Besser--CPSR CyberCommons, Ann Arbor10/19/01, 1 What is an Information Commons and Why Should We Care? CPSR--Nurturing the CyberCommons 10/19/01 Howard

Besser--CPSR CyberCommons, Ann Arbor 10/19/01, 1

What is an Information Commons and Why Should We Care?

CPSR--Nurturing the CyberCommons10/19/01

Howard BesserAssociate Professor

UCLA School of Education & Information

http://www.gseis.ucla.edu/~howard/


What is an Information Commons and Why Should We Care?-

u Background & importanceu The disapearing Physical Commonsu The importance of a Content-rich

Information Commons


Characteristics of a Commons

u No one owns itu Almost no control over itu Usually has lots of diversityu People can be anonymous there


What happens in a Commons?

u Free speechu Exposure to different ideasu Exposure to different culturesu Inspiration for new thoughts and creativity


Historical examples of Commons

u Greek’s Agorau Middle Ages’ Commonsu 20th Century parks, streets, town squaresu …electronic version?


Much more than commerce happens in a Commons

u “What goes on in these marketplaces is more than commerce. People hang out there, display their identities (usually as members of groups), gather groups of friends, banter and gossip within and among the groups, overhear others' conversations, and inject themselves temporarily into those conversations. In short, they get to know who the other people are who share their society, and keep up with their daily doings.”

--Lee Felsenstein, The Commons of Information, Dr Dobbs Journal, May 1993


Our Commons in Physical Space are disappearing


Bath bathrooms circa 1650


Paddington Station


Naples Train Station


Westwood Farmers Market


but in the US we have things like

Beverly Center Mall


Public Space is no longer public

Private Property. Permission Private Property. Permission to pass revocable at any to pass revocable at any

time.time.


Street-cams


3 blocks near Penn Station

Map compiled by Matt McCourt and Carl Dahlman, Department of Geography, University of Kentucky


Enemy of the State


Public Spaces rapidly disappeared in the late 20th Century

u Erosion of Inner City, growth of suburbsu Decay of public transitu No more privacy in public spacesu The rise of pseudo-public spacesu Broadcasting-u The erosion of the public domain-


Static Over Low-Powered RadioNYT Editorial, 3/31/00


Our Commons in other spaces are disappearing, with threats to:

u Free speechu Privacy and anonymityu Access to content


Criminalizing © violationsDmitri Sklyarov jailed


We also have a less physical, more abstract/intellectual commons

u Our Information Commons -- a rich set of Content that anyone can draw upon to use in any way they see fit


An Information Commons of Content is critical for society

u Creators draw on it for new worksu Scholars use it for new discoveriesu Social commentators use it to satirize or

criticizeu Teachers teach with it, young people learn

from itu A key part of public discourse


Rest of Talk will Focus on how the Content portion of the Information

Commons is rapidly eroding

u Fair use and first sale severely limitedu Perpetual © and elimination of public domainu Licensingu Tracking use

– To freely use it, people need to know they’re not being tracked


An Information Commons:© concepts as enablers

u A robust public domainu Time limits for copyright monopolyu Fair useu First sale


What is Copyright About?

u The Congress shall have power ...to provide for the ... general welfare of the United States To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

-US Constitution, Article 1, Section 8 (underlining added)

u (exclusive control) Incentivizing creators to create moreu (limited time) Establishing a vast and rich public domain for

use as new creative materials, as well as for public edification and appreciation


What is Copyright?

u Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good

u Copyright is NOT an unlimited Economic Rightu Copyright is really a temporary monopoly right

granted to creators in order to fulfill the societal need to increase creativity

u The Copyright monopoly is temporary, then works become freely available for all purposes


Important Traditions-

u Fair Useu First Saleu A robust public domain


Delicate balance

u Fair Use is a powerful tool for both education and social commentary

u First Sale is important for social aims


Fair Use is Disappearing

u Criminalizing Fair Useu Copyrighting DB contents in perpetituityu Proposed Legislation (USCITA, etc.)u The 1998 Digital Millenium Copyright Actu The 1998 Sony Bono Term Extension Act


The erosion of the public domain-

u What is it?u What threatens it?u Why should we care?


What’s part of Public Domain?

Still isu Airu Sunlightu Numbersu Godu Ideas & Facts**

Wasu Wateru Land


Lawyers defining the Public Domainu "things in the public domain can be appropriated by anyone without liability

for infringement" (Black's, 1996) u “the law’s primary safeguard of the raw material that makes authorship

possible” (Litman, 1989)u “a commons that includes those aspects of copyrighted works which

copyright does not protect"” (Litman, 1990)u the converse of property rights in information where the government prohibits

certain uses or communications of information to all people but the owner; the public domain “is the range of uses privileged to all” (Benkler, 1999)

u “the ultimate source of all new works (because nothing is ever wholly new in and of itself)” (Karjala, 1998)

u “copyright’s raison d’etre is to benefit the public by encouraging the production and dissemination of new copyrighted works” (Kreiss, 1995)


Public Domain -- a simpler explanation

u resources freely available for all members of society to do whatever they want with them

u no permissions or fees requiredu no tracking of what you read or use


Content in Public Domain

u Shakespeareu Balladsu Fablesu ...


Importance of Info Commons for Content

u Common Heritage (philosophical)u New Knowledge incorporates Old

(progress)u Derivative Works rely upon pre-existing

Works (creativity)u Social Commentary (free speech)


What threatens it?-

u An aggressive Content Industryu Term extensionu Returning out-of-copyright works back to

copyrightu Mickey Mouseu Elimination of Fair Use and First Saleu Licensingu Other forms of Contract Laws


Pat Schroeder's New Chapter: The Former Congresswoman Is Battling For America's

Publishers --Washington Post, 2/7/01

u ...Schroeder is president of the Washington- and New York-based Association of American Publishers, sponsor of the event. Like a nurturing shepherd, she moves gently among her flock. But when she talks about threats to the group, she stiffens her back.

u And who, you might be wondering, is giving Schroeder and her publishers such a fright?u Librarians, of course.u No joke. Of all the dangerous and dot-complex problems that American publishers face in

the near future -- economic downturns, competition for leisure time, piracy -- perhaps the most explosive one could be libraries. Publishers and librarians are squaring off for a battle royal over the way electronic books and journals are lent out from libraries and over what constitutes fair use of written material.

u Grossly oversimplified: Publishers want to charge people to read material; librarians want to give it away.

u "We," says Schroeder, "have a very serious issue with librarians."


Publishers Accuse Librarians

u "They've got their radical factions (librarians), like the Ruby Ridge or Waco types," who want to share all content for free, said Judith Platt, a spokeswoman for the Association of American Publishers.

u -ZDNet News, July 12, 2001


Time before works enter public domain

Law Duration1709 British 14 years

1790 US 14+14 years

1909 US 28+28 years

1976 US 75 years

1998 US 95 years

1998 US life+70 years


Lengthier Copyright Means

Date Term

Published 1923-63 67 years if renewed

Published 1964-77 28+67 years

Created before 1/1/78 Life+70 years or-12/31/02 if not published

-12/31/47 if published before end of 2002

whichever is greaterCreated after 1/1/78 Life+70 years (95/120

years corporate)


Works that should have already entered the Public Domain (but didn't)

u Virginia Woolf: Jacob's Roomu Film -- Sherlock Jr.u F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the

Sanctuary u Zane Grey: Code of the West, Steelhead, Tappan's Burro,The

Vanishing American, and Down into the Desert u Ben Hecht: Fingers at the Window u Rudyard Kipling: Independence and London Stoneu P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It

to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself


Works that should have entered the Public Domain in the next few years (but won't)

u Irving Berlin: Blue Skies (2002)u Harry Woods: When the Red, Red Robin Comes

Bob, Bob Bobbin' Along (2002)u Oscar Hammerstein II and Jerome Kern: Ol' Man

River and Showboat (2003)u Mickey Mouse (2004)


Database Protection Legislation

u The educational exemptions in this bill “appear too narrow to support current university information-use practices”, and it appears that ANY claim of “market harm” could nullify the fair use exemptions.

u --Dr. Debra W. Stewart, testifying Feb 16, 1998 on behalf of the Association of American Universities in front of the House Judiciary Subcommittee on Courts and Intellectual Property considering proposed Database Protection legislation


Copyrighting Facts:Proposed Database Extraction legislation

u No requirement that the DB contain any original content (can copyright facts, government information, etc., taking these out of the Public Domain)

u DB owner given recourse, even if they didn’t suffer harm

u Implications on:– Transformative uses

– Uses other than those intended by the compiler (citation analysis)

– Copyrighting court decisions


NRC analysis of Coble Billu reduce the amount of data that can be obtained, particularly from the private

sector or public-private partnerships, an increasingly important source of data;u increase the cost of obtaining data, particularly from database owners with a

monopoly on the data;u restrict access to data for at least 15 years from the time the data was created;u discourage the transformation of existing databases into new ones, creating

artificial gaps in data availability;u prevent the use of data for purposes other than than which it was collected,

minimizing the scientific and societal value of original data; and u increase restrictions on the use of compilations of all kinds, including works of

authorship (e.g. collection of articles) not normally considered to be databases”

Linn, 2000


Pseudo-public spaces

Economics and Contract Laws preempting long-standing rights

Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply– extending reach beyond “first sale” to control Use

– shrink-wraps eliminating any negotiating power (UCITA)– shrink-wraps and technological protection don’t allow for fair use

exemptions

– licensing curtailing fair use

– Privacy invasions to prove licensing compliance


Further commodification of information

u Dismantlement of the public sphere in general

u Attempts to turn everything into a commodity (even things that don’t really behave like commodities)


Why does any of this matter?

u Derivative worksu Postmodernismu Diminishment of exploration and

experimentationu Public discourseu Democratic values (anyone can be a

creator)


Art builds upon prior Worksnew works involve repurposing old

u Collageu Popu Postmodernu Samplingu Shakespeare


Recent changes are reducing the tools artists used to create new art

based on old

u Lengthening copyright termsu Shrinking public domainu Technical protections that prevent one from

accessing content that one may legally be able to fairly use-


Anti-Circumvention & Rule-Making (1/3)

u Perfectly legal activities (fair use) may be rendered impossible without circumventing technical protection mechanisms

u DMCA makes circumvention of these protection mechanisms illegal



u DMCA compromise required Rulemaking by LofC as to which circumvention measures should be allowed

– Concern from library and other communities that circumventing protection mechanisms to engage in perfectly legal acts (like fair use and preservation) would make them subject to criminal penalties

u House Bill Section 1201(a).– No person shall circumvent a technological protection measure that effectively controls

access to a work protected under this title.

u “While sounding innocuous, what the provision does is create a brand new and unlimited right to control access to copyrighted works. If enacted into law, this new right could bypass the carefully crafted balance between exclusive rights of ownership and public access to works for educational, scholarly, and scientific purposes, which has been part of copyright law for the entire 20th Century. In short, it could eliminate fair use from copyright law.” (John Hammer, National Humanities Alliance, 6/5/98)



u On 10/28/00, Lof C ruled that the following should be exempted until 10/28/03:– Compilations consisting of lists of websites blocked by filtering software

applications; and

– Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.

u Immediate responses of outrage from librarians, consumer protection groups, digital divide groups, etc.-


Outrage at Anti-Circumvention Rulemaking DecisionDigital Future Coalition 10/26/00 press release

u “Unfortunately, today’s decision took 70 pages to essentially say that few persons may ever circumvent a technological protection measure — even to gain access to a work solely for legitimate noncommercial purposes.”

u “Once again, content owners have successfully promoted their own narrow financial interests over the broader public interest in preserving consumer access to literary, scientific, and other works,”

u “deep disappointment that content owners effectively had been given a green light to use technological protection measures to lock up access to copyrighted works.”


Outrage at Anti-Circumvention Rulemaking Decision

American Library Assn ALAWON 9:85, October 26, 2000

u “The Librarian of Congress James Billington has ruled against the American public and library users by negating fair use in the digital arena..”

u “Because of this decision users of digital information will have fewer rights and opportunities than users of print information. In fact, the pay-for-use scenario that librarians have feared appears to have now become a reality with this rule.”

u "The Copyright Office has issued a misguided ruling taking away from students, researchers, teachers and librarians the long standing basic right of ‘fair use’ to our Nation's digital resources," said Nancy Kranich, ALA president. "All library users will be impacted."


Outrage at Anti-Circumvention Rulemaking Decision

Congressman Rick Boucher October 27, 2000 press release

u “I regret the decision of the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, to reject the recommendations of the Administration, concerned Members of Congress, universities and libraries in announcing a decision that does not protect traditional fair use rights. This disappointing decision has moved our Nation one step closer to a "pay-per-use" society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers.”

u “In crafting section 1201(a)(1) of the Digital Millennium Copyright Act, Congress sought to preserve the principle of "fair use" that has served our Nation so well for more than a century. Unfortunately, based on the advice of the Register of Copyrights, the Librarian of Congress today announced his decision to limit the ability of ordinary consumers in most cases to circumvent electronic security measures for the purpose of exercising their non-infringing fair use rights. Consequently, any person who circumvents a technological protection measure to gain access to information to which he has a fair use right will be guilty of a crime. ”


Concern about Anti-Circumvention Rulemaking Decision

US Dept of Commerce National Telecommunications and Information Administration (NTIA) 9/29/00 letter to Copyright Office from Gregory L. Rohde

u “NTIA believes that implementation of far-reaching access control technologies without carefully drawn exemptions would not only invert 200 years of judicial interpretation regarding the scope of protections given to copyright holders, but also eviscerate individual scholarship and the notion of free inquiry. NTIA’s immediate concern is the very one envisioned by the Commerce Committee when it warned of the development of a legal framework that would inexorably create a pay-per-use society.”


Use of IP Laws to inhibit free speech and stifle creativity

u The Wind Done Goneu E-Toyu Leonardo Finance vs

Leonardo Artsu Jeff Koons caseu Barbieu Scientology vs.

Netcom

u Fans sites (Star Trek, Harry Potter)

u 2 Live Crewu Negativland and U2u Contract with Americau Snow White & AIDSu Disney and Dan O’Neilu The Rio player


Dangersu Eliminating a public domain of informationu Controlling social/political commentary, satire,

creation of new derivative works/recombinant worksu Criminalizing acts that might possibly impede digital

commerceu Making sure that the Internet is used only for info

consumption, not productionu Controlling access to older info (controlling history)


What is an Information Commons and Why Should We Care?

u http://www.gseis.ucla.edu/~howard/Copyright/commons.htmlu http://www.gseis.ucla.edu/~howard/Copyright/u http://books.nap.edu/html/digital_dilemma/u http://www.dfc.orgu http://www.pdos.lcs.mit.edu/~cananian/UCITA/u http://www. gseis.ucla.edu /~howard/Papers/caa-fairuse/sld001.htmu http://www.badsoftware.com/u Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993



What has copyright become (1/2)

u Who actually holds Copyright?u Licensing is replacing copyright in the

digital age


Personal Observations

u Copying & Accessu Licensing and Technical Protections Servicesu Archiving and Preservationu Opportunities and Challenges for Authors and

Publishersu Impact of Technical Protection-u Business Models-u Economic Impact of Copyright Violations-u Copyright basis other than Copyingu Fair Use, derivative works, etc.


Personal Observations

u Copying & Accessu Licensing and Technical Protections Servicesu Archiving and Preservationu Opportunities and Challenges for Authors and Publishersu Impact of Technical Protectionu Business Modelsu Economic Impact of Copyright Violationsu Copyright basis other than Copyingu Fair Use, derivative works, etc.

Besser--CPSR CyberCommons, Ann Arbor 10/19/01, 65Computer Science and Telecommunications Board

For Additional Information...

u Committee on Intellectual Property Rights and the Emerging Information Infrastructure, National Research Council, National Academy of Sciences. The Digital Dilemma: Intellectual Property in the Information Age, Washington: National Academy Press, 2000 (Jan)

u http://books.nap.edu/catalog/9601.htmlu http://books.nap.edu/html/digital_dilemma/

– http://www.gseis.ucla.edu/~howard/Copyright– http://www.cni.org/


Further commodification of information, diminishment of

exploration and experimentation-


Draft of House version of Digital Millenium Bill

u “[This bill] contains a provision that would effect the most dramatic change in copyright law in over one hundred years. Buried in the Digital Millennium Copyright Act, a measure designed to implement new international copyright treaties which bring the rest of the world up with current U.S. law, reads:

u Section 1201(a). No person shall circumvent a u technological protection measure that effectivelyu controls access to a work protected under this title.u While sounding innocuous, what the provision does is create a brand new and

unlimited right to control access to copyrighted works. If enacted into law, this new right could bypass the carefully crafted balance between exclusive rights of ownership and public access to works for educational, scholarly, and scientific purposes, which has been part of copyright law for the entire 20th Century. In short, it could eliminate fair use from copyright law.”

u -John Hammer, National Humanities Alliance, 6/5/98


House version of Digital Millenium Bill

u "H.R. 2281, as drafted, would grant copyright owners a new and unrestricted exclusive right to control access to information in digital works which could negate one of the most basic principles that has made the U.S. so clearly a leader in intellectual creativity, innovation, and commerce -- the ability to gain access to information in published or publicly available works... By access I mean the right to read and, even more simply, the right to browse published works. Taken another step, it means the right to use works in ways currently allowed by exemptions and limitations in copyright -- expressly crafted by Congress -- to permit fair use, use for library preservation, and use in classroom teaching."

u -Prof. Robert Oakley, library director, Georgetown University Law Center, 6/5/98

Documents

Besser--CPSR CyberCommons, Ann Arbor10/19/01, 1 What is an Information Commons and Why Should We Care? CPSR--Nurturing the CyberCommons 10/19/01 Howard