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Internet and Society 1999
The Technologies and Politics of Control
Scribes Notes -- Lecture 7


I.          Agenda Today

A.      Trusted Systems

B.      Guests

1.       Students

2.       Kevin-Represents our interests as citizens/consumers

3.       Jessica-Simon Schuster Murdock…represents the interests of the publisher

4.       Avin Dupre-Artists

5.       Glen Brown-Congress

6.       John-PHD in library and Sciences

7.       Janelle-Software Developers

C.     Interests at stake here

D.     Trusted PC Alliance (TPCA)

1.       “Safety for Surfers” 5 software cos ban together to provide security

2.       Compaq, HP, Microsoft, Intel (one more?

3.       Safer Security and Shopping

E.      Guests

1.       Janelle: make it safer for people who use the Internet, build security into hardware and software

2.       Zittrain: When you say security?

3.       Kevin: wants to be protected from crackers

4.       Is this an alliance to thwart hackers? From getting our credit cards

5.       Janelle: we want to ensure that the basic security requirements: authenticity, integrity of the date, confidentiality, goes b/y just preventing hackers from getting our info

6.       The ultimate goal is trust

7.       Kevin: “trust” to me means…having someone looking out for interest, know that it is safe

8.       Janelle: “trust”

9.       Professor Hal Abelson-opportunities for thieves, criminals accessing our bank accounts and use for money laundering, porno…we need an architecture for trust, someone has certified that the software does what it is supposed to do and no more, no less

·     Ultimately it comes down to a trust infrastructure to realize the promise of the Internet

10.     Publisher-represents authors interest in putting work online and authors need assurance from publisher that someone is paying for fee of the book and that the book will stay with that buyer and not be copied to others

11.     Janelle: Is that the type of trust that TPCA geared toward?

·     Digital watermarking in the future

12.     Trust can be a two way street to allow citizen to trust that when he buys something online and so that publishers can trust that citizen is getting what he paid for, no more no less

13.     Dupree (writer/artist): places trust in publishers, want to be acknowledged, means of making a living, need trust in the publisher, but also ISP, make sure that ISP will not undermine trust (in that people will be able to copy and distribute w/o paying)

14.     What percentage does S&S…get as a publisher? Approximately 90% of royalties

15.     Are publishers’ and authors’ interests vis-à-vis each other aligned, shifted because of advent of Internet

·     Initially, shifted in favor of artists to distribute work and circumvent publishers

16.     Allows new types of transactions: i.e. renting books for a few hours ala renting a video

17.     Author: sounds strange to him, seems to offend his sense of entitlement, confused by it but more receptive to it if explained, how do you determine the renting rate

18.     Publisher: you could also have the option to buy, download the entire information for higher price

19.     Zittrain: Couldn’t people pass the books from PC to PC?

20.     Publisher: if you send the file, it no longer is accessible to the sender; ideally computer would have identification system where once sent the sender could “notify” S&S and sender could be charged appropriately

21.     Citizen’s reaction: depends on the price and the options, i.e. only pay for the highlights, have a grace period when if he does not like book can return it

22.     Librarian: this gets his blood boiling, Internet sounded great at first, but safety, security and trust to him sounds like a bad things for the citizens; not a good deal for everyone

23.     Publisher: this is what the market is calling for, it is easier to download online, market and money are her

24.     JZ: Is this going to eliminate the library?

25.     Publisher: there will always be those who will be interested in books, cites studies that prove that people are more comfortable reading a hard copy-Librarian will always have an audience

26.     Librarian: this concerns him, threatens the library, what about the public interest, those who have no access to Internet

27.     JZ: Is librarian asking for a law?

28.     Librarian: Yes, need to protect public interest, need to preserve public access and control of books in the hands of librarians

F.      Class

1.       Books are here to stay and it is not the same thing as file on computer

2.       What about e-books?

3.       Publisher: the idea technologically, this will save trees, you will download information in the form of a book

4.       Janelle: How many years will it take you to generate this simulated digital book? This is currently being worked on, will take approximately 5-6 years and then NO more libraries!

5.       Librarian has asked for a law

6.       Congressman: He likes the way that things sound from publisher and TPCA, but thinks this may be problem-contemplates a law to protect fair use, public interest

7.       “Fair use”: defense to copyright infringement exists

G.    MIT question to artist: Why do you want to pay publisher 90% royalties when the librarian will do the same service for free?

1.       WriteràPublisher: Librarians will not “sell” the book for you

H.     MIT: Word of mouth suffices for recommendation

I.           Tara: Prez of Electronic Frontier Foundation: When talk about trusted systems do you recognize that using information for discounts may be a privacy violation (depends on what the company is tracking, could conceivably be a privacy violation)?

1.       This system undermines copyright law

J.        Comments from the system: Are the people stupid enough to treat publishers as art critiques and not just recognize that they are representing their own economic interests

K.      To the librarian: are you just afraid of the competition? Wouldn’t this be great for libraries?

1.       Librarian worried that librarians/libraries/public interest will not be important to the TPCA and publishers

L.       How does the security actually work? Trust that credit card safe and that information will not be distributed without payment

M.    TPCA wants security functionality built into the hardware against the attempts of citizens to do something that the system is not intended for

1.       Ex. JZ gets email that says “Do not redistribute.”

2.       TPCA says that the email software she hopes for in the future will abort this and not allow it to happen

N.     The Framers

1.       Harmony internationally that obligate US to keep in harmony with the rest of the world

2.       US Constitution: Congress may “promote the Progress of science and the useful arts, by securing for limited Times to Auuthors and Inventors the exclusive right to their respective Writings and Discoveries-Copyright Clause empowers Congress explicitly to pass laws re: copyright, trademark

·     “limited times” idea that copyright cannot go on forever

3.       Copyright:

·     Scope: difference btw. idea and expression of an idea

-   It only applies to fixed in a tangible medium, words actually written down does copyright actually apply; idea that if someone paraphrases what JZ says does not violate copyright if do not use exact words

-   “Don’t sell your class notes. Anyone who does can be asked to w/draw from college.”

-   Proctor of Harvard College: worried about versity.com where class notes can be purchased. Student paid $10/hour, not much is known about versity.com because students have to sign non-disclosure form

-   Student approached proctor to ask if participating with versity.com was okay: Dean said this violates code in two ways: students are not allowed to participate and feed versity with notes, but also dishonest

-   Seems that the worry is really Harvard’s IP

-   Class: why is this dishonesty. Isn’t this the same as going to pub and discussing class discussion

-   Can copyright interest be asserted against the notes that the student took?

-   Harvard concerned that students capitalizing on H property

-   Would it be contrary to handbook if notes published on Internet and not for same

-   School is also concerned with this

·     Zittrain doubts that even the professor will be able to assert a copyright interest onto the notes taken-this is sharing ideas, what is supposed to happen according to what Framers envisioned

·     There are more than copyright issues here, schools own policy

·     The Feist Debate:

-   Feist: Someone created, sweated over, white pages and someone copied/stole write pages

-   USSC: this is just collection of facts, not covered by copyright laws, copyright protects creative thoughts, NOT compiled facts

-   Feist debate copyright only protecting creative thoughts NOT facts

4.       What does the copyright protection entail? Sticks in the bundle.

·     Section 106 of Copyright Act

·     Right to reproduce copyrighted work

·     Prepare derivative works based on copyright work, ex. If you take a book and write new introduction, translate from English to French-these are derivative works

-   Odd case: take picture place into ceramic tile then sought to sell the tile was accused of creating a derivative

-   Application of ransom notes. Violation of Copyright law???

·     Right of first publication: right to sell, rent

·     Bunch of other rights see section 106

5.       In addition to those rights (NOTE: rights are transferable)

6.       Defenses to Infringement

·     “Fair use:” illusive phrase

-   Four principles to guide you in determining what is or is not fair use

-   Problem is that you may have to go through with litigation to assert defense

·     First Sale Doctrine: law provides that if you sell something, you cannot then assert control over what happens next (exceptions: computer software)

7.       What’s the law doing?

·     Rights to authors and publishers

·     Assert privileges to readers

·     Plaintiff claims; defendant raises defense

·     Congress juggling interests here

8.       Story of Internet 1994

·     LA Times article-digital technology uses, used in disastrous ways

·     Other articles-focus on unauthorized copying, undermining trademark and copyright law

·     Online commerce threatened by advent of Internet

·     How to protect copyright in cyberspace

·     Lawyers: “information superhighway” does facilitate information access, but it is a huge challenge to International protection and IP

O.    Barlow

1.       Need to develop new laws to protect copyright on Internet, everything you know about IP is WRONG!

2.       Internet is posing all sorts of problems for copyright

P.      Towards Internet 2000-Where are we going from here?

1.       From copyright to contract

·     Feist returns-may be ways in which contract can protect that which copyright cannot

·     Contract infringement, i.e. breach of contract claims

·     7th Circuit decision says that’s exactly it, the K that the buyer agreed to by opening up wrapper binds him (in all reasonable sense) and that includes putting information on the Internet

·     Movement to protect with K what you could not with copyright, i.e. when you click “I agree”

·     “click wrap” UCC 2b attempted to make it clear that such agreements generally binding even if contained some surprising terms-did not actually go thru but this idea is coming back to life in form of UCEDA???

2.       Redefining “rights”

·     “rights” in the non-legal sense: under some systems some rights are not afforded to you

Q.    Barlow has entered the room: I have some new thoughts…

1.       Classical deck chair rearrangement

2.       Real issue is to promote progress of sciences and useful arts

3.       2nd A reference: clause that proceeds what is now and odd conclusion

4.       In this cases, if you want to promote this progress, it may well be that defending rights of those necessary to distribute information under old medium is the WRONG way to go about it

5.       Discussions should focus on initial principles:

·     How incentivize people to create, widely distribute as possible, and composte for other work for which they always are

·     Open Source Movement-creates richer ecosystem for recreation

·     It becomes important to think about how artist him or herself has some capacity to exercise artistic control over work. We need to try to solve how to…:

-   Must take ownership away from publishers who have no right to material in first place

-   Artist in a position to control flow of work

·     Greatest threat to Freedom of Expression is application of copyright law globally

-   Need other methods

R.     Hypothetical

1.       Our homework assignment for this week: Lifetime CD-ROM issue

2.       Should law penalize Jane for what she did?

3.       Does the existing law reach her behavior?

·     Only aware of stuff we have learned in this class:

·     Is there a contract? Should be one of our first thoughts

-   If it terms on back of magazine that said if you open you cannot do…

-   May be contract of adhesion (one you do not generally read, i.e. tag on keys of rental car); these Ks are not per se invalid, but ambiguities construed in favor of user

-   This may be an adhesion K, but terms could be clear and thus valid

·     What if license appears inside magazine instead of back; if she decides not to participate after this?

-   Recent court decision: So long as you can return magazine and get refund, you are not bound; if yo have opportunity to go to store and return that’s enough to ???

·     Hannah would be open to trying different solutions and use Internet to try and rethink old values

·     Some class answers

-   Zack Gelber: idea that copyright law should be tossed

-   McKee: this is stealing!

·     This is “trespass” going into someone’s private files where you do not have a right to be.

·     She did not trespass, she just beat them at their own game. The fact that this was not a fool proof product, this product was not good enough, creates incentive for better, more secure systems. There was not real harm here, this was just going to be used for her own use. More power to her! You need to look at the costs and benefits to society. This is a benefit to society. Lifetime would be forced to create a better product.

·     What if Jane shared the “h/cracking” program (“Here’s the secret code to crack Lifetime!”)? Should we penalize that?

-   Few people think we should punish her for posting her MO

-   This is just FYI

·     Class rotisserie comment: Only if she proceeded to make the interviews available to others should she be penalized

S.      Using new old rights to protect new new rights-JZ

1.       “New kind of right” different from old kind of right (what law recognizes)

2.       Use law (old style) to help protect this new style of rights

3.       DMCA (Digital Millennium Copyright Act)-idea is that if something is subject to copyright and on CD-Rom and protected effectively, if you break that effective protection, then you go to jail

·     Rights to property do not inhere to how well you protect them (if left door to home open, you can still go after them)

·     Idea that the act of hacking alone is a separate crime

T.       Internet 2000: The perfect enforcement of nonexistent laws

U.     Concluding words

1.       Should take away from this discussion: Perfect enforcement of non-existent laws-The possibility of more finely grained control over information (able to say that this information is ons only for Democrats!)

2.       Yet these laws are not coming from Congress, but technologists (market forces), private demands


Samantha Haas

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