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Online Copyright Protection and Censorship: Twin Sisters?

We at OBS have been working in "distributive" publishing on the Internet for going on four years now. As evidenced by the papers and presentations in "Information that Wants to Be Free" here at OBS, we have discovered many provocative opportunities, both commercial and intellectual, arising from the dissolution of traditional boundaries around books and nations which is afforded by the Internet. Our discoveries, available throughout this site, have a lot to do with enabling the emergence of what Kevin Kelly might call "a hivelike supermind," rather than illustrating methods of building walls and scrambling files to protect the product-based business of paper books.

The following is not a formal paper, but is rather an email message I wrote one Saturday morning a few months ago in response Washington's latest White Paper on the NII and copyright protection. I resurrect it thinking that maybe it will contribute to the necessary debate going on now about censorship, as our public servants in Washington go about enacting preholiday legislation that will affect (and maybe even effect) the open Internet as we have the opportunity to know and use it today.

If you want to "distribute" this material, do so only by pointing back to this file at the OBS --this is the only authentic version, because I will change and update it as soon as I have a few moments to do so. Thanks in advance for your interest in and attention to the debate, and especially for your adding your voice and your actions to protect our collective cogniright, our freedom to think on the Internet.

Laura Fillmore
President, Open Book Systems
laura@obs-us.com



*****

Summary of a response to the Analysis of Administration WP on IP in the NII

The process of thought, collective, immediate, recorded, manipulable thought, this is what the Internet offers us access to, and it is a capability far more valuable and transformative than any digitized distribution channel metering the sale and dissemination of copies of things. Such empowerment opens the doors for us to a realm of intellectual and imaginative richness unimagined and impossible in a world delimited by physical, disconnected products of thought, such as books, magazines, and TV shows. Importantly, however, one form of communication does not necessarily supplant the other; the present is tethered to the past. The Internet we use every day challenges us to focus on adaptation to and use of its capabilities, not rote replication of our tangible world into the digitable.

Publishers can relax, to come extent. People in their beds and on their beaches will continue to read their books, and that aspect of the publishing business will continue, alongside of its online sister. But minor adaptation and application of the existing copy- and product-based rules and regulations governing the licensing, creation, and distribution of intellectual property seem to deter the potential of a globally internetworked thought system, as we will see below.

Publishing Contracts these days invite authors to assign their publishing rights in many media, and this clause is usually capped with the one I like best: "...or any other media now known or hereafter invented." Well, folks, we now know that a fully internetworked world brings us to the threshold of the "hereafter invented" part of that clause, because the internet, as a distributive digital medium, exponentially increasing in size *and complexity*, represents a superset of all media, harboring far greater potential than only those channels our narrow minds can today comprehend. For we are all new inhabitants here, online. We should face this fact squarely, without allowing fear to hobble our imaginations, or silly retro litigation to quell and suppress the potentials of the new media.

Need we argue about the profundity of the medium? Despite the deceptively simple and elegant new browser interfaces, Internet architecture appears a kaleidoscope of unfolding complexity and promise--a super software structure which learns from its users, builds on itself, and eats its tail. An adaptive system, Internet evolves through use, which use increases exponentially, thanks to our colleagues, the geeks and the programmers, and their insatiable hunger for access, and what Gregory Rawlins calls their "fierce joy" in creating perfect systems. These perfect software systems are not frozen artifacts, preconfigured and prepackaged chunks stamped with foil to be bought and sold by a few giants. Rather, they are learning machines, adaptive and responsive to their users. Isn't that what publishing books is supposed to be about too?

Let us explore the potential synergy of interest. Instead of retrofitting 500 years of paper publishing into this kinetic thought machine, making laws about copies and worrying about how high a fine or how long a jail sentence it will take to still the human mind behind a busy machine, perhaps it is more productive to devise and deploy charging models based on staged levels of access, charging models based on relative values of contribution to original work.

There is not only one path to profit for a pubilsher, that being the familiar and well-trod reader/user-pay model. What lies beyond that, once we ackowledge and begin to exploit the contribution of the reader to the digitized work available on a networked medium? Or once we begin to become come truly sensitive to time-based customized access to information?

Our right to think, our "cogniright," comes from a freedom both to read and to write. True success in publishing comes from recognizing this freedom of thought, this cogniright, as a global and not a national right. One essential new aspect of online publishing is that both the reading and the writing processes can now be recorded and manipulated, transmitted instantaneously, from me to a neighbor 10,000 miles away.

Conferencing systems like AOL and CIS know the lucrative value of capturing and reselling our kinetic, recorded thought processes, our recorded conversations--a good portion of their income comes from the time people spend in their chat sessions. They probably make more money off of that than from people downloading blurbs or static sample chapters about books. Who's to say, then, that the most value (both from a financial and an intellectual standpoint) of books online comes from protecting and limiting access to, or distribution of the static copy of what the author wrote, the copyright, and is not to be derived from aspects of the book not now fully known, and to be invented and tested next week, such as, for example, the discussion forum attached to a popular book, or the online thought paths blazed by a brilliant class of students developing theses about, say, Francis Crick's "Astonishing Hypothesis" about the Soul?

Adopting, for example, a system whereby users are charged for staged levels of access, all parties might derive income--those enabling access (the publishers), as well as those creating and moderating the evolution of the work (the authors and editors). And if compensation for original thought is the issue, such a model might be one closer approximation (among many) than the punitive and limiting path pointed to by the White Paper below. It opens windows of new commercial opportunity in a terrain just opening its riches up to us, rather than wheelbarrowing up with the boards and the nails.

Resolution of the copyright issue is essential to the metamorphosis of the publishing business from one medium to the next. Or maybe it isn't, if the definition of "publishing business" continues to change so rapidly and so radically. To live online, in public, in a recorded envrionment, what is that but publishing? If enough individuals and companies continue themselves to publish, phone companies becoming pubishers, pharmaceutical companies pubishing, countries publishing themselves, individuals in their basements becoming publishers, perhaps the traditional publishing business and the US Copyright Laws will not prove to be the standards-setters for online access and distribution of thought after all. The Internet is a distributive medium first designed to survive a nuclear strike; when the travelling packets meet an obstruction, they reroute around it, like water in the Heraclitean Stream around the rocks of its bed. In an environment where access is all, is the wisest path that of secrecy and criminalization of access?

People need to make money for original thought, original art and writing, and for enabling the access and distribution of the same. To enable that commerce, we have created a category of ideas called "intellectual property." The challenge before us is to recognize that, given the wings of the internetworked medium, that intellectual property, which prior to the Internet may have been like water, now is more like rain. Send a child out in the storm to get you a bucket of rain, and he'll bring you back a bucket of water. Rain no more.

Just so, the essence, the magic of thought, may be lost in the copy, in drawing the boundary and making the product. Better it would be to build our cognirights around the thought processes possible through internetworking. Even if, when it comes to publishing successfully on the Internet, the commercially viable business models and fair and enforceable laws protecting our cognitive evolution, our heads, now must be devised, tested and revised, it seems more advisable to recognize this unknown and approach it with caution and respect, than to clamour to apply restrictive laws wrested from another medium, another time, in an attempt to control the tide.

****

[cut]

>>The principal conclusion in the >>238 page Report is that current laws are substantially adequate for the >>task of advancing the national and global information infrastructures >>(the "NII" and the "GII").

Current laws are primarily based on distribution of copies of the products which contain intellectual property, and not based on recorded access to intellectual properties as open and evolving works. How can the same laws apply?

[snip]

>>, the Report has a subtle but meaningful impact on >>libraries and educational institutions.

Yes, by effectively taking the "distance" out of "distance learning" and limiting the mission of public libraries to enable democratic and free access to books and publications. There is nothing subtle about this change.

[snip]

>>and that such transmissions fall within the exclusive distribution right >>of the copyright owner.

A problem arises with the concept of what distribution is and it needs to be differentiated from "enabling access to." This is fundamental. Just because I think a thought (and post a file) does not mean that I am distributing that thought, and, if I am thinking about copyrighted materials, that I am republishing those materials by thinking about or linking to them in a recorded environment.

The power of "Enabling access to" was not really manifest in any significant way before the Internet. The publisher of a book couldn't just make one copy and lay it in a field and expect any kind of response. That is decidedly not the case with the Net. Thinking online is publishing; thinking *about* or linkthink is what one does, in the context of our recorded culture, when online. When thinking *about* things or linking to others' ideas and information, one necessarily touches on copyrights and trademarks, etc. Tight controls on this kind of associative thought online might lead to pap or cant or just plain silence. Is that goal in our common good?

It might make better sense to look at the client end for relative value of use or thought produced, and define and build charging models around the paths of access, rather than encrypting and locking up in chunks what is being linked to, and criminalizing anyone who, or any owner of any machine that might mention or link to or refer the content!

[snip]

>> >> While the proposed amendments appear modest, they are based on >>the premise that --all-- transmissions are within the exclusive domain of >>the copyright proprietor. [snip] As a result, the impact of these changes on >>"distance learning," where classroom teaching is not only performed >>live, but also transmitted to remote locations and stored for future >>review, could be dramatic. If third party works are incorporated in >>distance learning classes and transmitted to remote locales where they >>are independently recorded without prior clearance, that downloading >>could be held to violate the newly clarified "distribution right."

This seems to lead to a segmentation and even destruction of established distributive channels for learning and education. Wouldn't it be more productive to explore charging models within the distance learning modules themselves, based on use students and teachers make of the intellectual property, rather than effectively closing down or criminalizing the access to ideas and information?

[snip]

>> The Report's recommendations would allow libraries to prepare >>--three copies of works in digital form for preservation purposes-- (only >>one of which could be publicly used). It would also recognize that >>copyright notice is no longer mandatory.

The above seems to capture effectively the metamorphosis problem we are having here, talking about three as opposed to two or four copies of a file, and "preserving" an insubstantial digit. Four or four thousand copies--there is no difference! There is no weight to a digit, no heft to a bit! One can't preserve something which is not matter, has no substance, a zero or a one! Slowly, we must turn away from this debate, and begin to realize that our work lies elsewhere, that the new technology enables us finally to argue about the ideas themselves, and what access to and evolution of these ideas means in an internetworked society.

The fact that copyright notice is no longer mandatory seems to mean that everything is automatically copyrighted, every thought as soon as it is enunciated online, and, were there no instructions printed on it this email saying otherwise, people would be prohibited from saving this message on their computers, or sharing it with a friend, or forwarding it to another list.

>>	For the educational and library community, the sobering message 
>>of the Report is this: 
>> 
>>	As long as the commercial marketplace has established a metered, 
>>	encrypted system for access, the ability of libraries to serve  
>>	a public mission, which allows for --no fee-- access to published  
>>	and unpublished works, may be diminished. 

Has there ever been a functioning democracy that prohibited libraries from enabling access to the public records, the ideas and literature of its people? At a time when in many states in the US., more tax dollars are spent on jails than on schools, it might prove worthwhile to question the wisdom of answering this dilemma and approaching the promise of the Net by using language of encryption and criminalization. Internet offers significant opportunity as a tool for literacy, for intellectual empowerment, for inexpensive access to education, ideas, and information. Yet we are talking here about the public mission of libraries being diminished.

[cut]
>>	Prohibit the importation, manufacture or distribution of any 
>>device or product, or the provision of any service, the primary purpose 
>>or effect of which is to defeat anti-copy devices or technology, or to 
>>violate the rights of copyright owners.
Does this apply to someone suggesting via email in a public place such as this, that applying copyright laws to cyberspace might be the wrong approach altogether?

>>	The Report also recommends criminalization of the mere "offer" 
>>or "perform[ance]" of "any service, the primary purpose of effect of 
>>which is to avoid, bypass, remove, deactivate, or otherwise circumvent" 
>>technology which is intended to inhibit copyright violations. [cut].  The 
>>nature and scope of "the offer or performance of any service" is vague 
>>and could place libraries or educational institutions at criminal risk 
>>if they acquire and use equipment with multi-purpose capabilities or 
>>attempt novel exercise of their statutory exemptions.

Seems like we are heading toward the criminalization of thinking as a public act.

 
>> 
>> 
>>5.  Copyright Management Information 
>> 
>>	Prohibit the dissemination of copyright management information 
>>which is known 

by whom?

 >>to be false or the removal or alteration of such 
>>information.  
>> 
[snip] 
 
>>	Comment: 
>> 
>>	While the creators of songs and lyrics and their publishers have 
>>enjoyed all copyright rights of Section 106, owners of sound recordings 
>>(masters from which records, tapes and CDs are made) have enjoyed 
>>limited rights, and most particularly are not entitled to the rights of 
>>public performance and public display.  First protected in 1972 to 
>>prevent tape duplication or record piracy, the key issue for sound 
>>recordings has been the absence of a "performance right." Pending 
>>legislation would grant the performance right (the ability to collect 
>>royalties for broadcasting or other transmissions of recordings) for 
>>some digital works.  The Working Group would prefer to see the right 
>>extended to all recordings, not just digital works. 

Or the right of performance extended to all recorded works, such as the forums associated with online books, for example. The thought paths we leave as we read and write in a recorded environment are no less than cognitive performance, are they not?

[cut] 
 
>>	Moreover, merely opening a technologically sealed envelope may 
>>be a copyright violation.

And subject to fine of $5000, because as soon as you open it, presumably you make it accessible to someone else too. So don't even *think* about pressing that "Open File" button--just click from the menu hardwired into your computer please ;-).

[cut] 

It seems as if the fair use laws should be much more relevant in determining the charging models for commercial online publishing models. This calls for a degree of cooperation, overseen by a body such as the AAP / SSP perhaps, but it seems a much more appropriate use of the medium. This approach needs to be explored more rigorously.

>> The criteria at the heart of a fair use analysis are: the 
>>nature of the use (commercial or non-commercial), the nature of the 
>>work, the substantiality of the portion used as a percent of the whole, 
>>and the impact of the use on the marketplace value of the original.  
>> 
>>	It is important to understand that these are criteria - tools of 
>>analysis - not absolute standards.  The fair use analysis is "fact 
>>driven." This means that how works are acquired may also be reviewed; 
>>however, merely because a work is sealed technologically does not mean 
>>that work is not subject to fair use.  Otherwise, all a copyright owner 
>>would have to do is place figurative fence around a work and warn the 
>>public NO USE is allowed without express permission and compensation.  
>>That result would negate the statutory doctrine.  
>> 
>>	In sum, if the Report's thorough embrace of technology as an 
>>	answer to digital copying and distribution takes hold, applying  
>>	the fair use doctrine and the policies behind the library and  
>>	educational exemptions would become more difficult.  

It seems as if the fair use laws should be much more relevant in determining the charging models for commercial online publishing models. This calls for a degree of cooperation, overseen by a body such as the AAP / SSP perhaps, but it seems a much more appropriate use of the medium. This approach needs to be explored more rigorously.

[cut] 
 
>, the White Paper 
>>questions the constitutionality of moral rights.  The effort at harmony 
>>will be to move foreign copyright laws and treaties closer to the U.S.  
>>commercial model.  
 
[snip] 
 
>>.  The Working Group's most fundamental conclusion is that it 
>>is premature to relieve those who use the NII to transmit information 
>>(e.g.  bulletin board and on-line services) of legal responsibility for 
>>the transmissions on their network.  
>> 

Seems like we are casting about for some central locus of responsibility in the sudden and immediate power of everyone to communicate with everyone else. If someone is participating on a forum connected to an online book, that person owns the copyright of what she says online. But the person who owns the computer hosting the forum for the book immediately violates the law by publishing her words, or enabling them to be transmitted--as well as being responsible for her words' content. This is like holding the drug store owner responsible for what gets xeroxed on his ten-cents-a-copy xerox machine.

>>, it must be assumed that if educators and libraries offer large 
>>amounts of materials on-line, under this standard they could be held 
>>legally responsible for all that content.  
>> 

And with the criminalization of possessing or allowing access to ideas and information firmly in place, we would hardly recognize these institutions we have known libraries and schools. And Jefferson's idea that education is a cornerstone of democracy instead might be replaced with the notion that education is a convenience store .

[cut] 
 
>.  The most restrictive interpretation, that only one copy might 
>>be displayed at a given time and if a work were transferred from a 
>>computer to a computer, the first computer owner would have to erase the 
>>work in the hand-off, leaves the library community with limited room to 
>>maneuver in the digital world.  
>

With such laws in place, it would be brief time indeed before, like Christmas tree lights snuffed out one by one, the libraries, prey to and liable for the intellectual curiosity of their users, would close down.

[cut] 
 
>>	With regard to trademark law, the Report acknowledges there may 
>>be increased potential for international conflicts over domain names.  
>>The current national system may yield overlapping disputes over name 
>>ownership and use.  Further, the Working Group encourages changes in the 
>>international classification scheme to ensure the status of goods and 
>>services for information technology.  

As in the Garden of Eden, naming is controlling.

[cut] 
 
>>It 
>>defines copyright law as a flexible statute which needs only minor, 
>>definitional tinkering to greet the digital era.  

That premise should be examined, for the Internet is an environment which has less to do with protecting copies of things than it does with cognitive evolution of humanity, with cogniright, and this evolution needs to draw upon the recorded culture about and through which we think, millions of us, from many continents and in many languages. By allowing this cerebral feeding ground to be fenced off, encrypted, limited by the giants to the paying elite, we will be severely truncating both the commercial and intellectual potential of the globally internetworked medium.

f>> 
>>	Although the Report makes some positive recommendations to 
>>enhance the capacity of libraries to copy certain works in a digital 
>>format, the broader impact of the Report should not be lost.  Since the 
>>pervasive theme of the recommendations is enhancement of the economic 
>>exploitation of copyrighted works, less heed is paid to the public 
>>interest aspects of copyright law or established exceptions to copyright 
>>rights.  

As all of us constitute the public, then none of us is exempt from the public interest, and it should be served and not overlooked.

>> 
>>	There is also a strong article of faith that technology can 
>>solve current problems, through the wizardry of encryption, digital 
>>signatures, steganography and the like.  The weakest part of the Report 
>>is its assessment of the relationship of fair use to digital use. 
 
[cut] 

At this point, it seems evident that the faith needs to be put in people to solve the current problems fairly ; the technological wizardry has already produced and continues to adapt at amazing speed the thinking machine we call the Internet. All we need to figure out is a way to adapt it as a commercially viable tool for our cognitive evolution. SMP. ;-)

Laura