SECOND INTERNATIONAL HARVARD CONFERENCE ON INTERNET & SOCIETY may 26-29, 1998
When Copy & Paste Don't Work
by Michelle SpauldingAs more and more valuable content finds its way onto the web, content providers are becoming increasingly concerned about maintaining control over access to, and use of, the content they place on the web. The ease with which content is copied and distributed over the net makes these concerns very real. Moreover, existing intellectual property doctrines may not provide the level of control that content-providers would like. Although copyright law provides some protection for many types of content, it is costly to enforce. Moreover, copyright law may not prevent copying of valuable data placed on the web. And as we have seen, intellectual property doctrines may not be sufficient to give content providers control over how others display and link to their sites. Accordingly, content-providers have begun to turn to other potential mechanisms of control.
Technologies are being developed that would give content providers enhanced technological control over the use of the content. For example, so called "trusted systems" can give content providers the ability to control and monitor the number of times you read or print a particular page. How should the law treat these new technological protection mechanisms?
A possible alternative or supplement to contract as a way of controlling content on-line is technology. Imagine a world in which technology, rather than law, limited what you could do with the content you viewed on the world wide web. For example, say you access a prominent news site (e.g. The New York Times Online, CNN, etc.). You find an article on a topic of interest. You press the print button and, instead of printing, a window pops up asking you to pay 50 cents. You click "ok" and the 50 cents is automatically deducted from your electronic cash account. Your printer starts printing. If you had clicked "no," a copy protection mechanism would have prevented you from printing the article out.
Systems that could implement the above scenario are already available. A number of companies offer just such "trusted systems" technology, which would enable content owners to place technological restrictions on what you can do with content accessed through the internet. For example, a company called Intertrust, Inc. offers such technology. IBM has also developed such technology. This article provides a good summary of such systems. Using such systems, content owners could restrict certain uses of their content; charge for other uses; charge by amount of time spent viewing, etc. Moreover, Congress is currently considering legislation that would give added boost to such systems by making it unlawful to circumvent anti-copying technology.
The question here is a broad one: Are these systems a good thing? How should the law respond to such technology? On the one hand, they certainly reduce the costs of preventing unauthorized copying. On the other hand, they can be used to do far more than simply limit copying. Should the law support these systems, as the proposals before Congress currently appear to do? Should the law be neutral, leaving it to hackers and others to find ways around the technology? Or should the law affirmatively limit the use of such technologies in order to ensure a broad realm of fair use?
Articles on Technological Protection:
Tom Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management On Copyright's Fair Use Doctrine.
Mark Stefik, Trusted Systems, Scientific American. Describes different types of technological protection mechanisms.
Mark Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge us to Rethink Digital Publishing, 12 Berkeley Tech. L.J. 137 (1997). A summary of various trusted systems and their likely impact.
Pamela Samuelson, The Copyright Grab.
Pamela Samuelson, Digital Media and the Law.
Pamela Samuelson, Legally Speaking: The NII Intellectual Property Report.
Pamela Samuelson, Legally Speaking: Embedding Technical Self-Help in Licensed Software.
Pamela Samuelson, Legally Speaking: The Never Ending Struggle for Balance.
Julie Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L.J. 161 (1997). Reflections on the implications of copyright management systems.
Julie Cohen, Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of "Lock-Out" Programs.
David L. Hayes, Advanced Copyright Issues on the Internet.
David L. Hayes, The Coming Tidal Wave of Copyright Issues on the Internet.
Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 Berkeley Tech. L.J. (1997). A discussion of technological protection measures.
Coalition for Networked Information, Technological Strategies for Protecting Intellectual Property in the Networked Multimedia Environment. Numerous working papers on copy protection.
Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet.
Brad Cox, Superdistribution, Hotwired. Argument in support of metered use.
Dan L. Burk, The Market for Digital Piracy.
Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994).
Jessica Litman, Copyright Noncompliance (or why we can't "Just say yes" to licensing), 29 N.Y.U. J. INT'L L. & POL. 237 (1997).
Charles R. McManis, Taking TRIPs on the Information Superhighway: International Intellectual Property Protection and Emerging Computer Technology.
Craig Matsumoto, Proposal Addresses Copy Protection Of Digital Data.
Martin Schwimmer and Craig S. Mende, Madonna and Audio Streaming, Copyright Infringement on the Internet.
Robert J. Bernstein and Robert W. Clarida, New Policies and Procedures for the Digital Age
CORDS: Copyright Office Electronic Registration, Recordation and Deposit System.
Recent Research Papers of Hal R. Varian.
MediaSec Technologies Index: Digital Copyright Protection and Digital Watermarking Technology.
Cryptographic methods for access control and copy(right) protection in The SMASH Project.
Michelle Spaulding bio