Introduction

As more and more valuable content finds its way onto the Net, creators, publishers, and content providers are becoming increasingly concerned about controlling access to, and use of, the content they place in cyberspace. 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. And copyright law may not prevent copying of valuable data placed on the web. Further, 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 alternative methods of intellectual property protection that do not rely on the traditional legal controls.

At this point, content providers have three basic alternatives to the traditional legal regime:

1. Contract. One alternative to the traditional intellectual property regime is an increased reliance on contract law. If you have spent any appreciable amount of time on the web, you will undoubtedly have come across web pages that look suspiciously like contracts. These on-line contracts purport to place restrictions on your use of the site, but it is unclear whether they are enforceable in court, and besides what happens if you just don't comply? Niva Elkin-Koren argues that the boundaries between contract and copyright are unclear and that we need a less ambiguous policy that ensures some balance between content providers and users. This week's assignment illustrates how prevalent, and strongly worded, some online contracts are.

2. Technology. Significant technological alternatives to contract exist as a way of controlling content on-line. Suppose, for example, you access a prominent news site (like The New York Times or CNN) and 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, and your printer starts printing. If you had clicked "no," a copy protection mechanism would have prevented you from printing the article out. Systems that can implement the above scenario are already available from several different companies. These "trusted systems" would enable content owners to place technological restrictions on what you can do with content accessed through the Net.  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 has just passed legislation that would give added boost to such systems by making it unlawful to circumvent anti-copying technology.

How should the law treat these new technological protection mechanisms?  While taking us on a tour of the latest technology -- and the latest thinking -- on trusted systems, Charles Mann demonstrates the enormous instability and uncertainty in this area. Mark Stefik describes how trusted systems work and argues that they will enrich cyberspace by allowing creators to publish more valuable content without the risk of piracy.

3. No Intellectual Property Protection at all. Meanwhile, some commentators predict that no contracts or technology will be able to prevent the revolutionary effects of digitized information -- "information wants to be free," as Stuart Brand puts it. If these commentators are correct, how will that effect the exchange of intellectual property? Many commentators predict that the value in intellectual property will shift from intrinsic quality to timeliness and technical support.

Similarly, some programmers' circles like the Open Source Initiative consciously eschew any form of legal or technological control, arguing that "open source" -- software development using software code that has no intellectual property protection whatsoever -- produces far better results than traditional software development models. Moreover, some online commercial sites, like eBay,  have begun to do business using a model based on the "net morality" of an online community. Instead of using technology or the threat of legal action, eBay and its brethren rely on community norms to enforce their policies. Such online communities have interesting ramifications for intellectual property protection -- perhaps cyberspace norms will one day check violations of intellectual property rights?

To sharpen your understanding of -- and reaction to -- these alternatives, please begin by reading the primary materials, and take a look at this week's case study.  You will also find links in the secondary materials to a variety of legal and non-legal resources that are relevant to these issues. And don't forget to visit the Plenary Threaded Conference for a special online debate between our own Professor Terry Fisher and American University's Professor James Boyle on alternatives to intellectual property.

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Case Study -- Online Contracts and Technological Protection

The Martindale Hubbell Law Directory is a print directory that contains information about virtually every lawyer practicing in the U.S. and Canada (and a number of other countries as well). As you might expect, it is a very big directory. Each entry typically contains contact information for each lawyer, as well as limited biographical information (e.g. school attended, areas of specialization, etc.). The compilation and maintenance of this body of information takes a significant amount of work.

Martindale Hubbell makes its directory available, not only in print, but also on the web. Users can access the site and search the database to find lawyers by name, by geographic location, by specialty, or by any of a number of different criteria.

On the site, there is a copyright notice. Within that notice, there is a link to a document that sets forth the terms and conditions for the use of the directory.

Here is an excerpt from the terms and conditions:

"You are hereby granted a nonexclusive, nontransferable, limited license to view, reproduce, print, and distribute insignificant portions of materials retrieved from this Site provided (a) it is used only for informational, non-commercial purposes, (b) you do not remove or obscure the copyright notice or other notices. Except as expressly provided above, no part of this Site, including but not limited to materials retrieved therefrom and the underlying code, may be reproduced, republished, copied, transmitted, or distributed in any form or by any means. In no event shall materials from this Site be stored in any information storage and retrieval system without prior written permission Martindale-Hubbell."

1. When you accessed the Martindale Hubbell site, did you, by accessing the site, agree to the above terms? Are you now legally bound by them?

2. Suppose you do a search on the Martindale Hubbell site and find a list of 10 attorneys in her geographical area who might be able to handle a matter for a friend. You copy the text from the web-site and paste it into an e-mail, which you send to your friend. But you do not include the copyright notice. Have you breached the terms and conditions listed above?  Or suppose that you are a budding entrepreneur and wish to create a legal directory focused on the particular city you live in. According to these terms and conditions, can you search through the Martindale Hubbell directory and take out the factual information contained in each of the listings?

4. Suppose a local company has developed a program that makes it impossible for Martindale-Hubbell users to copy and paste from the Martindale-Hubbell website without first accepting an automatic credit card charge to download. After the user pays a minimal charge to download attorney listings, she can copy and send them to as many people as she wants. Martindale Hubbell is considering buying the software. Which system -- the copyright notice alone or the technological solution -- would be more effective in protecting Martindale-Hubbell's copyright?  Would the impediment that the software imposes on copying be great enough to justify the price of the software? How might this type of micropayment inhibit the user from normal use of the site?

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Required Reading Materials

(In this portion only, please click on these links now; in order to fully appreciate the module, it is necessary to read all of the required materials.)

Charles C. Mann, "Who Will Own Your Next Good Idea?" Part II, The Atlantic Monthy, September 1998
Mann takes us on a tour of the latest developments in today's intellectual property universe, from software piracy malls in Hong Kong to an electronic book factory statewide, and covers thoroughly the debate about what will happen to intellectual property.
(Please Note: This is the longest article in the primary reading materials, so we have only assigned Part II. However, it is also the most comprehensive article in the required readings; please look at Parts I and III if you have time.)
(click here for full version)


Niva Elkin-Koren, "Copyright Policy and the Limits of Freedom of Contract," 12 Berkeley Tech. L.J. 111 (1997) (edited version)
Elkin-Koren discusses the conflict between copyright and contract and argues that the boundaries between contract and copyright are unclear; she concludes that we need a less ambiguous policy that ensures some balance between content providers and users.
(click here for full version)


Mark Stefik, "Trusted Systems," Scientific American, March 1997
Stefik is a principal scientist at the Xerox Palo Alto Research Center in Palo Alto, California and one of the most articulate supporters of trusted systems technology. In this short piece he discusses the arguments for trusted systems and gives a rough sketch on how trusted systems technology works. (The server to which  this link connects is regrettably slow. Please be patient; if you cannot reach the site, try back later.)

John Perry Barlow, "The Economy of Ideas: Selling Wine Without Bottles on the Global Net":  Barlow, co-founder of the Electronic Frontier Foundation, envisions in this famous essay (originally published in Wired magazine) a world where information "wine" flows freely without book or tangible medium "bottles" to weigh it down.

The Open Source Initiative
A non-profit organization formed (ironically) to protect the "Open Source" trademark, OSI was formed in late 1998. Read their introduction to open source here, and their launch announcement here.

eBay: The popular online auction house's statement about its "self-policing community."

Doctrinal Summaries in the Course Library: Click here for doctrinal summaries of copyright, contract, or other areas of the law that you do not understand.

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Week 4 Assignment
Group A participants: please turn in your assignments at the time and in the manner requested by your individual teaching fellows.
Group B participants: please submit your responses, should you so desire, by posting to the appropriate thread in the plenary conference for module four.

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Topics for Discussion
  1. The Open Source Initiative advocates open source on purely pragmatic grounds. Is there an argument for Open Source on moral or theoretical grounds?
  2. Do you think that sites like eBay might suggest any solutions to the intellectual property dilemma?
  3. What effect do you think the libertarian, "hacker culture" should have on intellectual property protection in cyberspace? How does it fit in with the technology and contract alternatives to IP?
  4. How much would you pay for a newly-published hardcover book if you only you could read it, only once?
  5. Should there be special intellectual property rules for the Net or should we just apply "real-world" rules?
  6. Rank the following priorities from most important to least important and defend your ranking:
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Further Resources
(These are optional readings. They are not required.)

Materials on Technological Protection
Materials on Contract
Materials on Open Source and Net Morality

Materials on Technological Protection

Articles:

Sites Offering Technological Protection Systems: Sites related to Electronic Book Technology: The Legislation: Additional Sources on Technological Protection: Materials on Contract Law

General Information on Contract Law:

  • Contract Basics (from the Cyberspace Law Institute's Cyberspace for Non-Lawyers)
  • Articles on Contract Law: Court Cases: Actual and Proposed Legislation: More Examples of On-Line Contracts (see if you can find the terms and conditions): Additional Sources on Contract: More Information on Preemption: Materials on Open Source and Net Morality

    Relevant Sites:

  • Electronic Frontier Foundation:  A non-profit organization dedicated to protecting civil liberties in cyberspace. (It is not formally a part of the Open Source movement.) Here's their mission statement.
  • The Free Software Foundation pioneered the concept of free software and is "dedicated to eliminating restrictions on copying, redistribution, understanding, and modification of computer programs."
  • The Cathedral and the Bazaar, the research paper by Eric S. Raymond that persuaded Netscape to go open-source. (There's also a sequel, Homesteading the Noosphere);
  • The Linux Documentation Project is a good way to learn about the most popular open-source operating system.
  • Netscape Communications:  Last year, Netscape released its source code to the general public.
  • Community-based commerce:
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    Week 4 Special Events

    You are invited to attend -- and to contribute to -- a debate that will be conducted over the course of this week in the Plenary Threaded Conference between Professor Terry Fisher of Harvard Law School and Professor James Boyle, professor of law at American University's Washington College of Law.

    Professor Boyle will be arguing against the use of micropayments, trusted systems, and for limits to technology-based intellectual property protection in cyberspace. Professor Fisher will be arguing in favor of micropayments and other technological forms of intellectual property protection.

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    Module assembled by Jack Lerner.  Developed from a module by Joe Liu.  Please e-mail with questions or comments.