etc.) to
motivate and coordinate the sales force.
        In summary, value is added to information in two basic ways, 1) By
adding greater accessibility, ease of use, etc., without changing the
basic information such as in abstracting, and 2) By writing, editing,
cutting, etc. where the basic content of the information and its
                                   -33-



                                Table 3-2
             Value-Added in Abstracting and Indexing Services


Access (Reducing Noise): the values added by the intellectual technologies
that provide the systematic means, based on subject matter, of narrowing the
information universe to a set of data and information which have some
probability of containing material that is wanted or needed.  Different
kinds of intellectual access provide different sets of the subject universe.

Access I (Reducing Noise): the value achieved by the identification of any
information chunk or discrete piece of data by systematic physical
description and location information.

Access II (Reducing Noise): the provision of a subject description through
access points such as index terms, descriptors, names, etc.

Access III (Reducing Noise): the result of processes that assure error-free
transfer of data and information as it flows through the system and is
eventually displayed to a client.

Accuracy (Quality): the value added by system processes that assure
error-free transfer of data and information as it flows through the system
and is eventually displayed to a client.

Browsing (Ease of Use): the capability of a system to allow a client to scan
an information neighborhood, with the probability that the client will
serendipitously find information of value.

Closeness to Problem (Adaptability): the value added by the activities of
the system, usually through human intervention, to meet the specific needs
of a person in a particular environment with a particular problem; this
implies knowledge of that person's style, bias, and idosyncracies, as well
as the politics and constraints of the context.

Comprehensiveness (Quality): value added by the completeness of coverage of
a particular subject or of a particular form of information.

Cost-Saving: the value achieved by conscious system design and operating
decisions that save dollars for the client.

Currency (Quality): the value added i) by the recency of the data acquired
by the system; and ii) by the capability of the system to reflect current
modes of thinking in its access vocabularies.

Flexibility (Adaptability): the capability of a system to provide a variety
of ways and approaches of working dynamically with the data/information in a
file.
                                    -34-



                           Table 3-2 (Continued)
              Value-Added in Abstracting and Indexing Services


Formatting (Ease of Use): the physical presentation and arrangement of
data/information in ways that allow more efficient scanning and hence
extraction of items of interst from the store.

Interfacing (Ease of Use): the capability of the system to interpret itself
to users.

Interfacing (Mediation) (Ease of Use): the means used to assist users in
getting answers from the system.

Interfacing (Orienting) (Ease of Use): the means used to help users
understand and to gain experience with the system and its complexities.

Linkage (Reducing Noise): the value added by providing pointers and links to
items, sources, and systems external to the system in use, thus expanding
the client's information options.

Ordering (Ease of Use): the value added by initially dividing and organizing
a body of subject matter by some form of gross ordering such as
alphabetization, large groupings, etc.

Physical Accessibility (Ease of Use): the processes of making access to
information stores easier in a physical sense.

Precision (Reducing Noise): the capability of a system which aids a user in
finding exactly what he wants.

Reliability (Quality): the value added by the trust a system inspires in its
clients by its consistency of quality performance over time.

Selectivity (Reducing Noise): the value added when choices are made at the
input point of the system, choices based on the appropriateness and merit of
information chunks to he client population served.

Simplicity (Adaptability): the value achieved by presenting the most clear
and lucid (explanation, data, hypothesis, method, etc.) among several within
quality and validity limits; not to be confused with 'simplistic'.

Stimulatory (Adaptability): those activities of an information system that
may not be directly supportive of its primary mission, but which assume
importance in establishing a presence in the community or organization
served and which encourage use of the system and/or its staff expertise.

Time-Saving: the perceived value of a system based on the speed of its
response time.

Validity (Quality): the valued added when the system provides signals about
the degree to which data or information presented to users can be judged as
sound.
                                   -35-


presentation are changed such as in publishing.
        There are several issues in relation to property.  In the case of
abstracting, the abstracter distills out the points of an article or book.
To the extent that abstract serves the user, rather than the original
piece, the property right has been weakened.  But in other situations, the
property right can be enhanced such as when a book is made into a movie.
The value-added activity of the movie increases the value of the book, and
the author benefits from the new contract royalties.
        To the extent that "bare information" which is difficult to
appropriate becomes bundled with a product or service, the appropriability
is increased.  For example, say there are eight principles by which to
lead a good life.  The value of these principles may be very great but
highly inappropriable.  But, in adding value by placing the principals
into context in stories or screenplays, the information becomes bundled
with synthesized experiences.  These can be protected as property and the
value is more appropriable.
        A trend in computer software is to bundle software with further
access to information.  A user becomes a subscriber to hot-line advice,
further enhancements, and consulting.  This bundling increases the
appropriability of the software since only registered users can be
subscribers.
        Unfortunately, bundling is not socially efficient from another
perspective.  It forces the buyer to purchase more than he may otherwise
want, reducing allocative efficiency.  It also can increase the monopoly
power of an industry and produce serious antitrust issues.  IBM was forced
by the Justice Department not to bundle software with its hardware.  The
securities industry was forced by the SEC not to bundle their information
services with the prices charged for stock transactions.  Each form of
bundling will have to be reviewed on a case-by-case basis, however, since
there are no clearcut ways of predicting the affect of bundling on
industry structure.

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                                   -36-




4.  Rewards, Incentives, and Funding Sources for the
    Creation of Intellectual Property

        In the search for the best ways to provide incentives for the
development of intellectual property, it is important to have a picture of
what motivates the development of different types of intellectual property
and what sources fund the work.  While there has been a fundamental shift,
with the advent of copyright, toward a market system approach for the
motivation and funding of intellectual property, other forms of motivation
and funding are still important such as art patronage and private
endowment of colleges.
        Copyright can overcome only some forms of market-failure described
in Section 2.  It cannot overcome intangibility, risk and uncertainty,
externalities, economies of scale, and indivisibilities.  It contributes
substantially to overcoming problems of appropriability (where copyright
provides an enforceable right), and to a lesser extent aids in information
about information (by making the producer less likely to retain
information), and in reducing transaction costs (by providing clear
contract obligations).  Copyright will actually exacerbate problems of
economies of scale and the existence of monopoly power and reduces social
efficiency by withholding intellectual property from the public.
        This section treats three groups of intellectual property --
science, culture (art, music, etc.), and products & services.  The types
of rewards and incentives in each of these groups differ considerably.
The first two involve "internal motivation" much more than the third.  The
nature of funding for the three groups is also distinctive -- patronage of
science and culture is still common today while products and services are
rarely funded outside of the market system.
4.1  Rewards, Incentives, and Funding for Science
        Intellectual property in science mainly consists of journal
articles, books, and some computerized databases on physics, chemistry,
etc.  While scientists are paid salaries, the relationship between this
compensation and the incentives to create intellectual property is weak.
In science, there is a distinctly different set of rewards and incentives
operating.
Rewards and Incentives for Science
        Gaston (1978) studied the reward system in British and American
Science.  His findings affirmed what generally has been believed that
scientists are rarely motivated by salary or other compensation.  Merton
(1973) contributed substantially by describing the sociology of science --
the networks, communications, and relationships among scientists.
Considerable motivation to produce can be traced to these linkages.
Science is an uncertain process that depends on data and information from
others.  While scientists tend to work with some isolation, they are
dependent on others for information and critique.  Associated with this
dependency has been a form of "work motivation" -- scientists are pleased
to be cited in other articles, are pleased to be invited for a paper, and
particularly pleased when their work leads to a "break-through."  "In the
scientific world the highest value is for the research speciality or
parent discipline to develop through contribution of new data and
theoretical explanations to account for the data" (Gaston, 1978, p. 3).
                                   -37-



        Merton suggests that four basic norms consitute the "ethos" of
science and guide the behavior of scientists -- universalism, organized
skepticism, communism, and disinterestedness.  These norms help explain
the scientist's detachment from pecuniary (monetary) rewards.
Disinterestedness requires that scientists do research for the "sake of
science."  While there are those scientists who have cared only about
advancing their personal careers, most display disinterest and thus their
progress is detached from monetary gain as well.  Communism encourages the
sharing of information among scientists.  There are no "charges" for this
beyond occasional photocopy expenses, journal subscription fees, etc.
Thus, the scientist does not become involved in selling information.
Motivation to Work
        General theories on the motivation of work have been developed by
Abraham Maslow, Frederick Herzberg, D. Yankelovich. and E. H. Schein.  A
recent MIT doctoral dissertation reviewed the literature in determining
incentives for engineers and scientists (Reece, 1981).  A discourse on
motivation goes beyond this paper but a few comments can be made drawing
from the behavioral and management science concepts introduced in 2.3.
        The generation of intellectual property is a particular outcome
produced by an individual.  To increase this production we should think in
terms of the parameters that lead to choice and success of an outcome.
This differs from our discussion about the function of information.
Information is fairly neutral with respect to motivation for it affects
the choice of action (from a set of possible actions) to achieve an
already determined outcome.  We defined motivation in Section 1 as "a
communication that produces a change in any of the relative values the
receiver places on possible outcomes of his choice."
        Pecuniary (monetary) rewards motivate the individual in two ways.
Money is instrumental in achieving many other desired outcomes.  Thus the
individual often places a high relative value on outcomes that produce
money -- holding employment, winning the lottery, etc.  Second, money
becomes a proxy for success.  Success is a recognized outcome in our
society and the psychic rewards are high.  This places an even higher
relative value on outcomes that produce money.  It is this pair of
motivations that embraces the market system.  It is also this pair of
motivations that are considered narrow, sterile and unredeeming.  Why so?
        This relates to other cultural values whose purpose is to make
sure that human welfare flourishes.  If all human welfare could be
produced by the market, there would be no tension, but because of
intangibilities, externalities, etc. they cannot; fortunately there is a
non-market process that ensures these outcomes -- the production of
poetry, kindness, charity, human growth, and science.
        Non-pecuniary rewards to motivate are thus tied with this set of
other cultural values.  These are values like "love of learning,"
"goodness to others," "courageousness," the "work ethic," etc.  Through
the process of inculcation, these values become part of an individual's
values.  The result is a high relative value placed on the generation of
intellectual property that represents "contributions to society."  Since
these values, like the value of success in business, are recognized by
society, the psychic rewards are high.
        In addition to pecuniary and non-pecuniary motivations there is
one additional aspect that affects the production of intellectual property
-- the efficiency of the choice of action to achieve the outcome and the
                                   -38-



efficiency of achieving the outcome by that particular action
(proficiency).  The first efficiency is affected by information, and
instruction and practice affects proficiency (cf. Section 2.3).
        Copyright is to pecuniary rewards what plagarism norms are to
non-pecuniary rewards.  Copyright gives possession and increases
(monetary) appropriability.  Copyright actually reduces non-pecuniary
rewards by restricting circulation.  What the author is concerned about in
terms of non-pecuniary rewards is that he be cited and recognized -- that
his ideas are recognized as his own.  This is protected by the ethics
regarding plagarism and the responsibility to acknowledge other's
contributions.  Copying, with acknowledge, is a form of non-pecuniary
recognition.  Thus copyright is a good tool to stimulate pecuniary
motivation but not for non-pecuniary motivation.
        Incentives that have been useful for non-pecuniary motivation
include forms of recognition such as:
          o  Distinguished Titles at Universities
          o  Distinguished Levels of Membership of Professional
             Associations
          o  Honors
          o  Prizes
          o  Placed on Board of Editors of a Journal
          o  Fellowships
          o  Name Cited in Journals and Other Sources

Funding
        In earlier periods of science, in Greece, and later in Europe,
science was funded through patronage.  The scientist would appeal to a
wealthy citizen to support his work.  Governments recognized problems of
appropriability and high positive externalities (benefits) associated with
science and adopted the role of funding science.  Arrow (1962, 1977) noted
that the economic relation of government support is very different than
that in the usual markets.  Payment is independent of product; it is
governed by costs by the typical cost-plus fixed fee of contracts or costs
alone in the case of grants.  "This arrangement seems to fly in the face
of principles for encouraging efficiency, and doubtless it does lead to
abuses, but closer examination shows both mitigating factors..." (p. 157).
Abuse is curbed since the award of future grants and contracts are
contingent on prior performance.  But more importantly, the system works
because the incentive to produce is non-pecuniary.
        Forms of government support and incentives tend to be either forms
of direct subsidy, or indirect subsidy through tax policy.  Support and
incentives include:
          o  Grants
                  -- for research
                  -- for education
          o  Contracts
          o  Fellowships
                  -- for research
                  -- for education
          o  Loans
                  -- increased availability
                                        -39-



                  -- lower interest
                  -- some "forgiveable"
          o  Provide Information Resources
                   (e.g. MEDLARS for health research)
          o  Tax
                  -- option to "expense" research costs
                  -- accelerated depreciation for capital
                  -- 25% tax credit for qualifying projects
                  -- 10% tax credit for capital investments
                  -- deductions for charitable contributions
                     to universities

        The implications of various funding and incentives from a
standpoint of economic efficiency is complex.  An excellent treatment of
the relative efficiency of subsidy or tax measures is presented by
McFetridge (1977, p. 5).  Some have commented that in some circumstances
government involvement produces more distortion than it reduces (cf. Eads
in McFetridge, 1977, p. 15 on government support of aircraft research).
4.2  Rewards, Incentives, and Funding for Culture
        Many forms of intellectual property are considered an important
part of a society's culture.  These include music, painting, theatre,
dance, poetry, and novels.  The rewards and incentives for these are
similiar to science, however, the sources of funding are different.
Rewards and Incentives
        The artist is usually highly "internally" motivated.  Some artists
are like scientists, described above, who thrive on recognition.  Others
are producer-consumer-critic -- in almost complete detachment from others.
Collingwood, the British philosopher, described art as a process by which
the artist grows and affectively experiences the world through his own
art.  As such, art becomes an external product of an internal process.
Others who can identify with the internal process are said to "appreciate"
the art.
        The above discussion on cultural values is most germaine to
understanding what causes the production of cultural forms of intellectual
product.  To use the word property is perhaps too antagonistic, since the
purpose of most cultural products is for universal availability and use.
        Incentives for production of cultural products are integrally part
of the culture.  Mechanisms such as copyright have little positive effect.
Attempts have been made to provide performing artists with performing
rights (cf. 1981 Judiciary Hearings on Copyright, e.g. Dertouzos, 1981, p.
2). but this has met with no success.
Funding
        Like science, cultural production has been classically funded by
patronage.  There was a close linking of patrons and artists.  Haskell
(1963, p.4) describes the process in Italy during the Baroque Age:
          The young painter would at first be found living quarters,
          in a monastery perhaps, by a cardinal who had once been
          papal legate in his native city.  Through this benefactor he
          would meet some influential Bolognese prelate who would
          commission an altar painting for his titular church and
          decorations for his family palace -- in which the artist
          would now be installed.  The first would bring some measure
          of public recognition, and the second would introduce him to
                                      -40-



          other potential patrons within the circle of the cardinal's
          friends.  This was by far the more important step.  For many
          years the newly arrived painter would work almost entirely
          for a limited group of clients, until at last a growing
          number of altar-pieces had firmly established his reputation
          with a wider public and he had sufficient income and
          prestige to set up on his own and accept commissions from a
          variety of sources.  Once this had been achieved, he could
          view the death of his patron or a change in regime with some
          degree of equanimity.

        The role of government funding has been mixed in the U.S.  During
the depression, in 1936, the WPA arts project had more than 40,000 artists
on its roles.  Representative Sirovich of New York hailed the activity as
bringing culture to the masses in a way that no government had before
(Larson, 1983, p. 1).  Unfortunately, art was increasingly viewed as
linked with subversion and boondoggle as the country came out of the
depression.  For the next twenty years one bill after another failed to
produce substantial government support for culture.  There were also those
on the side of art who were concerned about government intrusion.  Even
with the passage of a bill that established the National Endowment for the
Arts, support was still low.  The $2.5 million in program funds
appropriated in 1966 was not even a third of what the Ford Foundation had
spent on ballet alone the previous year and tiny compared with the $85
million symphony orchestra program announced by the Ford Foundation in
October (Larson, 1983, p. 230).
        Thus, much of the support for culture comes from private
foundations, charitable contributions of corporations, church
contributions, and individual donations.  For further documentation of
these activities consult Miller (1970) on private endowment of education,
Nielsen (1972) and Goulden (1971) on private foundation philanthropy, and
Goldin (1969) on the support of public broadcasting.
4.3  Rewards, Incentives, and Funding for Products & Services
        Rewards and Incentives for Products & Services are largely
pecuniary.  Funding is mainly achieved by contracts from one firm to
another or within the firm by revenues produced by sales.
Rewards and Incentives
        The major debate in incentives to creators of intellectual
property is the extent that ownership in the product (service) is
important.  Many creators of intellectual property are mainly salaried --
newspaper writers, editors, movie script writers, engineers, etc.  In most
businesses (as well as many universities) ownership of copyrights and
patents reside with the institution.
        The argument is similar to the one regarding government ownership
of patents (cf. 2.2.5).  Business funded development should be the
property of business.  The argument is even stronger than government
ownership, since the business has the resources to exploit ownership more
than the individual (economies of scale, information about markets, etc.)
the ownership should reside with the business.
        On the other side, individual ownership will increase the
individual's production of valuable intellectual property.  For example,
employee stock ownership has been found to improve the productivity of
firms.  All other things being equal, individual ownership would be
                                   -41-



desirable.  However, this interferes with business control and the policy
of many firms is to not provide ownership and to recognize important
contributions through either cash bonuses or stock bonuses.  The stock
control this provides the individual would be too small to affect the
company's operations. (For details on corporate-employee agreements and
contracts regarding intellectual property cf. Gilburne, 1982).
        We should distinguish between for-profits and not-for-profits.
Libraries, some of the abstracting and indexing services, the OCLC (Online
Catalogue of the Library of Congress), are not-for-profits.  With regard
to incentives, these firms behave much more like scientists as described
in 4.1.  As Taylor (1984a) noted, these tend to be people dedicated to
performing a socially valuable service.
        Almost by definition, for-profits operate with pecuniary
incentives.  Internally, a major task of management is to devise ways to
distribute the incentives to maximize output.  Some segments of the firm
respond to pecuniary incentives more than others, for example, marketing
and sales forces have been traditionally targeted for varying compensation
keyed to sales.  In attempting to accelerate the rate of production,
incentives keyed to meeting deadlines have been sucessful.  However, this
is not universal, as some production of intellectual property depends on
professionals with temperments unsuitable to such coarse persuasion.
        One of the most powerful tools for generating intellectual
property, particularly invention, is equity.  Members of a firm that hold
sizable equity positions in the firm can be literally worth millions
overnight in the right circumstances.  Recall, under the risk discussion,
that smaller firms tend to be less risk averse than larger firms.  One
major reason is the potential for enormous gain if the stock price is bid
up quickly.
        If property rights cannot be obtained or protected, the firm must
still be able to appropriate a return on its investment.  Sometimes this
is achieved by being first.  If the new product or service is very
attractive, and if it takes some time to imitate, the firm can appropriate
its investment before others compete away the return.  Also, sometimes it
is possible to keep some hidden aspect of the product or service a trade
secret.  In such a case, the firm can appropriate a return without the
need for intellectual property protection.
        If the return cannot be appropriated from the consumer there is a
danger that an important intellectual product could go unproduced.  If the
social return is high and especially if there are positive externalities,
it may be efficient for the government to create a market by guaranteeing
certain levels of demand at a particular price.  The government could also
directly contract with the for-profit to produce the good on a
cost-plus-fixed-fee basis.  Government contracting with major aerospace
firms for the production of planes and armaments falls into this category.
Funding
        Holmes (1983) discusses intellectual property developed both
internally to the firm and from outside resources.  Funding flows are
summarized as follows:
          o  Intra-firm -- internally financed development
          o  Research Consultants -- funding of external invention
          o  Acquiring Externally Developed Intellectual Property
                                        -42-



                  -- Acquisitions as part of a complete business
                     or product line
                  -- As separate intellectual property assets
                  -- Exclusive versus non-exclusive acquisitions
          o  Joint Ventures to Develop Intellectual Property
          o  Pooling and Cross-Licensing Arrangements Involving
             Intellectual Property

        The last two forms of developing intellectual property are
potentially socially efficient and socially inefficient.  They are
socially efficient because they solve problems of appropriability and can
achieve economies of scale.  They can be socially inefficient if they lead
to collusion and other antitrust concerns.  The Justice department has
eyed both forms of joint development with suspicion and firms have been
reluctant to be sued for antitrust infringement because they are liable
for trebal damages.  The current administration has sought to reduce these
concerns and change the antitrust law to encourage more joint development
(cf. Gellhorn, Antitrust Law and Economics, 1981).
        In the publishing field, Crew (1984) discusses the efficiency of
different forms of contracts between author and publisher regarding
payment.  The five types of contracts are:
          o  Standard Royalty -- publisher pays author a percentage based
          on sales, perhaps with a sliding scale
          o  Profit Sharing -- author receives royalties based on
          publisher's profits on the book
          o  Cost Sharing -- some of the costs of production are incurred
          by the author
          o  Author's Fixed Fee -- fixed fee paid by the author to the
          publisher
          o  Publisher's Fixed Fee - fixed fee paid by the publisher to
          the author

In particular circumstances, contracts other than the standard royalty
form of payment are superior in establishing a fair contract between
author and publisher.
                                   -43-




5.  Structural Role of Intellectual Property in Maintaining a
    Viable Economy

        There are two traditional functions of property.  The first is to
reduce the "tragedy of the commons."  If a pasture is open to all herdsmen
in a village, each herdsman will try to keep as many cattle as possible on
the commons.  When the land becomes overgrazed, the grass dies leaving
everyone in disaster.  In contrast, if the land is held as property, the
owner will use the land wisely and only allow as many cattle to graze as
can be supported by the land.  Property rights, by making it possible to
exclude others and their cattle, has increased the efficiency of
production of the land.
        Pejovich (in Mackaay, 1982, p. 38) notes a second, dynamic
function of property.  From the individual's point of view the
specification of property rights is associated with his search for more
utility.  For example, who would invest his time and effort in preparing
land and sowing if at harvest time anyone could come and take the crop?
For any investment to be worthwhile, the investor must rest assured that
he can exclude others from the fruits and trade only at terms acceptable
to him.  There are internal motivations to ownership that has its owner
press it into service or sell it to someone who will.
        Posner views the major function of law as to aid in attaining
general economic efficiency.  "The Common law method is to allocate
responsibilities between people engaged in interacting activities in such
a way as to maximize the joint value, or, what amounts to the same thing,
minimize the joint cost of the activities" (Posner in Mackaay, 1982, p.
34).  Thus, a major function of law is to assign property rights to the
extent efficiency is increased.
        The economic function of property rights was recognized by A. T.
Hadley in An Account of the Relations between Private Property and Public
Welfare (in Cross, 1981, p. 37).  Hadley traces the historical development
of property rights and demonstrated that changes in economic structure,
such as from hunting to agrarian societies, were accompanied in changes in
the property rights that were held.
        Dutton (1984) documents the historical development of the patent
system in Europe.  He states that patent rights were typically justified
by four arguments: the natural-law thesis, the reward-by-monopoly thesis,
the monopoly-profit thesis, and the exchange-for-secrets thesis.  The
gradual change in emphasis from the natural right thesis to the economic
efficiency thesis occurred over a period from 1790 to 1860.  In 1791,
French patent law enshrined the belief in natural property rights in
invention  -- that the use without some form of compensation amounted to
theft since the property was personal and exclusive.  By the patent reform
campaign of the 1820s in England, J. R. McCulloch referred to both natural
rights and the increase of the level of inventive activity that occurred.
But even at that time few others spoke of natural rights.  "When the
Westminster Review brusquely announced that 'to talk of the natural rights
of an inventor is to talk nonsense', it was condemning an idea already
widely discredited" (Dutton, 1984, p. 18).
        In 1924, Commons (in Dugger, 1980, p. 47) said of "modern"
property rights, "[t]hey protect the individual in his pursuit of rightful
economic opportunity by enveloping him in property rights enforced by
                                   -44-



state sovereignty."  "Natural rights of man are a myth, even though the
myth once helped free man from the divine right of kings ... such rights
as we have proceed from national and other collective action, and are not
natural (p. 47).
        In the Economic Council of Canada's study on intellectual and
industrial property it is stated, "[t]he extent of private rights in
property can have great political and sociological significance, notably
at times when, as in seventeenth-century England and eighteenth-century
France, the extent and distribution of property rights becomes one of the
central issues in a major political and social revolution.  Even at such
junctures, however, the underlying struggle is more likely than not to
involve strong elements of out-right economic interest as well, and at
most times people appear to value the rights in property which the law
grants them primarily for their ability to generate a stream of economic
satisfaction of "income", using that word in its broadest sense" (Economic
Council, 1971, p. 222).  The report defends the notion of natural-rights
in one way though, "they have played and continue to play a highly
significant role in the evolution of human societies ... people who firmly
believe that they possess not just an interest in some objective, but a
basic 'natural right' in it, are likely to be more vigorous and
indefatigable in the pursuit of that objective" (Economic Council, 1971,
p. 225).
        There is still one further issue of political economy.  This
relates to the access or denial of access that granting property rights
creates to all "potential players" in economic/political activities.  For
example, the National Broadcasting Corporation statement in hearings
before the Judiciary commented on performing rights.  First they said that
performers can freely contract with producers to receive income.
Secondly, that copyright legislation was not remedial labor legislation --
it was not to provide additional jobs for performers (U.S. Congress
Judiciary Hearings, 1979, p. 664).  But the question returns to the
appropriability of the value-added by the performing artist.  Is the
provision of copyright for the author of a song sufficient to provide full
appropriability by the artist?  Can the producer fully appropriate the
performing artist's contribution and pass that along to the artist?  In
the hearings, it was noted that a few of the performing artists made most
of the income and that royalties would only increase their wealth and not
that of the "struggling" performers.  But we have progressive income
taxation to handle our concerns about excess distributions of wealth.  So
the issue for performing artists, and any other contributor to
intellectual property through "adding value" remains open.
                                   -45-




6.  Summary
        This paper has shown that fourteen characteristics of information
make it necessary to treat information different from other commodities.
In particular, there are many ways in which information will be
under-produced without legislation or government support.
        The assignment of rights to intellectual property is one mechanism
to solve problems of appropriability, transaction costs, and encourage
more information about information.  However, the assignment of rights
exacerbates problems when there are high social returns to the easy and
free access to information.  Further, problems of positive externalities,
indivisibilities, and risk/uncertainty are not addressed by the rights
approach.
        Alternatives to the assignment of rights include various forms of
subsidies and tax incentives from government (and other sources) -- for
example, the support of science through grants; research through tax
credits.  When the producer is motivated from mainly non-pecuniary
(non-monetary) rewards, the abuse of these systems can be low.
        The development of an information product or service is part of an
information life-cycle.  Information sources become information resources.
These are tapped in the creation of products and services, and the results
disseminated.  Along this cycle, value is added to the original
information.  The value-added data from the Department of Commerce was
found to have limited application.  More fruitful are industry level
studies of value-added activities.
        Finally, little is still known about the political economy of the
information sector.  What are the employment effects?  Are various
segments of the industry seriously concentrating?  To what extent can and
should property rights be extended to those who add value to a basic piece
of information?

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                               -46-

                             Appendix A
                        Selected References
                    (contact CITS for a KWOC index)



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  Toulmin, H. A., Jr. (1939). Patents and the Public  Interest.   New  York:
    Harper & Brothers Publishers.

  Uhlig, R. P., Farber, D. J.,  and Bair, J. H. (1979). The  Office  of  the
    Future: Communication and Computers.  North Holland.

  U.S. Congress, House Committee on the Judiciary,  Subcommittee  on  Courts
    (1979).  "Statement  of  National   Broadcasting   Company,   Inc."   in
    Copyright/Cable Television (Part 1, Serial  No.  44).   Washington,  DC:
    U.S. Congress, House Committee on the Judiciary, Subcommittee on Courts.

  U.S. Congress, Library of Congress, Congressional Research Service (1974).
    The Congress and Information.  Staff Report prepared for the use of  the
    Select Committee on Committees, U.S. House  of  Representatives  by  the
    Science Research Division, Congressional Research  Service,  Library  of
    Congress.   Washington,  DC:  U.S.  Congress,   Library   of   Congress,
    Congressional Research Service, May 5.

  U.S. General Accounting Office (1981). Legislative and Regulatory  Actions
    Needed to Deal With a  Changing  Domestic  Telecommunications  Industry.
    Washington, DC: U.S. General Accounting Office, September 24.

  U.S. Library of Congress Network Advisory Committee (1984). Public/Private
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    U.S. Library of Congress Network Advisory Committee.

  U.S. National Commission on New Technological Uses  of  Copyrighted  Works
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    Uses of Copyrighted Works (CONTU Report).  Washington, DC: U.S. National
    Commission on New Technological Uses of Copyrighted Works.
  U.S. National Commission on  Libraries  and  Information  Science  (1982).
    Public  Sector/Private  Sector  Interaction  in  Providing   Information
    Services.  Washington, DC: U.S. National  Commission  on  Libraries  and
    Information Science, February.

  Office of Management and Budget (1983). "OMB  Circular  A-76,"  Office  of
    Management and Budget [Washington, DC], August 4.

  Utterback, James M. and Abernathy, William J. (1975). "A Dynamic Model  of
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  Utterback, James M. and Murray, Albert E. (1977). The Influence of Defense
    Procurement  and  Sponsorship  of  Research  and  Development   on   the
    Development of the Civilian Electronics Industry.   Cambridge,  MA:  MIT
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   Summary: 270 Citations, 1152 Lines

From daemon Tue Nov 15 22:22:20 1994
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Date: Tue, 15 Nov 1994 22:26:41 -0800
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For a moment, lets imagine that you just spent the last 10 years writing 
the great American Novel.  You have sent it off to your publisher, and it 
has been accepted.  You sign a contract, and receive 10% in royalties.  
Not a bad percentage.

It seems to me that you have just become a minority partner in your lifes 
work.  Is this perhaps a clue that current Copyright Law has been written 
to protect the publishers and not the artists?  Seems like a no-brainer 
to me!

In my oppinion, copyright laws need to be changed to protect the writers 
and artists that create the work.  We certainly do not need just another 
way to litigate.  But the current method is to ask the attorneys to 
figure it out, and put even more laws into place.  

Is there a constructive way to protect property rights, so that everyone 
is happy?

Donald F. Evans              %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
DC Easy-Link                 % You can not expect the water downstream %
Washington, DC               %  to be clear, when the water upstream   %
don@dcez.com                 %  is muddy....                           %
                             %          Chinese Proverb                %
                             %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%    



From daemon Tue Nov 15 22:29:17 1994
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Subject: [INTELLEC:30] Move Only Files?
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Instead of looking for a legal solution to property rights, might a 
better way of approach be in a technical solution?

If we had a file type that was move only, as apposed to read only, a 
publisher could create 1000 copies of the file and then "sell" them by 
moving them.  The new owner could then loan them to friends or sell them 
further, simply by moving them.

Under this system, copying would be much more difficult.  As it is hard 
to copy a 500 page paperback, it would be hard to copy a digital file.

Could it work?

Donald F. Evans              %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
DC Easy-Link                 % You can not expect the water downstream %
Washington, DC               %  to be clear, when the water upstream   %
don@dcez.com                 %  is muddy....                           %
                             %          Chinese Proverb                %
                             %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%    



From daemon Tue Nov 15 23:22:25 1994
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Subject: [INTELLEC:31] Re: Thought Experiment...
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Donald Evans writes:
> 
> For a moment, lets imagine that you just spent the last 10 years writing 
> the great American Novel.  You have sent it off to your publisher, and it 
> has been accepted.  You sign a contract, and receive 10% in royalties.  
> Not a bad percentage.
> 
> It seems to me that you have just become a minority partner in your lifes 
> work.  Is this perhaps a clue that current Copyright Law has been written 
> to protect the publishers and not the artists?  Seems like a no-brainer 
> to me!
> 
> In my oppinion, copyright laws need to be changed to protect the writers 
> and artists that create the work.  We certainly do not need just another 
> way to litigate.  But the current method is to ask the attorneys to 
> figure it out, and put even more laws into place.  
> 
> Is there a constructive way to protect property rights, so that everyone 
> is happy?

There is no way to make everyone happy, but there sure as hell is a
better way to do things.  Copyright law is not set up to protect the
publishers over the authors/creators, but delivery systems most certainly
are.  The cost of book publication is large and the risk is real.  As
an struggling writer will point out, publishers are loathe to take on
authors that are not already proven sellers:  the capital investment
is not small and the losses can be significant.  However, the NII offers
a potential solution to said problem and combats problems in the field
of intellectual property at the same time.  Publishing on the net is
outrageously cheap.  The cost of storage of War and Peace in electronic
form is far cheaper than paper *and* there is virtually no cost for
producing more copies of said book.  *If* the NII expands, but carries
a similar form to the internet (i.e., not some telecom's wet dream of
new ground for one-way, price intensive communication), then authors
could easily publish themselves to the net. Bell Labs, among others,
are working out systems of accounting and payment for the consumption
of electronic documents right now.  None are perfect, but a final straw
will make the creators investment pay off.  Now that the middle-man
is cut from the deal, the author can publish his/her work charging
less than $.50 a copy.  Distribution is increased by lower price
barriers and there is less need to copy without compensation since
the price is so low. Copying would be priced out and authors (not
publishers) would get their due. No more out of print books.  The
supply is almost perfect.  Publishers *hate* this, but real people
are happy :)
-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
| Sean Connelly                   "Cyberpunk is a revolution   |
| sconnell@silver.ucs.indiana.edu  that has already become     |
| sconnell@acoma.ucs.indiana.edu   the establishment."         |
| sleeze@well.sf.ca.us              --Someone with a clue      |
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From daemon Tue Nov 15 23:38:48 1994
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From: DOUG MASSON <DMASSON@ucs.indiana.edu>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:32] RE: A Writer's Viewpoint
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In response to Cap'n Fatty's desire not to have other folks profit
from his words; I think at the very least that it would be fairly
easy and uncontroversial to forbid others from profitting fiscally
from the writings of others.  Barring contracting and other voluntary
grants of rights by the author.  (Furthermore, upon second glance
I feel the stirrings of regrets about being so hasty to use words
such as easy and uncontroversial when talking about formulation of
law and policy.  For example, it could become problematic to draw
lines between when somebody is profitting from their views of someone
elses words and when they are actually profitting from the original
author's words while the addition of anything original is just a 
happy accident).

In any case, it's Cap'n Fatty's second concern which is the real killer.
Often times, an author has absolutely no objection to personal uses
of his/her work.  It is quite another thing when losing control of
one copy of a work creates the possibility of almost effortless
recreation of endless reproduction.  The answer seems to lie in
finding a way to prevent this all or nothing development.  On the
other hand, it seems quite disturbing to deliberately create a 
scarcity of a product as a matter of public policy (of course that
is perhaps at the heart of intellectual property law).

	Looking for answers and responses as always,
		Doug Masson
		Indiana University School of Law
		dmasson@indiana.edu
		
**As winter approaches remember: there's no wind chill at absolute zero**

From daemon Wed Nov 16 02:16:31 1994
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To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:34] Re: Thought Experiment...
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> Sean, this is true, but it's also true that it costs very little to make 
> music CDs. My capital investment in tools (digital recorders, mixers, 
> and so on) can be well under $20,000. Most of the equipment can be used 
> to make more than one album; much can be used in live performance if I so 
> desire. My CDs might cost me a couple bucks each.
> 
> Why then are choices so limited in record stores and (worse) in radio? 
> because there's value in scarcity, and record companies and radio 
> stations pretty much control distribution and promotion. This is probably 
> a far more significant barrier than copyright laws. And it's difficult to 
> imagine legislating a way around this.
> 
No disagreement from me about the point of scarcity and pathetic 
selection in music stores.  Precisely why I am fascinted with the
net. I am a 'Jack of all trades'.  I write fiction, record songs,
and do research on fun things like the politics of the internet.
The internet provides a means to publish all that material cheaply.
The distribution system is potentially able to circumvent the current
network of interests that attempt to sell you what they *have* rather
than what you might want.  That is, some folks listen to Richard Marx
because they are not aware they have an option.  What the internet offers,
especially with increased bandwidth to inviduals, is the distribution
system to escape narrow choices.  Independent films can be distributed
via the net.  Same with music.  And definitely with texts of all 
varieties.  My concern is primarily that the people who own the
old system of distribution are going to thwart the efforts of the
rest of us to enter the game.  If the backbone of the net is
PUBLIC property, then we can start sharing a lot more of our 
creative work.  If the telcos and cable folks win out--it will be
movies on demand.  Only one way to legislate around this issue
and that is to legislate a public net.  Merchants pay and the hippies
of creativity share and grow.  Sounds silly, but free information
sends us up as a society by leaps and bounds.  Just ask the
companies moving to Canada.
 
-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
| Sean Connelly                   "Cyberpunk is a revolution   |
| sconnell@silver.ucs.indiana.edu  that has already become     |
| sconnell@acoma.ucs.indiana.edu   the establishment."         |
| sleeze@well.sf.ca.us              --Someone with a clue      |
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From daemon Wed Nov 16 03:25:00 1994
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From: jim@socs.uts.EDU.AU (Jim Underwood)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:35] Re: Modifying existing Copyright law probably insufficient
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David H. Rothman wrote


>
>     The above is all too true, except you should lump Commerce bureaucrats
>in with legislators. I testified at an interagency NII hearing on
>intellectual property, in November 1993, and I suffered through the
>transcripts from this year's round. Depressing.
[..]
> Without read-o-meters, there would be less incentive to defeat technological
>protection. Thousands of public and university librarians could participate
>in the acquisitions process for the fund; in effect, we would be putting our
>library system online. We could even let CompuServe-style services use the
>material for little or nothing (all the better to spread it around); what's
>more, bookstores and print shops could make paper copies of books from the
>fund.

I agree with David.
(BTW I hope you all remember this is an international problem - if your
book ends up electronically in a country with different copyright laws,
whose problem is it then?)

In Australia we "solved" the problem of people copying music onto audio
tapes by putting a tax on blank tapes and distributing the proceeds to
music copyright holders.  Presumably some sampling is done to see who
deserves the funds.  Certainly htis is so with photocopying at
universities.  The publishers come around once a year and sample what's
being copied and get paid a licence fee accordingly.  Presumably this is
partly funded through students paying to use the copiers.

It shouldn't be too hard to sample access to electronic things (reading,
copying, putting on bulletin boards - or perhaps only reading).  Sampling
solves the problem of trying to track every use, though there is some scope
for rigging the figures.

At the other end, if EVERYONE is not to pay (as David suggests) then how to
collect?  Physical links into a network seem to be the way to go (licencing
software, etc would be hopeless).  The only question is where to charge -
if the net is too wide someone might be paying for me watching cartoons
while I'm paying for them working out pi on a supercomputer - but maybe
that all balances out in the end.  Of course there would be endless
arguments about what the correct rates were, but if they are too high no
one will join up, and if they are too low no one will provide material.
The market!

The advantage of this type of scheme (de-coupling the provider from the
user) is that we save keeping an ENORMOUS amount of accounting data, and
some semblance of privacy is maintained.  The disadvantage is that it is
more difficult for some entrepreneur to push up the price of a work by
creating an artificial scarcity. :-)

Sooner or later the law will get around to this.  It might be a very long wait.

                Jim

Jim Underwood
Department of Information Systems       	       phone  +612 330 1831
University of Technology, Sydney        	       	 	fax    +612 330 1807
PO Box 123,
BROADWAY           2007 	       	            e-mail:  jim@socs.uts.edu.au
AUSTRALIA



From daemon Wed Nov 16 07:53:47 1994
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Subject: [INTELLEC:38] Technology and Private vs. Public IP Protection   
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I sent the following to the newsgroup before I was on the mailing list.
I'm sending it here now. My claim is that changes in technology have
made it necessary to shift the burden of IP protection from the government
to the owners of IP.

In article <199411142248.OAA02332@virtconf.digex.net>, DOUG MASSON 
<DMASSON@ucs.indiana.edu> writes:
|> It is usually the habit of legislators to modify old law in order
|> to deal with new problems.

Should we be using legislation to fix the new challenges technology has
brought to intellectual property law?

Imagine a company whose primary product is a valuable form of physical
property, like computer chips. We have laws preventing the increasingly
common theft of computer chips, but any company leaving ICs out in the
open would be guilty of nothing less than gross negligence.

      * In the realm of physical property, private enterprise has *
      * accepted the primary responsibility for preventing theft. *

Government can only help out after the fact. I would claim that this is a
remarkably efficient assignation of responsibility. It is the owner of the
property that has the most to lose from its theft. The owner is in the best
possition to determine which protective measures are warranted and which
would be prohibitively expensive.

-------------

The problem we are facing with intellectual property is much more severe.

      * Right now, with absolute anonymity, I can rip off any piece    *
      * of intellectual property I see on the net and send it anywhere *
      * in the world at zero marginal cost.                            *

If I so desire, I can pass the information through a couple of dozen nations
with different laws and regulations before it reaches its final destination.
There is no set of laws, short of totalitarian legislation restricting access
to computers and electronic networks, that can stop me from using this
ability.

But there _are_ measures that can be taken to prevent the theft in the first
place.

[Briefly, all of the methods given below are things which would be best
implemented by the IP owner. Technological change has brought us to a
situation in which IP protection (like physical property protection)
is best accomplished by the owners and not the government. 207 years
ago our founding fathers added a special clause to our constitution
permiting IP protection because it was viewed as something that only
the government could do. Technology has changed that.]

There are several mathematical methods of defeating attack...

1) Steganographic digital finger printing
	Messages can be hidden in the intellectual property identifying the
	buyer. If multiple copies of the information surface, they can be
	traced back to the original purchaser of the information.

	Advantages:
	    For a minimal amount of effort, it makes IP thieves just as
	    easy to catch as physical property thieves.

	    High tech thieves removing the finger prints using any of the
	    many possible methods of doing so CAN NEVER BE SURE that they
	    have removed all of the finger prints. Its always possible that
	    the IP owner used some finger printing method that you weren't
	    able to remove.

	Disadvantages:
	    It doesn't really work. Despite several recent articles hyping
	    it beyond believe, digital finger printing is VERY vulnerable
	    to attack by intelligent hackers. Lossy compression will remove
	    the messages immediatelly [you can evade one or two compression
	    techniques, but anything you haven't planned for will get you.
	    And with wavelets becoming popular, it is very easy to create
	    family of lossy compression techniques that is so large that IP
	    ownews have a near-zero chance of creating a steganographic
	    method that can survive all of them.]

	    Also the method is very vulnerable to differential analysis.
	    Just buy two copies and the difference between them will tell
	    you exactly what the finger print is. Differential attacks are
	    really simple to do and engineering around them introduces
	    huge amounts of complexity that grows with the size of the
	    population you are selling IP to.

	    Finally, since the finger prints have to be hidden in redundancy
	    within the message, IP transmitted with fingerprints will be a
	    bandwidth hog. If people begin paying for transmission by the bit
	    in the future (the maximally efficient pricing scheme), this isn't
	    going to work.

2) Superdistribution schemes
	Make all of the intellectual property widely available in encrypted
	form. In order to decrypt it, you need to plug an "observer" into your
	machine. This little hardware device will extract payment from you
	and only show you part of the encrypted information.

	Advantages:
	    This is especially useful for software and large databases of
	    information since the data which you can actually view is not
	    enough to reconstruct a sellable version of the whole.

	    This method is VERY robust and after the initial cost it is VERY
	    efficient.

	Disadvantages:
	    Anything that you (or the non-observer part of your computer) can
	    view can be easily stolen.

	    There are severe privacy concerns. If the computer becomes the
	    ubiquitous device many people expect it to, the observer will
	    know EVERYTHING about you, and lord knows who will find out.
	    It is POSSIBLE to create observers that only do the right thing
	    and are unable to give away private information, but this would
	    require additional expense and patent licensing and I find it
	    unlikely due to the commercial constraints.

	    This method requires some serious standards work _BEFORE_ it
	    becomes useful. Also, it is difficult to envision a workable
	    migration path to a superdistribution scheme since if you sell
	    a product both using superdistribution and not using
	    superdistribution, IP thieves can simply steal the
            non-superdistribution version.

	    You have to get everybody to BUY an observer, the sole purpose
	    of which is to keep THEM honest. How many consumers are ready to
	    do that? A history of substantial price reduction for consumers
	    with observers would have to be established first.

And there are several economic methods of protecting IP:

3) Price along the transaction barrier
	Price information such that the cost of copying makes it too expensive.
	Digital finger printing and superdistribution effectively raise the
	transaction barrier.

	A/D:
	    Same as 4; see below

4) Increase time value
	Increase the market emphasis on products with high time value (i.e.
	products whose value decreases substantially with the passage of time)
	This makes it more difficult to widely distribute stolen IP and make
	a profit.

	Advantages:
	    Both of these methods would improve the product selection offered
	    to consumers. The first would lower price and the second increase
	    quality. Both are tightly coupled with marketing.

	Disadvantages:
	    They don't actually prevent theft, they just make it less
	    profitable. 
		
In 1787 (I think) our founding fathers added a special clause to our
constitution giving the congress the power to pass legislation protecting
IP. This was seen as falling within the domain of government because without
it, the protected entities would have no method of protecting their IP while
still making a living off of it.

The coming of the new information age presents new challenges to the
protection of IP, challenges that can not be stopped by legislation alone.
But technology has also given us new tools with which to combat IP theft.
The battle front in IP protection is going to shift away from government vs
thieves and after-the-fact prevention to businesses vs thieves and early
protection. In so doing, the intellectual property situation will become more
like the physical property situation.

There is alot of room for creativity in the new world of IP being enabled by
the information superhighway. We are seeing an increasing awareness of the
fact that the total value of information increases with the number of people
that possess it. The new entrepreneurs will be able to take advantage of the
significant latitude that present law allows in selling their products and in
forming cooperative ventures. Given the futility of legislation in a world
with anonymity and cryptography, it would be a shame if new laws, failing to
appreciate depth of the range of possibilities offered by new technology,
cut off some opportunities before they ever have a chance to get started.

Worse, if the litigiousity that characterizes of physical realm IP in the US
carries over into cyberspace, we will see companies leaving the US to avoid
it. IN CYBERSPACE IT WOULD TAKE ME LESS THAN ONE DAY TO MOVE MY BUSINESS
TO A SERVER IN ANOTHER JUSRISDICTION. It is easy to imagine things becoming
so simple that a push of a button is all I require to change countries.
Given the enourmous potential of "regulatory arbitrage" from a corporate
standpoint, government must tread very carefully indeed when attempting
to place contraints on action outside of the physical realm.

Instead of focusing on legislation, the emphasis in the IP wars should now
shift to promoting awareness and action by businesses who can make use of
new technology in the prevention of theft by IP thieves.

Cheers,

Jason W. Solinsky

From daemon Wed Nov 16 08:13:26 1994
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Subject: [INTELLEC:39] Modifying existing Copyright law probably i
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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Status: RO

I posted this Monday night.  It must have gotten lost.  

>
>The basic reason why copyright can no longer operate as it does is
>because at its base, it assumes fixation of a work in the physical
>realm, subject to all the limitations of physical objects (ie
>scarcity and difficulty of transportation).>
>===Doug Masson
>   Indiana University School of Law


I also think that we need to redefine the basis of what we protect with 
copyright laws and go back to first principles.   Here are some of my thought... 

1.  We want a system to reward creators of original material and maximize the 
benefit to society (and promote the progess of science and the useful arts).  

Right now the existing copyright system reward the creator with some benefits, 
but the lion share usually goes to some publisher (for promoting, printing, 
marketing costs and risk).  Most struggling authors would probably agree while 
our richest billionaire list is filled with media owners.  Are we rewarding the 
right person in the right porportions?  Can this be redefined to "create" a 
diversity of publishing resources while meeting society's goal of fair return 
for work.  

The electronic media redefines relationship between creator, "middleman" and 
users.  The users should have a say in the "value" of the original material and 
the $ share to the middleman should drop.  We need an infrastructure that would 
allow anyone to draw a political cartoon, be able to post it for viewing, have 
users vote with their reaction to the cartoon, and be paid in proportion to the 
enjoyment of the work of art.  Why do we need to force all cartoonist to go 
through syndicates, newspapers, etc.?  Do we need pay so much to all those 
gatekeepers when software can perform the function and the users can vote with 
their patronage. 

Right now the link between user and value is very diffused.  A cartoon in a 
newspaper may only be read by a small group.  But the newspaper does not have a 
fast and easy way of measuring that value.  Thus we suffer from a derth of 
options.  If the marketplace is redefined, a lot of creator artists could make a  

good living from create works of art that are "valued".  Isn't that the meaning 
of creating jobs from the NII.   

2.  We want a system to reward people that contribute to piece of the total 
original work instead of letting one "winner" take all.  Einstein said that 
technology is built upon the shoulders of giants.  We need a reward system that 
is commensurate with the value each giant adds.  The final creator that pulled 
it all together can get the bulk of the reward for a short period of time - a 
few years (until they recoup their investments by x numbers of time).  Then  the 
payment for the technology should be shared among the contributors. If the 
technology advance is general in nature, then the funds should be used by the 
industry to fund cross-industry cooperative reasearch.  Universities with basic 
research should be able to reaping the benefits of their research.  In the long 
run, universities should be able to use funds from previous original works to 
fund new research.  Why do we make universities beg for funding from a public 
purse or migrate to become one firm's R&D arm? Why force our politicians to pick 
winners or losers?  Why not redefine how people get paid and let universities 
compete with diversity of options.  

3.  The system of deciding what is the original work of art should involve 
participation from the "experts" of the industry.  Perhaps the industry 
association should take a more active role. And we need some way for measure the 
votes of experts to come to some consensus.   But we really don't want judges 
and lawyers unfamilar with the technology trying to decide who has the patent to 
a work of art.  This is espically true in the software industry.  


Shirley Tseng


"Opinions expressed are purely my own."


From daemon Wed Nov 16 10:24:55 1994
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Subject: [INTELLEC:41] Re: Move Only Files?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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> 
> Under this system, copying would be much more difficult.  As it is hard 
> to copy a 500 page paperback, it would be hard to copy a digital file.
> 
> Could it work?
> 
Of course it could work, but it kinda defeats the purpose of an
information system.

Kinda like suggesting that everyone move to the same neighborhood to
take advantage of the existence of bus service.

From daemon Wed Nov 16 11:24:41 1994
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Subject: [INTELLEC:42] Re: Who owns culture?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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With regard to having government pay writers a fee for writing a text
for public access in the electronic forum;  I am quite uneasy about
a system where the government pays for our public voices.  Call me
paranoid, but this system would seem to lend itself to prevention of
comments which were overly critical of the government.  Certainly in
this time of abundance of criticism, it is hard to imagine a society
which is afraid to criticize, but over the long haul abuse will happen.

From daemon Wed Nov 16 11:36:17 1994
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From: dlewine@cheshirecat.webo.dg.com (Donald Lewine)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:43] Modifying existing Copyright law
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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> 
> Right now the existing copyright system reward the creator with some benefits, 
> but the lion share usually goes to some publisher (for promoting, printing, 
> marketing costs and risk).  Most struggling authors would probably agree while 
> our richest billionaire list is filled with media owners.  Are we rewarding the 
> right person in the right porportions?  Can this be redefined to "create" a 
> diversity of publishing resources while meeting society's goal of fair return 
> for work.  
> 
I do not agree.  Free market forces are setting the risk/reward
ratios.  If the market were unfair, you could start a publishing
company which paid a 50% royalty and collect all of the best
authors.

It seems to me that "our richest billionaire" list is filled with
content producers (Microsoft comes to mind, but I bet John Grishim
is not still practicing law).

The good thing about publishing on the internet is that almost 
anyone can do it for cheap.  The bad thing is that almost noone
reads any given post and most of what is posted is not worth
paying for.

I do not believe that the government should do anything more than
enable the free market to operate.

I currently pay thousands of dollars to be on some E-mail lists.
The current copyright laws seem to work for many electronic 
information providers.  I am not in favor of a complete 
rewrite.

--------------------------------------------------------------------
Donald A. Lewine                (508) 898-6488 Voice 
Data General Corporation        (508) 366-0750 FAX
4400 Computer Drive. MS D112A
Westboro, MA 01580  U.S.A.

Internet: Don_Lewine@dg.com -or-
          dlewine@cheshirecat.webo.dg.com

All opinions in this message are logical, well reasoned and my own.

From daemon Wed Nov 16 11:43:00 1994
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To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:44] Who owns culture?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

> With regard to having government pay writers a fee for writing a text
> for public access in the electronic forum;  I am quite uneasy about
> a system where the government pays for our public voices.  Call me
> paranoid, but this system would seem to lend itself to prevention of
> comments which were overly critical of the government.  Certainly in
> this time of abundance of criticism, it is hard to imagine a society
> which is afraid to criticize, but over the long haul abuse will happen.
> 
Oh come on, you don't trust Senator Helms and the new Republican
majority to promote diverse points of view.  I am sure that the
new chairmen of various Congressional committees are rushing to
fund all points of view. (Except maybe Murphy Brown)

--------------------------------------------------------------------
Donald A. Lewine                (508) 898-6488 Voice 
Data General Corporation        (508) 366-0750 FAX
4400 Computer Drive. MS D112A
Westboro, MA 01580  U.S.A.

Internet: Don_Lewine@dg.com -or-
          dlewine@cheshirecat.webo.dg.com

All opinions in this message are logical, well reasoned and my own.

From daemon Wed Nov 16 11:47:30 1994
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From: DOUG MASSON <DMASSON@ucs.indiana.edu>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:45] Re: Move Only Files?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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Status: RO

Putting aside for a moment the desireability of move only files and
the unsavoriness of artificially created scarcity, move only files
seem vaguely reminiscent of copy protection placed on software.  
As I recall, copy protection was all the rage on software for the
Commodore 64 in the mid to late '80's (for once I am speaking only
about what I know).  This copy protection largely served as providing
a hobby for young lads who delighted in breaking the protection and
distributing the software far and wide across the BBS's across the
land.  The software manufacturers seem to have given up on this 
method of abuse prevention, and I don't know that it would work for
literary works.  However, there is always the possibility that the
folks who like to crack such protection programs would have no interest
in literary works and, therefore, they would be safe from massive
reproduction.  (The question then becomes whether or not massive
reproduction is a bad thing).

Doug Masson
Indiana University School of Law
dmasson@indiana.edu

From daemon Wed Nov 16 12:19:44 1994
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Subject: [INTELLEC:46] Goals of Copyright
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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Status: RO

Alright, so we need copyright laws.  Why?  Because while we value
free flow of information very highly, the information would not be
obtained in order to allow it to flow freely if we did not allow its
obtainer to make a buck or two for his effort.  Fine.

However, some writers out there have assured me/us that the writers
aren't making the majority of money which is spent on such things.
In the past, this was fine; we needed the publishers/distributors
to amplify the flow of information.  They took the majority of the
risk, therefore, they deserve the lion's share of the profit; fair is,
after all, fair.  The nature of digitalized-networked flow of information
is that it minimizes the cost of production of copies from the original and
also the cost of distribution of those copies.  This means their lion's
share is no longer justified and, in deed, their continued usefulness
is in question.

It is my premise that the profit incentive is already sufficient to 
encourage authors and the like to go out and seek the knowledge and
produce the thinking that we desire.  (Perhaps we need more, that is
open to some debate, but it is not fatal to my argument).  For argument's
sake, let's say that authors receive 20% of the profits from their
work.  Let us also say that the production cost on the Internet is
marginal if not negligible.  This means that in devising a scheme
of copyright on the Information Superhighway (to borrow a term which
is starting to grate), we only need to figure out how to recapture
20% of the profits which are currently generated by publication of
such works.  While this may still be difficult, it has to be easier
to generate one-fifth of the revenue.

Before objecting to this, I would like readers to note two very 
important (to me anyway) points.  1)The point of giving away special
rights to authors is to provide them with enough incentive to get them
to do the work.  What we are after is increased knowledge, culture, and
information, not rich authors.  Though we don't begrudge authors their
money if they can make it, our laws are not intended to be a treasure
trove for them.  2)Our laws are not at all intended to make publishers
rich; their existence has been a necessary evil since production and
distribution was expensive.  As production and distribution become less
expensive, publishers and the like become correspondingly less necessary.
Any objections which consist of people wailing and moaning that publishers
will be put out of business should be ignored.  As times change, certain
jobs become obsolete and they should be allowed to end.  I'm sure that
the makers of wedges and producers of clay were very dismayed when 
cuneiform tablets were replaced by paper.  Similarly, I don't hear 
anyone arguing against safer oil tankers because safe oil tankers hurt
business for otter scrubbers.

Finally, the complaint that it is difficult to get your particular post
read and that posts which you do read tend to be crap should be addressed.
This is probably the seed of a new business (actually I suspect that
folks have already undertaken this business).  That business is to sort
out the good stuff from the bad stuff in order to distribute it to others.
There is money to be made for those who can recognized the useful from
the useless.  People who make the cut and get their stuff into the 
distribution list of someone who is particularly good at their business
stand to get recognized and rewarded for making the cut of this distributor.
Similarly, folks will be willing to pay top dollar for the services of 
a very discerning distributor.  A new market is created.  However, unlike
the old regime, the opportunity to mass produce and distribute isn't 
limited to those who can make the professional distributor's cut; merely
the chances that folks will listen to them.  And that is, I feel, as
it should be.

There you have my rather lengthy two cents worth,
Yours very truly,
Doug Masson
Indiana University School of Law
dmasson@indiana.edu

From daemon Wed Nov 16 12:25:33 1994
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From: dlewine@cheshirecat.webo.dg.com (Donald Lewine)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:47] Move Only Files?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

> 
> Putting aside for a moment the desireability of move only files and
> the unsavoriness of artificially created scarcity, move only files
> seem vaguely reminiscent of copy protection placed on software.  
> As I recall, copy protection was all the rage on software for the
> Commodore 64 in the mid to late '80's (for once I am speaking only
> about what I know).  This copy protection largely served as providing
> a hobby for young lads who delighted in breaking the protection and
> distributing the software far and wide across the BBS's across the
> land.  The software manufacturers seem to have given up on this 
> method of abuse prevention, and I don't know that it would work for
> literary works.  However, there is always the possibility that the
> folks who like to crack such protection programs would have no interest
> in literary works and, therefore, they would be safe from massive
> reproduction.  (The question then becomes whether or not massive
> reproduction is a bad thing).
> 
> Doug Masson
> Indiana University School of Law
> dmasson@indiana.edu
> 
Most cable TV companies use the equivalent of "copy protection" for
pay-per-view and other premium services.  Yes, there are many
black-boxes out there that break the code, however, the ability
to arrest black-box owners seems to be enough to keep the system
working for the content providers.

A similar system could work for Move Only Files.  Again, ignoring
the issue of their desireability.
--------------------------------------------------------------------
Donald A. Lewine                (508) 898-6488 Voice 
Data General Corporation        (508) 366-0750 FAX
4400 Computer Drive. MS D112A
Westboro, MA 01580  U.S.A.

Internet: Don_Lewine@dg.com -or-
          dlewine@cheshirecat.webo.dg.com

All opinions in this message are logical, well reasoned and my own.

From daemon Wed Nov 16 13:12:51 1994
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From: dlewine@cheshirecat.webo.dg.com (Donald Lewine)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:48] Re: Goals of Copyright
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

> It is my premise that the profit incentive is already sufficient to 
> encourage authors and the like to go out and seek the knowledge and
> produce the thinking that we desire.  (Perhaps we need more, that is
> open to some debate, but it is not fatal to my argument).  For argument's
> sake, let's say that authors receive 20% of the profits from their
> work.  Let us also say that the production cost on the Internet is
> marginal if not negligible.  This means that in devising a scheme
> of copyright on the Information Superhighway (to borrow a term which
> is starting to grate), we only need to figure out how to recapture
> 20% of the profits which are currently generated by publication of
> such works.  While this may still be difficult, it has to be easier
> to generate one-fifth of the revenue.
[BUZZ] Wrong economic model.  Authors get a percentage of the GROSS
selling price of the book.  For fiction, authors often get a percentage
of the COVER price of the book.  It is up to the publisher to figure
out how to make a profit AFTER the author is paid.

> Before objecting to this, I would like readers to note two very 
> important (to me anyway) points.  1)The point of giving away special
> rights to authors is to provide them with enough incentive to get them
> to do the work.  What we are after is increased knowledge, culture, and
> information, not rich authors.  Though we don't begrudge authors their
> money if they can make it, our laws are not intended to be a treasure
> trove for them.
Agreed.
>  2)Our laws are not at all intended to make publishers
> rich; their existence has been a necessary evil since production and
> distribution was expensive.  As production and distribution become less
> expensive, publishers and the like become correspondingly less necessary.
I think you are confusing "printers" and "publishers."  Publishers do
much more than print and distribute books.  In fact, some publishers
sub-contract the printing and distribution. 

Publishers do a whole bunch of things which do not change in
the electronic world:
   (1) They find authors that people want to read.
   (2) The edit the authors work and often add pictures and
       other graphics.
   (3) They design the book.
   (4) They copy-edit the work and clean up typos and make
       sure that all the text is in the correct form.
   (5) They may generate an index for a technical book.  I
       know that the index to my book _The POSIX Programmer's Guide_
       was generated by a professional indexer who checked
       every reference.  It is not merely a list of keywords.
   (6) Publishers create demand.  They promote the work;
       run ads;  do book tours; attend trade shows; ...
None of these expenses go away in the electronic world.  Look at
O'Reilly's Global Network Navagator.  

> Any objections which consist of people wailing and moaning that publishers
> will be put out of business should be ignored.  As times change, certain
> jobs become obsolete and they should be allowed to end.  I'm sure that
> the makers of wedges and producers of clay were very dismayed when 
> cuneiform tablets were replaced by paper.  Similarly, I don't hear 
> anyone arguing against safer oil tankers because safe oil tankers hurt
> business for otter scrubbers.
Again.  You are confusing printers and publishers.

> Finally, the complaint that it is difficult to get your particular post
> read and that posts which you do read tend to be crap should be addressed.
> This is probably the seed of a new business (actually I suspect that
> folks have already undertaken this business).  That business is to sort
> out the good stuff from the bad stuff in order to distribute it to others.
Computer Architecture News already has a "Best of comp.arch" column.

> There is money to be made for those who can recognized the useful from
> the useless.
So should the money go to the original poster or the person who "recognized"
it as being useful?  Can I publish a report on this Virtual Conference and
make money?  If I use some of your words, do I have to share the money with
you?  Does your mere posting place the expression into the public domain?

> People who make the cut and get their stuff into the 
> distribution list of someone who is particularly good at their business
> stand to get recognized and rewarded for making the cut of this distributor.
Why?  People don't get paid to call in to talk radio shows.  They want to
be heard and the radio stations make all the money.  Why is this Virtual
Conference different from Talk Radio?

> Similarly, folks will be willing to pay top dollar for the services of 
> a very discerning distributor.  A new market is created.  However, unlike
> the old regime, the opportunity to mass produce and distribute isn't 
> limited to those who can make the professional distributor's cut; merely
> the chances that folks will listen to them.  And that is, I feel, as
> it should be.
So the "very discerning distributor" should be paid "top dollar" because
there is great value in being discerning.  Sounds like what publishers
do today.

> 
> There you have my rather lengthy two cents worth,
> Yours very truly,
> Doug Masson
> Indiana University School of Law
> dmasson@indiana.edu
> 
--------------------------------------------------------------------
Donald A. Lewine                (508) 898-6488 Voice 
Data General Corporation        (508) 366-0750 FAX
4400 Computer Drive. MS D112A
Westboro, MA 01580  U.S.A.

Internet: Don_Lewine@dg.com -or-
          dlewine@cheshirecat.webo.dg.com

All opinions in this message are logical, well reasoned and my own.

From daemon Wed Nov 16 13:32:25 1994
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From: dlewine@cheshirecat.webo.dg.com (Donald Lewine)
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Subject: [INTELLEC:51] Move Only Files?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
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> Putting aside for a moment the desireability of move only files and
> the unsavoriness of artificially created scarcity, move only files
> seem vaguely reminiscent of copy protection placed on software.  

Most cable TV companies use the equivalent of "copy protection" for
pay-per-view and other premium services.  Yes, there are many
black-boxes out there that break the code, however, the ability
to arrest black-box owners seems to be enough to keep the system
working for the content providers.

A similar system could work for Move Only Files.  Again, ignoring
the issue of their desireability.
--------------------------------------------------------------------
Donald A. Lewine                (508) 898-6488 Voice 
Data General Corporation        (508) 366-0750 FAX
4400 Computer Drive. MS D112A
Westboro, MA 01580  U.S.A.

Internet: Don_Lewine@dg.com -or-
          dlewine@cheshirecat.webo.dg.com

All opinions in this message are logical, well reasoned and my own.

From daemon Wed Nov 16 13:42:37 1994
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Date: Wed, 16 Nov 1994 13:36:12 -0800
Message-Id: <199411161826.KAA11230@netcom14.netcom.com>
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From: beretta@netcom.com (Giordano Beretta)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:52] Why is there a copyright problem?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

Why is there a copyright problem?

With increasing traffic, the cost of operating the net will increase.
This will encourage the service providers to filter net spamming.  I
believe the real problem for authors will not be indescriminate
reproduction of their intellectual property, but rather to make it
searcheable and retrievable.

Making a information searcheable and retrievable is difficult and
requires particular skills.  Electronic publishers are entering this
business.  Like the music industry before when broadcast and recordable
media where invented, the electronic publishing industry will be able to
deal adequately with the enforcement of copyrights; from a technical
perspective it is very easy to implement agents or knowbots that police
the net and spot electronic thieves.

The problem is not so much the protection of copyrights per se as the
maliciuos or fraudelent piracy of intellectual property.

A term often used by the authors of laws regarding intellectual property
is that of "fair use."  The concept behind this term is that of the
respect of a person and his or her work and contribution to a community
at large.

>From a sociodynamic point of view, crowds and anonymity have always been
antagonists of respect.  A major problem of the Infobahn is the
massification and anonymization of the participating users.

As a case in point, when it was still called ARPAnet information was
fearlessly exchanged using "anonymous FTP."  This worked well because
almost all people comply with the ethical code in the scientific
community requiring the citation of sources.

As the net is becoming a mass transit system, "cowboy" behavior is
becoming more and more the rule.  Yet, the conventions have not adapted,
for instance, most sites still allow anonymous logins, although now
anonymity is a pejorative.

It has historically always been the case that new technological
breakthroughs have initially been an ethical can of worms.  A recent
example was the introduction of nuclear technology after WW II.  The
development of moral rules is a complex collective process, therefore
society lags behind technology in defining laws.

This event in which we are participating will be successful if this
collective process can be accelerated.

Giordano Beretta

From daemon Wed Nov 16 14:01:24 1994
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From: dlewine@cheshirecat.webo.dg.com (Donald Lewine)
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:54] Who does this Administration Really Listen To?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

> Perhaps our host, David Barram of DOC, could tell the members of
> these lists what role our discussions here have in relation to the
> Clinton Council and how we can be assured that people such as
> McCracken will not dominate the Whitehouse's thinking about these
> matters?

Given the new political realities of Washington.  I think the 
chances for any additional funding for universal access to 
the NII are very slim indeed.

It is clear that there will not be any position more liberal than
Ed McCracken's.  There will not be a modem tax or any sort of 
"vendor mandate" to provide universal access.

As one administration official said to me yesterday, "To get things
done around here, the last thing you want is Clinton's endorsement."


--------------------------------------------------------------------
Donald A. Lewine                (508) 898-6488 Voice 
Data General Corporation        (508) 366-0750 FAX
4400 Computer Drive. MS D112A
Westboro, MA 01580  U.S.A.

Internet: Don_Lewine@dg.com -or-
          dlewine@cheshirecat.webo.dg.com

All opinions in this message are logical, well reasoned and my own.

From daemon Wed Nov 16 14:08:14 1994
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Date: Wed, 16 Nov 1994 14:06:01 -0800
Message-Id: <199411161856.KAA02219@taurus.apple.com>
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From: tesler@taurus.apple.com
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:55] Fair and unfair use
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

>Without infringing copyright, the public has a right to expect:
>
>  o  to read, listen to, or view publicly marketed copyrighted
>     material privately, on site or remotely;
>  o  to browse through publicly marketed copyrighted material;
>  o  to experiment with variations of copyrighted material for
>     fair use purposes, while preserving the integrity of the
>     original;
>  o  to make a first generation copy for personal use of an
>     article or other small part of a publicly marketed
>     copyrighted work or a work in a library's collection for
>     such purpose as study, scholarship, or research; and
>  o  to make transitory copies if ephemeral or incidental to a
>     lawful use and if retained only temporarily.
>
>Without infringing copyright, nonprofit libraries and other
>Section 108 libraries, on behalf of their clientele, should be able:
>
>  o  to use electronic technologies to preserve copyrighted
>     materials in their collections;

>From a technology standpoint, it will not be long before a significant
portion of all publishing could be electronic.  In such a world, for what
activities could a copyright holder enforce copyright?  The following are
obvious cases:

o to create and sell complete printed copies of the material
o to broadcast a complete electronic copy via commercial television
o to make a first generation copy for personal use such as pleasure or profit
o to perform the work (e.g., a poem, song, or play) for profit

What about reading a copyrighted work on line--on the screen, without
storing or printing it--if the purpose is pleasure, personal growth, or
business?  Would infringement depend on the percentage of the work that is
read?  If so, how could that percentage be measured in a medium lacking
covers?

Specifically, if I were to create an on-line electronic data base of 10,000
copyrighted poems, what would be my options for obtaining revenue so that I
could reimburse the poets?  Would they be to:

o charge a fee (say, $.50 per poem or $200 for the lot) only if the user
sells a printed copy or performs one of the other actions listed above
under "obvious cases"?

o charge a one-time or annual fee (say, $100) for unlimited read access to
the data base?

o charge a transaction fee (say, $.10) for each poem read, but only if a
certain amount of that poem is "read" (displayed)?

o charge a transaction fee for each poem read, but only if a certain number
of poems are "read" (displayed)?

o charge a transaction fee for each poem read, but only if I can prove that
it was read for "pleasure" or "profit" as opposed to "study" or
"scholarship"?

o charge everyone for connect time to the data base (say, $.10 per minute),
rather than for specific transactions that might or might not be regarded
as "fair use"?

o defeat the "transitory copy" exception by having the on-line access
software store permanently on the user's disk anything that the user reads?

Which of these options (or others) would be allowed by the proposed rules?
Which would best balance the rights of copyright holders and the public?

Larry Tesler
Apple Computer, Inc.

**The views expressed here are mine and not necessarily those of my employer.**

>**************************************************************
>Larry Tesler, Chief Scientist, Apple Computer, Inc.
>USMail: 1 Infinite Loop, MS: 301-4I, Cupertino, CA, 95014
>Internet: tesler@apple.com, AppleLink: TESLER, eWorld: LTesler
>AOL: LTesler@aol.com, PersonaLink: Larry_Tesler@attpls.net
>Phone: (408) 974-2219, Fax: (408) 974-1794
>**************************************************************




From daemon Wed Nov 16 15:18:25 1994
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From: Sean <sconnell@silver.ucs.indiana.edu>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:56] Re: Goals of Copyright
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

A little late, I am, coming in on this. Sorry.  Sleeping.  Publishers
are *not* necessary in electronic publishing.  *You* might want them
to do your sorting for you as may others, but some of us prefer to
decide what is good on our own (Jesse Helms has cousins in the 
publishing game).  If you have happened to play around on the
WWW and seen the rate of growth in popularity for specific home
pages, you will be aware that word of mouth is pretty effective
out here on the frontier.  An author may have to wait a bit before
some readers who like to rave catch on to his work, but it will
happen if the work is good.  Publishers failed miserably for Alan
Seager, a writer whoes talents are touted by the likes of Donald
Hall and Hugh Kenner.  Out of print and dead, his work is lost
till someone scans them into their computer and pops them up on
the net.  Publishers won't do it.  It will be a fan of his work.

I have to agree with the bit mentioned about the dangers of govt.
paying authors.  Nice in theory, but who decides what is art?
Not me, my friends.

-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
| Sean Connelly                   "Cyberpunk is a revolution   |
| sconnell@silver.ucs.indiana.edu  that has already become     |
| sconnell@acoma.ucs.indiana.edu   the establishment."         |
| sleeze@well.sf.ca.us              --Someone with a clue      |
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From daemon Wed Nov 16 15:18:23 1994
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From: "Craig O'Donnell" <dadadata@world.std.com>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:57] Re: Goals of Copyright
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO


Some observations:

- the most insidious part of Ovitz Et Alia (aka the "holloywoodealization 
o the net") with respect to IP is that, economically, this forces the net 
toward a "winner take all" economic model.

This is the same economic model we seem to be generally unhappy about 
when we think about book publishers and record companies. It seems to be 
generated by the practice of people taking points on deals.

If youu and I are both Holloywood agents, and you represent Robert DeNiro 
and do two movies del a year, at 10 percent of 10 million each, you walk 
away with 2 million bucks.

Iff I have a stable of talented newcomers, twenty of them, each of whom 
gets one one-million dollar deal, I also walk away with 2 million dollars.

Who worked harder?

-- COD


> .sig
> .mund
> .freud



From daemon Wed Nov 16 15:19:00 1994
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From: Christine Sundt <CSUNDT@OREGON.UOREGON.EDU>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:58] Re: Who does this Administration Really Listen To?
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

In reading the numerous posts preceding this one in which posters argue that
costs associated with accessing information on the net will be "outrageousely
cheap" and books like War and Peace in electronic form will be cheaper than a
paper version with unlimited no-cost copies proceeding from them, I am still
uneasy about the fact that *cost* is the focus of these discussions.  

I am not opposed to paying for access to new (read "content not available else-
where") material, but I am seriously troubled by the notion that I might have to
pay to access War and Peace electronically when there is no "value added" to
the author's original words.  The words -- the text is what was originally
copyrighted and if the book is no longer providing financial incentive to the
author to create more, why should I pay, once again, for access to these words. 
If an aim of the Information Superhighway is to foster learning, we cannot put
a price tag on things that are already ours.  Paying to view an electronic
version of something is like putting a coin box on the door to the library and
asking everyone wanting to use the library to pay again.  Taxpayers contribute
to the common good and we understand that not everyone using a library has
paid, but we seldom bar them from entering to browse and possibly to learn at
our expense. The same model must be applied to the net.  Education
must be promoted, not hindered.  Creators, not publishers, not licensors,
should be the primary beneficiary of our copyright laws.  If the current law
fails to achieve this goal, then perhaps we should call it broke, and fix it.

Christine Sundt
csundt@oregon.uoregon.edu

From daemon Wed Nov 16 15:34:08 1994
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From: "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:59] Re: Fair and unfair use
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Gatewayed to newsgroup alt.ntia.intellec
Status: RO

Larry Tesler asks some excellent questions!

How do we charge based on "added-value?"  And can we charge differently
if the information goes into a commercial product or is for
transitory pleasure reading?

These are, indeed, the real questions of the economics of information.
No doubt we will resort to buying regardless of "value" but then
the market signals are all wrong.  Something of basic educational
value is under-priced and under produced -- unless the government
buys it for us (such is the rational for funding basic research).

But most the government funded reports for science,
medicine and other public needs go into the National Technical
Information Service.

What has happened in this area of government information provision:
The price of accessing this information (information about the
information we paid tax dollars to fund) is exorbitant.

The connect charge to Dialog is $60 per hour.  That's a dollar
a minute.  Then to view something there's another dollar and
to actually see a short record is $.60 or to see it with the
abstract is $.80  -- it is easy to spend $100 dollars in no
time at all -- just to find out what tax dollars have produced
for information.

Not only that, but it has gotten worse, not better.
This file was available on an after 6PM basis from Dialog's
Knowledge Index for a flat $24 an hour -- no charges per record.
But this file (GOVE2) has mysteriously dissappeared from the
Compuserve gatewayed service!

So shell out a $75 per year "user fee" and then shell out a few
hundred dollars in Dialog/NTIS search costs and you can reach
some useful information.  Is telnet dialog.com the information
highway future we can expect?
========================================================================

_______________________________________________________________________________
|               W. Curtiss Priest, Ph.D.             *********************** |
|      Center for Information, Technology, & Society *  Improving humanity * |
|                                                    *  through technology * |
|                  466 Pleasant Street               *********************** |
|                Melrose, MA  02176-4522                                     |
|                  Voice: 617-662-4044     Gopher to our publications:       |
|                   Fax: 617-662-6882      GOPHER.STD.COM (under nonprofits) |
_____________________________________________________________________________|

From daemon Wed Nov 16 16:14:29 1994
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			    INTELLEC Digest 7

Topics covered in this issue include:

  1) Re: [INTELLEC:48] Re: Goals of Copyright
	by Sean <sconnell@silver.ucs.indiana.edu>
  2) Re: [INTELLEC:46] Goals of Copyright
	by "Craig O'Donnell" <dadadata@world.std.com>
  3) Re: [INTELLEC:53] Who does this Administration Really Listen To?
	by Christine Sundt <CSUNDT@OREGON.UOREGON.EDU>
  4) Re: [INTELLEC:55] Fair and unfair use
	by "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
  5) Re: [INTELLEC:46] Goals of Copyright
	by shadden@mail.utexas.edu (Susan Hadden)

----------------------------------------------------------------------

Date: Wed, 16 Nov 1994 14:52:55 -0500 (EST)
From: Sean <sconnell@silver.ucs.indiana.edu>
To: intellec@virtconf.ntia.doc.gov
Cc: sconnell@silver.ucs.indiana.edu (Sean)
Subject: Re: [INTELLEC:48] Re: Goals of Copyright
Message-ID: <199411162300.PAA16424@virtconf.digex.net>

A little late, I am, coming in on this. Sorry.  Sleeping.  Publishers
are *not* necessary in electronic publishing.  *You* might want them
to do your sorting for you as may others, but some of us prefer to
decide what is good on our own (Jesse Helms has cousins in the 
publishing game).  If you have happened to play around on the
WWW and seen the rate of growth in popularity for specific home
pages, you will be aware that word of mouth is pretty effective
out here on the frontier.  An author may have to wait a bit before
some readers who like to rave catch on to his work, but it will
happen if the work is good.  Publishers failed miserably for Alan
Seager, a writer whoes talents are touted by the likes of Donald
Hall and Hugh Kenner.  Out of print and dead, his work is lost
till someone scans them into their computer and pops them up on
the net.  Publishers won't do it.  It will be a fan of his work.

I have to agree with the bit mentioned about the dangers of govt.
paying authors.  Nice in theory, but who decides what is art?
Not me, my friends.

-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
| Sean Connelly                   "Cyberpunk is a revolution   |
| sconnell@silver.ucs.indiana.edu  that has already become     |
| sconnell@acoma.ucs.indiana.edu   the establishment."         |
| sleeze@well.sf.ca.us              --Someone with a clue      |
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

------------------------------

Date: Wed, 16 Nov 1994 14:33:36 +0001 (EST)
From: "Craig O'Donnell" <dadadata@world.std.com>
To: intellec@virtconf.ntia.doc.gov
Cc: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: Re: [INTELLEC:46] Goals of Copyright
Message-ID: <Pine.3.89.9411161406.B28258-0100000@world.std.com>


Some observations:

- the most insidious part of Ovitz Et Alia (aka the "holloywoodealization 
o the net") with respect to IP is that, economically, this forces the net 
toward a "winner take all" economic model.

This is the same economic model we seem to be generally unhappy about 
when we think about book publishers and record companies. It seems to be 
generated by the practice of people taking points on deals.

If youu and I are both Holloywood agents, and you represent Robert DeNiro 
and do two movies del a year, at 10 percent of 10 million each, you walk 
away with 2 million bucks.

Iff I have a stable of talented newcomers, twenty of them, each of whom 
gets one one-million dollar deal, I also walk away with 2 million dollars.

Who worked harder?

-- COD


> .sig
> .mund
> .freud



------------------------------

Date: Wed, 16 Nov 1994 12:07:32 -0800 (PST)
From: Christine Sundt <CSUNDT@OREGON.UOREGON.EDU>
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:53] Who does this Administration Really Listen To?
Message-ID: <01HJJM01IKPU8WWU1Y@OREGON.UOREGON.EDU>

In reading the numerous posts preceding this one in which posters argue that
costs associated with accessing information on the net will be "outrageousely
cheap" and books like War and Peace in electronic form will be cheaper than a
paper version with unlimited no-cost copies proceeding from them, I am still
uneasy about the fact that *cost* is the focus of these discussions.  

I am not opposed to paying for access to new (read "content not available else-
where") material, but I am seriously troubled by the notion that I might have to
pay to access War and Peace electronically when there is no "value added" to
the author's original words.  The words -- the text is what was originally
copyrighted and if the book is no longer providing financial incentive to the
author to create more, why should I pay, once again, for access to these words. 
If an aim of the Information Superhighway is to foster learning, we cannot put
a price tag on things that are already ours.  Paying to view an electronic
version of something is like putting a coin box on the door to the library and
asking everyone wanting to use the library to pay again.  Taxpayers contribute
to the common good and we understand that not everyone using a library has
paid, but we seldom bar them from entering to browse and possibly to learn at
our expense. The same model must be applied to the net.  Education
must be promoted, not hindered.  Creators, not publishers, not licensors,
should be the primary beneficiary of our copyright laws.  If the current law
fails to achieve this goal, then perhaps we should call it broke, and fix it.

Christine Sundt
csundt@oregon.uoregon.edu

------------------------------

Date:         Wed, 16 Nov 94 15:14:32 EST
From: "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
To: NTIA discussion on Intellectual Property
Subject: Re: [INTELLEC:55] Fair and unfair use
Message-ID: <199411162327.PAA18865@virtconf.digex.net>

Larry Tesler asks some excellent questions!

How do we charge based on "added-value?"  And can we charge differently
if the information goes into a commercial product or is for
transitory pleasure reading?

These are, indeed, the real questions of the economics of information.
No doubt we will resort to buying regardless of "value" but then
the market signals are all wrong.  Something of basic educational
value is under-priced and under produced -- unless the government
buys it for us (such is the rational for funding basic research).

But most the government funded reports for science,
medicine and other public needs go into the National Technical
Information Service.

What has happened in this area of government information provision:
The price of accessing this information (information about the
information we paid tax dollars to fund) is exorbitant.

The connect charge to Dialog is $60 per hour.  That's a dollar
a minute.  Then to view something there's another dollar and
to actually see a short record is $.60 or to see it with the
abstract is $.80  -- it is easy to spend $100 dollars in no
time at all -- just to find out what tax dollars have produced
for information.

Not only that, but it has gotten worse, not better.
This file was available on an after 6PM basis from Dialog's
Knowledge Index for a flat $24 an hour -- no charges per record.
But this file (GOVE2) has mysteriously dissappeared from the
Compuserve gatewayed service!

So shell out a $75 per year "user fee" and then shell out a few
hundred dollars in Dialog/NTIS search costs and you can reach
some useful information.  Is telnet dialog.com the information
highway future we can expect?
========================================================================

_______________________________________________________________________________
|               W. Curtiss Priest, Ph.D.             *********************** |
|      Center for Information, Technology, & Society *  Improving humanity * |
|                                                    *  through technology * |
|                  466 Pleasant Street               *********************** |
|                Melrose, MA  02176-4522                                     |
|                  Voice: 617-662-4044     Gopher to our publications:       |
|                   Fax: 617-662-6882      GOPHER.STD.COM (under nonprofits) |
_____________________________________________________________________________|

------------------------------

Date: Wed, 16 Nov 1994 14:52:51 -0600
From: shadden@mail.utexas.edu (Susan Hadden)
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:46] Goals of Copyright
Message-ID: <199411162052.OAA14561@mail.utexas.edu>

Doug Masson wrote in part:
>
2)Our laws are not at all intended to make publishers
>rich; their existence has been a necessary evil since production and
>distribution was expensive.  As production and distribution become less
>expensive, publishers and the like become correspondingly less necessary...

Then he wrote:

>
>Finally, the complaint that it is difficult to get your particular post
>read and that posts which you do read tend to be crap should be addressed.

One thing that people rely on (some) publishers to do is to "certify" the
quality of the information.  (Those would be publishers, working with
editors, of academic journals.  The New Yorker supposedly checks its
authors' facts very carefully before publishing.  Different newspapers come
with an implied level of accuracy.)   People will still need this function
to be performed, at least till we can train everyone to recognize good and
bad info when they see it.   So there still will be a role for publishers
(publicity may still be necessary as well).   But if it entails less risk,
it presumably also will entail a smaller portion of the author's receipts.
(This is getting pretty far afield from intellectual property, but seems
to be an effect we need to think about.)

Susan G. Hadden
LBJ School of Public Affairs
The University of Texas
Austin, Texas 78713



------------------------------

End of INTELLEC Digest 7
************************

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			    INTELLEC Digest 8

Topics covered in this issue include:

  1) 
	by sbuten@asc.upenn.edu
  2) Re: [INTELLEC:33] Re: Thought Experiment...
	by sbrenner@efn.org (Stephen A. Brenner)
  3) Re: [INTELLEC:36] Re: Modifying existing Copyright law probably insufficient
	by sbrenner@efn.org (Stephen A. Brenner)
  4) Role of the publisher
	by gunzerat@vaxa.weeg.uiowa.edu

----------------------------------------------------------------------

Date: Wed, 16 Nov 94 15:59:20 edt
From: sbuten@asc.upenn.edu
To: intellec@virtconf.ntia.doc.gov
Message-ID: <9410167850.AA785030360@asc.upenn.edu>


Sorry, this message might be a little stale as the discussion has
          moved on a little bit since I sent it and had it spat back
          to me... but here's two or three cents worth.

Let me try to stir up some discussion here:

I don't see the problem with copyright law (and mind you, I'm not in law and 
not overly familiar with the detail of current copyright law issues or history) 
in electronic media as being an artifact of an assumption of "the fixation of a 
work in the physical realm, subject to all the limitations of physical 
objects." as Doug Masson suggests.  Rather, I would hold there is a more 
essential problem with copyright law as it exists in general that is becoming 
only appearant with the electronic media, because we have thought our way 
around this issue for physical media.

The problem with Copyright law is that it is internally contradictory. The 
protection of copyrights is specifically allowed in the constitution because it 
is otherwise contrary to the general principles of economic democracy entailed 
in the freedom to persue happiness.  It is in essence a clause allowing the 
hated practices of primogeniture and entail to remain for intellectual 
property.  In the same breath (and at much the same time... Benjamin Franklin 
being the founder of the first free library) as we grant these unnatural 
property rights to the owners of ideas, we allow some degree of freedom to 
prevail... fair use.  Where the line is drawn between these two contradictory 
rights can be quite arbitrary. Where it has been drawn in the past hasn't been 
determined by such ideals as fostering "maximum creativity" (Carol Henderson's 
opening essay) even were that to be the agreed upon ideal.

I would argue that we have tended to construct the concept of fair use more as 
a decriminalization of breeches in copyright protection rather than as a right 
in its own right.  There is a general understanding that people will share 
books, pass newspapers around, etc. and a recognition that to stop this 
practice is futile.  Worse yet, after people read, they will often remember 
some of the information they read and repeat it to others!  And worse still, 
they do this without providing documentation of where they read it!  All of 
this would be classified as fair use. However, when we undertake the same 
practices with the aid of a xerox machine, a magnetic tape recorder, or a 
computer, we start considering certain of these practices unfair use. 

PROBLEM #1: What is this doctrine of "fair-use"?  Why should people be able to 
use things they haven't paid for?  Can anyone describe fair-use in a way that 
is not merely drawing an arbitrary line around the boundary of where abuse of 
copyright protection ceases to be illegal?

So, we have a slippery slope... we are allowed to stand on the shoulders of 
giants, but nobody's allowed to step on the giants' toes.  Where do we draw the 
line.  I tend to think in the past we have drawn it according to the economic 
impact of the fair-use on the author (or more commonly, the publisher) rather 
than according to the maximization of any ideal.  Witness the hulabaloo over 
tape recording devices, both analog and digital.  There was lots of talk about 
regulation and encoding etc. until it became obvious that the electronic 
reproduction would not significantly impact the industry.  To use another 
example, publishers don't mind people xeroxing books in the library because 
people that go through that kind of effort to get a book for free, wouldn't buy 
many books were this option curtailed.  On the other hand, academic publishers 
are very worried about Professors xeroxing readings for their students as many 
of these students will otherwise buy the materials.

In the past, economic determinism has served us pretty well in terms of 
"fostering maximum creativity" as the line of acceptible economic impact has 
coincided pretty closely with the desires of information propigators.  Thus 
Professors generally are pretty good about observing copyright laws for 
academic publications as they generally recieve payments from similar academic 
publications in which they have published.

Certainly in applying copyright laws from physical media to electronic media, 
we have been fitting a square peg in a round hole.  There can be no better 
example of this than Frederico Acerri's practice of gathering data 
electronically, printing it out physically and then distributing it.  The 
current copyright law has outlined certain practices as legal or illegal not 
because of some innate right of fair use, but because of economic impact of 
these practices... thus in the new media, the same practices are illegal 
because they will have economic impact, not because they are any more right or 
wrong.


Question #2  Can we think of ways to draw our arbitrary line based on a 
rationale of "fostering maximum creativity" rather than on a rationale of 
financial impact?  Or are they one and the same, with creativity very elastic  
with respect to price and inelastic with respect to free-information? 

Question #3  Can anyone give a good argument why "to promote the Progress of 
Science and the Useful Arts" is the most noble goal to apply to copyright law 
in the first place?

------------------------------

Date: Wed, 16 Nov 1994 15:00:17 -0800
From: sbrenner@efn.org (Stephen A. Brenner)
To: intellec@virtconf.ntia.doc.gov,
Subject: Re: [INTELLEC:33] Re: Thought Experiment...
Message-ID: <9411162202.AB02573@efn.efn.org>

At 01:59 AM 11/16/94 -0800, Craig O'Donnell wrote:
><<
>The cost of book publication is large and the risk is real.  As
>an struggling writer will point out, publishers are loathe to take on
>authors that are not already proven sellers:  the capital investment
>is not small and the losses can be significant.  However, the NII offers
>a potential solution to said problem and combats problems in the field
>of intellectual property at the same time.
>>>
>
>Sean, this is true, but it's also true that it costs very little to make 
>music CDs. My capital investment in tools (digital recorders, mixers, 
>and so on) can be well under $20,000. Most of the equipment can be used 
>to make more than one album; much can be used in live performance if I so 
>desire. My CDs might cost me a couple bucks each.
>
>Why then are choices so limited in record stores and (worse) in radio? 
>because there's value in scarcity, and record companies and radio 
>stations pretty much control distribution and promotion. This is probably 
>a far more significant barrier than copyright laws. And it's difficult to 
>imagine legislating a way around this.
>
Craig,

Maybe you should check out the underground music archive on the net 
("http://www.iuma.com/IUMA/genre_index.html").  I think it's probably the 
beginning of a new way to promote and publish one's work. If you can 
download a sample of someone's music and it sounds good to you, and the 
price is low (reflecting the lack of middlemen and advertizing costs) then 
you'll probably buy it. This is going to make the major publishing houses 
less and less prominent.

Steve
---------------------\\\\\\\\\\//////////-------------------
 Stephen A. Brenner - Visions In America - sbrenner@efn.org 
---------------------//////////\\\\\\\\\\-------------------


------------------------------

Date: Wed, 16 Nov 1994 15:00:29 -0800
From: sbrenner@efn.org (Stephen A. Brenner)
To: intellec@virtconf.ntia.doc.gov,
Subject: Re: [INTELLEC:36] Re: Modifying existing Copyright law probably insufficient
Message-ID: <9411162203.AB02573@efn.efn.org>

Sean,

This is a good point. The spirit of cooperation and mutual aid is what makes 
the Internet such a powerful new medium. Under no circumstances would we 
want to destroy this healthy aspect of net culture. On the other hand, those 
people who make their living publishing their work need to have some way of 
being compensated. I think it's a matter of balance here. A balanced model 
that seems to work well in the software market is shareware, where 
distribution is free and users are encouraged (by a variety of means - nag 
screens in unregistered copies, more features in registered versions, etc) 
to do the right thing and pay a nominal fee for the software. I think this 
concept could work for other types of media as well (when I think about it, 
most media is merging into a computerized-multimedia form anyway).

Steve

At 03:52 AM 11/16/94 -0800, Sean wrote:
>It seems that no one is really addressing this point, so here it comes
>on to the floor...
>In the U.S. the intellectual property laws were created so as to assure
>distribution of new ideas.  It was assumed that the only way to do this
>was with economic incentives.  People tend to take this fact as gospel,
>but look what we have here!  How many of you are getting paid to post
>all the useful information that you are sharing with your fellow
>netters?  This is not just true in the case of virtual conferences,
>but is the nature of most news groups.  Further, academic environments
>where the trade of information is done with reckless abandon spawns 
>a lot of valuable knowledge.  Money ain't everything.
>
>-- 
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>| Sean Connelly                   "Cyberpunk is a revolution   |
>| sconnell@silver.ucs.indiana.edu  that has already become     |
>| sconnell@acoma.ucs.indiana.edu   the establishment."         |
>| sleeze@well.sf.ca.us              --Someone with a clue      |
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>
>
---------------------\\\\\\\\\\//////////-------------------
 Stephen A. Brenner - Visions In America - sbrenner@efn.org 
---------------------//////////\\\\\\\\\\-------------------


------------------------------

Date: Wed, 16 Nov 1994 16:22:11 CDT
From: gunzerat@vaxa.weeg.uiowa.edu
To: intellec@virtconf.ntia.doc.gov
Subject: Role of the publisher
Message-ID: <009878F6.AC7BF352.2522@vaxa.weeg.uiowa.edu>

While the vision of a future environment in which "the writer" will no
longer be at the mercy of "the publisher" in expressive and/or financial
terms is no doubt appealing, it's likely to be rather elusive.  While h     
 he publisher certainly plays a gatekeeper role, s/he also serves may
(sorry, typo) many other functions as well, some of which will be just as,
if not even morevaluable in an electronic environment.

Implicit in much of the discussion on intellectual property has been the
need to create a system that approximates the ways in which we currently
try to stimulate the creation and distribution of ideas through copyright.
In this model, it seems to me that a publisher's middleman role seeks to
serve as the traffic cop in this regard; the publisher controls the costly
production of an author's work according to perceived market demands, and
also audits and controls the author's financial stake in the finished
product (admittedly taking a more than generous cut).  In the new work
arrangement of a publisher, the production role no longer assumes the
prominent position as a cost factor as it has in the past.  However,
there is still a need to control the product and its distribution in some
way if the goal of encouraging the entrance of ideas to society is to
be maintained.  I think the last thing any of us want is that people feel
more constrained about releasing their ideas because of technology that
allows it to easily become universally available, than they had in the
past when "natural" physical limitations helped to provide a buffer of
sorts.  

It seems to me that the role of the publisher in this situation becomes
even more important in some regards when the marginal cost of new product
is zero, than when there is incremental cost involved.  (Not to mention
the importance that a "clearinghouse" function will take when everyone is
inundating potential users with their own offerings).  Perhaps we will see
a day when all can coexist peacefully, and authors will get bigger cuts and
their works will be used by much greater audiences, and publishers will be
just as happy as the authors because everyone has gained.

David Gunzerath
U of Iowa

------------------------------

End of INTELLEC Digest 8
************************

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Subject: [INTELLEC:65] INTELLEC digest 9
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			    INTELLEC Digest 9

Topics covered in this issue include:

  1) Re: [INTELLEC:55] Fair and unfair use
	by bcox@gmu.edu (Brad Cox; Coalition For Electronic Markets)

----------------------------------------------------------------------

Date: Wed, 16 Nov 1994 18:58:55 -0500
From: bcox@gmu.edu (Brad Cox; Coalition For Electronic Markets)
To: intellec@virtconf.ntia.doc.gov
Cc: tesler@taurus.apple.com
Subject: Re: [INTELLEC:55] Fair and unfair use
Message-ID: <v02110103aaf0492e7dc0@[168.143.2.190]>

Larry Tesler wrote:

>Which of these options (or others) would be allowed by the proposed rules?
>Which would best balance the rights of copyright holders and the public?

The options listed here were all terms and conditions. All deserve (and may
someday get, given revenue collection infrastructures not yet available)
the same answer. Terms and conditions are nobody's business but the buyer
and seller. The seller proposes, the buyer disposes.

There is a common misconception about the superdistribution approach (Idea
Fortes section, Wired Magazine, Sept 1994) that invocation-based charging
implies pay-per-view terms and conditions. Superdistribution takes
absolutely no stand on terms and conditions. It leaves these entirely up to
market-mediated buyer/seller interaction. If the seller thinks
pay-per-keystroke terms/conditions will thrive on the market, that's his
business (and the buyer's).

I hope *nobody*, most certainly not the government, will have any say about
how to balance such rights. Markets are wonderfully efficient at such
balancing.

What's missing is not a balancing mechanism but a sufficiently robust
revenue collection mechanism that market forces can apply with comparable
robustness for goods made of bits as they have for tangible goods since
antiquity.

--
Brad Cox; bcox@clark.net; Coalition for Electronic Markets;
bcox@gmu.edu; George Mason Program on Social and Organizational Learning
Phone: (703) 968 8229 voice; 968 8798 fax; 934 1578 backup fax
Use web browser or mail listproc@www0.cern.ch with body of
www http://www.site.gmu.edu/~bcox/WWWHomePage.html



------------------------------

End of INTELLEC Digest 9
************************

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Subject: [INTELLEC:71] INTELLEC digest 12
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			    INTELLEC Digest 12

Topics covered in this issue include:

  1) UseNet-News
	by innd@virtconf.digex.net
  2) send info
	by Peter McArthur <peterm@teleport.com>

----------------------------------------------------------------------

Date: Wed, 16 Nov 1994 23:43:37 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411170743.XAA25655@virtconf.digex.net>

Newsgroups: alt.ntia.intellec
Path: virtconf!agate!howland.reston.ans.net!pipex!uunet!hearst.acc.Virginia.EDU!hub.cs.jmu.edu!newsusr
From: LSBUMGAR@vax1.acs.jmu.edu (lee s. bumgarner)
Subject: What is this group for?
Message-ID: <CzDp2y.Cot@hub.cs.jmu.edu>
Sender: newsusr@hub.cs.jmu.edu (USENET News System)
Organization: HappyNet, HappyWeb subdivision 
Date: Wed, 16 Nov 1994 21:01:44 GMT
X-News-Reader: VMS NEWS v1.25
Lines: 15


There is a lot of interesting talk going on in this newgroups, but I sure 
would like to know what the letters stand for.
-l

 

 
                                 
                                                                       
       --get netscape at ftp.mcom.com * lsbumgar@vax1.acs.jmu.edu-
lee s. bumgarner      ::  _ __/|    Ack!!  ::  "Any sufficiently advanced
James Madison Uni     ::  \`O.o'  / Phfft! ::   technology is indistinguishable
Harrisonburg va.      ::  =(_ _)=          ::   from magic."
writer, the breeze    ::     U             ::    -- arthur c. clarke         

------------------------------

Date: Wed, 16 Nov 1994 21:27:50 -0800 (PST)
From: Peter McArthur <peterm@teleport.com>
To: intellec@virtconf.ntia.doc.gov, privacy@virtconf.ntia.doc.gov
Subject: send info
Message-ID: <Pine.SUN.3.90.941116212651.25602A-100000@linda.teleport.com>

send info

--
Peter McArthur   peterm@teleport.com   http://www.teleport.com/~peterm
----------------------------------------------------------------------
Oceana - oceana.sdsc.edu 4201                  Meadow - iglou.com 7777


------------------------------

End of INTELLEC Digest 12
*************************

From daemon Thu Nov 17 08:53:36 1994
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Subject: [INTELLEC:75] INTELLEC digest 13
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			    INTELLEC Digest 13

Topics covered in this issue include:

  1) NDN: [INTELLEC:71] INTELLEC digest 12
	by Post_Office@wwire.net (Post Office)
  2) Re: [INTELLEC:71] INTELLEC digest 12
	by CYBERBOARDER <etchiu@leland.Stanford.EDU>
  3) Publishers and Copyrights (cont'd)
	by CYBERBOARDER <etchiu@leland.Stanford.EDU>
  4) Re: Modifying existing Copyright law probably i
	by stseng@CCGATE.HAC.COM

----------------------------------------------------------------------

Date: 17 Nov 1994 04:47:06 GMT
From: Post_Office@wwire.net (Post Office)
To: intellec@virtconf.ntia.doc.gov
Subject: NDN: [INTELLEC:71] INTELLEC digest 12
Message-ID: <3976519613.22378017@wwire.wwire.net>

Sorry. Your message could not be delivered to:

Nancy Rhine (Mailbox or Conference is full.)


------------------------------

Date: Wed, 16 Nov 1994 22:54:44 -0800 (PST)
From: CYBERBOARDER <etchiu@leland.Stanford.EDU>
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:71] INTELLEC digest 12
Message-ID: <Pine.3.89.9411162231.A22816-0100000@elaine29.Stanford.EDU>


I have just came back from the COMDEX conference in Las Vegas, and have 
some interesting feedback from electronic publishers that I've talked to 
there. 

For the most part, publishers were not very concerned with the nature of 
intellectual property issues in the media that they work with. True, it 
is a self-selected sample, but they will become the pioneers who are 
setting the standards for this field. Practically, as a business matter, 
IP issues are nothing new. Copyright enforcement has been a problem 
even in the print media or "electronic" media, such as TV, video, and 
radio. Publishers usually don't care much about individuals copying for 
their own use, but it is the wholesale copying and distribution of their 
work for commercial profit that they object to. 

In the newer electronic media, such as CD-ROM and World Wide Web, the 
more cautious publishers will protect their works by limiting 
distribution of copies, either by legal enforcement or by 
distribution of limited encoded copies to paying users. Hence the actual 
copyright laws in the legal books will change very little, but the 
enforcement and interpretation will vary from case to case.
 
				  __        ___
Eric Chiu			 |   YBER  |   | ______		P.O. Box 9633
etchiu@leland.stanford.edu	 |   ____  |---|		Stanford CA
"Cyberboarding on a sunny day..."|__       |___| OARDER   	94309-9633
                                                   


------------------------------

Date: Wed, 16 Nov 1994 23:09:52 -0800 (PST)
From: CYBERBOARDER <etchiu@leland.Stanford.EDU>
To: intellec@virtconf.ntia.doc.gov
Subject: Publishers and Copyrights (cont'd)
Message-ID: <Pine.3.89.9411162224.A22816-0100000@elaine29.Stanford.EDU>


>From my experience as a publisher of a magazine on the World Wide Web, 
many of that are concerned with copyright issues are usually not well 
informed about the relationship with the technology and law. Though an 
individual can distribute information to millions of people, at virtually 
no cost per user, the legal enforcement mechanisms will still work as 
long as the governmental agencies are willing to enforce them. Some artists 
and writers have expressed the view that distributing works on the internet 
would release their work into the public domain, which is not true at all.

For example, if someone were to take part of the magazine and put it up 
on another site w/o my permission, I can legally sue the individual 
responsible. I can track down the person responsible through the IP 
address of the server, and report them to the proper agencies. But I 
won't bother as longer as they are not trying to exploit the works 
commercially, and in fact, they are help me to establish the market for 
my work...

The problem with IP in cyberspace isn't more laws, it's enforcement. We'd 
be better off with less government interference, and NII would just ruin 
the beauty of the existing share-and share-alike attitude on the internet 
and turn it into a bureaucratic nightmare...

Thanks for my 15 minutes!
				  __        ___
Eric Chiu			 |   YBER  |   | ______		P.O. Box 9633
etchiu@leland.stanford.edu	 |   ____  |---|		Stanford CA
"Cyberboarding on a sunny day..."|__       |___| OARDER   	94309-9633
                                                   


------------------------------

Date: Thu, 17 Nov 94 00:24:53 PST
From: stseng@CCGATE.HAC.COM
To: intellec@virtconf.ntia.doc.gov
Subject: Re: Modifying existing Copyright law probably i
Message-ID: <9410177850.AA785077569@CCGATE.HAC.COM>

I posted this Monday night in response to Intellect: 7.  It must have gotten 
lost.  

>
>The basic reason why copyright can no longer operate as it does is
>because at its base, it assumes fixation of a work in the physical
>realm, subject to all the limitations of physical objects (ie
>scarcity and difficulty of transportation).>
>===Doug Masson
>   Indiana University School of Law


I also think that we need to redefine the basis of what we protect with 
copyright laws and go back to first principles.   Here are some of my thought... 

1.  We want a system to reward creators of original material and maximize the 
benefit to society (and promote the progess of science and the useful arts).  

Right now the existing copyright system reward the creator with some benefits, 
but the lion share usually goes to some publisher (for promoting, printing, 
marketing costs and risk).  Most struggling authors would probably agree while 
our richest billionaire list is filled with media owners.  Are we rewarding the 
right person in the right porportions?  Can this be redefined to "create" a 
diversity of publishing resources while meeting society's goal of fair return 
for work.  

The electronic media redefines relationship between creator, "middleman" and 
users.  The users should have a say in the "value" of the original material and 
the $ share to the middleman should drop.  We need an infrastructure that would 
allow anyone to draw a political cartoon, be able to post it for viewing, have 
users vote with their reaction to the cartoon, and be paid in proportion to the 
enjoyment of the work of art.  Why do we need to force all cartoonist to go 
through syndicates, newspapers, etc.?  Do we need pay so much to all those 
gatekeepers when software can perform the function and the users can vote with 
their patronage. 

Right now the link between user and value is very diffused.  A cartoon in a 
newspaper may only be read by a small group.  But the newspaper does not have a 
fast and easy way of measuring that value.  Thus we suffer from a derth of 
options.  If the marketplace is redefined, a lot of creator artists could make a  


good living from create works of art that are "valued".  Isn't that the meaning 
of creating jobs from the NII.   

2.  We want a system to reward people that contribute to piece of the total 
original work instead of letting one "winner" take all.  Einstein said that 
technology is built upon the shoulders of giants.  We need a reward system that 
is commensurate with the value each giant adds.  The final creator that pulled 
it all together can get the bulk of the reward for a short period of time - a 
few years (until they recoup their investments by x numbers of time).  Then  the 
payment for the technology should be shared among the contributors. If the 
technology advance is general in nature, then the funds should be used by the 
industry to fund cross-industry cooperative reasearch.  Universities with basic 
research should be able to reaping the benefits of their research.  In the long 
run, universities should be able to use funds from previous original works to 
fund new research.  Why do we make universities beg for funding from a public 
purse or migrate to become one firm's R&D arm? Why force our politicians to pick 
winners or losers?  Why not redefine how people get paid and let universities 
compete with diversity of options.  

3.  The system of deciding what is the original work of art should involve 
participation from the "experts" of the industry.  Perhaps the industry 
association should take a more active role. And we need some way for measure the 
votes of experts to come to some consensus.   But we really don't want judges 
and lawyers unfamilar with the technology trying to decide who has the patent to 
a work of art.  This is espically true in the software industry.  


Shirley Tseng


"Opinions expressed are purely my own."


------------------------------

End of INTELLEC Digest 13
*************************

From daemon Thu Nov 17 09:06:04 1994
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Message-Id: <aaf0da2e020210041ebf@[140.98.8.22]>
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Subject: [INTELLEC:76] INTELLEC digest 14
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			    INTELLEC Digest 14

Topics covered in this issue include:

  1) Re: [INTELLEC:69] INTELLEC digest 11
	by rtennis@mail.ieee.org (Rosemary Tennis)

----------------------------------------------------------------------

Date: Thu, 17 Nov 94 08:55:30 EST
From: rtennis@mail.ieee.org (Rosemary Tennis)
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:69] INTELLEC digest 11
Message-ID: <aaf0da2e020210041ebf@[140.98.8.22]>

This is unreadable!



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>---2119302901-2136841719-785005814:#22757--
>
>------------------------------
>
>End of INTELLEC Digest 11
>*************************

Rosemary Tennis                              Failure isn't falling down...
IEEE Standards Activities                       Failure is staying down...
445 Hoes Lane, PO Box 1331
Piscataway, NJ 08855-1331
V =  908 562 3881;  F =  908 562 1571;  E =  r.tennis@ieee.org



------------------------------

End of INTELLEC Digest 14
*************************

From daemon Thu Nov 17 10:16:58 1994
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			    INTELLEC Digest 15

Topics covered in this issue include:

  1) UseNet-News
	by innd@virtconf.digex.net
  2) subscribe
	by Janel.Radtke@tcn-ny.sprint.com
  3) [INTELLEC:40] RE: Move Only Files?
	by Randolph Langley <langley@dirac.scri.fsu.edu>
  4) UseNet-News
	by innd@virtconf.digex.net
  5) UseNet-News
	by innd@virtconf.digex.net

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 09:25:24 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171725.JAA28765@virtconf.digex.net>

Path: virtconf!agate!usenet.ins.cwru.edu!lerc.nasa.gov!news.larc.nasa.gov!news.larc.nasa.gov!jcburt
From: jcburt@gatsibm.larc.nasa.gov (John Burton)
Newsgroups: alt.ntia.intellec
Subject: Re: Why is there a copyright problem?
Date: 17 Nov 1994 14:09:10 GMT
Organization: NASA Langley Research Center
Lines: 55
Distribution: world
Message-ID: <JCBURT.94Nov17090910@gatsibm.larc.nasa.gov>
References: <199411161826.KAA11230@netcom14.netcom.com>
NNTP-Posting-Host: gatsibm.larc.nasa.gov
In-reply-to: beretta@netcom.com's message of 16 Nov 1994 13:36:34 -0800

In article <199411161826.KAA11230@netcom14.netcom.com> beretta@netcom.com (Giordano Beretta) writes:

   Why is there a copyright problem?

   With increasing traffic, the cost of operating the net will increase.
   This will encourage the service providers to filter net spamming.  I
   believe the real problem for authors will not be indescriminate
   reproduction of their intellectual property, but rather to make it
   searcheable and retrievable.

   Making a information searcheable and retrievable is difficult and
   requires particular skills.  Electronic publishers are entering this
   business.  Like the music industry before when broadcast and recordable
   media where invented, the electronic publishing industry will be able to
   deal adequately with the enforcement of copyrights; from a technical
   perspective it is very easy to implement agents or knowbots that police
   the net and spot electronic thieves.

Ummmm...I'm not so sure about that...first off, your "knowbots" that
police the net, would have to have access to every machine on the net,
and be able to access almost *all* information on a given machine.  
This violates any thought of information privacy on that machine. As a
networking systems administrator, I have a hard enough time
*preventing* such intrusions from malicious invaders and hackers...and
you want to intentionally open a hole so you can have a "net.cop" ?
Sorry, but I wouldn't want *anybody* to have *that* much access to my
machines... 

Secondly, what about the typical information retrieval setup that uses
a client/server arrangement? For example, NCSA Mosaic is a widely used
software package for exploring the internet (or World Wide Web as its
called). Basically the way it works is the client (Mosaic) sends a
request for a document to the (httpd) server, which in turns sends the
document back to the client. The user can then view, save, or print
the document. So your "knowbots" would need to be able to distinguish
between a ligit download of the material, and a non-ligit. 

Finally Once the "pirate" has downloaded the document, they can do
anything they want to with it, including writing it to offline media
such as tape, floppy disk or CD-ROM, non of which is accessible to
your "knowbot". And if your "knowbot" can't see it, it can't know
about it...

Once the document leaves the domain of the publisher/provider, it is
difficult to virtually impossible to maintain any kind of audit trail
to track a document from sender to reciever...

John
--
--
John Burton                      
jcburt@gatsibm.larc.nasa.gov     G & A Technical Software, Inc.
jcburt@gats486.larc.nasa.gov     28 Research Dr. Hampton, Va. 23666
(804) 865-7491 (voice)           (804) 865-1021 (fax)
                    

------------------------------

Date:  Thu, 17 Nov 1994 09:01:00 -0500
From: Janel.Radtke@tcn-ny.sprint.com
To: intellec@virtconf.ntia.doc.gov
Subject: subscribe
Message-ID:  <"Thu Nov 17 09:01:00 199402*/G=Janel/S=Radtke/OU=TCN-NY/O=SMTCN/PRMD=LANGATE/ADMD=TELEMAIL/C=US/"@MHS>









          subscribe intellectual property Janel Radtke@tcn.org
          

------------------------------

Date: Thu, 17 Nov 1994 09:24:26 -0500
From: Randolph Langley <langley@dirac.scri.fsu.edu>
To: intellec@virtconf.ntia.doc.gov
Cc: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:40] RE: Move Only Files?
Message-ID: <199411171424.AA27637@dirac.scri.fsu.edu>


Please, let's not decide to screw up an excellent system because
someone decides to arbitrarily create a profit point where none
exists now.

The Internet is amazingly inexpensive for what it provides. Let's not
change that; instead, let's continue to grow the thing in the spirit
of the thousands of people who have freely given of their time to
create it.

The Free Software Foundation, I believe, points the right direction
here - charge for servicing a product, not the product. I have used
GNU Emacs (IMHO, FSF's premier offering) since 1988 or so, and it
has made my professional life immeasurably better.

rdl


Don Evans writes:
 > The same copyright law that protects a book, also protects the electronic 
 > counterpart.   What is the difference?  Electronic books are easily 
 > copied, real books are not.  If they were more difficult to reproduce it 
 > would do a lot to increase the use of the internet as a means of sending 
 > commercial property.  This is why I propose a "move only" file structure.
 > 
 > This should not mean that every file should be move only, only the ones 
 > that the author feels are his/her property, and he/she wants to excercise 
 > control over it's existence.
 > 
 > We all know that "information wants to be free".  We also know that free 
 > don't pay the bulldog...
 > 
 > My point is that litigation is a very time consuming, and expensive way to 
 > solve this problem, and it must be solved in order for the 
 > comercialization of the Internet to take place.  Why not look for a 
 > technical rather than a legal solution.
 > 
 > 
 > Donald F. Evans
 > Washington, DC
 > don@dcez.com
 > 
 > The views expressed are my own, and in no way should be considered as the 
 > views of the National Endowment for the Arts.
 > 
 > 

------------------------------

Date: Thu, 17 Nov 1994 10:08:31 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171808.KAA01593@virtconf.digex.net>

Path: virtconf!agate!howland.reston.ans.net!gatech!bloom-beacon.mit.edu!senator-bedfellow.mit.edu!math.mit.edu!drw
From: drw@markov.mit.edu (Dale R. Worley)
Newsgroups: alt.ntia.intellec
Subject: Re: Modifying existing Copyright law probably i
Date: 17 Nov 94 10:00:17
Organization: National Institute for Lameness, Cambridge, MA, USA
Lines: 52
Distribution: world
Message-ID: <DRW.94Nov17100017@markov.mit.edu>
References: <9410167849.AA784991108@CCGATE.HAC.COM>
NNTP-Posting-Host: markov.mit.edu
In-reply-to: stseng@CCGATE.HAC.COM's message of 16 Nov 1994 08:14:53 -0800

In article <9410167849.AA784991108@CCGATE.HAC.COM> stseng@CCGATE.HAC.COM writes:
   Most struggling authors would probably agree while our richest
   billionaire list is filled with media owners.  Are we rewarding the
   right person in the right porportions?

Most struggling authors write things that no one wants to read.
Conversely, it's not too hard to make a good living writing, provided
you start by asking "What can I write that someone will pay me a lot
for?"  It won't be High Art Literature, but it'll keep you fed quite
well.

The billionaire media owners crank out televised crap, not the Great
American Novel.  Most humans pay more in a year for television than
they do for books.  The unfortunate "problem" with capitalism is that
it rewards those who give people what they *want*, not what they
*should want* (as defined by arrogant people like me).  Are we
rewarding the right person?  Depends on who you ask...

   Right now the link between user and value is very diffused.  A
   cartoon in a newspaper may only be read by a small group.  But the
   newspaper does not have a fast and easy way of measuring that
   value.

The Boston Globe tried to drop "Spiderman".  They found out very
quickly how much value the readers placed on it.  Every media "outlet"
spends a lot of money on market research to find out what the buyers
*want*, I can assure you.

   2.  We want a system to reward people that contribute to piece of
   the total original work instead of letting one "winner" take all.

For works on which a number of people participate, there is a joint
copyright system which does lead to splitting the ultimate price among
the contributors.  However, the person who "pulled it all together"
often gets most of the money, because the ability to pull things
together is rarer than artistic ability.

   Universities with basic research should be able to reaping the
   benefits of their research.  In the long run, universities should
   be able to use funds from previous original works to fund new
   research.  Why do we make universities beg for funding from a
   public purse or migrate to become one firm's R&D arm? Why force our
   politicians to pick winners or losers?

Mostly because universities prefer the security of a regular dole from
the politicians.  Also, much of what is governmentally funded is
research whose results can't be effectively "owned".  For instance,
there is no way to get intellectual property protection of the genetic
code (i.e., profit from discovering it), even though it was expensive
to discover what it is.

Dale

------------------------------

Date: Thu, 17 Nov 1994 10:18:20 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171818.KAA02228@virtconf.digex.net>

Path: virtconf!agate!howland.reston.ans.net!gatech!bloom-beacon.mit.edu!senator-bedfellow.mit.edu!math.mit.edu!drw
From: drw@markov.mit.edu (Dale R. Worley)
Newsgroups: alt.ntia.intellec
Subject: Re: Goals of Copyright
Date: 17 Nov 94 10:10:07
Organization: National Institute for Lameness, Cambridge, MA, USA
Lines: 11
Distribution: world
Message-ID: <DRW.94Nov17101007@markov.mit.edu>
References: <199411162011.MAA27892@virtconf.digex.net>
NNTP-Posting-Host: markov.mit.edu
In-reply-to: DOUG MASSON's message of 16 Nov 1994 12:14:00 -0800

In article <199411162011.MAA27892@virtconf.digex.net> DOUG MASSON <DMASSON@ucs.indiana.edu> writes:
   Finally, the complaint that it is difficult to get your particular post
   read and that posts which you do read tend to be crap should be addressed.
   This is probably the seed of a new business (actually I suspect that
   folks have already undertaken this business).

That's what we use publishers, bookstores, and media outlets for now.
They can be eliminated only by people who have infinite time, to do
the filtering for themselves.

Dale

------------------------------

End of INTELLEC Digest 15
*************************

From daemon Thu Nov 17 11:34:52 1994
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Subject: [INTELLEC:88] INTELLEC digest 16
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			    INTELLEC Digest 16

Topics covered in this issue include:

  1) UseNet-News
	by innd@virtconf.digex.net
  2) UseNet-News
	by innd@virtconf.digex.net
  3) UseNet-News
	by innd@virtconf.digex.net
  4) UseNet-News
	by innd@virtconf.digex.net
  5) 
	by BC3C_051@UWPG02.UWINNIPEG.CA
  6) 
	by Joel Reaser <jreaser@capcon.net>
  7) Re: [INTELLEC:55] Fair and unfair use
	by tesler@taurus.apple.com

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 10:22:40 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171822.KAA02611@virtconf.digex.net>

Path: virtconf!agate!howland.reston.ans.net!gatech!bloom-beacon.mit.edu!senator-bedfellow.mit.edu!math.mit.edu!drw
From: drw@markov.mit.edu (Dale R. Worley)
Newsgroups: alt.ntia.intellec
Subject: Re: Who does this Administration Really Listen To?
Date: 17 Nov 94 10:14:38
Organization: National Institute for Lameness, Cambridge, MA, USA
Lines: 17
Distribution: world
Message-ID: <DRW.94Nov17101438@markov.mit.edu>
References: <9411161850.AA10162@cheshirecat.webo.dg.com>
NNTP-Posting-Host: markov.mit.edu
In-reply-to: dlewine@cheshirecat.webo.dg.com's message of 16 Nov 1994 14:00:20 -0800

In article <9411161850.AA10162@cheshirecat.webo.dg.com> dlewine@cheshirecat.webo.dg.com (Donald Lewine) writes:
   Given the new political realities of Washington.  I think the 
   chances for any additional funding for universal access to 
   the NII are very slim indeed.

This really should be on another list, but one approach to universal
access that would still be politically acceptable is working to
minimize the actual cost of providing access.  For instance, the
biggest fraction of the cost of Internet access is the local telco's
part of the access line.  Coincidentally, the only part of the whole
Internet access business that is a monopoly is the local telco...

Something like 97% of all American households have TVs, even though
there is no "right" own one.  They're just cheap enough that everyone
who wants one can get it.

Dale

------------------------------

Date: Thu, 17 Nov 1994 10:25:29 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171825.KAA02833@virtconf.digex.net>

Path: virtconf!agate!howland.reston.ans.net!gatech!bloom-beacon.mit.edu!senator-bedfellow.mit.edu!math.mit.edu!drw
From: drw@markov.mit.edu (Dale R. Worley)
Newsgroups: alt.ntia.intellec
Subject: Re: [INTELLEC:46] Goals of Copyright
Date: 17 Nov 94 10:17:28
Organization: National Institute for Lameness, Cambridge, MA, USA
Lines: 18
Distribution: world
Message-ID: <DRW.94Nov17101728@markov.mit.edu>
References: <Pine.3.89.9411161406.B28258-0100000@world.std.com>
NNTP-Posting-Host: markov.mit.edu
In-reply-to: "Craig O'Donnell"'s message of 16 Nov 1994 15:08:03 -0800

In article <Pine.3.89.9411161406.B28258-0100000@world.std.com> "Craig O'Donnell" <dadadata@world.std.com> writes:
   If youu and I are both Holloywood agents, and you represent Robert DeNiro 
   and do two movies del a year, at 10 percent of 10 million each, you walk 
   away with 2 million bucks.

   Iff I have a stable of talented newcomers, twenty of them, each of whom 
   gets one one-million dollar deal, I also walk away with 2 million dollars.

Hmmm...  If I was DeNiro, I'd want the best agent in the world, since
if he was good enough to get me 1% more, it would be worth $100,000.
So DeNiro would be willing to pay more for an agent than a normal person.

   Who worked harder?

Well, the guy who digs ditches works harder than I do, but he isn't
paid as much, because there are lots of peole who can do that.

Dale

------------------------------

Date: Thu, 17 Nov 1994 10:25:59 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171826.KAA02859@virtconf.digex.net>

Path: virtconf!agate!howland.reston.ans.net!pipex!uunet!news.larc.nasa.gov!news!jim
From: jim@gatsibm.larc.nasa.gov (Jim Craft)
Newsgroups: alt.ntia.intellec
Subject: Re: Thought Experiment...
Date: 17 Nov 1994 15:13:20 GMT
Organization: G & A Technical Software, Inc.
Lines: 53
Distribution: world
Message-ID: <JIM.94Nov17101320@gatsibm.larc.nasa.gov>
References: <Pine.3.89.9411152214.A21641-0100000@dcez.dcez.com>
NNTP-Posting-Host: gatsibm.larc.nasa.gov
In-reply-to: Don Evans's message of 15 Nov 1994 22:26:54 -0800

On Nov 17, Donald wrote:

>For a moment, lets imagine that you just spent the last 10 years writing 
>the great American Novel.  You have sent it off to your publisher, and it 
>has been accepted.  You sign a contract, and receive 10% in royalties.  
>Not a bad percentage.

Granted I'm not familiar with the 'writers market' but within
professional photography circles (please don't make another argument
as to whether photography is an art or not) there are photographers
unions (so to speak) that provide pricing stratagies for particular
situations in publishing (being very general here).  Depending on
circulation of the photographs being used the photographer relies on
these stratagies to guide their pricing.  Although there are
photographers who underprice their work they are becoming the
minority.  It's the writers/artists who need to take action.  They
can't wait on the bloody lawyers to do so because the publishers have
so much more money than the average professional writer/artist.

>It seems to me that you have just become a minority partner in your lifes 
>work.  Is this perhaps a clue that current Copyright Law has been written 
>to protect the publishers and not the artists?  Seems like a no-brainer 
>to me!

Actually I think that the copyright laws have changed abit since the
late '70's and early '80's, more in favor of the artist.  But it
hasn't gone far enough.  There is still a lot of 'work for hire' being
negotiated due to the fact that the current popular authors came up
through the system in this fashion and are now enjoying the limelight.
They are not about to shake the foundations that got them there.

>In my oppinion, copyright laws need to be changed to protect the writers 
>and artists that create the work.  We certainly do not need just another 
>way to litigate.  But the current method is to ask the attorneys to 
>figure it out, and put even more laws into place.  
>
>Is there a constructive way to protect property rights, so that everyone 
>is happy?

Having everyone happy in most (if not any) situation is a wet-dream
(;-).  The publishers are not about to let go of their methods if it
means loss of profit.  Writers/Artists don't have the money to afford
the bank of lawyers needed to decipher the law.  It's an unfortunate
situation.  It can only be changed at the grass roots.

--
Jim Craft              		  	

Disclaimer:	My thoughts are my
		own as well as my
		opinions ... I think.



------------------------------

Date: Thu, 17 Nov 1994 10:34:55 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411171834.KAA03643@virtconf.digex.net>

Path: virtconf!agate!usenet.ins.cwru.edu!lerc.nasa.gov!news.larc.nasa.gov!news.msfc.nasa.gov!sol.ctr.columbia.edu!newsxfer.itd.umich.edu!caen!usenet.cis.ufl.edu!usenet.eel.ufl.edu!news-feed-1.peachnet.edu!gatech!howland.reston.ans.net!pipex!uunet!gwu.edu!chbailey
From: chbailey@gwis2.circ.gwu.edu (Courtney Bailey)
Newsgroups: alt.ntia.intellec
Subject: Re: Who owns culture?
Date: 17 Nov 1994 03:36:27 GMT
Organization: The George Washington University, Washington DC
Lines: 22
Message-ID: <3aej3r$q8m@cronkite.seas.gwu.edu>
References: <01HJGVQ0CQFM8WYCT7@OREGON.UOREGON.EDU> <nagleCzDG99.8MF@netcom.com>
NNTP-Posting-Host: 128.164.127.252
X-Newsreader: TIN [version 1.2 PL2]

John Nagle (nagle@netcom.com) wrote:

..SNIP...
: has been around long enough that it's now a public domain image.  Photographs
: of buildings are considered new works.  It's an interesting question whether
: you have unlimited rights to duplicate a building.

Check out 17 USC sec. 120, "Scope of exclusive rights in architectural 
works"  This section says that direct copying from a completed building 
is an infringement of the architectural work copyright.  However, it is 
only prospective and protects works "created on or after the date of 
enactment' (1990) or works that are unconstructed and embodied in 
unpublished plans or drawings as of the date of enactment.   You can 
still take pictures, make paintings, etc. if the building is visible from 
a "public place."

--
Courtney H. Bailey                 *    It's not the fall that kills you... 
National Law Center                *    it's the sudden stop at the end.
George Washington U.               *    
Washington, D.C.                   *    (Unless you're falling from the
chbailey@gwis2.circ.gwu.edu        *     Empire State Building.)

------------------------------

Date: Thu, 17 Nov 1994 09:46:23 -0600 (CST)
From: BC3C_051@UWPG02.UWINNIPEG.CA
To: intellec@virtconf.ntia.doc.gov
Message-ID: <01HJKY4K631E8WWU45@UWPG02.UWINNIPEG.CA>

Please enrol me in your conference.

------------------------------

Date: Thu, 17 Nov 1994 11:15:08 -0500 (EST)
From: Joel Reaser <jreaser@capcon.net>
To: intellec@virtconf.ntia.doc.gov
Message-ID: <199411171615.AA24757@transcom.capcon.net>

subscribe

------------------------------

Date: Thu, 17 Nov 1994 08:28:17 -0700
From: tesler@taurus.apple.com
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:55] Fair and unfair use
Message-ID: <199411171627.IAA18706@taurus.apple.com>

>Larry Tesler wrote:
>>Which of these options (or others) would be allowed by the proposed rules?
>>Which would best balance the rights of copyright holders and the public?

Brad Cox wrote:
>The options listed here were all terms and conditions. All deserve (and may
>someday get, given revenue collection infrastructures not yet available)
>the same answer. Terms and conditions are nobody's business but the buyer
>and seller. The seller proposes, the buyer disposes.
>...
>I hope *nobody*, most certainly not the government, will have any say about
>how to balance such rights. Markets are wonderfully efficient at such
>balancing.

Hello, Brad.  Good to hear from you.

In the initial posting on this forum ("A BALANCING ACT: COPYRIGHT IN THE
ELECTRONIC AGE"), several library associations proposed exceptions to
copyright enforcement for such fair use activities as "browsing",
"temporary copying", and "study".  It seemed to me that adoption of those
proposals might render impractical some of the quite unremarkable T&C's
that I listed as options to ensure compensation for authors.  For example,
would a poet receive $.10 if I read her poem on my home computer, but
nothing if I read it on a library's computer?  How would the system
operator divine my "purpose"?

I wasn't addressing the questions to those who would rely on markets but to
the library associations proposing the exceptions.  As a proponent of fair
use, I hope that I will end up supporting the final draft of this proposal.
In its current form, it attempts blindly to extend familiar rules to an
unfamiliar environment.  I think its failure to address the differences
makes it impossible to judge or to implement.  It is a bit like the 1930's,
when the AAA wanted a freeway system built in Southern California, and
farmers said, "fine, but just be sure that our tractors can still enter any
road that passes by the farm."

I would like to hear the associations' explanation of how their proposed
principles could function in cyberspace, which is likely to challenge the
very concept of a "library" as a physical place that one visits.  I am not
claiming that the issues are intractable.  I would like to hear their views
so that we can all evaluate their proposal as they intended it to be
interpreted.

Eric Chiu says:
>For the most part, publishers were not very concerned with the nature of
>intellectual property issues in the media that they work with. True, it
>is a self-selected sample, but they will become the pioneers who are
>setting the standards for this field. Practically, as a business matter,
>IP issues are nothing new. Copyright enforcement has been a problem
>even in the print media or "electronic" media, such as TV, video, and
>radio. Publishers usually don't care much about individuals copying for
>their own use, but it is the wholesale copying and distribution of their
>work for commercial profit that they object to.

I would like to think that Eric's analysis answers my questions.  What I do
not understand is how to reconcile free electronic access by a billion
people to an on-line work "for personal use" and "wholesale copying and
distribution of [publishers'] work for commercial profit".

Eric Chiu says:
>In the newer electronic media, such as CD-ROM and World Wide Web, the
>more cautious publishers will protect their works by limiting
>distribution of copies, either by legal enforcement or by
>distribution of limited encoded copies to paying users. Hence the actual
>copyright laws in the legal books will change very little, but the
>enforcement and interpretation will vary from case to case.

Would this defeat the library associations' goals by keeping valuable
copyrighted works out of electronic libraries?

Shirley Tseng cites this quote:
>The basic reason why copyright can no longer operate as it does is
>because at its base, it assumes fixation of a work in the physical
>realm, subject to all the limitations of physical objects (ie
>scarcity and difficulty of transportation).>
>===Doug Masson
>   Indiana University School of Law

That is my point.

Larry

>**************************************************************
>Larry Tesler, Chief Scientist, Apple Computer, Inc.
>USMail: 1 Infinite Loop, MS: 301-4I, Cupertino, CA, 95014
>Internet: tesler@apple.com, AppleLink: TESLER, eWorld: LTesler
>AOL: LTesler@aol.com, PersonaLink: Larry_Tesler@attpls.net
>Phone: (408) 974-2219, Fax: (408) 974-1794
>**************************************************************




------------------------------

End of INTELLEC Digest 16
*************************

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Subject: [INTELLEC:95] INTELLEC digest 18
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			    INTELLEC Digest 18

Topics covered in this issue include:

  1) Re: [INTELLEC:40] RE: Move Only Files? 
	by solman@MIT.EDU
  2) Re: [INTELLEC:93] RE: Move Only Files? 
	by "Robert J. Berrington III" <berringr@river.it.gvsu.edu>
  3) XLHE OP
	by "Bernasconi, Tracy" <SB03010@EXCELINK.MARIST.EDU>

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 13:38:16 EST
From: solman@MIT.EDU
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:40] RE: Move Only Files? 
Message-ID: <9411171838.AA11288@ua.MIT.EDU>

> The same copyright law that protects a book, also protects the electronic 
> counterpart.   What is the difference?  Electronic books are easily 
> copied, real books are not.  If they were more difficult to reproduce it 
> would do a lot to increase the use of the internet as a means of sending 
> commercial property.  This is why I propose a "move only" file structure.
> 
> This should not mean that every file should be move only, only the ones 
> that the author feels are his/her property, and he/she wants to excercise 
> control over it's existence.
> 
> We all know that "information wants to be free".  We also know that free 
> don't pay the bulldog...
> 
> My point is that litigation is a very time consuming, and expensive way to 
> solve this problem, and it must be solved in order for the 
> comercialization of the Internet to take place.  Why not look for a 
> technical rather than a legal solution.

I wrote a rather length piece describing some technological solutions. But
what you are asking for is technically impossible. If I can read information,
I can record it in a file that I can control and thus distribute it at will.
For this reason, any technological defense MUST be rooted in economic
infeasibility. I saw somebody talking about pay-per view and cable decoder
boxes. But I can just record what I see on my screen with a VCR and ship it
off to a friend. ANY UNENCRYPTED INFORMATION THAT PASSES THROUGH A DEVICE
FRIENDLY TO THE USER CAN BE EASILY STOLEN.

JWS

------------------------------

Date: Thu, 17 Nov 1994 13:51:02 -0500 (EST)
From: "Robert J. Berrington III" <berringr@river.it.gvsu.edu>
To: intellec@virtconf.ntia.doc.gov
Cc: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: Re: [INTELLEC:93] RE: Move Only Files? 
Message-ID: <Pine.HPP.3.90.941117134633.13213I-100000@river.it.gvsu.edu>

How about having a connection fee when people access certain information.
To view a document, a certain key stroke is performed which automatically 
adds a certain cost to the bill.  It doesn't need to be much, but it 
would compensate the author some.

           =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
           ||      Robert J. Berrington, III                    ||
           ||           Student of Engineering                  ||
           ||                Grand Valley State University      ||
           ||/-\_/-\_/-\_/-\_/-\_/-\_/-\_/-\_/-\_/-\_/-\_/-\_/-\||
           ||        G.V.S.U. Weed Living Center Box #34        ||
           ||        10820 Residence Drive                      ||
           ||        Allendale, MI  49401-9986                  ||
           =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=


------------------------------

Date:        Thu, 17 Nov 94 14:58:35 EST
From: "Bernasconi, Tracy" <SB03010@EXCELINK.MARIST.EDU>
To: <AVAIL@VIRTCONF.NTIA.DOC.GOV>, <STANDARD@VIRTCONF.NTIA.DOC.GOV>,
Subject: XLHE OP
Message-ID:  <17NOV94.16174809.0031.MUSIC@EXCELINK.MARIST.EDU>

Subject:
>From ID: SB03010
Name:    Bernasconi, Tracy, Marist College - Project Team
Type:    ORG   Class: PVT                       Date:  Thu 17 Nov 1994, 2:58pm
--------------------------------------------------------------------------------
subscribe

------------------------------

End of INTELLEC Digest 18
*************************

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Subject: [INTELLEC:98] INTELLEC digest 19
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			    INTELLEC Digest 19

Topics covered in this issue include:

  1) Giving authors credit
	by Jill Ann Hurst <JAHURST@delphi.com>
  2) NTIA Public Comment
	by San Francisco Public Libraray <"SFPL::NTIA_PUB"@DRANET.DRA.COM>
  3) comments on the Lehman Green Paper on NII and IP rights
	by PSA2@vms.cis.pitt.edu

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 16:10:23 -0500 (EST)
From: Jill Ann Hurst <JAHURST@delphi.com>
To: intellec@virtconf.ntia.doc.gov
Subject: Giving authors credit
Message-ID: <01HJLBISQ64O9FM9BM@delphi.com>

My two cents...

As a librarian and as a sometimes author, I would like to see authors receive
the proper credit for their work.  When I write something that appears in
print, I want people to be able to use what I write if they acknowledge that
the information was produced by me.  In many cases I don't want additional
compensation, just "credit".  As a librarian, I would like to be able to use
information and have the original source know how useful it has been.  So if I 
quote Mr. X, I'd like for him to know that.  I don't care if his publisher
knows...his publisher didn't create the work.  When the means become available 
for me to pay someone directly (over the Internet or wherever), then I'd like
to be able to pay an author directly for the usefulness of his/her
information.  (Yes, usefulness...why should I pay for downloading something
that turns out to be worthless?) 

As I said...my two cents.

Jill Ann Hurst
JAHURST@DELPHI.COM
Manning & Napier Advisors, Inc.
716-325-6880





------------------------------

Date: Thu, 17 Nov 1994 16:14:31 -0600 (CST)
From: San Francisco Public Libraray <"SFPL::NTIA_PUB"@DRANET.DRA.COM>
To: intellec@virtconf.ntia.doc.gov
Subject: NTIA Public Comment
Message-ID: <941117161431.20210cc6@DRANET.DRA.COM>

howe
From: yes

------------------------------

Date: Thu, 17 Nov 1994 17:32:16 -0400 (EDT)
From: PSA2@vms.cis.pitt.edu
To: intellec@virtconf.ntia.doc.gov
Subject: comments on the Lehman Green Paper on NII and IP rights
Message-ID: <01HJLEE26NYA9JDJA6@vms.cis.pitt.edu>

Legally Speaking:  The NII Intellectual Property Report
(publication forthcoming in Dec. 1994 issue of Communications of the 
ACM)

by Pamela Samuelson

In July 1994 the Clinton Administration's Working Group on 
Intellectual Property Rights issued a Preliminary Draft Report on 
Intellectual Property and the National Information Infrastructure[1].  
This column reflects the principal comments I made about the Draft 
Report in response to a call for public comments on it.  

If the National Information Infrastructure (NII) is to achieve its 
potential as a channel for distribution of a wide range of creative 
works, says the Report, authors and publishers of those works will 
need reasonable assurance that their intellectual property rights will 
be respected.  Digital networked environments pose particularly 
severe challenges for owners of intellectual property rights because 
digital networks make it so simple for members of the public to 
make multiple copies of those works and distribute them to 
whomever they choose at virtually no cost.  Left unregulated, this 
activity would undermine the incentives of authors and publishers to 
invest in the creation and distribution of creative works, for the first 
distribution of a digital copy to the public would enable those who 
receive it to set themselves up as alternative publishers of the work, 
able to undercut the first publisher's price because they need not 
recoup any development costs.  On this point, the drafters of the 
Report and I are in agreement.

Where we principally disagree is about the wisdom of making certain 
changes to copyright law and about the Report's characterization of 
these proposed changes as "minor clarifications and changes" 
necessary to modernize copyright law for digital networked 
environments.  The Report recommends:  (1) making digital 
transmission of a copy of a copyrighted work an act of copyright 
infringement; (2) abolishing the "first sale" rule for works distributed 
by digital transmission (this rule generally permits owners of copies 
of copyrighted works to redistribute their copies without the 
copyright owner's permission); and (3) making it an infringement of 
copyright to construct or distribute any device intended to 
circumvent copy-protection systems by which owners of the 
copyright might attempt to protect their work.     

As the remainder of the column will demonstrate, the Report 
misrepresents the current state of copyright law in several important 
respects.  In particular, it overstates the extent to which current law 
favors publisher interests.  It downplays the extent to which the 
changes it recommends would, in fact, bring about a radical 
realignment in the historical balance between publisher interests and 
the public interest in access to information products, pushing the law 
in a direction that would favor publisher interests to the detriment 
of the public interest.  It would abolish longstanding rights that the 
public has enjoyed to make use of copyrighted works, rights that 
have been consistently upheld in courts and in the copyright statute.  
The Report is full of legalistic terminology that makes it difficult for 
members of the public to read and comprehend.  As a consequence, it 
doesn't provide an adequate basis from which the public, including 
the technical community who reads Communications, can make an 
informed judgment about whether the public should accept this 
revised copyright law.  The remainder of this column will translate 
the Report and its recommendations into plain English so that 
readers can understand what is at stake and why I question whether 
the Report's recommendations would be in the public interest.

To put the point plainly, let me say that not since the King of England 
in the 16th century gave a group of printers exclusive rights to print 
books in exchange for the printers' agreement not to print heretical 
or seditious material has a government copyright policy been so 
skewed in favor of publisher interests and so detrimental to the 
public interest.

AN EXCLUSIVE RIGHT TO BROWSE?

Until the NII Report came out in July, no one had ever thought to 
declare that merely browsing a copy of a copyrighted work could be 
regarded as an act of copyright infringement.  The copyright statute 
grants authors five exclusive rights (i.e., rights to exclude other 
people from doing certain things with their work):  (1) an exclusive 
right to reproduce the work in copies; (2) to make derivative works 
of it; (3) to distribute copies of it; (4) to publicly perform it; and (5) 
to publicly display it.   Unlike patent law, copyright law does not 
grant rights to control all uses of the protected work.  On occasion, 
copyright owners have tried to persuade courts to construe the 
exclusive rights more broadly than Congress had clearly intended; 
courts have often rejected expansionistic arguments, saying that 
those who seek broader rights than the statute clearly grants should 
take their case to Congress.

One respect in which the Report interprets copyright law more 
expansively than Congress has intended is in its statement that 
"browsing" a work in digital form is an infringement of copyright 
(unless authorized by the copyright owner).  Neither browsing nor 
reading a work has ever been regarded as an infringement of 
copyright.  When I go to bookstore or a dentist's office, I can browse 
a book there without infringing its copyright.  If I thereafter buy it 
or another book, I can lend the book to a friend so he or she can read 
it.  Neither of us has interfered with any exclusive rights of copyright 
owners.  (Although I will have distributed a copy to my friend, this 
does not violate the exclusive distribution right because the 
copyright owner is generally entitled to control only the first sale of 
a copy to the public.  My personal property rights in the copy I 
purchase override the copyright owner's interests in further 
distributions of that copy.)

So what makes the drafters of the Report think that browsing and 
reading--or any other use, for that matter--of digital works should 
be regarded as copyright infringement?  It is because, in contrast 
with printed works, works in digital form can only be browsed, read 
or used if the machine on which they are displayed makes copies of 
them.  But rather than explicitly recommending that copyright law 
be amended to make all browsing, reading, and uses of copyrighted 
works in digital form into acts of infringement--a recommendation 
likely to be highly controversial--the Report takes advantage of an 
incidental property of digital works (that they need to be copied in 
order to be browsed or otherwise used) to assert that existing law 
already allows publishers to control all uses of works in digital form.  
This lucky happenstance makes it unnecessary for the drafters of the 
Report to mention that they are advocating a vast expansion of 
copyright scope.

AN EXCLUSIVE RIGHT OF DIGITAL TRANSMISSION?

The Report is more express in its endorsement of another expansion 
of the exclusive rights of copyright.  It would give copyright owners 
an exclusive right to control digital transmissions of their works.   To 
understand why such a right might be needed, it is necessary to 
realize that the present copyright statute grants copyright owners an 
exclusive right to "distribute copies...to the public by sale or other 
transfer of ownership, or by rental, lease, or lending."  The Report 
would change this phrasing to add "or by transmission" after 
"lending" in the statute.

The Report recommends this change because the current statute is 
too focused on the distribution of physical objects and transfers of 
rights in physical objects.  The term "copy," for example, is defined as 
a "material object[]...in which a work is fixed...."  If the statute only 
gives copyright owners rights to distribute material objects, it may 
be ill-equipped to deal with digital transmissions, for they are 
distributions of bit streams, not of physical objects.  Posed in this 
manner, the Report's argument for adding a provision that permits 
copyright owners to control digital transmissions seems quite 
plausible.

Yet, by reading the Report as a whole, one might question whether 
an explicit digital transmission right is really necessary.  The Report 
discusses two recent cases in which judges treated digital 
transmissions, such as up- and downloading software from a bbs, as 
violative of both the reproduction and distribution rights of 
copyright law.  In truth, if the courts took the reproduction and 
distribution rights as literally as the Report sometimes does, it would 
be hard to argue that *any* digital copy infringes copyright since all 
digital copies are, by their very nature, immaterial.  Despite the 
sophistical appeal of an argument that digital copies don't infringe 
because of their immaterial nature, courts have rejected such 
arguments.  This too suggests that no statutory change may be 
necessary to give copyright owners the right to control digital 
transmissions.

Before delving into a more subtle reason for questioning the 
desirability of the digital transmission right, I want to highlight 
another respect in which the Report takes a more expansive view of 
the exclusive rights of copyright than Congress intended.  The Report 
endorses the conclusion of some relatively recent cases that digital 
copies "fixed" only in RAM infringe the reproduction right, 
notwithstanding language in the statute and the legislative history 
indicating that Congress intended to limit the scope of the 
reproduction right to those copies sufficiently permanent or stable to 
permit the work to be perceived or reproduced for more than a 
transitory duration.  A legislative report about this provision gave as 
an example of a noninfringing reproduction the temporary display of 
images on a screen.  Proponents of the view that RAM copies infringe 
copyrights argue that as long as the machine is on--and it can be on 
indefinitely--a copy of the copyrighted work stored there can be 
perceived or reproduced, thereby satisfying the "more than 
transitory duration" standard.  (By this logic, holding a mirror up to a 
book would be infringement because the the book's image could be 
perceived there for more than a transitory duration, i.e., however 
long one has the patience to hold the mirror.)  Applying the logic of 
these cases, the Report seems to view any digital transmission as an 
infringement of the reproduction right because of the copies made 
during the transmission as well as when the transmission arrives at 
its destination.  This is a questionable interpretation of current law.

The more subtle reason to question the need for and desirability of a 
digital transmission right is that it would change existing law far 
more than the Report admits.  This change too would favor publisher 
interests over the public interest.  To understand why, it is worth 
noticing that of the existing exclusive rights of copyright, the one that 
the proposed digital transmission right most closely resembles is the 
exclusive right on which broadcasters principally rely for the 
protection of their products.   Broadcasters don't distribute physical 
objects; they transmit intangible information which the public can 
view with the aid of television and radio machines.  Like broadcast 
television today, the NII may eventually be used to provide a wide 
variety of motion pictures and other programs to the public with the 
aid of satellite technologies.  The NII Report invokes the image of a 
"celestial jukebox" by which consumers might order a particular 
movie which, with appropriate compensation to the holder of the 
copyright, could then be received by the consumer in the privacy of 
his or her home.

Digital transmissions of copyrighted movies frequently violate two of 
the existing exclusive rights of copyright:  those pertaining to public 
performances and public displays of copyrighted works.  If these 
exclusive rights already provide a means for controlling many digital 
transmissions, surely it is fair to ask whether copyright owners 
really need a new exclusive right to control distributions by digital 
transmissions.  Although the Report does not say so, its digital 
transmission right would rectify what copyright industries today 
regard as a very serious limitation on the scope of the rights current 
law gives to rightsholders.  Copyright law does not grant owners 
rights to control all performances and displays of their works, but 
only *public* performances and displays of those works.  (When you 
and I sit at home and watch a program on television, copyright law 
considers our viewing as a performance and a display of a 
copyrighted program.  Because it is not a public performance or 
display of the work, this activity is not a copyright infringement.)  

The real purpose behind the proposed digital transmission right is to 
enable copyright owners to control *all* digital performances and 
displays of copyrighted works, without regard to whether they are 
public or private.  Adoption of the digital transmission right would, 
in effect, repeal the public performance and display rights of 
copyright and replace them with exclusive rights to control all 
performances and displays of copyrighted works distributed in 
digital form.  Had the Report explicitly recommended repeal of the 
public performance and display rights, its recommendations would 
provoke controversy.  By seeking the repeal indirectly, the Report 
hopes to avoid this controversy.  Perhaps a case could be made for 
such a repeal, but the Report does not make a persuasive argument 
on behalf of this vast expansion of the rights of copyright owners.   

To understand how fully the NII Report would limit public access to 
works in digital form, it is necessary to examine not only the 
proposed digital transmission right, but also the kindred proposals to 
abolish the "first sale" rule for works transmitted digitally and to ban 
devices aimed at defeating copy-protection schemes.  Especially 
given the Report's highly constrictive view of the fair use doctrine, 
adoption of these three recommendations would dramatically change 
the historical balance of copyright law as between the interests of 
copyright owners and of the public.  

ABOLISHING THE FIRST SALE RULE?

The "first sale" rule allows members of the public who have 
purchased a copy of a copyrighted work to sell it, give it away, lend 
it, or even rent the copy to other people.  (In the United States, only 
sound recordings and software cannot be rented; in some countries, 
no works can be rented without permission from the copyright 
owner.)   The first sale rule grew out of judicial decisions holding that 
Congress had not granted copyright owners monopoly power over all 
distributions of their works, but only a right to control the first sale 
of the work to the public.  The first sale rule promotes public access 
to copyrighted works by allowing members of the public to borrow 
works from one another (and from libraries) without fear of 
infringement.  It is this rule that the NII Report proposes to abolish 
for works distributed by digital transmission.

The rationale for abolition of the first sale rule focuses attention on a 
difference between printed and digital works.  The first sale rule 
presumes that when the owner of a physical copy of a work shares 
that copy with another person, he or she will give up possession of 
that copy.  Although one copy may move from person to person, such 
a transmission does not result in more copies being made.  With 
digital transmissions, however, someone who shares his or her copy 
of a work with another person may retain a copy of it as well.  A 
digital transmission may result in a multiplication of copies.  This 
poses a threat to the economic rights that copyright law gives to 
authors (and through them, to publishers).  

Abolition of the first sale rule may, however, be unnecessary to 
respond to this threat.  A narrower approach would be to limit the 
application of the first sale rule to situations in which the digital 
transmitter did not delete his or her copy.  (I don't know about the 
rest of you, but I routinely forward information I receive by email to 
people who would be interested in it, following which I delete the 
information.  In truth, I delete this information less because I am 
concerned about abiding by copyright law than because I can only 
manage so much information at a time.  Even if I retain a copy, I 
consider most of the information I forward to another person to be 
fair use because of its private, noncommercial character.)  

However, even without an abolition of the first sale rule, copyright 
owners can control this kind of potential consumer abuse of 
copyrighted works by means of the exclusive reproduction 
right.  If the owner of a copy of digitally transmitted work begins 
transmitting copies of that copy to a thousand of his or her closest 
friends, that person will be responsible for multiple reproductions of 
copyrighted works.  Since the first sale rule only limits the 
distribution right of copyright, not the reproduction right, there is 
way to deal with the multiplication of copies under existing law.  
(Just because you own a copy of a book, you do not think you are 
entitled to make a thousand copies of it for your friends.  But you can 
share your copy with others.)  

The NII Report does not consider either alternative discussed here, 
but rather recommends abolition of the first sale rule.  It does not 
provide persuasive reasons why the public should not be entitled to 
continue to enjoy the right to share their copy of a copyrighted work 
with a friend, regardless of whether it was received by digital 
transmission or otherwise. 

ABOLITION OF FAIR USE?

U.S. law, like that of some other countries, regards some copying 
from copyrighted works as "fair" and noninfringing of copyright.  
Under the fair use doctrine, the author of a book on the assassination 
of President Kennedy, for example, did not infringe copyright when 
he reproduced several frames from Zapruder's movie of this tragic 
event in order to illustrate his theory about the assassination.  

It would be inaccurate to say that the NII Report recommends 
abolishing fair use law.  And yet, it takes such a narrow view of 
existing fair use law and predicts such a dim future for fair use law 
when works are distributed via the NII that the Report might as well 
recommend its abolition.  Since the fair use doctrine has been one of 
the historically important ways in which the law has promoted 
public access to copyrighted works, the virtual abolition of fair use 
law for which the Report argues would represent another vast 
expansion of copyright law in favor of publishers.  

As with its treatment of the browsing issue, the Report attempts to 
constrict user rights by acting as though this constriction has already 
occurred, rather than by admitting that the Report is coming down 
on one side of, at best, a debatable issue.  Without even admitting 
that any controversy exists about fair use law, the Report purports to 
resolve definitely one of the pressing controversies of U.S. copyright 
law today:  whether private, noncommercial copying of copyrighted 
works is noninfringing under fair use law or otherwise.

On this issue, the public and the publishers could hardly have more 
different ideas.  (On this issue, as on most of the rest of the copyright 
issues discussed in this column, I believe that authors are generally 
closer to the general public's view because so many of us rely on 
private noncommercial copying in the course of our research.)  The 
public generally thinks that private noncommercial copying of 
copyrighted works is not, and should not be, copyright infringement.  
Publishers, however, regard all reproductions of copyrighted works 
as infringing.  Publishers argue that private noncommercial copying 
cannot be justified as fair use because it provides a consumer with 
the benefit of a copy for which the consumer has not paid and usurps 
a sale that the publisher should have made if the consumer wanted a 
copy of the work.  

The NII Report comes firmly down on the publishers' side in this 
controversy and fails to mention that the Supreme Court's *Sony 
Betamax* decision told courts to *presume* that private 
noncommercial copying is fair use.  Only if there is some meaningful 
likelihood of economic harm to the copyright owner arising from the 
use should the presumption of fair use be overcome.   (The only fair 
use issue for which the Report cites the *Sony* case is for its 
statement that commercial uses of copyrighted works should be 
presumed unfair.  Interestingly, the Report neglects to mention that 
this second *Sony* presumption was repudiated by the Supreme 
Court this spring in *Campbell v. Acuff-Rose* in which 2Live Crew 
claimed fair use for the groups' rap parody of "Pretty Woman.")  The 
Report also neglects to mention other sources and precedents that 
would support the Supreme Court's view that private noncommercial 
copying should be presumed to be fair use.

Another major fair use controversy concerns the extent to which it is 
fair to copy portions of copyrighted works for research or 
educational purposes.  As with the private noncommercial copying 
issue, the Report cites cases that favor the publisher position on this 
issue without mentioning cases that do not favor the publisher 
position.  For example, the Report mentions the *Basic Books v. 
Kinko* case in which publishers successfully sued a copying center 
for making and selling multiple copies of coursepacks to students 
without being sure that the professors submitting the coursepacks 
had gotten permission from copyright owners to make them.  
However, the Report fails to mention the *Williams & Wilkins* case 
in which a research library persuaded an appellate court that it had 
made fair use of articles from medical research journals when 
copying them for research scientists doing work in that field.

As with the private noncommercial copying issue, the Report does 
not acknowledge the existence of genuine and principled differences 
of opinion on this issue.  It simply acts as though the rule already is 
what the publishers want it to be.  Although the Report says that the 
Working Group will hold a set of workshops to discuss educational 
fair use issues, it does not admit any educational use to be fair except 
if it meets a set of guidelines adopted some years ago that allow 
teachers to make photocopies of short articles pertinent to their 
classes that are published during the school term.  

The Report also predicts that fair use defenses will be unsuccessful 
when controversies arise in digital networked environments because 
it will be so much easier for consumers in these environments to 
license additional uses if they think they need them.  The Report fails 
to mention two recent appellate decisions that prefigure a broader 
potential for fair use defenses in dealing with digital data and new 
technology issues:   *Galoob v. Nintendo* in which a fair use defense 
was successful because kids using Galoob's Game Genie had already 
tithed to Nintendo by buying its games, and *Sega v. Accolade* in 
which an appellate court ruled that a competitor's disassembly of a 
Sega game in order to determine how to make its game cartridges 
compatible with the Sega machine was fair use[2].  By not 
acknowledging the existence of these cases, the Report 
underestimates the potential for fair use to remain a viable defense 
in disputes erupting in digital networked environments.

OUTLAWING DEVICES TO DEFEAT ANTI-COPYING SYSTEMS?

The NII Report foresees the potential for broad use of technological 
strategies to protect copyrighted works in digital networked 
environments.  Copyright owners, for example, may distribute 
products in encrypted form so that, despite a distribution over the 
net, the work could not be enjoyed by one who had not paid the 
price for it.  The Report recognizes that technological protections may 
not be entirely secure:  what one technology can do, another 
technology can often undo.  Thus, technological protection of 
copyrighted works may prove useless unless there is a ban on the 
manufacture and distribution of devices or services aimed at 
overcoming technological means of protecting copyrighted works.  

To remedy this problem, the Report recommends enactment of the 
following provision:  "No person shall import, manufacture, or 
distribute any device, product, or component incorporated into a 
device or product, or offer any service, the primary purpose or effect 
of which is to avoid, bypass, remove, deactivate, or otherwise 
circumvent, without authority of the copyright owner or the law, any 
process, treatment, mechanism or system which prevents or inhibits 
the exercise of any of the exclusive rights [of copyright]."  

The Report further recommends making manufacture or sale of such 
devices or services into an act of copyright infringement.  It also 
recommends that any copyright owner whose works *could* be 
infringed by such a device should be able to sue the maker or seller 
of such a device or service for copyright infringement, regardless of 
whether anyone had ever used the device or service to infringe that 
owner's copyrights.  (Sellers of the technological device being 
circumvented would not, however, be able to sue those who unlocked 
the device for copyright infringement.)

The Report admits that these recommendations would overturn 
Supreme Court caselaw under which it does not infringe copyright to 
distribute a technology that can be used to infringe as long as the 
device is *capable* of substantial noninfringing uses (i.e., because 
videotape machines could be used for noninfringing purposes, the 
Supreme Court decided that Sony was not liable for copyright 
infringement despite the fact that some consumers might use 
Betamax machines to infringe copyrights in Universal or Disney 
movies.)   

The Report is not clear about whether adoption of its 
recommendations would overturn the *Vault v. Quaid* case in which 
an appellate court ruled that sale of a program to "unlock" the copy-
protection program sold by the plaintiff was not copyright 
infringement because copyright law gave owners of copies of 
copyrighted software rights to make backup copies of their software.  
Since the unlocking software gave owners of copies of software an 
opportunity to exercise their rights to make backup copies, the court 
thought that the sale of this software promoted copyright policy, not 
undermined it.  

The drafters of the NII Report would probably say that their 
recommendation would not undo this case because that lawsuit was 
brought by the maker of the locking software, not by software 
publishers who had made use of the locking software.  The ban the 
Report recommends would give rights to sue only to software 
publishers.  Yet the issue of whether selling a product or service that 
would undo a technological lock on a copyrighted work so that a user 
could exercise fair use or backup copying rights is not addressed by 
the report.  Given the publisher bias that pervades the Report, it 
seems likely that the drafters intend to restrict user access in this 
respect, although they do not say so directly.  

Nor does the Report address the question as to whether distribution 
of programs in object code form should be regarded as a 
technological means for protecting software, such that tools or 
services that would be useful in disassembling or decompiling object 
code would be within the scope of the ban.  For those who are 
concerned about the future of interoperability, it should be of 
especial concern that the Report does not mention the caselaw 
favoring fair use to achieve interoperability and speaks only in 
vague terms about the value of interoperability.  

The NII Report acknowledges that its recommended ban on 
technological "keys" may restrict public access to both copyrighted 
and uncopyrighted works (the latter are as likely as the former to be 
distributed in encrypted form on the net).  Although the Report 
expresses some regret that such restrictions may occur, it concludes 
that, on balance, such "incidental" restrictions on public access are 
necessary and that the public interest in access is outweighed by the 
countervailing need to protect the interests of copyright owners.  The 
Report hopes that the "primary purpose and effect" language of the 
ban will provide a proper balancing of interests.  This, of course, 
depends on the willingness of information providers to encrypt 
uncopyrighted materials with a different encryption algorithm than 
they use to encrypt copyrighted works.  If the same encryption 
scheme is used for both, any unlocking technology can be kept off 
the market until a court rules that the primary purpose or effect of 
the technology would not be to promote copyright infringement.

While I might be able to support a more narrowly drawn provision 
aimed at dealing with the problem of technological circumventions of 
technological strategies for protecting copyrighted works in digital 
networked environments, I cannot support the proposed provision.  
As WIRED magazine recently pointed out, the proposed ban is so 
broad, publishers could probably use it to ban sales of photocopy 
machines.  And they wouldn't even have to prove that *any* of their 
copyrights had been infringed; it would be enough that the machine 
*could* infringe their copyrights.

BUILDING ON THE STRENGTHS OF THE EXISTING NII

A curious omission from the NII Report is any discussion of the 
extent to which existing digital networks, such as the Internet, have 
furthered the constitutional purposes of copyright.  The drafters of 
the Report seem to view the existing digital networks as empty 
pipelines awaiting content that publishers today are afraid of putting 
there because copyright law today doesn't give them enough control 
over their works.  The drafters also act as though the principal norm 
of the net is "to require copyright owners to check their copyrights at 
the door" when they enter the digital domain.  Neither assumption is 
correct.

The growth of the Internet has been one of the phenomenal success 
stories of our time.  People have flocked to the net by the hundreds 
of thousands not because their favorite movies or books may be 
available there in another five to ten years, but because a wide 
variety of resources are available there already.  Since its inception, 
the Internet has greatly facilitated and enhanced communication and 
learning of the very sort that copyright law is supposed to promote.  
It has enabled researchers to gather and share data more easily, to 
engage in collaborative work at remote locations, to criticize and 
refine one another's work, and to make research results and the like 
available at ftp sites, thereby enabling those interested in these 
results access to them.  A large number of newsletters, journals, and 
listservs have sprung up and serve as forums for discussion of public 
policy and research issues in a wide variety of fields.  Debate on the 
Internet could hardly be more robust.

Notwithstanding the occasional "pirate" bulletin board on which 
commercially distributed software is posted for unauthorized 
copying and the pronouncements of some who would abolish 
copyright law, the Internet has promoted public access to 
information far more than it has promoted copyright infringements.  
I believe that the vast majority of net users are law-abiding citizens 
who generally make no more than fair and reasonable uses of 
copyrighted works.  

The NII Report does not recognize that there are already both formal 
and informal ways in which denizens of cyberspace are influencing 
one another about copyright concerns and the ethics of making 
certain kinds of uses of other people's work.  Policies that actively 
discourage copyright infringement are one means by which bbs 
operators have an influence on the practices of those who use their 
systems.  Violation of bbs policy may result in being kicked off the 
system, a punishment more feared by many users than being sued 
for copyright infringement.  But if this is an effective sanction, this 
should be appreciated by drafters of an NII Report on intellectual 
property issues.  

Informal exchanges about copyright issues also occur in electronic 
newsletters, listservs, and on bbs's on the net.  If one person makes 
an unauthorized use of another's writing, a third person may well 
question the fairness of this conduct and start a dialogue on the 
issue.  The result of this dialogue is discouragement of unfair 
postings.  "Netiquette" limits the extent to which users of the net 
appropriate other people's work.  It simply isn't fair to repost 
someone else's message on another bbs or insert it into a newsletter 
without asking that person's permission.  However, merely 
forwarding the message to one or a small number of people who 
would find it especially interesting is regarded as fair conduct, just as 
a telephonic exchange of the same information or photocopying a 
short article from a newspaper or magazine to mail to one's 
colleagues would be.

The NII Draft Report should acknowledge and build upon the 
strengths of existing digital networked environments.  Its policy 
recommendations should permit exchanges that promote the learning 
function of copyright law without having harmful effects on the 
economic interests of copyright owners.  Before recommending 
dramatic changes to copyright law that would favor those who want 
to use the NII, the drafters of the Report should consider what effect 
those policies will have on existing user communities.  It should seek 
to adopt solutions that would improve the lot of those who want to 
enter the net without harming the lot of the millions of people who 
now use the net.  (Economists speak of this as the search for "Pareto 
optimal" solutions.)   We can only hope that this omission will be 
cured in the Final Report of the NII Working Group on Intellectual 
Property Rights.

CONCLUSION

The problem with which the NII Report contends is a deep and 
important one.  Members of the general public believe that copying 
of copyrighted material for private noncommercial purposes, 
whether it be a photocopy of an article or an audio tape of a compact 
disk recording of one's favorite artist, is not unlawful.  Historically, 
private noncommercial copying has rankled publishers but there 
wasn't much they could do about it, and besides, as long as copying 
technology was relatively primitive or expensive, private 
noncommercial copying didn't cut into sales all that much.  As 
reprography technology has improved and gotten cheaper, private 
noncommercial copying has become of greater concern to publishers.  

As the NII Report observes, owners of very valuable copyrights, such 
as motion picture producers, recording studios, and publishers of 
books, are unlikely to want to distribute their works via the NII 
unless they have reasonable assurance that their intellectual 
property rights will be respected.  One can commend the drafters of 
this Report for tackling a very difficult problem and for offering 
recommendations that would overcome some of the fears that 
owners of valuable copyrights have about digital networked 
environments without approving of the strategy employed to achieve 
the Report's objectives and without concurring in its judgment about 
where a proper balance lies between the interests of copyright 
owners and the public.  

I remain unpersuaded that copyright owners really need the 
dramatic expansion of rights which the NII Report would give them.   
I believe this proposal would restrict public access to information far 
out of proportion to the harm likely to result to copyright owners, 
and that existing law provides plenty of ammunition with which 
publishers can attack infringers.   But I admit the issue of what is 
proper copyright policy in the coming age of digital networked 
environments is a subject on which reasonable people can disagree.  
If the Report had been explicit about attempting to achieve a radical 
transformation of copyright law so that each and every use of a 
copyrighted work is infringing unless authorized by copyright 
owners, then at least there could have been public debate on the 
issues.

The most objectionable aspect of the NII Report is, in my view, lies in 
its effort to avert the hard issues and controversy that a plain 
statement of its intentions would engender.  It is simply not true that 
the Report recommends only minor clarifications and changes to 
copyright law, even though the press coverage of the Report dutifully 
echoed the Report's statements that they were.  (Where are the 
investigative reporters when we really need them?)  This column 
aims to provide readers with enough information about the policy 
issues raised by this Report so that they can begin the policy debate 
that is so sorely needed in this area and so that they can contribute 
their views about a solution that will achieve a fair balance between 
the public interest and the interest of copyright owners.  

SOURCES

[1] Working Group on Intellectual Property Rights, Information 
Infrastructure Task Force, Green Paper:  Intellectual Property And 
the National Information Infrastructure (Preliminary Draft, July 
1994).

[2] Pamela Samuelson, Legally Speaking:  Copyright's Fair Use 
Doctrine and Digital Data, Comm. ACM 37: 21 (Jan. 1994).

------------------------------

End of INTELLEC Digest 19
*************************

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			    INTELLEC Digest 20

Topics covered in this issue include:

  1) Virtual Conference Subscription
	by Don Horner <djhorner@clover.cleaf.com>
  2) Virtual Conference EXTENDED
	by NTIA Virtual Conference <ntia@virtconf.digex.net>
  3) Re: [INTELLEC:88] INTELLEC digest 16
	by bcox@gmu.edu (Brad Cox; Coalition For Electronic Markets)
  4) Re: [INTELLEC:92] Re: INTELLEC digest 16
	by m.lean@qut.edu.au (Michael Lean)

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 17:27:44 -0600 (CST)
From: Don Horner <djhorner@clover.cleaf.com>
To: intellec@virtconf.ntia.doc.gov
Subject: Virtual Conference Subscription
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subscirbe intellec Don Horner


------------------------------

Date: Thu, 17 Nov 94 18:30:38 PST
From: NTIA Virtual Conference <ntia@virtconf.digex.net>
To: avail, privacy, info, standard, redefus, opnacces, intellec
Subject: Virtual Conference EXTENDED
Message-ID: <CMM.0.90.2.785125838.ntia@virtconf.digex.net>


FOR IMMEDIATE RELEASE:                 CONTACT:  Stephanie Schoumacher        
November 17, 1994                                  Paige Darden
                                                   (202) 482-1551       

	

       CLINTON ADMINISTRATION EXTENDS SUCCESSFUL VIRTUAL CONFERENCE TO 
CONTINUE VALUABLE DIALOGUE ON INFORMATION SUPERHIGHWAY

WASHINGTON, DC -- Due to strong interest, the National
Telecommunications and Information Administration (NTIA) is
extending its virtual conference on universal service and open
access to our nation's telecommunications networks until 12:00
midnight EST, Wednesday, November 23, 1994.
      
      As of 2:00 p.m. today, there had been nearly 6000 accesses to
the world wide web server for the virtual conference.  The
conference listservs, which are on topics related to bringing the
benefits of the information superhighway to all Americans, are
averaging 400 subscribers per list.  The conference had originally
been scheduled to conclude tomorrow.

      "We are thrilled with the volume of traffic and quality of the
dialogue on the listservs, and hope that the extension will give as
many people as possible the opportunity to contribute to the
electronic discussion," said Larry Irving, Assistant Secretary for
Communications and Information and Administrator of NTIA.  

      "Through the virtual conference, the Clinton Administration is
demonstrating how our information infrastructure can be used to
deliver social services and allow greater citizen participation in
the development of government policies," said Irving. 
      
      To view the conference or to get information on subscribing to
a listserv, send an e-mail message to info@virtconf.ntia.doc.gov.
If you would like to read the position papers of experts on the
issue of universal service that were posted at the start of the
conference and the responses that have been generated thus far,
there are electronic archive files for each listserv available via
gopher, www, or telnet access to iitf.doc.gov.  The entire archive
will be available electronically after the conference through the
Clinton Administration's Information Infrastructure Task Force
(IITF) at the same site.  For more information on the conference,
contact Paige Darden at 202-482-1551 (voice) or
pdarden@ntia.doc.gov (e-mail).
                                      ###From daemon Wed Nov 23 15:44:16 1994
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			    INTELLEC Digest 45

Topics covered in this issue include:

  1) A Perspective on the Industry's Point of View
	by "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>

----------------------------------------------------------------------

Date:         Wed, 23 Nov 94 15:40:07 EST
From: "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
To: NTIA discussion on Intellectual Property
Subject: A Perspective on the Industry's Point of View
Message-ID: <199411232348.PAA28050@virtconf.digex.net>



Attached is the speech of Joseph L. Dionne, Chairman McGraw-Hill, Inc. At
Information Industry Association Annual Convention New York, New York October
26, 1994 entitled INFORMATION IN THE AGE OF TECHNOLOGY

The speech is not copyrighted and may, therefore, be posted to this list.

I think that many on this list have not seen the industry perspective that has
dominated the thinking of the NTIA Council and committee on Intellectual
Property.  As Mr. Dionne, himself states, "...our position at McGraw-Hill is
consistent with that expressed in The Working Group Report on Intellectual
Property Rights of the National Information Infrastructure."

I agree with many of Mr. Dionne's points about how we are "drowning" in
information on the Information Highway.  Indeed, I have been critical of the
lack of tools by which value can be added to the Highway by editorial
assistance and the many services the McGraw-Hill brings to its own products.

However, there is an underlying tone of the piece that is disturbing.  It, to
me, says, we do the job right, so make sure that copyright laws favor us.  No
where in the piece do I see Mr. Dionne offering to make his materials
available on the highway at a reasonable fee so that others may add value to
his material.

For example, say I set up a service on the Internet and want to put
photographs of frogs in a hypermedia system.  I don't see Mr. Dionne offering
to make these plates easily available from his science series.  I have, for
example, negotiated with the New York Times to get one drawing from an article
republished in a book of mine.  They, at first, wanted a sum that was half of
my entire book royalties!

So, while I believe in copyright protection, I also believe that for
information to be more "free" than in Mr. Dionne's picture of the world, I
want an ASCAP like arrangement -- done now, not later -- so I know that a fair
and reasonable price will be placed on materials for derivative works.  And I
want that fee to be based on my final return from a risky venture, not based
on some antiquated copyright fee schedule.  Thus, if I do well, the provider
does well, and if I don't, I don't pay exorbitant fees from a non-existent
revenue stream.

It is this government's role to see this bottleneck, in advance, and represent
-- not the large publishers -- but the new, innovative ones that will want to
build on the works of the traditional book oriented publishers.  Only in this
way will we free innovation and provide what the intent of copyright was, to
reward the creators of works, both those who are at the reigns and those that
wish to push further.

*****************************************************************************
Joseph Dionne's remarks:

It is a great pleasure to be with you this morning and to be asked to
participate in this important gathering. The IIA has become a most respected
voice in the information industry, and we at McGraw-Hill are delighted to play
a role in the Association.

McGraw-Hill was present at the formation of the IIA nearly three decades ago.
Its first chairman, William Knox, was McGraw-Hill's vice president of
information systems at that time. And the IIA was the ffrst association
meeting I attended, which was shortly after I joined McGraw-Hill. My company
and I have benefited enormously from this relationship, and I trust the
association feels the same way.

When I received the invitation to address this convention, I was intrigued by
the title of these proceedings, "Perils and Possibilities." I take it that
most of the discussion over these past three days properly has skewed toward
the "possibilities" side of that equation. Clearly, the possibilities for the
Information Revolution and the Information Highway appear limitless.

Three decades ago, my company published a book by an obscure Canadian
communications professor named Marshall McLuhan. That prescient book predicted
the coming confluence of computers, communication and information into what
McLuhan labeled, a "Global Village."

Today, all of us live in that "Global Village" that Marshall McLuhan foresaw.
And the "power source" of that Village....the commodity that links people and
nations seamlessly and instantaneously....is information.

In my business, you can't be a world-class publisher unless you've developed
the capacity to provide information electronically. Electronic publishing has
made a world of difference to us.

It's increased the efficiency of gathering and disseminating information. It's
enlarged the amount and types of information we make available. It's allowed
our customers to access data more easily and combine them in imaginative and
more useful ways. And it's enabled us to deliver the information in a much
more timely manner.

Digital technology, as we said on a recent cover of Business Week is literally
"changing the way we work and live." The digital tide already has reshaped the
business world, and is now spilling out of the office to touch every aspect of
our lives.

In point of fact, information has become the strategic weapon of our age.

But just as with any other "weapon" -- there are "perils" associated with the
information revolution. And as we continue to traverse the information
Highway, we should be mindful of these cautionary signs...these warning
flags...that stand in our way. For my part today, then, I'd like to spend just
a few moments examining this other side of the ledger.

It appears as though one looming peril has been significantly addressed just
this week--the government's role in operation and maintenance of the Internet.
I am pleased to see that some of this responsibility is being turned over to
the private sector. This will mean greater efficiency and a broadening of the
market for new information and new customers. And it confirms that the
marketplace is indeed the most effective and desirable means for distributing
information in developed

economles.

In looking at the other side of the ledger, I want to underscore the
importance--to everyone in this industry--of preserving and protecting the
"editorial quality" of the information we produce and, in that context, the
critical role that information providers like McGraw-Hill must play in
supplying that "editorial quality." Further, let me emphasize that, if the
right to benefit from adding value to information that the market requires is
not fully recognized and protected, then the information highway will take a
lot longer to construct than we can imagine. Certainly longer than building
the interstate highway system that preceded it.

There are those who claim that knowledge and ideas must be freely available.
And these advocates like to thumb their noses at those who say they own
information.

To those people, I say that there are no free societies without information.
And resistance to ownership of value-added information will result in cultures
that are significantly less information-rich. Those who would stand to benefit
most from a society that shares information freely created the fiction that
information wants to be free. Content providers see the situation differently
because of the effort we go to enhance information and data.

It is true that in many cases, the original data is sometimes not ours to own.
In the case of McGraw-Hill, for example, we gather financial statistics on
companies, specifications about computers and details on construction
projects. But the point is we are the ones who collect it, check its accuracy,
add it to historical data, put it in context, analyze it and comment on it.
And in the traditional publishing environment, we pay paper, printing and
postage costs to distribute it to our subscribers.

But one thing must never be allowed to happen. Those who disseminate, who
originate, or those whose job it is to regulate networks must never alter
publishers' information without consent or tamper with the knowledge
publishers have about their customers. If that becomes prevalent, we simply
risk losing consumer confidence in the information highway and our brands will
be significantly debased.

It's also imperative that the networks and the content providers understand
each other's viewpoint on access to consumers of information. If the publisher
cannot remain in touch with the consumer, and directly satisfy their
information wants, then I predict the development of the information highway
will be truncated severely or, at the very least, dramatically slowed down.

Instead, we have a tension building among various parts of the information
industry about what is in the best interest of consumers. Who best knows their
needs? Who wants to collect and benefit from the details of their information
highway access? Who best can protect them from electronic eavesdroppers or
those who would collect personal data on them to point of invading privacy?
These are all valid, worthy concerns and they must be addressed satisfactorily
before we move ahead.

Some networks, for example, have told us that they don't have enough account
information to tell us who exactly their customers are. But if providers don't
have this information, then we can't develop the next generation of products
and the information highway will be a hollow pipe.

I believe our industry must do more than it has done to inform people--those
who are already users of electronic information and those who are potential
users--of the importance of protecting ownership of intellectual property. We
must be more direct and more vocal in stating our case not just to the
American people, where copyright laws are an integral part of our industry's
heritage, but also to users and potential users of our information in
countries where copyright laws are less stringent or well-inforced. One way
the government could support this is through the funds it grants organizations
to test applications on the networks. Grantees should be required to include
copyright management protection for intellectual property.

I now want to turn to the assumptions many in this industry have been making.
It strikes me that there are at least four assumptions that are often made
about the Information Highway that, at worst, are "myths" and, at best, are
open to question.

The assumptions I have in mind are these:

First, that users will automatically flock to new information networks. Second
that electronic networks will mean the end of the print medium. Third, that
publishers will willingly accept electronic delivery, no matter what. And
fourth that consumers will embrace electronic information, regardless of its
editorial quality.

Allow me to explain briefly why I think each of these assumptions is flawed.

First is the assumption that users will automatically flock to new information
networks.

This might be called the "Field of Dreams" assumption -- "if you build the
network, they will come."

Our experience to date suggests something a bit less encouraging.

Research indicates that only a minority of Americans understand what the
Information Highway is all about. You may have seen the front page story in
The New York Times a few weeks ago that asked people to find the "on ramp to
the Information Highway." One woman said she thought it was "somewhere near
Houston Street!"

Another Lou Harris survey recently found little support for some of the more
glamorous -- and profitable-- proposed electronic services, such as home
shopping and interactive entertainment.

As to the Internet -- which most people consider a proxy for the Information
Highway -- some question the estimates of 20 to 30 million users. At the
moment, it's impossible to determine how many people might be tied to each
Internet port. If estimates of Internet users are, in fact, inflated then
ambitious expectations of that network's growth may also be unrealistic.

I can tell you that Business Week is a member of Internet's Electronic
Newsstand. While that service reports about 50,000 observers a day, most are
solely that -- "observers" -- and subscription activity thus far has been
meager.

Another factor that may mitigate the growth of electronic networks is the
complexity involved in developing them. First networks are extraordinarily
capital intensive. That's why it takes a large organization to build one.
Second once a network has been built, it can lapse into technological
obsolescence relatively quickly. We've already seen examples of networks that
have become dated, with more capital required to bring them current. Third
with so many competitors in the chase, this industry faces competitive pricing
more quickly than other value-added businesses.

My point is, that as promising as the Information Highway most certainly is --
we mustn't forget that it is still a relatively fledgling enterprise. No less
a source that Bill Gates of Microsoft has said, "It will take another eight or
nine years for the Information Highway to make it to the homes of most
Americans." And that prediction, Mr. Gates freely admits, is "optimistic."

A second assumption about the Information Highway is that electronic networks
will mean the end of the print medium as we know it.

Now here I must confess to not being a totally "unbiased witness."

But the fact is that the Information Highway won't replace books or magazines
or the printed word for the same reason television didn't replace radio, which
didn't replace newspapers. Media are additive. They find their appropriate
role in the scheme of things and rarely displace each other.

At McGraw-Hill, we've converted more than a dozen print products into an
electronic format. Every time we've done this, the sale of the print product
has gone up. Why? Because the new electronic product complements -- but
doesn't duplicate -its print-product counterpart. Indeed, exactly duplicating
a print product would be irrational. By introducing a different electronic
version, we are actually expanding the recognition of and market for our
original print product.

So while some of us still cringe when we hear a sophisticated magazine like
Business Week described as "low-tech" -- we are confident that such "low tech"
print products will continue to survive -- and even thrive -- existing
side-by-side electronic products in the days ahead.

On the other hand assumption number three suggests that publishers will
willingly accept electronic delivery no matter what.

Before this can be true and publishers willingly provide significant
information to electronic networks -- several important issues must be
resolved.

Most important, of course, is an issue that already has been discussed at this
conference -- the whole area of intellectual property. This is a subject that
is integral to our business and one that must be reconciled if publishers are
to play a key role in the Information Highway.

Our position at McGraw-Hill is consistent with that expressed in The Working
Group Report on Intellectual Property Rights of the National Information
Infrastructure. Basically, we agree that owners of intellectual property
rights will not be willing to put their interests at risk unless and until
appropriate systems -- in the U.S. and internationally -- are put in place...
to set terms... enforce conditions.... and generally safeguard intellectual
property assets in the NII environment.

What this means in practical terms is that networks must provide publishers
three basic assurances:

One, that our information is secure and free from viruses or similar problems.

Two, that our information is instantly and properly delivered, protected
against alteration without authorization.

Three, that our copyrights are defended, preventing information from being
accessed, downloaded or redistributed without our permission and remuneration
to us

Failing such assurances, publishers will be reluctant to participate fully in
the NII environment. And that reluctance, in turn, will have a ripple effect
on the public, who will not use the services available or generate the market
necessary for success -- unless given access to a wide variety of works. As
the Working Group's report puts it:

"All the computers, telephones, fax machines, scanners, cameras, keyboards,
televisions, monitors, printers, switches, routers, wires, cables networks and
satellites in the world -- will not create a successful NII, if there is not
content."

Protection of intellectual property is a key issue, and an umbrella for many
others. For example, protection against equipment manufactured and sold for no
other purpose than to infringe on publishers' materials. While publishers like
McGraw-Hill want such safeguards, we strongly urge against legislating any
specific technological solution for protecting our works. Information
providers should have the flexibility to adopt new solutions as they become
available. Different information products require varying degrees of
protection and no publisher can afford to be locked in when technology changes
overnight.

As many of you know, these copyright issues have been addressed over the last
few months by the NII working group. But its work has not been approved or
codified, which continues to hold back many publishers from placing their
materials in electronic environments.

But even if publishers' concerns become part of the regulation of our
electronic information future, what will be the mechanism for monitoring the
networks and enforcing the intellectual property laws?

Clearly, no one in our industry believes it should be the government, with its
proposed Clipper Chip, or even any third party. The policemen of the
information highway should be its users and publishers. All we ask for from
the government is the rules of the road, safeguards for our intellectual
property and measures to assure citizens' privacy rights are protected.

In a related sense, we'd like to see resolved the issue of the competitiveness
of the communications environment. Specifically, we'd prefer an environment
with at least two lines into every home, school or office. One of these
"lines," of course, technically could be wireless. But two lines would ensure
competition. With no competition and only one wire in the home, a network
could exact a tribute from information providers and also insist on an equity
stake in any service.

Providers also want access to networks at a reasonable price. What that means
is: Don't keep me out of network, don't discriminate on the basis of price. If
I have information the user needs, let me get it out. Let the marketplace
determine whether the information is valuable and at what price. Consumers
will very quickly be able to discern between useful information and what some
have called shovelwarc the loading of data onto a disc or onto a network
without the means to cull it, to discover what is needed.

There also must be reliable methods of collecting for the use of the
information we provide. And we need assurances as well that a user's privacy
won't be invaded in the process of receiving information electronically.

We're convinced that the needs of consumers argue for open systems on the
Information Highway. No single content provider can supply everything a user
needs. No single network can reach everv potential user of a single piece of
information. So no single provider or network should be awarded exclusivity to
reach users. If the Information Highway is to serve the public in the best
manner, the system must be an "open" one, in which all information providers
compete equally to provide the most valuable information to consumers.

There is also the issue of standardization of the platforms on which
interactive multimedia products are based. We need platform standardization.
Without standardization, it becomes uneconomic -- and therefore, an arguable
business proposition -- for product developers to create software for multiple
environments.

These then are just several of the issues that must be confronted before
publishers will be willing to sign onto the Information Highway with their
full force.

Fourth finallv. is the assumption that consumers will embrace the electronic
information provided them, regardless of the editorial qualitv of its content.

There is no question that the capacity of information available on the
Information Highway is enormous. Some would say, "overwhelming."

It's estimated that there are now more than 5,000 bulletin boards on the
Internet. Everyone with a computer and modem has become an author. And with
this tidal wave of data pouring onto the Information Highway every day,
consumers are less likely to be thirsting for information than they are to be
drowning in it!

Again, we often end up with shovelwarc the seemingly endless supply of raw and
often extraneous data being dumped on the Information Highway at breakneck
speed. The ability to discern quality, useful information from the vast
quantity available has become a daunting task.

So formidable a challenge, in fact, that there exist today, a variety of
so-called "filters" -- that sort through and screen out unwanted information
on the Internet.

Well, ladies and gentlemen, there is a better and more experienced
"information filter" and it's been around for years. It is called "an editor".

An editor's job, pure and simple, is to ensure editorial quality. Editors add
value through refining information, analyzing it, interpreting it, creating a
synthesis and then presenting it in a format that is usable, reliable,
flexible and affordable.

This editorial role -- to ensure "editorial quality" -- will be a critical
component in the ultimate success of the a Information Highway.

Today, our industry's overriding priority is to master the technology. That is
understandable. When the printing press was introduced, people focused on
learning how to use it. Today, that's a relatively trivial aspect of the
publishing business.

So, too, with electronic publishing -- once we've mastered the technology, the
focus will shift to managing the content...to help navigate users through the
welter of information at their fingertips and to help lead them to what is
most important and most useful.

This is where the role of editors and publishers in the information revolution
becomes critical.

Our expertise is content and presentation. We give meaning to information and
aid in the development of knowledge. We will publish our information tomorrow
the same way we published it yesterday and today -- that is, in whatever form
and at whatever frequency our customers desire.

The Information Highway is simply an evolution of the means to distribute that
basic product -- content -- most of it already in digital form. To the degree
that any medium or network permits greater access to our customers -- in
business, industry, finance and education -- we will not only embrace it, but
we will work in partnership with it to expand our markets and better serve our
clients.

One prime example is the area of education publishing.

McGraw-Hill is America's largest school publisher. As a content provider with
particular expertise in education, we recognize the tremendous potential that
the information revolution can provide to the "learning revolution" that is
now underway in our schools.

In particular, the market for interactive multimedia products in the classroom
is enormous and, currently, underserved.

The computer, in point of fact, is not yet central to the instructional
process. Its primary function in schools is merely as an electronic workbook
or supplement to learning.

Last year, U.S. public schools spent more than $2 billion for educational
microcomputer products and services. About a quarter of that went toward the
purchase of software. Today, approximately 4.5 million computers are installed
in public schools, although only 20% are CD-compatible. While these numbers
are large and growing -- they still barely scratch the surface.

Our challenge -- yours and mine, working with educators -- is to help elevate
the computer to a more central role in the teaching and learning process. That
means helping to develop a theory and practice of multimedia instruction that
determines what concepts are best taught using multimedia and what
presentation formats optimize learning.

Our own bias in transporting the Information Highway to the classroom -- is
that so-called "teacher proof" materials inevitably will fall short. Rather,
we believe that directly involving the teacher will prove the key to success.
Stated another way, unless the individual teacher becomes the principal
navigator of the curriculum -- new technologies will face considerable
resistance.

In any event, the field of education is just one that is wide open to the
resources and potential of the Information Highway. But to realize fully that
potential, we must understand and acknowledge that the quality of the content
will very much drive the process.

And here again, the integritv of this content must be protected, safeguarded
and paid for.

So what then will tomorrow's Information Society look like?

There are those who predict that the dizzying pace of digital compression
advancements will spell the end to literacy...that people will communicate,
not by words, but by streams of video and audio data...and that institutions,
like libraries and museums and schools, will soon become anachronisms.

I must respectfully disagree.

It seems to me that in such a well wired, technologically sophisticated
world...faced with an overwhelming amount of information...consumers more than
ever will depend on the skills of editors and publishers to acquire, evaluate
and prepare content that is meaningful and usable.

They will more urgently than in the past require skilled, human
intermediaries, who can create or uncover information its raw form...guide
customers through that information in the format they prefer...and, most of
all, add value.

Clearly, the challenge of developing -- and delivering -- the true potential
of new technology, new techniques and new approaches to inform, entertain and
educate at work, home and school is a profound one.

We at McGraw-Hill are committed to working with all of you to ensure that the
rewards of the-Information Highway become a reality for everyone.

###

_______________________________________________________________________________
|               W. Curtiss Priest, Ph.D.             *********************** |
|      Center for Information, Technology, & Society *  Improving humanity * |
|                                                    *  through technology * |
|                  466 Pleasant Street               *********************** |
|                Melrose, MA  02176-4522         BMSLIB@MITVMA.MIT.EDU       |
|                  Voice: 617-662-4044     Gopher to our publications:       |
|                   Fax: 617-662-6882      GOPHER.STD.COM (under nonprofits) |
_____________________________________________________________________________|

------------------------------

End of INTELLEC Digest 45
*************************

rks open and accessible to a broad range of equipment manufacturers 
and information providers").

				-9-




of a robust NII, the Working Group's conclusions should make clear its 
position on the issue, taking into account the case law and the relevant 
policy considerations.

C.  Antitrust and Intellectual Property

	ACIS is also concerned with the Green Paper's conclusion that
intellectual property rights inhering in de facto technological standards
pertaining to the NII can be ``reigned in" through federal antitrust 
laws. Given the importance of the development of an open and accessible 
NII, we must be vigilant in preventing control, through the exercise of
``intellectual property rights," of the standard interface specifications
critical to the operation of the NII. The primary focus, however, for
controlling the abuse of intellectual property rights that are or become 
de facto NII interface standards should be the intellectual property law 
itself, not the antitrust laws.

	The intellectual property law balances the goals of incenting 
and rewarding creativity, originality and innovation, on the one hand, 
and disseminating ideas and information for use by society generally, 
on the other hand. Thus, the intellectual property law promotes the
maximization of consumer welfare and the progress of society. The public 
welfare is diminished if this balance tips in favor of overprotecting 
the first set of interests at the expense of the latter interests. Such 
loss of welfare occurs even in circumstances when the imbalance does not 
confer market power on particular individuals or firms, the point at 
which the imbalance triggers concern under the antitrust laws. Therefore, 
while the antitrust laws have an important role in policing open 
standards, they cannot be relied upon to be the sole, or even the 
primary focus for maximizing social welfare.

				-10-




	For additional reasons, it is doubtful that without a 
primary focus on properly defining intellectual property rights, 
the antitrust laws can be effective in making de facto NII interface 
standards sufficiently open to protect the public interest. The 
antitrust laws' concern about the unlawful use of market power becomes
dangerously circular if the alleged abuse flows from overbroad
intellectual property rights.7 Fundamentally, any market power created 
by the ownership of standards for interoperability is in part the 
result of the scope of protection afforded. If the scheme of such 
rights is too broad, we cannot expect the antitrust laws to remedy 
the situation.

	A second and more practical point is the difficulty of policing
abuses of de facto NII standards through the antitrust laws. 
Comprehensive antitrust investigations and private enforcement are
time-consuming and expensive; the time and expense
_________________________

7     This circularity is apparent from the following hypothetical 
example:  A small vendor seeks to distribute its new and innovative 
product on the NII, but to distribute the product it must make use 
of a standard protocol owned by another company. Because the protocol 
has become a standard on the NII, the vendor must obtain a license 
from the protocol owner. The vendor negotiates with the owner of the 
protocol to obtain a license, but negotiations break down and the rights 
holder eventually refuses to license the protocol to the vendor. The 
vendor, apparently having no other recourse, approaches the Department 
of Justice, asserting that the rights holder's refusal to license
the protocol is a violation of antitrust laws. The Department of 
Justice refuses to take any action against the rights holder, citing 
its Guidelines For the Licensing and Acquisition of Intellectual Property
(presumably by this time the Guidelines would have been formally adopted 
by Justice). See Draft Antitrust Guidelines # 2.2, 59 Fed. Reg. 41,340 
(1994) (``Nor does such market power [conferred by ownership of intellectual
property] impose on the intellectual property owner an obligation to license
that technology to others.") (citations omitted). The rationale is that if
the rights holder has a valid property interest in the protocol, its 
decision to exclude a competitor from using the protocol should not be 
illegal. The problem of abuse of de facto NII standards, therefore, cannot 
be addressed solely by the antitrust laws. Under the scheme advanced by the
Green Paper, however, the vendor has no recourse under the intellectual 
property laws either because of the mistaken notion that ``unfair licensing
practices can be dealt with through the antitrust laws." Thus, the scope of 
any property rights in de facto standards should be addressed by defining
properly the scope of the applicable intellectual property rights.

				-11-




required to conduct an adequate investigation of monopolistic uses 
of NII standards could prove disastrous to free competition, and allow 
the holders of standards to kill their competitors at a critical time in 
the development of the NII. The uncertain outcomes of such antitrust
``solutions" are an additional impediment to businesses attempting 
rationally to structure strategies in relation to the NII. It seems far 
more efficient to focus on the scope of the rights in the first instance, 
rather than trying to curb their abuse after the fact.


		             Conclusion

	ACIS believes that intellectual property law will play an 
important role in the successful development of the emerging NII. In 
general, intellectual property law is capable of addressing the issues 
likely to be raised during the development of the NII. Major changes or
wholesale revision of intellectual property law is therefore unnecessary;
instead, only some minor modifications are needed. The intellectual 
property law should be used to shape the emergence of the NII in the 
following ways:

1.    The abstraction-filtration-comparison test in Computer Associates 
and adopted by other cases should be applied to all claims of copyright
infringement of standards for interoperability. The government should
endorse this approach and urge other courts to adopt it.

2.    Protection of content that will flow over the NII is essential. 
Our zeal to protect it, however, should not be at the expense of other 
equally important considerations. In this regard, any regulation of 
devices designed to defeat anti-copying systems should be narrowly and 
carefully crafted. ACIS suggests a provision similar to Article 7 in 
the EU Directive or employing a ``substantial noninfringing use" test.

				-12-




3.    Proprietary rights in NII standards for interoperability should 
be very narrow. Ensuring open access to NII standards for interoperability
should not be made primarily the purview of antitrust law, although 
antitrust law will have a role to play. Rather, the proper balance between 
the public interest and the rights of creators of standards of 
interoperability falls within the traditional purview of intellectual 
property law.



September 7, 1994



				-13-





                           MEMBERSHIP LIST
                                     
                      Accolade, Inc.
                      Advanced Micro Devices
                      Amdahl Corporation 
                      America Online, Inc.
                      AT&T Global Information Solutions
                      Broderbund Software, Inc.
                      Bull HN Information Systems Inc.
                      Chips and Technologies, Inc.
                      Clearpoint Research Corporation
                      Color Dreams, Inc.
                      Comdisco, Inc.
                      Emulex Corporation
                      Forecross Corporation
                      The Fortel Group
                      Fujitsu Systems Business of America, Inc.
                      Hitachi Data Systems
                      ICTV
                      Integrated Document Applications Corporation
                      Johnson-Laird, Inc.      
                      Kapor Enterprises, Inc.
                      Landmark Systems Corporation
                      LCS/Telegraphics
                      MidCore Software, Inc.
                      New York Systems Exchange, Inc.
                      Octel Communications Corporation
                      Phoenix Technologies, Ltd.
                      Plimoth Research, Inc.
                      Seagate Technology, Inc.
                      Software Association of Oregon1
                      Software Entrepreneurs Forum2
                      Storage Technology Corporation
                      Sun Microsystems, Inc.
                      Tandem Computers, Inc.
                      3Com Corporation
                      Western Digital Corporation
                      Zenith Data Systems Corporation

     ------------
      1 The Software Association of Oregon consists of 430 software
      development firms, firms in associated industries, and
      individuals professionally involved in software development.

      2 The Software Entrepreneurs Forum consists of over 1,000
      software entrepreneurs and developers.


                                            September 1, 1994



------------------------------

End of INTELLEC Digest 21
*************************

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			    INTELLEC Digest 22

Topics covered in this issue include:

  1) Essay (fwd)
	by "DAN L. BURK" <dburk@mason1.gmu.edu>

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 15:02:20 -0500 (EST)
From: "DAN L. BURK" <dburk@mason1.gmu.edu>
To: intellec@virtconf.ntia.doc.gov
Subject: Essay (fwd)
Message-ID: <Pine.3.89.9411171419.A21207-0100000@mason1.gmu.edu>

Here is the Transborder IP essay, hopefully in a more accessable format.

DLB


------------------- BURKDOC.TXT follows --------------------




                  Transborder Intellectual Property Issues 
                         on the Electronic Frontier




                               Dan L. Burk
                       Visiting Assistant Professor
                              School of Law
                         George Mason University
                         3401 North Fairfax Drive
                        Arlington, VA  22201-4498




     Forthcoming in vol. 5, Stanford Law & Policy Review. 
Copyright 1994 by Dan L. Burk and the Regents of the Leland
Stanford Junior University.  This document may be electronically
reproduced and disseminated for educational or scholarly
purposes.  Any commercial use of this document is prohibited
without the express written consent of the author and copyright
holder.

================================================================

INTRODUCTION

      The effort to construct a National Information
Infrastructure in the United States has stimulated a wave of
technical and economic activity that can be expected to extend
into the foreseeable future.  Because such a "data superhighway"
will involve international connectivity, not only the United
States, but much of the world will be affected by the NII
enterprise.  This ferment of new activity, as with every type of
human activity, can be expected to generate some disputes that
the parties are unable to resolve on their own, and so must look
to the law for resolution.  For the most part, the legal issues
raised by computer networks will be predictable extensions of
those raised by print, magnetic, and broadcast media.  However,
every medium displays its own unique characteristics, requiring
some accommodation in the law.  In the case of computer
networks, such idiosyncracies will include a subtle but
important shift in the pattern of incentives related to
proprietary information.

PROPRIETARY INFORMATION

      Intellectual property laws exist because of the unusual
intangible nature of valuable information.  Knowledge and
information may be created as a pure intellectual good, or
embodied to some degree in a physical form, such as text,
pictures, or even as a machine.  Such intellectual goods may
have considerable value, as evidenced by enormous revenues of
the motion picture, recording, or computer software industries. 
However, creating such valuable goods is not costless;
development often requires significant production costs of time
and effort.

      Those who invest in the creation of a valuable commodity
generally do so expecting some recompense for their effort. 
Yet, in the case of intellectual goods, the investor may be
denied not only the opportunity to make  profits, but even the
opportunity to recover production costs.  Unlike physical goods,
intellectual goods lack the barriers that would allow their
investors to prevent free appropriation of the goods by
consumers.  A manufacturer of a physical good such as shoes can
block others from possessing the shoes until paid.  By contrast,
an idea -- the purest form of intellectual good -- can often be
quickly and costlessly acquired by others.  The idea will never
wear out or require replacement.  In addition, the consumer who
has the idea can himself become a supplier of the idea,
competing with the originator of the idea.  No one will pay the
creator of the goods if they can get the goods for free.

      Much like ideas, valuable inventions, songs, or poems can
quickly be copied by others, often for very little cost.  The
physical embodiments of the ideas in these items are nearly as
easy to reproduce as a pure idea would be.  Because consumers
can obtain such intellectual good essentially for free, they are
unlikely to pay the developer of the good, and the developer
will be unable to recover the development costs for the good. 
Developers who realize this will be reluctant to invest in
developing goods that everyone can have for free, and so there
may be a lack of intellectual goods.

      Intellectual property laws supply the barriers to
consumption that intellectual goods lack.  Patent, copyright,
and trade secret laws create intellectual property rights,
imposing legal and financial penalties for appropriating an
intellectual good without the owner's permission.  Because the
developer of an intellectual good can use the intellectual
property right to exclude consumers, the developer can expect a
return on his investment, and so the production of valuable and
useful intellectual goods is encouraged.  These legal barriers
will become increasingly important in the context of global
computer networks such as the Internet.

THE INTERNET

      The Clinton administration has called for construction of
a publicly available "information superhighway," but the first
generation of such a network already exists in the form of the
Internet.  Information flow on the Internet resembles that in a
river, highway, or circulatory system: local networks funnel
information traffic into larger regional networks, which in turn
are connected to high capacity "backbone" linkages.  This
network of computers, its electronic traffic enabled and
directed by host computers at each interconnected site, links
literally millions of users in dozens of countries all over the
world.

      The electronic environment of the Internet magnifies and
intensifies associated with information development incentives. 
The Internet, as an"information superhighway" facilitates the
exchange of intellectual goods embodied in easily reproducible
form: electronically encoded text, data, pictures, music, and
software.  Once the network connections are in place, the
transfer of data costs practically nothing.  Electronic archives
on the Internet allow thousands of individuals to access
information at a marginal cost close to zero.  Materials in
electronic format can be reproduced and distributed just as
cheaply.  This is an enormous benefit to the transfer of
information among individuals, prompting the present
administration's calls for increased Internet access and
capacity.  However, these benefits also have a dark side arising
from the incentives associated with the creation of valuable
information: as described above, there is little incentive to
invest in developing information where no return on the
investment is likely.  Where everything is free, little will be
offered.

      These problems of reproduction and dissemination, even
though magnified by the capabilities of the Internet, seem to be
familiar in kind, if not in scope: they are the type of problems
that intellectual property laws are designed to remedy.  Thus,
the need for intellectual property rights in this networked
environment seems manifest.  Yet, these laws as presently
formulated are geared to a world in which barriers of distance
and political jurisdiction are the norm. This is not the world
of the Internet, where computer-enabled features such as remote
log-on and telnet allow users to control computers, radio
telescopes, electron microscopes, and other scientific
instruments from a distance. Computers on the Internet can be
linked together to simultaneously process different parts of
complex problems, creating in effect a giant supercomputer.
These features of the network make distance and political
borders invisible to users of the electronic universe they have
dubbed "cyberspace."

      This ability to reach out across vast distances to connect
remote users and equipment is novel to the global computer
network.  Modern telecommunications have for some time allowed
broadcast and transport of information over wide areas, but only
the capabilities of a computer network allow routine control of
activity across national boundaries.  This creates a new
challenge for intellectual property regimes, the problem of
remote access.  The law in general, and the law of intellectual
property in particular, has failed to take stock of this
phenomenon.  Law is in general territorial, extending no farther
than the borders of the jurisdiction whose government has
enacted that law.  Cyberspace extends beyond those borders,
however, and this creates new incentives regarding information
transfer. (1)

      For example, one can readily envision computer sites
linked to the Internet, offering information services, but lying
beyond the political territory of the United States.  Such
offshore information sites would lie beyond the reach of U.S.
intellectual property laws, but not beyond the reach of
information product consumers in the United States. 
Consequently, offshore havens could offer information services
that would violate U.S. laws if the sites were in the U.S.  Such
illicit services can be expected to arise as a simple function
of economics; where the cost of access to the offshore
information is lower than the cost of obtaining a license from
the legitimate owner of the information, users will naturally
choose the cheaper alternative.

      It seems likely that the cost of using the offshore
version will be extremely low because the incremental cost for
data exchange over computer networks is very small.  In order to
make a licensed version of his information competitive with that
available offshore, an information owner would have to price his
license lower than the cost of Internet access.  However, at a
price that low, the information owner is unlikely to recover his
development costs. As with the problems of reproduction and
distribution, this result of remote access may deter information
developers from investing in generating the information in the
first place.

      Thus, the Internet gives rise to two distinct sets of
intellectual property problems, stemming from the nature of the
network: not merely an electronic communication linkage, but a
collection of digital information processors. First, the
Internet allows directed and selective transfer, dissemination,
and retrieval of information.  Second, the remote logon and
telnet features of the Internet allow users in one geographic
location to access and control devices in far distant geographic
locations.  Each of these sets of features will challenge the
current regime of patent, copyright, and trade secret laws in
distinctive ways.

PATENTS

      Perhaps the most important set of laws protecting
intellectual property are the statutes authorizing the set of
rights called patents.  A patent allows the holder to exclude
others from making, using, or selling the patented invention for
a period of seventeen years. (2)  Under U.S. law, patents may be
granted for machines, processes, and compositions of matter. (3) 
Significantly for the computer industry, "processes" under the
patent law may include computer software --  software is after
all a set of sequential instructions to a machine.  Thus, the
United States Supreme Court has cautioned that computer
algorithms in the abstract may not be patented, but may be
claimed as part of the function of a machine. (4)

      Unlike other forms of intellectual property, patent rights
do not arise spontaneously with the creation of protectable
subject matter.  Rather, patents are granted after examination
of an application by a government agency, the Patent and
Trademark Office.  Applicants must state specific claims as to
the invention that they wish to patent; after they are approved,
the terms of the claims will determine the scope of the patent,
much as a deed sets out the metes and bounds of real property. 
The examination process assesses whether the claimed invention
meets statutory criteria of novelty, usefulness, and non-
obviousness. (5)  In particular, the examination process
compares the claimed invention to "prior art," that is, to
previously known inventions in the same field, to determine that
the new invention is a significant advance over the old.

      United States patent law is territorial; it applies only
to making, use, or sale of the claimed invention within the
United States, its territories, and possessions. (6)  According
to the United States Supreme Court, this limitation prevents the
patent law from offending the sovereignty of other nations. (7) 
However, the limitation also engenders a version of the remote
access problem suggested above: Internet users located in the
United States could access offshore computer sites that employ
patented U.S. software or hardware. (8)  If data were retrieved
from or processed at such sites, the use of the patented
invention could be obtained, but only unpatented information
would cross into U.S. territory.  Conversely, Internet users
outside the United States, using computer hardware or software
that would infringe U.S. patents, might use such equipment to
access Internet resources within the United States.

      Patent law in its present state is indeterminate as to
whether such transborder activity constitutes an infringing
"use."  Certainly the activity has some connection with U.S
territory, but that connection may be too tenuous to trigger
enforcement of the patent.  Some older patent cases dealing with
"extended instrumentalities" -- such as a navigational broadcast
system using transmitters outside the United States -- indicate
that a transborder invention will be viewed as constructively
"within" the United States if primarily controlled from U.S.
territory. (9)  However, it is unclear how applicable these
older cases to may be to the case of global computer networks,
particularly if it is uncertain where "control" is being
exercised on the network.

      Questions of extraterritorial infringement have also to
some extent been addressed though customs statutes prohibiting
importation of products that infringe a U.S. patent, or of
products produced abroad via processes that would infringe a
U.S. patent if the process were practiced in U.S. territory.
(10)  Here again, however, it is unclear that the statutes would
apply to extraterritorial infringement via computer network. 
Data processed by an offshore site and transmitted into the
United States might in some sense be considered "imported" and,
as the result of software patented in the United States, is
perhaps the product of an infringing foreign process.  It is
doubtful, however, that Congress in fact considered such
applications of these statutes when enacting them, and applying
the statutes to computer networks may stretch the law beyond its
proper bounds.

      The conundrums posed by remote access may affect not only
the enforcement of patents, but also the procurement of
patents.Under United States patent law, the events that
establish priority of invention may not be established by
reference to foreign activity. (11)  Similarly, although the
patent law recognizes printed material from anywhere as "prior
art,"  tangible items are recognized as prior art only if they
were previously known, used, or invented "in this country," that
is, in the United States. (12)  Additionally, placing an
invention "in public use" more than one year prior to applying
for a patent on it renders the invention unpatentable, because
the invention effectively becomes its own prior art. (13)  This
rule of patentability, like those regarding priority, applies
only to activity "in this country."

      It is quite easy to envision situations where a U.S.
researcher, working in the United States, could via the Internet
use equipment situated in another country for experiments
leading to a patentable invention.  It is unclear, however,
whether these events could be used to establish priority to
claim a patent right in the invention.  Conversely, a U.S.
patent applicant might be able to obtain a patent to an
invention that was already well known and routinely available
via Internet at an offshore site; it is not clear that the
offshore invention would constitute prior art if never
physically used "in this country."  Once again, older patent
cases dealing with "extended instrumentalities -- such as a
remotely controlled satellite in earth orbit -- may be
considered constructively within the United States for purposes
of patent procurement, but the applicability of these cases to
the Internet is uncertain.

      Finally, the Internet's electronic dissemination
capabilities may also impact patent procurement.  In the United
States, complete disclosure of an invention more than one year
before filing for a patent renders the invention ineligible for
the patent. (14)  At present, it is unclear what might
constitute an Internet "publication" of information sufficient
to prevent patenting.  Past cases have focused on the aspect of
public accessibility; information contained in an uncataloged
thesis was not publicly accessible, and so not a disclosure,
whereas information in a cataloged thesis was publicly
accessible, and so barred a patent.

      On the Internet, many different types of electronic
archives are available, but they are at present extremely user
unfriendly, and information is difficult to find unless one
knows before where to look.  However, Internet-wide electronic
searching is becoming increasingly feasible through software
such as ARCHIE, VERONICA, MOSAIC, or WAIS.  For a publicly
accessible national information infrastructure to be fully
implemented, this trend toward increased accessibility will have
to continue.  However, increased public accessibility of
information may have the collateral effect of barring many
inventions from patentability.

COPYRIGHT

      Copyright comprises a second distinctive set of
intellectual property protections with important for transborder
computer networks.  As its name implies, copyright secures the
right to reproduce a protected work. (15)  Copyright does not
protect ideas, but rather the particular expression in which
ideas are embodied.  Thus, copyright is likely to affect most of
the types of information exchanged over the Internet: the
subject matter protected under copyright law includes music,
pictures, text, and graphic designs.  Significantly, copyright
offers an alternative to patent for the protection of computer
program code.  Copyright also protects the order and arrangement
of databases if the arrangement of the information meets a
certain threshold of creativity and originality. (16)     
Because the essence of copyright is the ability to exclude
others from reproducing the protected work, the anomalous
effects of an international networked environment will be
somewhat less pronounced than in the case of patent protection. 
Retrieving copyrighted information from an offshore source will
almost certainly involve infringement; for the information to be
useful, an infringing copy will at some point materialize within
the jurisdiction, as transferred computer code, a screen
display, or in some other form.  In addition, unlike patent law,
copyright law is subject to international treaties such as the
Berne Convention that impose recognition and reciprocity of
copyrights among the signatory nations.  There is still some
variation between nations as to specific copyright provisions,
but the international treaties guarantee certain minimum
standards of protection.

      Yet it is still apparent that territorial anomalies may be
exploited to evade copyright in some instances. (17)  Not all
nations are signatory to the international copyright treaties,
and many developing nations are notably absent.  For such
nations, maintaining minimal copyright recognition or lax
copyright enforcement may seem viable strategies to capture
international information business.   For example, some valuable
databases comprise information that is not copyrightable because
it lies in the public domain; such databases might include those
compiled by Mead Data and by West Publishing for on-line legal
research.  The value of these databases lies in their order,
format, and arrangement, all of which is copyrightable subject
matter, even if the substance of the databases is not.  It is
not difficult to conceive of an off-shore service offering an
identical database in a nation that does not recognize copyright
protection for the arrangement of the data.  Database users in
the United States could access the off-shore database and
retrieve the information without violating copyright law: the
substantive data brought into the United States is not the
subject of a copyright, and the database -- which is the subject
of copyright -- lies outside U.S. jurisdiction.

      Analysis of copyright law also diverges from that of
patent law where, in contrast to the territorial focus of patent
law, copyright statutes tend to follow principles of
nationality.  Because of the Berne Treaty, much of U.S.
protection of a copyrighted work is dependent the nationality of
the author rather than on the location in which it was created. 
For example, section 104 of the copyright act provides that
unpublished works are subject to U.S. copyright protection
without regard to the nationality of the author, whereas
published works are protected only of certain nationality
criteria are met.  These criteria require that the work be
produced by a U.S. national, a foreign national from a country
with which the United States has signed a copyright treaty, or a
"stateless person."  Similarly, section 101 provides that an
unpublished work is a "Berne work" for purposes of the copyright
laws if one or more of the authors is a national of a Berne
treaty state.  Section 101 also provides the United States is
considered the country of origin of a work of all the authors
are nationals of the United States.

      However, the copyright law does partake of some aspects of
territoriality.  Under section 101, the United States is
considered the country of origin of a work if it is published
"in the United States."  Similarly, in order for a published
work to qualify as a Berne work under section 101, the work must
be published in a Berne treaty nation.  These distinctions are
important because at present, U.S. copyright laws impose
different obligations upon works originating in the United
States.  For works originating in the United States,
registration and deposit of the work with the copyright office
is required in order to obtain statutory damages and attorney's
fees in an infringement action.

      As with the patent law, the territorial aspects of
copyright law become aberrant in the face of the Internet's
remote access features.  The capabilities of the Internet allow
an author present within one jurisdiction to create a
copyrightable work, such as a computer program or data file,
within another jurisdiction, and to publish the work in yet
another jurisdiction.  The assumption built into the statutes,
that the author and her creation will be present at the same
physical location is no longer valid, and leaves the status of
such a work uncertain.

      The assumptions inherent in the copyright law with regard
to authorships seem absent with regard to publication, and with
good reason.  The author and the publisher of a work may be
physically distant even under established technologies. 
However, because of its electronic dissemination features, the
Internet introduces a different set of anomalies with regard to
publication.  The status of "publications" is critical in
copyright; among other reasons, the period of the copyright for
some works begins to run as of the date of publication, and the
ability of libraries and archives to reproduce a work depend
upon its publication status. (18)  Much as in the case of public
disclosure under patent law, copyright publication hinges upon
public availability.  However, copyright has long recognized
"limited publication," by which a work is disseminated to only a
select group of individuals for a restricted purpose.  The
various electronic fora on the Internet, such as bulletin
boards, listserv subscriptions, and USENET newsgroups vary
widely in their purposes and degree of public accessibility. 
Thus, some dissemination on the network will constitute
copyright "publication," but by no means all, and the details of
what constitutes publication on the network may take some time
to clarify. 

TRADE SECRECY

      An additional form of intellectual property protection
exists under the rubric of trade secrecy.  Trade secrecy
protects any type of information that is not generally known to
the competitors of the owner, and which by virtue of its
proprietary nature gives the owner a business advantage. (19) 
The trade secret need not be an actual secret; the owner need
only take reasonable steps to keep the information confidential. 
If the information is made publicly available, whether by the
owners purposeful disclosure, inadvertent disclosure, or
independent discovery by another, the information passes into
the public domain and trade secret protection is lost.  In some
instances, trade secrecy may offer an alternative to patent or
copyright protection of computer software, as for example in the
case of a computer operating system whose  source code is not
published or easily accessible for reverse engineering.

      The primary context in which trade secrecy is operative is
between competing businesses, where it offers legal protection
against industrial espionage and against disclosure of
proprietary information by a former employee to the competitor
of a the former employer.  It prevents competitors from "reaping
where they have not sown"; a business may not free ride off the
research investment of its competitor.  Consequently, reverse
engineering or independent discovery of a competitor's trade
secrets are not barred by trade secrecy, only practices that
appear to entail theft of information are prohibited.

      In a networked environment, the characterization of trade
secret infringement as "information theft" means that this type
of intellectual property protection is inextricably tied to the
broader question of computer crime.  Indeed, in many
jurisdictions, theft of trade secrets is penalized by criminal
sanctions.  Unfortunately, deterrence of computer crime is an
obdurate problem, especially in the international context.  Many
nations have no law of trade secrecy, or pay little attention to
enforcing the laws they have.  Additionally, even jurisdictions
with sophisticated trade secrecy laws may not yet have come to
grips with the concept that electronic property may be stolen;
these gaps in enforcement, coupled with the Internet's remote
access capability, may effectively create computer piracy
havens.  For example, computer hackers based in German territory
were able to break into U.S. computer sites with relative
impunity, because German law did not prohibit taking of U.S.
data. (20)

      These problems are by no means limited to illicit movement
of information across international borders.  Much the same
situation exists with regard to transborder flow within the
United States.  Trade secret law is state law, not federal law,
and so varies between states.  Many jurisdictions have enacted
computer crime statutes that penalize the most blatant type of
trade secret theft: breaking into a computer from outside in
order to remove valuable information.  However, trade secrecy
violations tend to emerge from inside, rather than outside
businesses, as in the celebrated case of the "nuPrometheans": 
certain disgruntled engineers at Apple Computer Corporation,
calling themselves the "nuPrometheans" took it upon themselves
to make the Apple MacIntosh computer's proprietary operating
software freely available to a variety of parties.  Apple was
fortunate to be able to retrieve all the distributed copies
before they became publicly available and trade secrecy in the
software lost.

      In such instances, the applicability of the state computer
crime statute will depend on how "authorization" has been
defined -- the employee may have authorized access for an
unauthorized purpose.  In addition, the presence of a "property"
interest in the stolen information will depend upon the
particular state's definition of trade secrecy.  This lack of
uniformity generates enormous difficulty in determining not only
what constitutes protected information, but also the type and
the level of protection the information will receive.  For
example, the definition of trade secrecy in the Restatement of
Torts, a definition adopted by many states, requires that the
secret be actively used in the holder's business; the definition
found in the Uniform Trade Secrets Act, a definition adopted by
many other states, imposes no such requirements. (21)

      Some federal statutes, such as the National Stolen
Property Act, penalize theft and transport of property across
state lines; it might be expected that these laws could be
applied to electronic theft as well as physical theft.  Such
application of these laws appears problematic, however. (22) 
The Stolen Property Act, for example, criminalizes the transport
of stolen "goods" in interstate commerce, but it is unclear
whether Congress contemplated electronic transmission of trade
secrets within the meaning of "goods" under the statute.  The
ephemeral nature of such trade secrets has been particularly
vexing in this regard.  Where trade secrets such as a secret
chemical formula are stolen in documentary form, courts have not
hesitated to apply the Stolen Property Act. (23)  Similarly, at
least one court has applied the Act in a case where proprietary
information was removed from a computer via unauthorized access,
and the information was posted on a computer bulletin board in
another state. (24)  More recently however, when a former
employee stole computer source code, the software was held not
to be a "good" under the Act, because of its intangible nature.
(25)  Consequently, no uniform protection of trade secrets is
presently available even within the United States. 

INDICATIONS

     Traditionally under international law, nations have
asserted sovereignty based upon the territory that they could
control.  The advance of electronic communications has begun to
change this basis for sovereignty, and the Internet has
accelerated the change.  The legal conundrums reviewed here
suggest that, rather than sovereignty based on territory,
sovereignty based on information flow or economic spheres of
influence will be the norm in cyberspace.  This shift will
require a reevaluation of present legal doctrines.  Clearly, the
present U.S. intellectual property provisions, when stretched to
fit this new jurisdictional terrain, display significant gaps in
their coverage.

      One approach might be to acknowledge the inexorable
erosion of territory- based sovereignty, and draft statutes that
operate without regard to political borders.  For example,
actions rather than location might form the basis for asserting
jurisdiction.  A statute based on this approach would
effectively extend the force of United States law to electronic
actions that affect U.S. interests, regardless of the physical
situs of the actor.  Some precedent for this exists in
international law, where the doctrines of protective
jurisdiction and passive personality jurisdiction serve as the
bases for jurisdiction over foreign nationals whose actions
adversely affect the interests of a nation or its citizens. (26) 
    However, such bases for asserting jurisdiction have been
controversial, and are likely to be even more so in the
uncertain arena of computer networking.  Any statute that
extends United States jurisdiction without reference to
political boundaries will be seen as a violation of those
boundaries, and as an affront to other nation's territorial
sovereignty.  Electronic data exchange may be eroding political
borders, but it has not yet abolished them.  It is unlikely that
the world is ready to accept the inevitable, and statutes based
on non-territorial sovereignty are likely premature.

      The alternative is, for the present, to fix the existing
territorial statutes piecemeal as new problems are identified. 
Courts can handle much of the load; where uncertainty as to the
application of a legal doctrine rests upon factual questions,
judicial interpretation should serve to accommodate the
idiosyncracies of cyberspace.  For example, case by case
delineation of the electronic actions that constitute
"publications" for copyright purposes, or "disclosure" for
patent purposes, is a task well suited to the judiciary.

      In other instances, particularly those involving remote
access, truly novel problems may be presented, and these will
require broader policy decisions.  In such cases, statutes will
likely require amendment to plug their holes.  Thus,
Congressional reconsideration of terms such as "use" under the
patent statutes, or "goods" under the National Stolen Property
Act would seem to be in order.  Some new enactments would also
seem to be in order; for example, it may be advisable for
Congress to enact the Uniform Trade Secrets Act for application
to electronic interstate commerce.  Such piecemeal provisions
should be sufficient to shore up the legal structure until a
more permanent solution is possible. 

================================================================

NOTES

1)  See Nicholas P. Miller & Carol S. Blumenthal, Intellectual
Property Issues in Toward a Law of Global Communications
Networks 227, 228 (Anne W. Branscomb ed., 1986).

2)  35 U.S.C. sec. 271(a) (1988).

3)  35 U.S.C. sec. 101 (1988).

4)  See Diamond v. Diehr, 450 U.S. 175 (1985).

5)  See 35 U.S.C. secs. 101-03 (1988).

6)  35 U.S.C. sec. 100(c) (1988).

7)  Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972).

8)  See Dan L. Burk, Patents in Cyberspace: Territoriality and
Infringement on Global Computer Networks, 68 Tulane L. Rev. 1
(1993). 

9)  See Decca Ltd. v. United States, 544 F.2d 1070 (Ct. Cl.
1976).

10) 35 U.S.C. sec. 271(g) (1988).

11) 35 U.S.C. sec. 104 (1988).

12) 35 U.S.C. sec. 102(a) (1988).

13) 35 U.S.C. sec. 102(b) (1988).

14) Id.

15) 17 U.S.C. sec. 103 (1988).

16) See Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340 (1991).

17) See Ithiel de Sola Pool & Richard Jay Solomon, Intellectual
Property and Transborder Data Flows, 16 Stan. J. Int'l L. 113,
124-25 (1980).

18) See 1 Raymond Nimmer, Nimmer on Copyright sec. 4.01[A]
(1989).

19) See Restatement of Torts sec. 757, cmt. a (1939).

20) See Anne Wells Branscomb, Jurisdictional Quandaries for
Global Computer Networks in Global Networks: Computers and
International Communication 84, 92 (Linda M. Harasim ed., 1993).

21) See Uniform Trade Secrets Act, commentary to sec. 1, 14
U.L.A. 433 (1985).

22) See Seth Greenstein, Is Software "Goods"?  Intangibility
Revisited Under the UCC and the National Stolen Property Act, 8
Comp. Lawyer 30 (1991).

23) See United States v. Greenwald, 479 F.2d 320 (6th Cir.
1973).

24) United States v. Riggs, 739 F. Supp 414 (N.D. Ill. 1990). 

25) United States v. Brown, 925 F.2d 1301 (10th Cir. 1991).

26)  See Dan L. Burk, Application of United States Patent Law to
Commercial Activity in Outer Space, 6 Santa Clara Comp. & High
Tech. L.J. 295, 316-17 (1991).



------------------------------

End of INTELLEC Digest 22
*************************

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			    INTELLEC Digest 23

Topics covered in this issue include:

  1) Reply to Rothman / Teacher stuff
	by BBracey@aol.com
  2) 
	by CarlPers@ix.netcom.com (Carl Person)
  3) Fwd: MISC> NTIA virtual conference on IH (fwd)
	by CarlPers@ix.netcom.com (Carl Person)

----------------------------------------------------------------------

Date: Thu, 17 Nov 1994 23:58:09 -0500
From: BBracey@aol.com
To: rothman@clark.net
Cc: intellec@virtconf.ntia.doc.gov, TomMandel@aol.com, DThornburg@aol.com
Subject: Reply to Rothman / Teacher stuff
Message-ID: <941117221321_1875565@aol.com>

David,

I have taken the liberty of cross posting the 35 letters you have sent me in
the time we have been corresponding about the NII. I have spent a great deal
of time writing to you as  a part of outreach for the NII.  

I forgot to save the blatant descriptions you wrote about electronic
commerce. CoSn asked you to refrain from posting them on the discussion list
and I did not save any of them.
But if necessary, people on the list will witness that there was a very long
harangue about the NII selling out to the post office.

First, let me assure you that picking  on a school teacher is not going to
get your telereader sold. My interest is in transforming education so that
all teachers who are involved are able to use technology in a way that is
different than just 
putting it in a classroom..I am sorry that you are angry because I am not
interested in your telereader. It's the process of transforming education
that I am interested in.  

The transformation of the culture of teaching, as evidenced by the NIST
document is what will help move us into the 21st century. We are convening a
" thinktank " to create principals and ways to move on the ideas that we are
trying to make a part of every citizen's future. 

I tried to share with you the NIST documents so that you would not think  or
say that the VIce President had sold out little kids for the postoffice. YOu
need to read the documents from NIST and I did forward them to you since you
said you did not have time to access them. I can also send you the booklets.
THere is a bigger picture here.

I know electronic commerce is a part of the other Mega PRoject. If I have
time, I will send you any of the information, but I am not in the least
interested in the telereader , and I don't have any money after trying to do
this job to invest anyway.

Secondly, I have been awarded prizes, and when I was not a member of the
NIIAC , I collected more than 39 grants and technology for kids, sadly, I
also paid for software, and the
online services so that I could use it. 

Now I am not eligible for any of those types of prizes.
I had two Macintoshes, one IBM high level, the cost of the on
line for Prodigy and for AOL, and you have my permission to check with them
to see how much I paid to let kids have the experience of using online
services. My school system thought it was a noble effort . I am sorry that
you belittle my efforts.
I could have been on a beach, or in a swank hotel. Instead, I did without
airconditioning, a new car, new clothes and I have parents who will attest to
the time, effort, and ways in which I gave my time to be with kids, special
education students , esl students, regular students, all kinds, all colors,
all classes. I have given this year to teachers. The USA is my classroom and
I work to learn what teachers need. 

 Think of it out of a single,  teacher 's pocket. Lotta bucks. 
I am not 22 and starting . I am the teacher everyone says would not be
interested. I am not sure what your purpose is in talking about me or trying
to cause trouble but if you want a fight, you will get one.That is why I was
awarded honors. Someone recognized my efforts. 

But most teachers do not get rewarded . I was lucky, so I effort to get other
teachers technology without their having to go through deprivation, and
worrying about bill collection.
I speak for those who have no voice, or who cannot because of political
situations. 

I finally was rewarded after five years of contributing to the 
use of technology. I am sure that you and anyone else
reading this post would be aware that the costs don't match the outlay. I
applaud the Vice President's vision, I think that they are in touch with
technology, and I was proud to be a teacher of a 4/5 th grade that understood
the electoral college, from the Prodigy League of Women Voters, information,
from AOL, from the Internet, and from the use of Tom Snyder's  One computer
classroom project " Decisions, decisions."

I loved it when my kids created TIme magazines of the future that were
awesome. But I was traveling and did not have money to mail then to Time but
they were fantastic. The kids had been reading online on TIME for kids so
they created a version of their own.

I liked it when the kids when studying Jason, downlink and telepresence, ate
their way through half the grocery store,( those mangoes, pineapple,
sugarcane sticks, and jackfruit, papayas got a little expensive, but they
were not as expensive as the orchids, and exotic plants, would have been if
my mother did not own a flower shop. I did purchase " Amazon Trail" Coral
Reef Software, and we took a trip to caves to study Karst topography, here in
Virginia to contrast and 
draw pictures of so that when we saw it with Bob Ballard
we would be experts.. and I did treat them, I sent for samples of coral from
the Smithsonian( borrowed) AAWWWW! and I sent for samples, oops bought karst
rocks to test, and we
studied all types of neotropical rainforests. It was great. The only problem
we had was that it snowed on the day we were to go to the field trip . I
loved it when they called on a snowday to beg me to go anyway. ( Like I had a
bus!!) But I did arrange for them to go on another day , and we also went to
Amazonia that day. It was the kind of technology experience that lead to this
. When the Japanese delegation visited my classroom,students shared poetry,
drawings, and booklets they had made BECAUSE they were interested. They were
constructing knowledge.  We used AOL, Learning LInks, and the Internet to
reach out to others to learn more. and .... GTV... we especially loved the "
Basilik Lizard..it runs across the water.  and we know how... we also loved
the math ... how much of a forest does a "leaf cutter ant consume... it was
great fun.
The children loved learning. That's awesome transparent technology usage.
Bonnie Bracey
Private citizen being harassed.

  Of course as a member of the NIIAC, I cannot accept anything without
clarification, and permission of the NIIAC. Members of the list will tell
you, that since I was not sure of the rules, I was off the list for the weeks
that I was at 
Berkeley, which I also paid for out of pocket , as we school teachers do to
get training.  I could also tell you that I spent
about $900.00 to be able to work with kids in astronomybuying lenses,
cameras, and giving up the summers , but then I always do that. Teachers who
care, care. What do you care!

Businesses, like NGS, and Apple, and Silicon Graphics are what makes this
economy work, and one thing that we do well in the US is to demonstrate
technology. The 12 teachers, two of whom worked on Indian reservations where
there was not any technology were glad that Apple lent us the computer so
that we could do astronomy when the fog rolled in. We also tried a beta copy
of a Microsoft program entitled space simulator.
Perhaps you do not know that in the world of education in technology, we do
try out materials and programs to see if they fit. So we are lent many things
in the schools so that
we can tell if they are a proper fit. We usually get to keep them about a
month. So what is the problem here?You don't have to be a council member, you
only have to be a teacher
with access to the ear of the person with the funds. I know I did a good job.
I got an A and that was in Astrophysics from Berkeley. Not only that my peers
and I had a heck of a good time learning from each other .Cary Sneider did a
wonderful job of letting us learn from each other using every learning style
and we decided our own technology.

A little learning is a dangerous thing. If I were you, I would accord the
respect that is due me. I have tried to help you .
I cannot engage in endless discussions. I don't have the time.
Perhaps others would care to debate you. Perhaps others have endless time.

Bonnie Bracey
( Private Citizen) being harassed 

------------------------------

Date: Thu, 17 Nov 1994 23:00:50 -0800
From: CarlPers@ix.netcom.com (Carl Person)
To: intellec@virtconf.ntia.doc.gov
Message-ID: <199411180700.XAA05440@ix.ix.netcom.com>

subscribe intellectual property Carl E. Person

-- 
Carl E. Person, intellectual property attorney,
325 W 45 St  NY NY 10036; tel: 212-307-4444;
fax 212-307-0247. "waiting to communicate
with persons having or seeking new ideas".

------------------------------

Date: Thu, 17 Nov 1994 23:09:44 -0800
From: CarlPers@ix.netcom.com (Carl Person)
To: intellec@virtconf.ntia.doc.gov
Subject: Fwd: MISC> NTIA virtual conference on IH (fwd)
Message-ID: <199411180709.XAA06598@ix.ix.netcom.com>

 
> ****************************************************************
> 
>                                           REGISTRATION FORM
> 
> 
>         Contact Name:  Carl E. Person
> ________________________________________________
> 
>         Organization: Law Offices of Carl E. Person
> ________________________________________________
> 
>         Address:  325 w. 45th St. - Suite 201
> ________________________________________________
> 
>         City:  New York
> ________________________________________________
>       State, Zip:  NY  10036-3803
> ________________________________________________
> 
>         Phone & Fax: tel: 212-307-4444   fax: 212-307-0247
> ________________________________________________
> 
>         E-mail Address:  carlpers@ix.netcom.com


-- 
Carl E. Person, intellectual property attorney,
325 W 45 St  NY NY 10036; tel: 212-307-4444;
fax 212-307-0247. "waiting to communicate
with persons having or seeking new ideas".

------------------------------

End of INTELLEC Digest 23
*************************

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			    INTELLEC Digest 24

Topics covered in this issue include:

  1) Re: Reply to Rothman / Teacher stuff [NIIAC member turns flamer]
	by rothman@clark.net (David H. Rothman)

----------------------------------------------------------------------

Date: Fri, 18 Nov 1994 10:25:17 -0500
From: rothman@clark.net (David H. Rothman)
To: BBracey@aol.com
Cc: intellec@virtconf.ntia.doc.gov, TomMandel@aol.com, DThornburg@aol.com
Subject: Re: Reply to Rothman / Teacher stuff [NIIAC member turns flamer]
Message-ID: <199411181525.KAA00499@clark.net>

     Bonnie, I'd hope you could write more creative flames--you're a great
teacher and an inept polemicist. Let's cut to the libel first.

>I know electronic commerce is a part of the other Mega PRoject. If I have
time, I will send you any of the information, but I am not in the least
>interested in the telereader , and I don't have any money after trying to do
>this job to invest anyway.

     TeleRead is a proposal for a government program. I am not selling
anything but an idea. I'm a writer, not a hardware vendor seeking investors
in the sleazy way you allege. To suggest otherwise is libel, although, being
a First Amendment zealot, I'm not gonna to sue. I would appreciate an
immediate apology, however, along with one for your crossposting my 35
letters--without my permission. Bad netiquette. You flunk that in
department. I fervently hope you crossposted your own letters, too, so
people can see how weak your reasoning is. Ideally, when you teach children
how to use the Internet, you'll be a better netiquette example. We all goof,
but this takes the cake. Does the crosspost mean that no letter to you from
a citizen will be regarded as confidential? I'd probably have granted
permission anyway with the simple request that I be allowed to answer
immediately. At any rate, as used as you are to dealing with White
House-approved greedsters whose business plans may prevail over the
commonweal, let me assure you I'm not in the hardware business. 
     What's more, contrary to an earlier accusation that you e-mailed, I'm
not even a Republican. Can't ever recall voting for one, just Democratic
gobblers like Bill and Al. In fact, I'm one of the few liberals to be found
nowadays within spitting distance of the Potomac. I haven't wimped out like
your losers. Of course, Bill Buckley loves TeleRead because of its emphasis
on literacy and cost-justification--he wrote an enthuiastic column about it
in May 1993 ("The TeleReader in Your Future"). Newt might very well
appreciate TeleRead's home-oriented approach. It would allow children to
spend more time with computers in the presence of their families rather than
in school labs, though they would have that option, too.
     For bystanders, let me explain that TeleRead is the subject of my
chapter in a forthcoming information science collection from MIT Press and
the American Society for Information Science. The views in the chapter, of
course, are my own and not necessarily any organization's. I call for:
     --A focused, long-range procurement program--carefully phased in--to
buy small, affordable, sharp-screened compters for schools and libraries to
lend out. Such tablet-style machines would be ideal for ebooks, WWW-style
wanderings, K-12 networking, academic work at any level, research, certain
kinds of small business, you name it (detachable keyboards would be
available to for applications requiring them). Present laptops are rotten
for text. Technology is destiny, and Washington has a duty to promote
reading and writing and the other basics--along with the overall spread of
knowledge. 
     Standards could be flexible to accommodate a variety of vendors.
TeleRead would be to text-friendly hardware what the Net is to networks:
Many vendors could participate and offer different operating systems. I hate
the one-box-fits all philosophy of Minitel. 
     With enough of a market for the hardware, Silicon Valley would put
affordable etext-friendly machines on a faster R&D track. They could
eventually sell for the price of calculators. It'll happen anyway, but under
TeleRead, would occur much faster--offering millions of children an enticing
alternative to television. Don't say, "Oh, the kids will just read off TV."
They want computers they can curl up with; so do many adults, some of whom
would rather not read off desktop computers, either, after spending eight
hours sitting at their employers' desks. TeleReaders themselves might
eventually serve as spare TVs and vice versa (even if the screen ratios
ween't the best). 
     But for the moment we need to concentrate on the most affordable kind
of literacy-promoting technology that would encourage both children and
adults to read. Children, as you know, learn by example--one reason why
TeleRead is more than just a child-oriented approach. 
     --A universally affordable national digital library with fair
compensation for writers and publishers. What's so wicked about that,
Bonnie? Al Gore himself says he wants his little neighbor-girl in Tennesse
to be able to dial up the Library of Congress from home without worry over
Daddy's income. What will she itch to read, Bonnie? Al's collected speeches?
No, she is going to want to read not only public-domain material but also
copyrighted commercial ebooks. Remember, literacy experts say children learn
to read best when they're reading books on their favorite subjects; will the
Department of Education give us comics or books about the Simpsons? And how
about the little girl's father if he's retraining for high-tech work? Will
Washington be the source of the best tips on Windows96 or whatever it's up
to by then? Remember, some of the best learning takes place outside school.
TeleRead is an efficient, market-driven way to spread such material around
while offering fair compensation to writers and publishers. 
     Do you want children to grow up accustomed to public domain dreck
commissioned by Washington, or do we want a true public library system on
line, which TeleRead is? Rather than our simply relying on Clinton-Gore's
bureaucrats to tell us what to read, thousands of local, university and
research librarians would participate in book selection. Publishers could
even bypass librarians by gambling money up front. In addition, they could
publish books on paper. Even bookstores could participate. TeleRead would
let them (and CompuServe-type networks--which could add value through
conferences and hyptertext links) use the material for free or at little
cost. So bookstores and even copy shops could sell books on demand; to the
writers and publishers, a dialup fee would be a dialup fee. 
     Popular-level authors could be paid according to dialup accounts, with
a super distribution-style approach used to spread the material around and
track usage. After a certain number of dialups, readers would have to report
past use to retrieve more material; and needless to say, there would be
elaborate privacy protection--more so than public libraries offer today. The
most worried readers could even use old-fashioned greenbacks on vending
machines to restock their memory cards. 
     TeleRead couldn't be more of a contrast to the Green Paper, whose main
perp, Bruce Lehman, is either moronic or impatient for the golden Door to
Revolve. Here's a man who says Americans might not even be able to dial up
copyrighted electronic library books from home. You can bet that publishers
weren't comatose when those words came from the intellectual property czar
of the Clinton adminstration. TeleReader's philosophy is different;
schoolchildren could even use infrared devices to share books. Unlike Mr.
Green Paper's plan, TeleRead wouldn't aggressively punish honest children
for obeying the law and reward cheats who illicitly copied e-books. 
     A word about newspapers, magazines and the like: TeleRead would not pay
for fresh material (here's to the glories of advertising and subscriptions!)
but would let Americans dial up old issues of major publications for free,
with fair payment from the program to publishers and independent writers.
There might even be ways for old material to display nonintrusive and
current ads, further enriching publishers while letting the children roam at
will through valuable electronic libraries. Space precludes me from giving
further details here. If, however, we remember that the main function of
copyright law is to spread knowledge, then TeleRead wins handily over the
Green Paper. 
     What's more, with a well-integrated program, there could even be
provisions for protecting our intellectual property abroad. We'd help other
countries develop their e-libraries in return for adherence to IP standards,
with technical protections and provisions galore for international
enforcement and sanctions against violators. An Electronic Peace Corps
program, offering technical assistance from afar and improving Third World
electronic infrastructure onsite, might also help--a recent OTA report
alludes to my EPC proposal, which I originated some years ago.
     --Cost-justification. Bonnie, the true cost of government isn't just in
taxes. It's also in time and money devoted paperwork, and TeleReaders, with
pen interfaces, would be ideal for smart forms for government and commerce.
Consider the financial implications. We've got a $6-trillion-plus GDP. Lower
the cost of bureaucracy just a little and we've shifted billions from
paperwork to knowledge. You could fill out IRS forms in much, much less time
if the software led you along step by step and maybe even read instructions
aloud. IRS employees would waste fewer hours catching mistakes of honest
taxpayers and spend more time on true tax evaders. People at IRS have
already worked to automate their duties, and TeleRead would accelerate this
progress while leaving as much control as possible in the hands of
taxpayers--rather than Uncle mailing out little slips saying, "We removed
$3,000 from your VISA account today." Imagine, too, the potential for
healthcare plans, government or private; how much more easily everyone could
keep track of the paperwork there. 
     Moreover, the electronic forms for various applications could come not
only from the feds but also from private companies that, needless to say,
could often do so much better a job. Presto, a much-enlarged
industry--building on the fine work that Intuit-style companies have done,
and vastly increasing their markets. But Bonnie, you've never taken time to
fathom such possibilities. Instead you've shot off cliche-clogged letters
saying that schools can't afford hardware, that parents are misers, and so
on. Again and again I've tried to explain this to you, but you won't listen,
either because you're clueless or I'm not Al Gore. You think just in terms
of charity for the schools. I, on the other hand, am applying the same
practical logic found in so many companies today: multiple apps together
make so much more sense than single applications do. Spread the hardware
around and the market for ebooks and e-forms will take off, shifting
resources from paperwork to ebooks, educational software, and other goodies.
But of course, as I've pointed out to this list earlier, bureaucracy is what
Washington is all about. Since government employees dominate the IITF, I
guess I shouldn't expect that much--and certainly not from the NIIAC
oligarchs. What's really bizarre, Bonnie, is your inconsistency. On one
hand, you say, "The schools can't afford the hardware." And then when I
propose an entrepreneurial approach with opportunties for many companies,
you smear me with an accusation that TeleRead is a my plan to make a mint
off hardware. Can't you be more imaginative? Such a prosaic lie is boring.
*Please*. Limit yourself to teaching science, not ethics or polemics.

>I have taken the liberty of cross posting the 35 letters you have sent me in
>the time we have been corresponding about the NII. I have spent a great deal
>of time writing to you as  a part of outreach for the NII. 

     Bonnie, I've almost given up on the Clinton-Gore's NII oligarchy, which
is why your insults are so liberating. We can flame away at each other now
within the limits of our busy schedules. And after the White House and
Lehman create an information crisis--at around the same time Washington was
supposed to be solving our healthcare crisis--people will know that you were
one of the misfeasors. If nothing else, you're making a little history here.
Never before, I suspect, has an NIIAC member been so aggressively and
publicly hostile toward a private citizen. I must be doing something right.
     In a David-to-Bonnie e-mail sent just to you, I suggested you cool off.
Maybe it didn't reach you before you fired up your official flame thrower.
You know, of course, that hundreds and maybe thousands of people will read
these posts, including media. Like it or not, you're online as a
representative of the NIIAC, and yet you're smearing a private citizen. I
haven't been shy about expresing my great hatred for the Green Paper. But
I've stuck to the facts. Oh, well, it's wonderful to see the naked NII
process at work, bereft of the usual bureaucratic mush. Did any NII-related
people put you up to this? Who by name and title? Or is this Bonnie flaming
away on her own without any prompting? Either way, I'm touched by the attention.

>I forgot to save the blatant descriptions you wrote about electronic
>commerce. CoSn asked you to refrain from posting them on the discussion list
>and I did not save any of them.

     Interesting. On one hand you're falsely accusing of hatching TeleRead
as a business plan to enrich myself. On the other you are implying that I
don't want electronic commerce. Goodness knows, NIIAC members like Vance
Opperman are trying to tilt the NII toward their personal interests at the
expense of the public in some cases. But last I knew, I didn't own a
hardware company of any kind. I won't comment too much more on the above lie
from you without seeing the original posts. I will plead guilty to saying
that the NII should not just be a tool of the home shopping and the
entertainment interests. But I'm hardly anti-business, just pro-children. In
fact, TeleRead could *help* home shopping. People could use the penstyle
interface to respond in detail to advertisements, either on computer nets or
on TV. What's more, TeleReaders could be used for sophisticated programming
of big screen HDTV's--and for interactive educational programing. In fact,
someone with PBS asked me for permission to print one of my CoSN postings.
     As for CoSN, not only have I played by the rules, Ferdi Serim even
posted a (now-out-of-date) version of TeleRead on its Gopher. TeleRead could
do wonders for K-12 networking, the reason for CoSN's existence. I am a CoSN
member. If you're one, you embarrass us all.

>But if necessary, people on the list will witness that there was a very long
>harangue about the NII selling out to the post office.

     Guilty as charged. What a loser, that idea. Go over to publib and
you'll see that the librarians are up in arms, and understandably. What's
the best environment for imparting knowledge--a library or a post office? I
smell bureaucrat-protection at work here. As some have speculated, could the
Postal Service be trying to sneak its nose under the e-mail tent? Officials
actually are talking about people using the Service for authentication of
e-mail or something along those lines. Shudder. This is from the
privacy-loving administration that tried to inflict Clipper on us. But to
address the big issues:
     1. I've got a great postman, but he's busy enough just trying to
deliver the mail, and I'm sure his pals back at the PO have enough on their
hands. Librarians are overworked too. But at least knowledge is what their
jobs are all about. They're better training prospects than already-harried
clerks worried about getting the mail out.
     2. We go back to the question of Official Information vs.
citizen-to-citizen material. I'm concerned that under the PO approach, the
broadcast model would be used. Bill, Al, Mrs. C, Tipper, Socks, and
Washington bureaucrats would be the main attractions. I want more
citizen-to-citizen communications. I'm delighted to see the White House
server on the Web, but we citizens need information from many sources, not
just the feds. The propaganda opportunites would just too tempting if the
broadcast model prevailed. 
     Instead I want people to be able to call up information from a number
of sources on the Net. Yes, they could hear Socks meow. But they could also
swap messages with others, and explore the Net more easily (and perhaps with
more leisure) than they could in a crowded, noisy PO lobby. 
     Of course the real goal should be to work toward the time when all
American families can afford text-friendly computers that their children can
use at home. Not that libraries should vanish. They'll remain places for
training and support--much better than post offices; just as important,
libraries serve as meeting places and help hold neighborhoods together with
meeting rooms for civic activists. 
     I realize that after the original PO-oriented statement, the White
House hastened to add that libraries could get the federal information too.
But we know which agency is setting the tone. The fount of all knowledge,
the Postal Service. Again, I appreciate my postman, but I do worry a mite
about management. Isn't the Postal Service the outfit whose workers are
driven at time to mass murder? Oh, I suppose we can bullet-proof the
information kiosks.
     3. Library hours are better suited for schoolchildren. Heck, Bonnie,
you, of all people, ought to know that. I'm all in favor of POs and other
institutions being used in neighborhoods without libraries, but really,
shouldn't we go where the main action is? *Thank you*, however, for your
comments. You've revealed your colors as an apologist for the Clinton White
House. Good people can disagree with me. But your vehemence shows you're
paying too much attention to FOBs and not enough to the us taxpayers, even
though, again, I realize you mean well.

>First, let me assure you that picking  on a school teacher is not going to
>get your telereader sold.

     Yawn. The commercialism smear again?
     About the word "schoolteacher": Yes, I'm sure you know your way around
the classroom, and I've admired the tenacity you've shown against your
clueless principal. I know you're dedicated. And I know you've watched out
for your children again and again. That's not the issue here. The issue is
whether you'll successfully watch out for millions of other
schoolchildren--in your role on an official NII committee. I repeat. You are
no longer just a private citizen in this context. You're a Clinton-Gore
outreach worker. As shown by your smear against me *and* your gungho defense
of the anti-library PO plan, you can be a terrific heelclicker when you want.

 My interest is in transforming education so that
>all teachers who are involved are able to use technology in a way that is
>different than just >putting it in a classroom..

     Then you ought to be interested in a home- and family-friendly approach
like TeleRead, which, however, would also allow use in the classroom and
library. Or are you talking about the need for training of teachers to
absorb the technology without neglecting their many other goals? I couldn't
agree more. I see TeleReaders being used not so much for "computer literacy"
as to help students learn geography (by corresponding with kids abroad,
maybe) or writing (K-12 networking is a proven winner) or math (obvious).
Besides, if TeleRead's e-forms reduce the paperwork and mean more time for
students, then so much the better.

>I am sorry that you are angry because I am not
>interested in your telereader. It's the process of transforming education
>that I am interested in.  

     Bonnie, Bonnie, how obtuse can you be? I've told how TeleRead could
bring to millions of kids the benefits that the lucky children in your
classes are enjoying--not all but many. TeleRead couldn't turn a bad teacher
into a good one. But ability of teachers to use TeleReaders at home would
help. No longer would they spend so much time in the evening on paperwork;
the receptive could better familiarize themselves with the goodies on the
Net and relate the material to the content they taught. Again, TeleRead
wouldn't be a panacea, just a rather powerful tool.

>The transformation of the culture of teaching, as evidenced by the NIST
>document is what will help move us into the 21st century. We are convening a
>" thinktank " to create principals and ways to move on the ideas that we are
>trying to make a part of every citizen's future. 

     "We are convening..." Spoken like a true bureaucrat. My, you love
official meetings. I apologize for so rudely interrupting your
organizational routine with a proposal from an unofficial source. It'll be a
chapter in an MIT Press book and has been discussed in a syndicated column
and also been the topic of my articles in the Washington Post ed review, the
Baltimore Sun and Computerworld (in earlier incarnations!); but of course
you haven't got time. Bonnie, please. If you won't bother to understand an
idea with those credentials, what about feedback from citizens without my
media appearances? Writing the same "I care" cliches 30 or 40 times in
response ain't gonna get you off the hook.

>I tried to share with you the NIST documents so that you would not think  or
>say that the VIce President had sold out little kids for the postoffice. YOu
>need to read the documents from NIST and I did forward them to you since you
>said you did not have time to access them. I can also send you the booklets.
>THere is a bigger picture here.

     Bonnie, that's the problem. Looking over NIST stuff online, I see that
Washington lacks a really coherent strategy in the areas of interest to me.
After a stretch, all NII documents blur. But I can tell you what isn't
there--the level of integration that I propose via TeleRead in the relevant
areas. At some point you yourself alluded to the big picture and said the
NII was more than schools or libraries or whatever. That's exactly the
issue. I've told how to mix education and commerce in a way that preserves
academic values and increases opportunities for rich and poor alike.
     Speaking of documents, Bonnie, I hope that the summary from the October
NIIAC meeting are now available online so people in this conference can tear
apart the Lehmanesque logic.
     A URL, please?
     In another post, you ordered me to read a document that wasn't even
online yet.
     Also speaking of papers, how come we Netfolks see only the summaries of
NIIAC meetings, not full transcripts? Do you see full scripts? If not, maybe
you should insist on them so you can do your jobs better? If so, share 'em!
    

>I know electronic commerce is a part of the other Mega PRoject. If I have
>time, I will send you any of the information, but I am not in the least
>interested in the telereader , and I don't have any money after trying to do
>this job to invest anyway.

     Already addressed. An apology, please.

>
>Secondly, I have been awarded prizes, and when I was not a member of the
>NIIAC , I collected more than 39 grants and technology for kids, sadly, I
>also paid for software, and the online services so that I could use it. 
>

     Bonnie, why the devil should you have to pay? I'm delighted, for the
sake of the children, that you did use the software and the rest. But now we
need a cost-justified program to make the same benefits available to less
fortunate students and to show more kindness toward your wallet. TeleRead would.
     
>Now I am not eligible for any of those types of prizes.
>I had two Macintoshes, one IBM high level, the cost of the on
>line for Prodigy and for AOL, and you have my permission to check with them
>to see how much I paid to let kids have the experience of using online
>services. My school system thought it was a noble effort . I am sorry that
>you belittle my efforts.

     Again, Bonnie, you should be proud, proud, proud of your individual
efforts. Now we've got to spread the hardware (and net connections) to other
teachers, other children, without their having to  exert as much effort as
you did. Better that this effort go into teaching. Under TeleRead even you
could benefit with the basics out of the way--the hardware, the software,
the connections, and the content.

>I could have been on a beach, or in a swank hotel. Instead, I did without
>airconditioning, a new car, new clothes and I have parents who will attest to
>the time, effort, and ways in which I gave my time to be with kids, special
>education students , esl students, regular students, all kinds, all colors,
>all classes. I have given this year to teachers. The USA is my classroom and
>I work to learn what teachers need. 

     Then please fight harder for the computers and the rest.
     You can start by spending less time flaming me and more time advocating
truly creative solutions. The real irony, Bonnie, is that you complained
that much of your feedback was from negative people without suggestions. Put
down that flame-thrower a moment and think about it.

> Think of it out of a single,  teacher 's pocket. Lotta bucks. 
>I am not 22 and starting . I am the teacher everyone says would not be
>interested. I am not sure what your purpose is in talking about me or trying
>to cause trouble but if you want a fight, you will get one.That is why I was
>awarded honors. Someone recognized my efforts. 

     I guess you're recognizing mine ;-). 
     Needless to say, I doubt that any ethical teachers group will honor you
for smearing me and for opposing my efforts on behalf of an online library
for rich and poor.

>But most teachers do not get rewarded . I was lucky, so I effort to get other
>teachers technology without their having to go through deprivation, and
>worrying about bill collection.
>I speak for those who have no voice, or who cannot because of political
>situations. 

     Then how about working for a well-stocked national public library
online that could serve rich and poor areas alike? Under the present NII
plans, will kids in Watts be able to dial up as many ebooks as those in
Bethesda? Do we really want to replicate online the "savage inequalities" of
today's schools and libraries?
     The new technology offers economies of scale that could benefit rich
and poor alike so that children everywhere could choose from many more books.
     Again, Bonnie, please remember the basics. Kids learn to love books
more when they're reading material that interests them the most.

>I finally was rewarded after five years of contributing to the 
>use of technology. I am sure that you and anyone else
>reading this post would be aware that the costs don't match the outlay. I
>applaud the Vice President's vision, I think that they are in touch with
>technology, and I was proud to be a teacher of a 4/5 th grade that understood
>the electoral college, from the Prodigy League of Women Voters, information,
>from AOL, from the Internet, and from the use of Tom Snyder's  One computer
>classroom project " Decisions, decisions."

     Well, no one will accuse you of lack of self-esteem. The issue here
isn't your teaching skills or your dedication to the kids in your classroom.
Acknowledged. But you've been unrelentingly obtuse about alternatives to the
present direction of the NII.

>cameras, and giving up the summers , but then I always do that. Teachers who
>care, care. What do you care!

     You, of course, own the verb. ;-)

>Businesses, like NGS, and Apple, and Silicon Graphics are what makes this
>economy work, and one thing that we do well in the US is to demonstrate
>technology. The 12 teachers, two of whom worked on Indian reservations where
>there was not any technology were glad that Apple lent us the computer so
>that we could do astronomy when the fog rolled in.

     There you go again. You're acting as if teachers everywhere can
recreate her own experiences. Ask Apple how much equipment it gives away or
even loans compared to the number of requests that pour in. Charity is
great. But the charity model isn't enough.]
     Bonnie, you're a lucky and I'm delighted, but not all vendors will
treat all teachers the way Apple has treated you? You told me how Apple
quickly lent you a computer for your summer institute. For how many average
teachers would Apple do this favor? I'm delighted you benefitted from the
equipment--you deserved it. But please, don't extrapolate from your
experience and think that Apple and the rest can render all teachers the
same favors. The money just isn't there. I'm sure Apple would love to help,
but it's got a few frivolous alternatives such as paying its employees and
stockerholders. Again I'm delighted that Apple could help *you*.

> We also tried a beta copy
>of a Microsoft program entitled space simulator.

     And Microsoft can afford to rush out and help all teachers?
     Your group did what I'd have done--you availed yourself of the
resources. But for the nth time, please don't confuse individual acts of
charity with national solutions.

>Perhaps you do not know that in the world of education in technology, we do
>try out materials and programs to see if they fit. So we are lent many things
>in the schools so that we can tell if they are a proper fit. We usually get
to keep them about a
>month. So what is the problem here?You don't have to be a council member, you
>only have to be a teacher with access to the ear of the person with the funds. 

     You yourself have outlined to me all the sacrifices you've made to stay
on top of things--one reson for that easy access. Besides, you only got to
keep the material a month. 
     I'd have been delighted if you'd be able to keep the material longer.
You deserved it. But again, you're talking about your personal luck, not
universal solutions. Let's see if there's a way to drive down the cost of
educational software via the national library while paying vendors fairly in
a market-sensive way *when* appropriate).

>A little learning is a dangerous thing.

     Bonnie, you know so little about my proposal that you haven't even
reached the danger stage.

>If I were you, I would accord the
>respect that is due me.

     Ever the teacher.
     Not to badmouth the good ones. They *earn* respect.

> I have tried to help you .
>I cannot engage in endless discussions. I don't have the time.
>Perhaps others would care to debate you. Perhaps others have endless time.

     Well, find time to tell me exactly where you mass-posted my
David-to-Bonnie messages in violation of netiquette, and please convey
copies of your reproductions so I can see if they're accurate. Also pass on
your all own replies to make sure I have the whole sorry mess. You've done a
masterful job of documenting your nonresponsiveness. Please confirm, too,
that you have reposted the present message to the places where you're
attacking me behind my back.
     Or better yet, please forget about the above suggestions and
concentrate instead on fighting for a universally affordable library online
for rich and poor--with all kinds of material, not just Al's speeches. Let
his little neighbor-girl in Tennesse enjoy the commercial e-books at LOC or
elsewhere without a read-o-meter running. I've explicitly shown the
cost-justification mechanisms that would make possible fair payments to
writers and publishers. And how do you reward this citizen imput? With
robotic cliches and then a libelous lie.

>Bonnie Bracey
>( Private Citizen) being harassed 

     No--NIIAC member smearing a citizen.

-David
 rothman@clark.net
     
     P.S. Watch out, Bonnie! If Lehman's Green Paper goes into effect, I
could more easily sue the pants off you for violation of copyright--what
with your massive crossposting behind my back. Even then, however, I
wouldn't. I feel very sorry for you and the other teachers who'd suffer
under Lehmanesque copyright law.



------------------------------

End of INTELLEC Digest 24
*************************

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			    INTELLEC Digest 24

Topics covered in this issue include:

  1) Re: Reply to Rothman / Teacher stuff [NIIAC member turns flamer]
	by rothman@clark.net (David H. Rothman)

----------------------------------------------------------------------

Date: Fri, 18 Nov 1994 10:25:17 -0500
From: rothman@clark.net (David H. Rothman)
To: BBracey@aol.com
Cc: intellec@virtconf.ntia.doc.gov, TomMandel@aol.com, DThornburg@aol.com
Subject: Re: Reply to Rothman / Teacher stuff [NIIAC member turns flamer]
Message-ID: <199411181525.KAA00499@clark.net>

     Bonnie, I'd hope you could write more creative flames--you're a great
teacher and an inept polemicist. Let's cut to the libel first.

>I know electronic commerce is a part of the other Mega PRoject. If I have
time, I will send you any of the information, but I am not in the least
>interested in the telereader , and I don't have any money after trying to do
>this job to invest anyway.

     TeleRead is a proposal for a government program. I am not selling
anything but an idea. I'm a writer, not a hardware vendor seeking investors
in the sleazy way you allege. To suggest otherwise is libel, although, being
a First Amendment zealot, I'm not gonna to sue. I would appreciate an
immediate apology, however, along with one for your crossposting my 35
letters--without my permission. Bad netiquette. You flunk that in
department. I fervently hope you crossposted your own letters, too, so
people can see how weak your reasoning is. Ideally, when you teach children
how to use the Internet, you'll be a better netiquette example. We all goof,
but this takes the cake. Does the crosspost mean that no letter to you from
a citizen will be regarded as confidential? I'd probably have granted
permission anyway with the simple request that I be allowed to answer
immediately. At any rate, as used as you are to dealing with White
House-approved greedsters whose business plans may prevail over the
commonweal, let me assure you I'm not in the hardware business. 
     What's more, contrary to an earlier accusation that you e-mailed, I'm
not even a Republican. Can't ever recall voting for one, just Democratic
gobblers like Bill and Al. In fact, I'm one of the few liberals to be found
nowadays within spitting distance of the Potomac. I haven't wimped out like
your losers. Of course, Bill Buckley loves TeleRead because of its emphasis
on literacy and cost-justification--he wrote an enthuiastic column about it
in May 1993 ("The TeleReader in Your Future"). Newt might very well
appreciate TeleRead's home-oriented approach. It would allow children to
spend more time with computers in the presence of their families rather than
in school labs, though they would have that option, too.
     For bystanders, let me explain that TeleRead is the subject of my
chapter in a forthcoming information science collection from MIT Press and
the American Society for Information Science. The views in the chapter, of
course, are my own and not necessarily any organization's. I call for:
     --A focused, long-range procurement program--carefully phased in--to
buy small, affordable, sharp-screened compters for schools and libraries to
lend out. Such tablet-style machines would be ideal for ebooks, WWW-style
wanderings, K-12 networking, academic work at any level, research, certain
kinds of small business, you name it (detachable keyboards would be
available to for applications requiring them). Present laptops are rotten
for text. Technology is destiny, and Washington has a duty to promote
reading and writing and the other basics--along with the overall spread of
knowledge. 
     Standards could be flexible to accommodate a variety of vendors.
TeleRead would be to text-friendly hardware what the Net is to networks:
Many vendors could participate and offer different operating systems. I hate
the one-box-fits all philosophy of Minitel. 
     With enough of a market for the hardware, Silicon Valley would put
affordable etext-friendly machines on a faster R&D track. They could
eventually sell for the price of calculators. It'll happen anyway, but under
TeleRead, would occur much faster--offering millions of children an enticing
alternative to television. Don't say, "Oh, the kids will just read off TV."
They want computers they can curl up with; so do many adults, some of whom
would rather not read off desktop computers, either, after spending eight
hours sitting at their employers' desks. TeleReaders themselves might
eventually serve as spare TVs and vice versa (even if the screen ratios
ween't the best). 
     But for the moment we need to concentrate on the most affordable kind
of literacy-promoting technology that would encourage both children and
adults to read. Children, as you know, learn by example--one reason why
TeleRead is more than just a child-oriented approach. 
     --A universally affordable national digital library with fair
compensation for writers and publishers. What's so wicked about that,
Bonnie? Al Gore himself says he wants his little neighbor-girl in Tennesse
to be able to dial up the Library of Congress from home without worry over
Daddy's income. What will she itch to read, Bonnie? Al's collected speeches?
No, she is going to want to read not only public-domain material but also
copyrighted commercial ebooks. Remember, literacy experts say children learn
to read best when they're reading books on their favorite subjects; will the
Department of Education give us comics or books about the Simpsons? And how
about the little girl's father if he's retraining for high-tech work? Will
Washington be the source of the best tips on Windows96 or whatever it's up
to by then? Remember, some of the best learning takes place outside school.
TeleRead is an efficient, market-driven way to spread such material around
while offering fair compensation to writers and publishers. 
     Do you want children to grow up accustomed to public domain dreck
commissioned by Washington, or do we want a true public library system on
line, which TeleRead is? Rather than our simply relying on Clinton-Gore's
bureaucrats to tell us what to read, thousands of local, university and
research librarians would participate in book selection. Publishers could
even bypass librarians by gambling money up front. In addition, they could
publish books on paper. Even bookstores could participate. TeleRead would
let them (and CompuServe-type networks--which could add value through
conferences and hyptertext links) use the material for free or at little
cost. So bookstores and even copy shops could sell books on demand; to the
writers and publishers, a dialup fee would be a dialup fee. 
     Popular-level authors could be paid according to dialup accounts, with
a super distribution-style approach used to spread the material around and
track usage. After a certain number of dialups, readers would have to report
past use to retrieve more material; and needless to say, there would be
elaborate privacy protection--more so than public libraries offer today. The
most worried readers could even use old-fashioned greenbacks on vending
machines to restock their memory cards. 
     TeleRead couldn't be more of a contrast to the Green Paper, whose main
perp, Bruce Lehman, is either moronic or impatient for the golden Door to
Revolve. Here's a man who says Americans might not even be able to dial up
copyrighted electronic library books from home. You can bet that publishers
weren't comatose when those words came from the intellectual property czar
of the Clinton adminstration. TeleReader's philosophy is different;
schoolchildren could even use infrared devices to share books. Unlike Mr.
Green Paper's plan, TeleRead wouldn't aggressively punish honest children
for obeying the law and reward cheats who illicitly copied e-books. 
     A word about newspapers, magazines and the like: TeleRead would not pay
for fresh material (here's to the glories of advertising and subscriptions!)
but would let Americans dial up old issues of major publications for free,
with fair payment from the program to publishers and independent writers.
There might even be ways for old material to display nonintrusive and
current ads, further enriching publishers while letting the children roam at
will through valuable electronic libraries. Space precludes me from giving
further details here. If, however, we remember that the main function of
copyright law is to spread knowledge, then TeleRead wins handily over the
Green Paper. 
     What's more, with a well-integrated program, there could even be
provisions for protecting our intellectual property abroad. We'd help other
countries develop their e-libraries in return for adherence to IP standards,
with technical protections and provisions galore for international
enforcement and sanctions against violators. An Electronic Peace Corps
program, offering technical assistance from afar and improving Third World
electronic infrastructure onsite, might also help--a recent OTA report
alludes to my EPC proposal, which I originated some years ago.
     --Cost-justification. Bonnie, the true cost of government isn't just in
taxes. It's also in time and money devoted paperwork, and TeleReaders, with
pen interfaces, would be ideal for smart forms for government and commerce.
Consider the financial implications. We've got a $6-trillion-plus GDP. Lower
the cost of bureaucracy just a little and we've shifted billions from
paperwork to knowledge. You could fill out IRS forms in much, much less time
if the software led you along step by step and maybe even read instructions
aloud. IRS employees would waste fewer hours catching mistakes of honest
taxpayers and spend more time on true tax evaders. People at IRS have
already worked to automate their duties, and TeleRead would accelerate this
progress while leaving as much control as possible in the hands of
taxpayers--rather than Uncle mailing out little slips saying, "We removed
$3,000 from your VISA account today." Imagine, too, the potential for
healthcare plans, government or private; how much more easily everyone could
keep track of the paperwork there. 
     Moreover, the electronic forms for various applications could come not
only from the feds but also from private companies that, needless to say,
could often do so much better a job. Presto, a much-enlarged
industry--building on the fine work that Intuit-style companies have done,
and vastly increasing their markets. But Bonnie, you've never taken time to
fathom such possibilities. Instead you've shot off cliche-clogged letters
saying that schools can't afford hardware, that parents are misers, and so
on. Again and again I've tried to explain this to you, but you won't listen,
either because you're clueless or I'm not Al Gore. You think just in terms
of charity for the schools. I, on the other hand, am applying the same
practical logic found in so many companies today: multiple apps together
make so much more sense than single applications do. Spread the hardware
around and the market for ebooks and e-forms will take off, shifting
resources from paperwork to ebooks, educational software, and other goodies.
But of course, as I've pointed out to this list earlier, bureaucracy is what
Washington is all about. Since government employees dominate the IITF, I
guess I shouldn't expect that much--and certainly not from the NIIAC
oligarchs. What's really bizarre, Bonnie, is your inconsistency. On one
hand, you say, "The schools can't afford the hardware." And then when I
propose an entrepreneurial approach with opportunties for many companies,
you smear me with an accusation that TeleRead is a my plan to make a mint
off hardware. Can't you be more imaginative? Such a prosaic lie is boring.
*Please*. Limit yourself to teaching science, not ethics or polemics.

>I have taken the liberty of cross posting the 35 letters you have sent me in
>the time we have been corresponding about the NII. I have spent a great deal
>of time writing to you as  a part of outreach for the NII. 

     Bonnie, I've almost given up on the Clinton-Gore's NII oligarchy, which
is why your insults are so liberating. We can flame away at each other now
within the limits of our busy schedules. And after the White House and
Lehman create an information crisis--at around the same time Washington was
supposed to be solving our healthcare crisis--people will know that you were
one of the misfeasors. If nothing else, you're making a little history here.
Never before, I suspect, has an NIIAC member been so aggressively and
publicly hostile toward a private citizen. I must be doing something right.
     In a David-to-Bonnie e-mail sent just to you, I suggested you cool off.
Maybe it didn't reach you before you fired up your official flame thrower.
You know, of course, that hundreds and maybe thousands of people will read
these posts, including media. Like it or not, you're online as a
representative of the NIIAC, and yet you're smearing a private citizen. I
haven't been shy about expresing my great hatred for the Green Paper. But
I've stuck to the facts. Oh, well, it's wonderful to see the naked NII
process at work, bereft of the usual bureaucratic mush. Did any NII-related
people put you up to this? Who by name and title? Or is this Bonnie flaming
away on her own without any prompting? Either way, I'm touched by the attention.

>I forgot to save the blatant descriptions you wrote about electronic
>commerce. CoSn asked you to refrain from posting them on the discussion list
>and I did not save any of them.

     Interesting. On one hand you're falsely accusing of hatching TeleRead
as a business plan to enrich myself. On the other you are implying that I
don't want electronic commerce. Goodness knows, NIIAC members like Vance
Opperman are trying to tilt the NII toward their personal interests at the
expense of the public in some cases. But last I knew, I didn't own a
hardware company of any kind. I won't comment too much more on the above lie
from you without seeing the original posts. I will plead guilty to saying
that the NII should not just be a tool of the home shopping and the
entertainment interests. But I'm hardly anti-business, just pro-children. In
fact, TeleRead could *help* home shopping. People could use the penstyle
interface to respond in detail to advertisements, either on computer nets or
on TV. What's more, TeleReaders could be used for sophisticated programming
of big screen HDTV's--and for interactive educational programing. In fact,
someone with PBS asked me for permission to print one of my CoSN postings.
     As for CoSN, not only have I played by the rules, Ferdi Serim even
posted a (now-out-of-date) version of TeleRead on its Gopher. TeleRead could
do wonders for K-12 networking, the reason for CoSN's existence. I am a CoSN
member. If you're one, you embarrass us all.

>But if necessary, people on the list will witness that there was a very long
>harangue about the NII selling out to the post office.

     Guilty as charged. What a loser, that idea. Go over to publib and
you'll see that the librarians are up in arms, and understandably. What's
the best environment for imparting knowledge--a library or a post office? I
smell bureaucrat-protection at work here. As some have speculated, could the
Postal Service be trying to sneak its nose under the e-mail tent? Officials
actually are talking about people using the Service for authentication of
e-mail or something along those lines. Shudder. This is from the
privacy-loving administration that tried to inflict Clipper on us. But to
address the big issues:
     1. I've got a great postman, but he's busy enough just trying to
deliver the mail, and I'm sure his pals back at the PO have enough on their
hands. Librarians are overworked too. But at least knowledge is what their
jobs are all about. They're better training prospects than already-harried
clerks worried about getting the mail out.
     2. We go back to the question of Official Information vs.
citizen-to-citizen material. I'm concerned that under the PO approach, the
broadcast model would be used. Bill, Al, Mrs. C, Tipper, Socks, and
Washington bureaucrats would be the main attractions. I want more
citizen-to-citizen communications. I'm delighted to see the White House
server on the Web, but we citizens need information from many sources, not
just the feds. The propaganda opportunites would just too tempting if the
broadcast model prevailed. 
     Instead I want people to be able to call up information from a number
of sources on the Net. Yes, they could hear Socks meow. But they could also
swap messages with others, and explore the Net more easily (and perhaps with
more leisure) than they could in a crowded, noisy PO lobby. 
     Of course the real goal should be to work toward the time when all
American families can afford text-friendly computers that their children can
use at home. Not that libraries should vanish. They'll remain places for
training and support--much better than post offices; just as important,
libraries serve as meeting places and help hold neighborhoods together with
meeting rooms for civic activists. 
     I realize that after the original PO-oriented statement, the White
House hastened to add that libraries could get the federal information too.
But we know which agency is setting the tone. The fount of all knowledge,
the Postal Service. Again, I appreciate my postman, but I do worry a mite
about management. Isn't the Postal Service the outfit whose workers are
driven at time to mass murder? Oh, I suppose we can bullet-proof the
information kiosks.
     3. Library hours are better suited for schoolchildren. Heck, Bonnie,
you, of all people, ought to know that. I'm all in favor of POs and other
institutions being used in neighborhoods without libraries, but really,
shouldn't we go where the main action is? *Thank you*, however, for your
comments. You've revealed your colors as an apologist for the Clinton White
House. Good people can disagree with me. But your vehemence shows you're
paying too much attention to FOBs and not enough to the us taxpayers, even
though, again, I realize you mean well.

>First, let me assure you that picking  on a school teacher is not going to
>get your telereader sold.

     Yawn. The commercialism smear again?
     About the word "schoolteacher": Yes, I'm sure you know your way around
the classroom, and I've admired the tenacity you've shown against your
clueless principal. I know you're dedicated. And I know you've watched out
for your children again and again. That's not the issue here. The issue is
whether you'll successfully watch out for millions of other
schoolchildren--in your role on an official NII committee. I repeat. You are
no longer just a private citizen in this context. You're a Clinton-Gore
outreach worker. As shown by your smear against me *and* your gungho defense
of the anti-library PO plan, you can be a terrific heelclicker when you want.

 My interest is in transforming education so that
>all teachers who are involved are able to use technology in a way that is
>different than just >putting it in a classroom..

     Then you ought to be interested in a home- and family-friendly approach
like TeleRead, which, however, would also allow use in the classroom and
library. Or are you talking about the need for training of teachers to
absorb the technology without neglecting their many other goals? I couldn't
agree more. I see TeleReaders being used not so much for "computer literacy"
as to help students learn geography (by corresponding with kids abroad,
maybe) or writing (K-12 networking is a proven winner) or math (obvious).
Besides, if TeleRead's e-forms reduce the paperwork and mean more time for
students, then so much the better.

>I am sorry that you are angry because I am not
>interested in your telereader. It's the process of transforming education
>that I am interested in.  

     Bonnie, Bonnie, how obtuse can you be? I've told how TeleRead could
bring to millions of kids the benefits that the lucky children in your
classes are enjoying--not all but many. TeleRead couldn't turn a bad teacher
into a good one. But ability of teachers to use TeleReaders at home would
help. No longer would they spend so much time in the evening on paperwork;
the receptive could better familiarize themselves with the goodies on the
Net and relate the material to the content they taught. Again, TeleRead
wouldn't be a panacea, just a rather powerful tool.

>The transformation of the culture of teaching, as evidenced by the NIST
>document is what will help move us into the 21st century. We are convening a
>" thinktank " to create principals and ways to move on the ideas that we are
>trying to make a part of every citizen's future. 

     "We are convening..." Spoken like a true bureaucrat. My, you love
official meetings. I apologize for so rudely interrupting your
organizational routine with a proposal from an unofficial source. It'll be a
chapter in an MIT Press book and has been discussed in a syndicated column
and also been the topic of my articles in the Washington Post ed review, the
Baltimore Sun and Computerworld (in earlier incarnations!); but of course
you haven't got time. Bonnie, please. If you won't bother to understand an
idea with those credentials, what about feedback from citizens without my
media appearances? Writing the same "I care" cliches 30 or 40 times in
response ain't gonna get you off the hook.

>I tried to share with you the NIST documents so that you would not think  or
>say that the VIce President had sold out little kids for the postoffice. YOu
>need to read the documents from NIST and I did forward them to you since you
>said you did not have time to access them. I can also send you the booklets.
>THere is a bigger picture here.

     Bonnie, that's the problem. Looking over NIST stuff online, I see that
Washington lacks a really coherent strategy in the areas of interest to me.
After a stretch, all NII documents blur. But I can tell you what isn't
there--the level of integration that I propose via TeleRead in the relevant
areas. At some point you yourself alluded to the big picture and said the
NII was more than schools or libraries or whatever. That's exactly the
issue. I've told how to mix education and commerce in a way that preserves
academic values and increases opportunities for rich and poor alike.
     Speaking of documents, Bonnie, I hope that the summary from the October
NIIAC meeting are now available online so people in this conference can tear
apart the Lehmanesque logic.
     A URL, please?
     In another post, you ordered me to read a document that wasn't even
online yet.
     Also speaking of papers, how come we Netfolks see only the summaries of
NIIAC meetings, not full transcripts? Do you see full scripts? If not, maybe
you should insist on them so you can do your jobs better? If so, share 'em!
    

>I know electronic commerce is a part of the other Mega PRoject. If I have
>time, I will send you any of the information, but I am not in the least
>interested in the telereader , and I don't have any money after trying to do
>this job to invest anyway.

     Already addressed. An apology, please.

>
>Secondly, I have been awarded prizes, and when I was not a member of the
>NIIAC , I collected more than 39 grants and technology for kids, sadly, I
>also paid for software, and the online services so that I could use it. 
>

     Bonnie, why the devil should you have to pay? I'm delighted, for the
sake of the children, that you did use the software and the rest. But now we
need a cost-justified program to make the same benefits available to less
fortunate students and to show more kindness toward your wallet. TeleRead would.
     
>Now I am not eligible for any of those types of prizes.
>I had two Macintoshes, one IBM high level, the cost of the on
>line for Prodigy and for AOL, and you have my permission to check with them
>to see how much I paid to let kids have the experience of using online
>services. My school system thought it was a noble effort . I am sorry that
>you belittle my efforts.

     Again, Bonnie, you should be proud, proud, proud of your individual
efforts. Now we've got to spread the hardware (and net connections) to other
teachers, other children, without their having to  exert as much effort as
you did. Better that this effort go into teaching. Under TeleRead even you
could benefit with the basics out of the way--the hardware, the software,
the connections, and the content.

>I could have been on a beach, or in a swank hotel. Instead, I did without
>airconditioning, a new car, new clothes and I have parents who will attest to
>the time, effort, and ways in which I gave my time to be with kids, special
>education students , esl students, regular students, all kinds, all colors,
>all classes. I have given this year to teachers. The USA is my classroom and
>I work to learn what teachers need. 

     Then please fight harder for the computers and the rest.
     You can start by spending less time flaming me and more time advocating
truly creative solutions. The real irony, Bonnie, is that you complained
that much of your feedback was from negative people without suggestions. Put
down that flame-thrower a moment and think about it.

> Think of it out of a single,  teacher 's pocket. Lotta bucks. 
>I am not 22 and starting . I am the teacher everyone says would not be
>interested. I am not sure what your purpose is in talking about me or trying
>to cause trouble but if you want a fight, you will get one.That is why I was
>awarded honors. Someone recognized my efforts. 

     I guess you're recognizing mine ;-). 
     Needless to say, I doubt that any ethical teachers group will honor you
for smearing me and for opposing my efforts on behalf of an online library
for rich and poor.

>But most teachers do not get rewarded . I was lucky, so I effort to get other
>teachers technology without their having to go through deprivation, and
>worrying about bill collection.
>I speak for those who have no voice, or who cannot because of political
>situations. 

     Then how about working for a well-stocked national public library
online that could serve rich and poor areas alike? Under the present NII
plans, will kids in Watts be able to dial up as many ebooks as those in
Bethesda? Do we really want to replicate online the "savage inequalities" of
today's schools and libraries?
     The new technology offers economies of scale that could benefit rich
and poor alike so that children everywhere could choose from many more books.
     Again, Bonnie, please remember the basics. Kids learn to love books
more when they're reading material that interests them the most.

>I finally was rewarded after five years of contributing to the 
>use of technology. I am sure that you and anyone else
>reading this post would be aware that the costs don't match the outlay. I
>applaud the Vice President's vision, I think that they are in touch with
>technology, and I was proud to be a teacher of a 4/5 th grade that understood
>the electoral college, from the Prodigy League of Women Voters, information,
>from AOL, from the Internet, and from the use of Tom Snyder's  One computer
>classroom project " Decisions, decisions."

     Well, no one will accuse you of lack of self-esteem. The issue here
isn't your teaching skills or your dedication to the kids in your classroom.
Acknowledged. But you've been unrelentingly obtuse about alternatives to the
present direction of the NII.

>cameras, and giving up the summers , but then I always do that. Teachers who
>care, care. What do you care!

     You, of course, own the verb. ;-)

>Businesses, like NGS, and Apple, and Silicon Graphics are what makes this
>economy work, and one thing that we do well in the US is to demonstrate
>technology. The 12 teachers, two of whom worked on Indian reservations where
>there was not any technology were glad that Apple lent us the computer so
>that we could do astronomy when the fog rolled in.

     There you go again. You're acting as if teachers everywhere can
recreate her own experiences. Ask Apple how much equipment it gives away or
even loans compared to the number of requests that pour in. Charity is
great. But the charity model isn't enough.]
     Bonnie, you're a lucky and I'm delighted, but not all vendors will
treat all teachers the way Apple has treated you? You told me how Apple
quickly lent you a computer for your summer institute. For how many average
teachers would Apple do this favor? I'm delighted you benefitted from the
equipment--you deserved it. But please, don't extrapolate from your
experience and think that Apple and the rest can render all teachers the
same favors. The money just isn't there. I'm sure Apple would love to help,
but it's got a few frivolous alternatives such as paying its employees and
stockerholders. Again I'm delighted that Apple could help *you*.

> We also tried a beta copy
>of a Microsoft program entitled space simulator.

     And Microsoft can afford to rush out and help all teachers?
     Your group did what I'd have done--you availed yourself of the
resources. But for the nth time, please don't confuse individual acts of
charity with national solutions.

>Perhaps you do not know that in the world of education in technology, we do
>try out materials and programs to see if they fit. So we are lent many things
>in the schools so that we can tell if they are a proper fit. We usually get
to keep them about a
>month. So what is the problem here?You don't have to be a council member, you
>only have to be a teacher with access to the ear of the person with the funds. 

     You yourself have outlined to me all the sacrifices you've made to stay
on top of things--one reson for that easy access. Besides, you only got to
keep the material a month. 
     I'd have been delighted if you'd be able to keep the material longer.
You deserved it. But again, you're talking about your personal luck, not
universal solutions. Let's see if there's a way to drive down the cost of
educational software via the national library while paying vendors fairly in
a market-sensive way *when* appropriate).

>A little learning is a dangerous thing.

     Bonnie, you know so little about my proposal that you haven't even
reached the danger stage.

>If I were you, I would accord the
>respect that is due me.

     Ever the teacher.
     Not to badmouth the good ones. They *earn* respect.

> I have tried to help you .
>I cannot engage in endless discussions. I don't have the time.
>Perhaps others would care to debate you. Perhaps others have endless time.

     Well, find time to tell me exactly where you mass-posted my
David-to-Bonnie messages in violation of netiquette, and please convey
copies of your reproductions so I can see if they're accurate. Also pass on
your all own replies to make sure I have the whole sorry mess. You've done a
masterful job of documenting your nonresponsiveness. Please confirm, too,
that you have reposted the present message to the places where you're
attacking me behind my back.
     Or better yet, please forget about the above suggestions and
concentrate instead on fighting for a universally affordable library online
for rich and poor--with all kinds of material, not just Al's speeches. Let
his little neighbor-girl in Tennesse enjoy the commercial e-books at LOC or
elsewhere without a read-o-meter running. I've explicitly shown the
cost-justification mechanisms that would make possible fair payments to
writers and publishers. And how do you reward this citizen imput? With
robotic cliches and then a libelous lie.

>Bonnie Bracey
>( Private Citizen) being harassed 

     No--NIIAC member smearing a citizen.

-David
 rothman@clark.net
     
     P.S. Watch out, Bonnie! If Lehman's Green Paper goes into effect, I
could more easily sue the pants off you for violation of copyright--what
with your massive crossposting behind my back. Even then, however, I
wouldn't. I feel very sorry for you and the other teachers who'd suffer
under Lehmanesque copyright law.



------------------------------

End of INTELLEC Digest 24
*************************

From daemon Fri Nov 18 13:29:33 1994
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			    INTELLEC Digest 25

Topics covered in this issue include:

  1) [INTELLEC:88] INTELLEC digest 16 -Reply
	by CFRANZ@ntia.doc.gov
  2) Democracy
	by "Freedman Richard" <freedman.richard@mail.ndhm.gtegsc.com>

----------------------------------------------------------------------

Date: Fri, 18 Nov 1994 11:36:52 -0500
From: CFRANZ@ntia.doc.gov
To: intellec@virtconf.ntia.doc.gov
Subject: [INTELLEC:88] INTELLEC digest 16 -Reply
Message-ID: <secc91f3.025@ntia.doc.gov>

Did you get any replies?


------------------------------

Date: 18 Nov 1994 11:53:37 -0500
From: "Freedman Richard" <freedman.richard@mail.ndhm.gtegsc.com>
To: "intellec" <intellec@virtconf.ntia.doc.gov>
Subject: Democracy
Message-ID: <n1426962752.58861@mail.ndhm.gtegsc.com>

Jeffrey Millican wrote
>     In response to Mr. Holden, I disagree that democracy does not 
> respond to the people.  I would illustrate with an example from Mr. 
> Holden's own state: Proposition 187.  Its political volatitity aside, 
> the Proposition itself and that democratic process is successful in 
> expressing the wishes of the people of California.  

Not such a good example, since the courts seem to judge the wisdom, rather
than the constitutionality, of laws, and the law is what the courts say it
is.  That is why some of us fear to trust the democraticv process.

Richard Freedman
(freedman.richard@mail.ndhm.gtegsc.com)



------------------------------

End of INTELLEC Digest 25
*************************

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			    INTELLEC Digest 27

Topics covered in this issue include:

  1) An idea to help base law in reality
	by DOUG MASSON <DMASSON@ucs.indiana.edu>
  2) Subscription to Intell. Prop.
	by Rolland Hauser <rolland_hauser@macgate.csuchico.edu>

----------------------------------------------------------------------

Date: Fri, 18 Nov 94 15:39:21 EST
From: DOUG MASSON <DMASSON@ucs.indiana.edu>
To: intellec@virtconf.ntia.doc.gov
Subject: An idea to help base law in reality
Message-ID: <199411182347.PAA24073@virtconf.digex.net>

	As I, and others, have stated before, one of the most 
fundamental problems facing the future of copyright law is that its
basic premise is being eroded.  While giving property rights in 
ideas is problematical at best, those rights have been limited by
the requirement of the presence of those ideas in space.  Now, however,
we have found a way to pretty much eliminate space as a factor limiting
the transmission of ideas from place to place and in their original 
form.  Without a limiting factor, these rights will have to move
toward an all or nothing proposition; hence you see movements like
the Green Paper which address the new threat of digital communications
by proposing a stranglehold on the property rights.  (They would, in
fact, represent the "all" side of the all or nothing proposition.)
On the other side, the "nothing" side of the proposition, it would
seem that once a single copy was let beyond the rights of the copyright
holder, the lack of any physical limitations would permit it to be
spread far and wide, endlessly.  

	Given all of this, what's a government to do who wants to
reward both author and reader, since their mutual happiness feeds the
success of both.  Well, here is a possible solution full of kinks,
errors, and in desperate need of polish, but perhaps the alternative
theoretical viewpoint from which we need to come.  The limitation
of space has been largely taken from us, so why don't we use the
other biggy, that is to say, time.  I'm not sure of the specifics
of this, but I think I've read that the copyright holder holds
the right for a lifetime plus twenty years or something like that.
Well, under my thinking, we should greatly limit this.  If we
limited this to a year or two, (choosing a starting point could be
problem, do we start the clock from the point of completion of the
product, the point of first sale, or what, but a workable system has
been created for statutes of limitation so I don't see how this is 
any different)--If we limited the right to a year or two, it would
help to eliminate one of the problems of current copyright which I
consider to be the most troubling; the deliberate creation of scarcity.
If the clock was running, publishers and authors would be under more
pressure to distribute the product as far and as widely as possible,
which usually entails the reduction of price.

Furthermore, it seems to me, (although actual authors should feel free
to disagree), that the carrot which would cause authors to create comes
mostly from the initial sales, and that the royalties coming from later
years are nice (and I'm sure that some impartial commentators would say
necessary, but I don't know that I'm convinced) but are not essential 
to inspiring authors to create.  Therefore, such a law would serve 
the purpose of causing or at least aiding creation.  And, if the
time period were limited, it seems that we could afford to allow more
of a stranglehold on rights.  In fields that are particularly time
sensitive, perhaps we could allow narrowly drawn exceptions.  On the
other hand, it seems that most of the societally beneficial 
intangibles (as opposed to the main profit) come in later years.

Well, there is a preliminary idea which seems to make a great deal
of sense (to me anyway), so play with it, have fun, throw it into
the kiln and see what comes out.  I've enjoyed bringing it to you.

Very best regards,
Doug Masson
Indiana University School of Law
dmasson@ucs.indiana.edu

------------------------------

Date: Fri, 18 Nov 1994 14:13:43 -0800
From: Rolland Hauser <rolland_hauser@macgate.csuchico.edu>
To: "Intellectual Property Conf." <intellec@virtconf.ntia.doc.gov>
Subject: Subscription to Intell. Prop.
Message-ID: <n1426954362.58044@macgate.csuchico.edu>

subscribe Intellectual Property Rolland K. Haiser

------------------------------

End of INTELLEC Digest 27
*************************

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			    INTELLEC Digest 28

Topics covered in this issue include:

  1) NTIA Public Comment
	by San Francisco Public Libraray <"SFPL::NTIA_PUB"@DRANET.DRA.COM>

----------------------------------------------------------------------

Date: Fri, 18 Nov 1994 18:29:32 -0600 (CST)
From: San Francisco Public Libraray <"SFPL::NTIA_PUB"@DRANET.DRA.COM>
To: intellec@virtconf.ntia.doc.gov
Subject: NTIA Public Comment
Message-ID: <941118182932.20215e17@DRANET.DRA.COM>

Admit that with PGP RSA, that you can't stop the abuse of the
system. Recreate an upper limit that provides the average
person with enough encryption for privacy, but permits catching
criminals who flagrantly defy the culture. for example:
	
o	State publicly that you define the upper limit as 2
	weeks dictionary search on a Cray YMP81, assuming RSA IDEA
	as the encryption model. any person has that right unlimited, in 		or out of the country. give a business that opens it's database
	for normal IRS searches, a total of 3 or 4 weeks.
	
o	Admit that defining the Israeli RSA model as a private property
	represented a flagrant violation of a known public domain
	property, and give it up to the public domain again.
From: glidedw@sfsuvax1.sfsu.edu <donald wilton>

------------------------------

End of INTELLEC Digest 28
*************************

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			    INTELLEC Digest 29

Topics covered in this issue include:

  1) Copyright duration
	by beretta@netcom.com (Giordano Beretta)

----------------------------------------------------------------------

Date: Fri, 18 Nov 1994 17:51:37 -0800
From: beretta@netcom.com (Giordano Beretta)
To: intellec@virtconf.ntia.doc.gov
Cc: beretta@netcom.com
Subject: Copyright duration
Message-ID: <199411190151.RAA06448@netcom14.netcom.com>

In Digest #27 Doug Masson proposes to limit the copyrights to a year or two.

I am not sure there is a universal "one size fits all" life time of a document's
value.  Moreover, the life time does not depend on the pecuniary value of the
document at the time of the publication.  For example, a stock quote for a
company after some important event may be worth millions of dollars to an
investor immediately after the event, but worthless an hour later.

On the other side, many works of literary art or of scientific research are
often uncomprehended upon first publication because they charter new territory.
Only after a time of maturation they may become mainstream and acquire pecuniary
value.

A lawyer should be able to formulate the following thought more properly.  Laws
are made to protect individuals and their contributions to society from
misappropriation by individuals trying to find shortcuts.  Laws usually do not
spell out acceptable behavior (rights are listed in the constitution).  The
problem with the proposed copyright law for the NII is that it tries to address
or control in detail the fair use of intellectual property.

------------------------------

End of INTELLEC Digest 29
*************************

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			    INTELLEC Digest 32

Topics covered in this issue include:

  1) RE: [INTELLEC:118] INTELLEC digest 31
	by DOUG MASSON <DMASSON@ucs.indiana.edu>

----------------------------------------------------------------------

Date: Sat, 19 Nov 94 14:34:20 EWT
From: DOUG MASSON <DMASSON@ucs.indiana.edu>
To: intellec@virtconf.ntia.doc.gov
Subject: RE: [INTELLEC:118] INTELLEC digest 31
Message-ID: <199411192241.OAA16966@virtconf.digex.net>

Lucretia McClure states that, in most cases, scientists and
physicians write for scientific periodicals and are not
paid for their papers.  Furthermore, their 
"chief interest is getting the information out as soon as possible
to their collegues thus establishing their claim to the advance."

My question is, what form does their claim to the advance take, and
is it this that is protected by copyright.  Would a provision in
copyright law stating that a copier would have to acknowledge
the fact that the idea came from the author solve the problem without
giving the author the right to prevent copying?  I'm just wondering
what rights copyright gives scientific authors that they are interested
in preserving.  If the right to profit in a direct financial sense isn't
what they are concerned with, I am interested in knowing the other
benefits.

Very truly yours,
Doug Masson
Indiana University School of Law
dmasson@ucs.indiana.edu

------------------------------

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*************************

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			    INTELLEC Digest 33

Topics covered in this issue include:

  1) Re: [INTELLEC:119] INTELLEC digest 32
	by darrf@cob.ohio-state.edu (Frank P. Darr)

----------------------------------------------------------------------

Date: Sat, 19 Nov 1994 17:14:37 -0500
From: darrf@cob.ohio-state.edu (Frank P. Darr)
To: intellec@virtconf.ntia.doc.gov
Subject: Re: [INTELLEC:119] INTELLEC digest 32
Message-ID: <199411192214.RAA20593@babble.cob.ohio-state.edu>


>My question is, what form does their claim to the advance take, and
>is it this that is protected by copyright.  Would a provision in
>copyright law stating that a copier would have to acknowledge
>the fact that the idea came from the author solve the problem without
>giving the author the right to prevent copying?  I'm just wondering
>what rights copyright gives scientific authors that they are interested
>in preserving.  If the right to profit in a direct financial sense isn't
>what they are concerned with, I am interested in knowing the other
>benefits.
>
This question goes to the heart of the argument regarding the usefulness of
a copyright system. For many creators, there are alternative rewards that
justify the creative endeavor. The faculty member at a publish or perish
institution, for example, probably is not all that concerned about the
copyright on her research. Indeed many academic journals contain a blanket
release for copying for classroon or other academic use. That same
professor, however, would be deeply miffed by the recopying of her textbook
or sections of it for use in a supplement if it were to displace royalties
on the textbook. Much of current copyright law is premised on a nearly
strict liability approach to copying without any sensitivity to the motives
underlying the authorship. The problems with the underlying law arise not in
actual law suits so much, because it usually only the economically motivated
authors (or their publishers) that bring suit, but rather in the sometimes
less-than-careful assertions of the relevant discussion in cases that casts
a pall on all forms of authorship regardless of the author's concerns about
redistribution. Fair use interpretation has in particular suffered from this
sort of judicial carelessness.


------------------------------

End of INTELLEC Digest 33
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From daemon Sun Nov 20 14:37:51 1994
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			    INTELLEC Digest 34

Topics covered in this issue include:

  1) Re: [INTELLEC:105] copyrights and anarchy
	by Kelly Davis <davis@lclark.edu>

----------------------------------------------------------------------

Date: Sun, 20 Nov 1994 11:32:05 -0800 (PST)
From: Kelly Davis <davis@lclark.edu>
To: intellec@virtconf.ntia.doc.gov
Cc: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: Re: [INTELLEC:105] copyrights and anarchy
Message-ID: <Pine.OSF.3.91.941120111619.24559F-100000@sun>

How do you reconcile claims to property rights in an inherently 
anarchical system???

The net has emerged by the free contributions of users giving time and 
sharing information.  In the spirit of academia, it seems most important 
to get the word out.  The reinforcement of royalties serves as merely 
a motivating factor in getting a message published.  Few of us would 
starve to take the time and energy that a quality publication would 
warrant.  It's too bad that the intrinsic motivation isn't enough to 
inspire writers to contribute.  Perhaps they need validation that the 
work is good.  Maybe they need an editor to polish things up.  Supporting 
their families is a good reason to ask for monetary compensation too.

But what if there was a different type of compensation.  What if those 
who wanted to read contributions would pay for some sort of access fee to a 
library of sorts.  These "royalities" could be divided based on how often 
their work was "checked out".  And those that contribute volumes to the 
library, would have free access.  As volumes come in, updates could be made 
and dues would be paid, say, every year.  Those most involved in reading 
the works would also be contribing their own.  Would this sort of 
book bartering work??

Kelly L. Davis,  <davis@lclark.edu>


------------------------------

End of INTELLEC Digest 34
*************************

From daemon Sun Nov 20 16:38:14 1994
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			    INTELLEC Digest 35

Topics covered in this issue include:

  1) [INTELLEC:121] copyrights and libraries
	by Mike Karlesky <karleskm@river.it.gvsu.edu>

----------------------------------------------------------------------

Date: Sun, 20 Nov 1994 14:51:06 -0500 (EST)
From: Mike Karlesky <karleskm@river.it.gvsu.edu>
To: intellec@virtconf.ntia.doc.gov
Subject: [INTELLEC:121] copyrights and libraries
Message-ID: <Pine.HPP.3.90.941120143500.29488C-100000@river.it.gvsu.edu>

 Kelly Davis wrote:

> But what if there was a different type of compensation.  What if those 
> who wanted to read contributions would pay for some sort of access fee to a 
> library of sorts.  These "royalities" could be divided based on how often 
> their work was "checked out".  And those that contribute volumes to the 
> library, would have free access.  As volumes come in, updates could be made 
> and dues would be paid, say, every year.  Those most involved in reading 
> the works would also be contribing their own.  Would this sort of 
> book bartering work??

Kelly, 

I rather like your idea. It makes good economic, legal, and 'Net sense to
me. I believe that this type of system could best be compared to a
magazine subscription only much more encompassing. I have thought about
such a thing myself.

I would hope however that this would not be taken to an extreme. Every bit
of information should not end up in such a way. Yet, I don't believe that
would be something to worry about. Perhaps even, different writers and
agencies could license material to general libraries as well as specific
categorical libraries so that an individual would have several viable 
options that would best meet his/her likings. 

I see this as a wise solution taking advantage of the access and capacity 
capabilities of any upcoming NII. 

I must say, though, that I would very much like to see the "free-ness" of
the existing Internet preserved when it comes to educational databases and
newsgroups and the like. Leave before mentioned libraries to professional
journals and professional entertainment writers. 
          ............................................................
          .  Michael J. Karlesky       .  Grand Valley State Univ.   .
          .    Engineering Program     .    228 Weed L.C.  Box #42   .
          ............................................................
          .  I do not feel obliged to believe that the same God who  .
          .    has endowed us with sense, reason, and intellect has  .
          .    intended us to forego their use.   -Galileo Galilei   .
          ............................................................
 


------------------------------

End of INTELLEC Digest 35
*************************

From daemon Sun Nov 20 18:37:49 1994
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Subject: [INTELLEC:123] INTELLEC digest 36
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			    INTELLEC Digest 36

Topics covered in this issue include:

  1) Two way street?
	by jonrees@ccmail.poconet.k12.in.us (Jon Rees)

----------------------------------------------------------------------

Date: Sun, 20 Nov 1994 16:00:42 -0600
From: jonrees@ccmail.poconet.k12.in.us (Jon Rees)
To: intellec@virtconf.ntia.doc.gov
Subject: Two way street?
Message-ID: <ecfc7240@ccmail.poconet.k12.in.us>


     I may have missed this in the mass of messages on this virtual
conference, but there seems to be a lot of concern for "protecting"
the publisher and no concern for the consumer.  This is were the
comparison between traditional copyright and electronic copyright
brakes down.  When you purchase printed material, you can pretty much
"see" what you're getting. But with today's technology, you're never sure
what you will find inside the shrink wrap.  For example, we have a
subscription for a law publication on CD-ROM. The publisher elected to
use a method of "copy protection" that requires it to run on a CD-ROM
drive.  However, the copy protection only works for "some" CD-ROM drivers.
If you attempt to access the CD information using Netware's 3.12  CD-ROM
NLM, the copy protection program tells you that you must access the
information from a CD-ROM drive...?!  So now you're caught up in a squeeze
play between the publisher and software developers.
     I hope copyright LAWS are effective, because copy protection programs
are NOT!  Down with doggles!
     If publishers are going to replace copyright laws with copy protection
software, there needs to be some consumer protection too.

------------------------------

End of INTELLEC Digest 36
*************************

From daemon Mon Nov 21 08:42:21 1994
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Subject: [INTELLEC:124] INTELLEC digest 37
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			    INTELLEC Digest 37

Topics covered in this issue include:

  1) IP rights in digital networks
	by PSA2@vms.cis.pitt.edu

----------------------------------------------------------------------

Date: Mon, 21 Nov 1994 08:31:35 -0400 (EDT)
From: PSA2@vms.cis.pitt.edu
To: intellec@virtconf.ntia.doc.gov
Subject: IP rights in digital networks
Message-ID: <01HJQFUVVSCO9JDMLS@vms.cis.pitt.edu>

Kelly Davis' suggestion that perhaps compensation in digital networked 
environments could be handled by charging users access fees which could
be used in part to provide royalties to those authors whose works they
accessed once in the library system resembles the Xanadu system model
articulated by Ted Nelson (who coined the term "hypertext" and made
important contributions to the hypertext field technically) in his book
Literary Machines.  Some readers may find it difficult to wade through
some of the political commentary in the book, but Nelson offers a
new model for how to deal with intellectual property rights in digital
networked environments.  My husband Bob Glushko (a hypertext developer)
and I wrote an article entitled "Intellectual Property Rights in Digital
Libraries and Hypertext Publishing Systems" which was first published 
in the Proceedings of Hypertext 91 and then republished in revised for
m in Vol. 6 of the Harvard Journal of Law & Technology, p.237 (1993)
which discusses Nelson's IP model for Xanadu and compares it to the
copyright law (Nelson saw his model as supplementing rather than 
supplanting copyright).  But I will briefly describe it here.  Nelson
posited that Xanadu would be a vast digital library with virtually all
of the world's literature available on it; users would pay access fees
to the system for rights to traverse and use the system; the access fees
would be used in part to cover system operating expenses and in part to
pay royalties to the authors whose works they visited; another source of
revenues for the system would be fees that authors would pay for the
privilege of "renting" space on the system; Nelson imagined that authors
would be incented to put valuable works into the system because only
the valuable works would be "hit" on by users; authors might use their
royalty payments to pay for storage of their work on the system (along
the lines Kelly Davis imagined).  The other part of Xanadu's model was
that users might themselves become authors of links among documents and
parts of documents, which would then provide other users with possible
paths to follow through the vast reaches of the digital library.  Those
who chose to follow a link author's path might pay (through the access
fee) royalties to the link author as well as to the persons whose works
they read on the system.  In this way, a digital library might become
a vast hypertext publishing system.

Another commentator raised the problem of lack of browsability of
digital works before one has to pay for access to them (which contrasts
with the browsing we routinely do in bookstores).  Perhaps abstracts
can be made available as "teasers" without payment in much the same
way that attract modes of videogames now operate or movie previews
do.

Pamela Samuelson
Professor of Law
University of Pittsburgh

------------------------------

End of INTELLEC Digest 37
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From daemon Mon Nov 21 10:45:28 1994
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			    INTELLEC Digest 38

Topics covered in this issue include:

  1) Re: [INTELLEC:124] IP rights in digital networks
	by "John K. Harms" <jkharms@osiris.cso.uiuc.edu>
  2) Re: [INTELLEC:75] Re: Modifying existing Copyright law probably i
	by Shelly Warwick <WASBB@CUNYVM.CUNY.EDU>

----------------------------------------------------------------------

Date: Mon, 21 Nov 1994 07:55:57 -0600 (CST)
From: "John K. Harms" <jkharms@osiris.cso.uiuc.edu>
To: intellec@virtconf.ntia.doc.gov
Cc: jkharms@osiris.cso.uiuc.edu (John K. Harms)
Subject: Re: [INTELLEC:124] IP rights in digital networks
Message-ID: <199411211355.AA22256@osiris.cso.uiuc.edu>

I guess I'm a REAL newcomer to some parts of this field, Prof. Samuelson. 
Is "Proceedings of Hypertext [Year]" a paperbound periodical (i.e., a
journal you'd get in the mail), something available on-line, or both.  I
must confess that I've never heard of it before.
jkharms@OSIRIS.CSO.UIUC.EDU
(John Harms, Esq.)


------------------------------

Date:         Mon, 21 Nov 94 10:06:22 EST
From: Shelly Warwick <WASBB@CUNYVM.CUNY.EDU>
To: intellec@VIRTCONF.NTIA.DOC.GOV
Subject: Re: [INTELLEC:75] Re: Modifying existing Copyright law probably i
Message-ID: <199411211830.KAA18223@virtconf.digex.net>

Shirley Tensg observed that the rewards under the current IP laws
don't reward creators, but distributors.  This has been true since
the Statute of Anne.  I think that what needs to be done is not just
figure out how to apply IP laws to the NII, or pass laws to cover the NII
that IP be rethought.  However, eliminating the distributor may not be
the way.  If I buy a newspaper I have a good idea of the quality and type
of writing it will contain, the same with magazines and journals.  In short
I make a purchase based on the expertise and taste of editors.  Even books
are purchased based on a prior familiarity with the author or on the
recommendation of a trusted source (reviewer, friend, etc.).  I don't
want to pay-per-peek at electronic sources.  I want a better indication
of what I'll receive (indexing, abstracting, etc., but that's another list)
and good review sources.  In short we need to come up with a system
that gives the giant share of the reward to the originator but leaves some
means of also rewarding the distributor without necessitating the transfer
of ownership.

Also, and this is not just NII related, I think there should be laws
the maximize the lenght of time for which ownership can be transfered.
Most scholarly journals will not publish a paper unless they receive the
copyright.  There should be some way for this right to expire, or require that
a mandatory transfer of rights results in a mandatory payment.

Shelly Warwick
Baruch College

------------------------------

End of INTELLEC Digest 38
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From daemon Mon Nov 21 14:38:59 1994
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Subject: [INTELLEC:128] INTELLEC digest 40
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			    INTELLEC Digest 40

Topics covered in this issue include:

  1) Re: [INTELLEC:124] INTELLEC digest 37
	by "Craig O'Donnell" <dadadata@world.std.com>

----------------------------------------------------------------------

Date: Mon, 21 Nov 1994 13:50:22 +0001 (EST)
From: "Craig O'Donnell" <dadadata@world.std.com>
To: intellec@virtconf.ntia.doc.gov
Cc: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: Re: [INTELLEC:124] INTELLEC digest 37
Message-ID: <Pine.3.89.9411211328.F13923-0100000@world.std.com>

<<
Another commentator raised the problem of lack of browsability of
digital works before one has to pay for access to them (which contrasts
with the browsing we routinely do in bookstores).  Perhaps abstracts
can be made available as "teasers" without payment in much the same
way that attract modes of videogames now operate or movie previews
do.
>>

Paula, a model already exists for all of this: part of a given source's 
value-added would be *how the material is organized*. Briefs, excerpts, 
teasers, abstracts, summaires, could all bbe made available at different 
prices.

If my summaries are really good and I charge a dime each for them, I may 
indeed do better than someone else hwose summaries are poor, but are free 
(or who forces a user to wade through a 200K text file to extract the 
pertinent parts). My time in ffile-wading is worth much more than a dime ...

All of these are things that have been imnplemented in different ways in 
libraries for years.

-- Craig, whose dad's a librarian (ALA, ret)

PS.

Another point which has barely been touched here is that the creators o 
materials are free to post them on the net and stipulate whatever terms 
they wish re: distribution (this is assuming that a "pay to play" type of 
structure is in place). There could be one or more sites which 
essentially are collectives which implement a "compulsory license" scheme 
or a "buyout" scheme ((both of these are drawn from the music industry)).

Of course it does get sticky when you're talking about the content versus 
the container, but surely the market can come up with ways to make this 
work efffectively.

one point of copyright law which is causing a great deal of trouble is 
the stipulation that someone deffend their copyright from infringers 
ASAP, and if they don't, they can lose future protection.

What if we ust toss this out? How would it hurt? You'd then price 
information to what the market will pay, and there will indeed be 
infringers/free riders, but big deal.

Free riders are a socioeconomic problem. You cannot solve social 
problems, or economic problems, with legislation. On the one hand you 
educate and on the other hand you litigate against flagrant offenders 
((ie, if Disney wants to sue everyone over Mickey Mouse, more power to '
em; some of us have more to do in life than that)).

As far as "spillage", well, some people will get away with infringement. 
But the efficiency of the system should compensate providers more than 
well enough to offset that.

Just musing.

> .sig
> .mund
> .freud



------------------------------

End of INTELLEC Digest 40
*************************

From daemon Mon Nov 21 17:54:57 1994
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			    INTELLEC Digest 42

Topics covered in this issue include:

  1) Re: [INTELLEC:128] INTELLEC digest 40
	by "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
  2) Re: [INTELLEC:129] INTELLEC digest 41
	by "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>

----------------------------------------------------------------------

Date:         Mon, 21 Nov 94 16:19:05 EST
From: "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
To: NTIA discussion on Intellectual Property
Subject: Re: [INTELLEC:128] INTELLEC digest 40
Message-ID: <199411220038.QAA10857@virtconf.digex.net>

Craig O'Donnell raises some very good points in his posting earlier
today.

The model for providing a small amount of information at a lower cost
as a teaser to buy the rest already exists and has, online, for over
twenty years.

Dialog provides 9 different ways to present information from a source.
The most brief one is # 3 which provides just accession number and
title.  Type 9 is full text.

Dialog usually provides type 3 information at just connect charge rates
while charing upwards to $25 a full text article, depending on which
of over 500 files you are accessing.

They have even innovated the "type 3" providing KWIC typing of the
line in which the keyword(s) were found.  For those not familiar
with KWIC (Keyword In Context), this is often a listing of lines
where the "keyword" lines up down the middle of a page -- with the
text preceeding it to the left and the text following it to the right.
Essentailly rotated text to get the keyword down the middle.

I was stung, however, one time.  I am used to all "type 3"'s being
free, but in Freedonia Market Database, they cost $3.00 a piece if
you use KWIC (they figure you get to much value with KWIC), so I
was presented with an unexpected bill for an extra $480 when I
typed out 160 citations(taking less than 2 minutes).

I say this for two reasons.  First, I have not seen much competition
in the more exclusive databases.  Yes, a file such as ERIC is available
via telnet for free with lousy search capabilities.  But when we
talk about the kinds of information that businesses often buy such
as the Predicast Technology and Marketing databases we are looing at
serious money for just minutes of searching.

There are about half a dozen of these online services -- all on the
internet -- Dialog, BRS, Orbit, Reuters, etc.  But the good stuff
still costs much to much for the average pocketbook.  Perhaps the
advent of Internet access will raise the volume and we can move down
the cost curve.  But until then, these kind of data are expensive.

_______________________________________________________________________________
|               W. Curtiss Priest, Ph.D.             *********************** |
|      Center for Information, Technology, & Society *  Improving humanity * |
|                                                    *  through technology * |
|                  466 Pleasant Street               *********************** |
|                Melrose, MA  02176-4522                                     |
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------------------------------

Date:         Mon, 21 Nov 94 16:38:34 EST
From: "W. Curtiss Priest" <BMSLIB@MITVMA.MIT.EDU>
To: NTIA discussion on Intellectual Property
Subject: Re: [INTELLEC:129] INTELLEC digest 41
Message-ID: <199411220049.QAA11511@virtconf.digex.net>

I have reread the posting that contained our Character of Information
bibliography attached about the captain and his mutinous crew.

I must say if our bibliography inspired such a literary response,
we are flattered.

------------------------------

End of INTELLEC Digest 42
*************************

From daemon Mon Nov 21 19:59:43 1994
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From: intellec@virtconf.ntia.doc.gov
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Date: Mon, 21 Nov 1994 19:52:31 -0800
Message-Id: <199411220352.TAA19730@virtconf.digex.net>
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Subject: [INTELLEC:133] INTELLEC digest 43
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			    INTELLEC Digest 43

Topics covered in this issue include:

  1) UseNet-News
	by innd@virtconf.digex.net
  2) Re: [INTELLEC:130] Re: INTELLEC digest 40
	by SHelly <WASBB@CUNYVM.CUNY.EDU>

----------------------------------------------------------------------

Date: Mon, 21 Nov 1994 18:01:33 -0800
From: innd@virtconf.digex.net
To: intellec@virtconf.ntia.doc.gov
Subject: UseNet-News
Message-ID: <199411220201.SAA14319@virtconf.digex.net>

Path: virtconf!miwok!well!pacbell.com!uop!lll-winken.llnl.gov!uwm.edu!spool.mu.edu!howland.reston.ans.net!gatech!news-feed-1.peachnet.edu!concert!ashe.cs.unc.edu!usenet
From: saxe@cs.unc.edu (Eddie Saxe)
Newsgroups: alt.config,alt.ntia.intellec.ctl
Subject: cmsg rmgroup alt.ntia.intellec
Control: rmgroup alt.ntia.intellec
Date: 21 Nov 1994 20:17:54 GMT
Organization: Disinformation Superhighway, Speed Enforcement Division
Lines: 37
Sender: saxe@cs.unc.edu
Approved: saxe@cs.unc.edu
Message-ID: <3aqv9i$c1c@ashe.cs.unc.edu>
References: <davidgCzAxLo.BCv2@netcom.com>
NNTP-Posting-Host: lumiere.cs.unc.edu

In article <davidgCzAxLo.BCv2@netcom.com>,
Bruce Becker, forging as davidg@netcom.com (David Guntner) wrote:

>-----BEGIN PGP SIGNED MESSAGE-----
>
>Possible commercial group.
>
>Not necessary to discuss in alt.config.
>
>Creates new, much needed, top-level.
>
>
>-----BEGIN PGP SIGNATURE-----
>Version: 2.6
>
>iQCVAgUBLsh7lQ0Aj0bAuAXFAQFuZAQAvZmyRPI9is4taHBEstLvhiJveAMyq61B
>TDwXcNisS53kirZ6SxtpBjinK9eiKyiUzeX1nW/WVdAHPoMty7UsYd1Zk4Xg6F78
>NuZabIJuAvFtzeq9yQfnU0zD5Y1KbsnDeZRJ6MAf7bdngl7Bp+iR8LJJ8Fj4en/E
>GGOEyxaNpok=
>=Awm4
>-----END PGP SIGNATURE-----

As anyone with David's PGP key could tell, this did not originate from
David.  For those not familiar with Bruce Becker's spoofs, you need only
check the path...

>Path: ashe.cs.unc.edu!concert!rutgers!cis.ohio-state.edu!magnus.acs.ohio-
>+     state.edu!math.ohio-state.edu!howland.reston.ans.net!europa.eng.gtefsd.
>+     com!newsxfer.itd.umich.edu!nntp.cs.ubc.ca!torn!uunet.ca!uunet.ca!
>+     torfree!gts!feline!halt!madonnas!undies!netcom.com!davidg

If you can see the string "gts!feline!halt" in the path, the message is
either a Bruce Becker spoof or someone spoofing him.

Eddie
--
Unneeded group	     Creates a new hierarchy 	    Not discussed on alt.config

------------------------------

Date:         Mon, 21 Nov 94 19:17:52 EST
From: SHelly <WASBB@CUNYVM.CUNY.EDU>
To: intellec@VIRTCONF.NTIA.DOC.GOV
Subject: Re: [INTELLEC:130] Re: INTELLEC digest 40
Message-ID: <199411220332.TAA18673@virtconf.digex.net>

It interesting that everyone is talking about price structures, and very
little about fair use.  It is important to consider that as a component
in any pricing scheme or the concept of a public library, or a useful
college library will be lost.

Shelly Warwick
wasbb@cunyvm.cuny.edu

------------------------------

End of INTELLEC Digest 43
*************************

From daemon Tue Nov 22 10:04:18 1994
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From: intellec@virtconf.ntia.doc.gov
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Date: Tue, 22 Nov 1994 10:07:20 -0800
Message-Id: <199411221807.KAA11367@virtconf.digex.net>
Reply-To: intellec@virtconf.ntia.doc.gov
Originator: intellec@virtconf.ntia.doc.gov
Sender: intellec@virtconf.ntia.doc.gov
Precedence: first-class
To: Multiple recipients of list <intellec@virtconf.ntia.doc.gov>
Subject: [INTELLEC:134] INTELLEC digest 44
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment:  Due to server load, all subscriptions converted to DIGESTS
Status: RO

			    INTELLEC Digest 44

Topics covered in this issue include:

  1) Re: [INTELLEC:126] INTELLEC digest 38
	by jn@tommy.demon.co.uk (John Nissen)

----------------------------------------------------------------------

Date: Tue, 22 Nov 1994 13:53:54 GMT
From: jn@tommy.demon.co.uk (John Nissen)
To: intellec@virtconf.ntia.doc.gov
Cc: jn@tommy.demon.co.uk
Subject: Re: [INTELLEC:126] INTELLEC digest 38
Message-ID: <3363@tommy.demon.co.uk>

In message <199411211842.KAA18966@virtconf.digex.net> 
intellec@virtconf.ntia.doc.gov writes:

> 			    INTELLEC Digest 38
> 
> Topics covered in this issue include:
> 
>   2) Re: [INTELLEC:75] Re: Modifying existing Copyright law probably i
> 	by Shelly Warwick <WASBB@CUNYVM.CUNY.EDU>
> 
> ----------------------------------------------------------------------
> Date:         Mon, 21 Nov 94 10:06:22 EST
> From: Shelly Warwick <WASBB@CUNYVM.CUNY.EDU>
> To: intellec@VIRTCONF.NTIA.DOC.GOV
> Subject: Re: [INTELLEC:75] Re: Modifying existing Copyright law probably i
> Message-ID: <199411211830.KAA18223@virtconf.digex.net>
> 
> Shirley Tensg observed that the rewards under the current IP laws
> don't reward creators, but distributors...
> ........................  In short we need to come up with a system
> that gives the giant share of the reward to the originator but leaves some
> means of also rewarding the distributor without necessitating the transfer
> of ownership.
 
In the case of electronic books, the Superhighway will be the distributor.
No, what we need is to retain the function of publishers to select good
material, nurture the talent, improve presentation aspects, produce enticing 
introductions, etc.  With the explosion of information, there will be
a lot of value from specialist effort in filtering out the good from the 
indifferent. However, changing the copyright laws in apparently small ways
to help publishers to minimise potential loss of revenues (losses arising
through copying) is extremely dangerous, as has been pointed out in a couple
of earlier postings - excellent and detailed expositions. For publishers
there is a technical rather than legal solution, combining encryption with
other techniques.

Although there is room for publishers, there is also scope for a flourishing
trade in direct sales from author to reader on a shareware basis, as is 
already growing with software.  To really boost this trade, a simple
fraud-proof financial transaction mechanism is needed.  The credit card
is an existing mechanism, but has unsatisfactory security, and too high
a cost for the money recipient. The smart card shows some promise, claiming
to be fraud-proof.  A simpler solution with modern encryption techniqies
could probably be devised in the short term.

Note that encryption appears to be key to the successful lubrication of
trade.  But the US government is effectively preventing widespread use of
encryption, for the same reason as it is trying to force telephone 
exchanges to incorporate means for tapping the phones.  The government
does not trust its citizens!  Surely the government's treatment of this
issue is extremely shortsighted, and will be damaging in the long run.
Citizens should have the right to keep their own communications private 
under normal circumstances.

> Also, and this is not just NII related, I think there should be laws
> the maximize the lenght of time for which ownership can be transfered.
> Most scholarly journals will not publish a paper unless they receive the
> copyright.  There should be some way for this right to expire, or require that
> a mandatory transfer of rights results in a mandatory payment.

The European Union is about to extend copyright to 70 years, I believe!
 
> Shelly Warwick
> Baruch College

Cheers from Chiswick,

John

-- 
{-: John Nissen, Chiswick, London.  Telephone +44 81 742 3170 :-}

------------------------------

End of INTELLEC Digest 44
*************************

