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The Information Commons
A Public Policy Report

By Nancy Kranich
Senior Research Fellow, 2003-04
Free Expression Policy Project

© 2004. Creative Commons License
This work is licensed under a Creative Commons License.
It may be reproduced in its entirety as long as the Free Expression Policy Project is credited, a link to the Project's Web site is provided, and no charge is imposed. The report may not be reproduced in part or in altered form, or if a fee is charged, without our permission. Please let us know if you reprint.

PREVIOUS:
Contents and Executive Summary
Introduction

I. OPPORTUNITIES AND CHALLENGES OF THE INFORMATION AGE

Evolution of the Information Society

The Promise of the Internet and the Challenge of Information Access

Evolution of the Information Society

"Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before."4 Pre-literate societies relied on shared stories and songs to pass on their stock of commonly held knowledge. With the advent of writing, these societies began to fix ideas in texts that gave them portability through space and time. Early texts recorded commercial transactions, religious observance, literature, and history. Great libraries, as in Alexandria, Egypt, collected these texts, written on tablets, papyrus, and other media. Later, most of Europe's manuscripts were housed in monasteries or manors and treated as precious objects. Not until the invention of the printing press in Europe by Gutenberg around 1450 did texts become a thing - a commodity - to be bought and sold.5

Three centuries later, the architects of American democracy maintained that a free society must ensure accessible knowledge for all its citizens. James Madison famously declared that "a popular government without popular information, or means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives."6 Benjamin Franklin, a printer, established the first lending library in America in 1731, well before he helped found the republic. At the time, his idea of sharing information resources was a radical one; in the rest of the civilized world, libraries were the property of the ruling classes and religious institutions.7

Two provisions of the U.S. Constitution are specifically directed toward serving this need for information that is so crucial to democracy. The Copyright Clause does so both by giving authors "the exclusive right" to profit by their writings "for limited times," and by providing that after the limited term of copyright expires, works enter the public domain, where they are freely available to all.8 The First Amendment prohibits government from abridging "the freedom of speech, or of the press."

The next important step toward today's information society came during the Industrial Revolution. New information systems and technologies, first developed as management tools, became critical to controlling the increasingly complex process of industrial production. By the second half of the 19th century, innovations such as the telegraph and telephone led to a dramatic increase in patents and copyrights, fueling new technologies as well as demand for information. The telegraph and telephone improved the country's capacity to distribute information instantly across long distances, and unlike commodities whose worth increases with scarcity, these emerging communication networks benefited from "network externalities" - that is, they increased in value as the number of participants grew.9 At the same time, social innovations such as widespread literacy and universal access to public schools and libraries established a popular demand for and interest in information.

In the 20th century, the U.S. government began to recognize that the public has an interest in the deployment of broadcasting and telephone communications. The Communications Act of 1934,10 which created the Federal Communications Commission (the FCC), signaled a recognition that government has a role to play in making information available, and set forth a "public interest, convenience, and necessity" standard11 for licensing and regulating radio and later TV broadcasting over the public airwaves. This law also established the goal of universal telephone service so that everyone would have the opportunity to subscribe at a reasonable cost.12

In the mid-20th century, the government contracted with the defense industry to use computers to develop databases that could manage information efficiently and effectively. One company, Lockheed, launched the "Dialog" system, which indexed educational and medical information along with defense-related data.13 But after a decade of federal support, a new information industry that emerged in the 1960s began urging the government to curtail or eliminate its publication programs, and warned of the dangers of a government monopoly over information. As Paul Zurkowski, the director of the newly formed Information Industry Association (the "IIA"), put it: "Just as surely as the Berlin Wall stands today, in the absence of a concerted industry-wide effort, user choice in information one day soon will be replaced by 'free information' from one source."14

The Reagan Administration, sympathetic to this view, eliminated scores of government-produced publications over the next decade, contracting out federal library and information programs, and placing "maximum feasible reliance" on the private sector to disseminate government information.15 The privatization platform advocated by the IIA and fostered by the Reagan Administration was the backdrop for many of the battles to come over ownership and control of information.16

During the 1980s, the promise of new technologies shaped both the information marketplace and the nation's policy agenda. The breakup of the American Telephone & Telegraph Company in 1984, and a political climate favoring deregulation, enabled the Regional Bell Operating Companies to branch out into information services and cable television, where they could dominate not only the conduits for information flowing to homes and offices, but also the content of that information.17 Telephone companies had previously functioned only as "common carriers" for information produced by others. Now, they expanded into production and distribution, while the new cable TV industry also began to provide both connectivity and content. The result was an inevitable tendency by those controlling the channels of access to favor their own creations over content produced by others.

In this period, a race began between local and long distance telephone, cable television, and computer companies to dominate the new telecommunications marketplace - a race that continued through the "dot.com" boom of the 1990s. No longer limited to highly regulated telephone or television services, new conglomerates positioned themselves as multi-media information, entertainment, and shopping giants, controlling both the transmission and the content of information. Freed from technological and regulatory constraints, phone, cable, and newspaper corporations pressed investors, the courts, legislatures, governors, regulatory agencies, the President, and the public for a position of dominance over the technological future.

Media consolidation proceeded rapidly during this period. The publisher Simon and Schuster and the CBS network both became part of the giant Viacom corporation. General Electric bought NBC, and Capital Cities/ABC bought Disney.18 At the same time, the computer industry that is so integral to telecommunications also consolidated, with products from companies like Control Data Corporation (CDC), Compaq, DEC, and Wang disappearing from the marketplace and Microsoft assuming a dominant market share.19

In 1996, Congress passed the first wholesale revision of communications law since the 1934 Communications Act. To promote even more deregulation, the Telecommunications Act of 1996 relaxed earlier limits on how many radio or TV stations a single company can own, and eliminated barriers to cross-ownership of local and long distance telephone services, broadcast, cable television, and newspapers.20 Despite claims that this deregulatory approach would bring down prices, lower entry barriers, and increase diversity, the 1996 law has resulted in less competition, with fewer companies controlling the sources of information, its content, and its cost. Telecommunications giants have resisted the opening of their markets, while agencies like the FCC and the Federal Trade Commission, created to serve the public interest and stop undue concentrations of economic power, have failed to intervene.21

When the first edition of Ben Bagdikian's The Media Monopoly was published in 1983, the author voiced concern about the domination of the media business by fifty companies, and warned against the chilling effects that control by such large and powerful entities could have over the free flow of diverse ideas and information. Critics at the time called Bagdikian "alarmist."22 Today, the number of corporations controlling most of America's magazines, radio and TV stations, books, movies, and daily mass-circulation newspapers has dropped from fifty to ten, with those conglomerates amassing unprecedented influence over what Americans see, hear, and read through the mass media.23

The FCC's decision in 2003 to loosen its already relaxed media consolidation and cross-ownership rules is likely to reduce the number of media owners still further, resulting in less diversity and more concentrated control over ideas and information.24 Although some observers argue that the vast resources of the World Wide Web will counteract this trend toward consolidation and top-down control, recent research from Harvard's Kennedy School of Government suggests that the way the Web's portals and search engines are constructed may actually exacerbate, rather than remedy, the effects of media concentration by making it tougher to find all those independently created resources that are now available online.25

The Promise of the Internet and the Challenge of Information Access

At the outset of the Internet age, user-friendly software programs empowered consumers to become creators, producers, and distributors of information. Even before the invention of the World Wide Web, online conferencing systems like The Well, search and retrieval agents like Gopher, online forums like community freenets, bulletin boards and listservs, and newsgroups organized within the Usenet network allowed those with Internet access to generate, receive, and exchange information readily and easily.26 By the mid-1990s, increasing numbers of Americans had Internet connections and were using these resources. As the Supreme Court recognized in 1997:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. … [In short,] "the content on the Internet is as diverse as human thought."27

As David Bollier summarized, in cyberspace, everyone can be a creator, thereby privileging "more idiosyncratic, unpredictable, and democratic genres of expression."28

The Internet facilitated not only expression "as diverse as human thought," but "peer production" - that is, decentralized production and distribution of information that bypasses the centralized control of more traditional publishing. As the legal scholar Yochai Benkler writes, peer production is "a process by which many individuals, whose actions are coordinated neither by managers nor by price signals in the market, contribute to a joint effort that effectively produces a unit of information or culture."29 The result is commons-based production of knowledge that, while not challenging individual authorship, fundamentally alters the current system in which commercial producers and passive consumers are the primary players.30

New technologies also enabled computer programmers to design their own versions of software, some of which they distributed freely. Copying and sharing of programs as well as information thus became widespread online. High-speed networks and computers provided the means for rapid and exact reproduction. Open standards and protocols eased the way for this sort of information to flow freely over the Internet. While some standards were negotiated through national and international organizations,31 others, such as Adobe's Acrobat portable document format ("PDF"), became the de facto proprietary standard. PDF is now generally used for distributing and exchanging documents around the world.

All of these developments threatened the business models of traditional content producers. The media industry responded by creating digital rights management ("DRM") techniques, pressing for legislation to give those techniques the force of law, and intensifying its efforts to strengthen control over the use of its products at the expense of vital "free expression safety valves" within copyright law. These traditional safety valves balance the public's interest in open access with the property interests of copyright owners. They include:

• "Fair use," which permits artists, students, journalists, and others to quote and copy limited amounts of copyrighted works for such purposes as commentary, parody, scholarship, or news reports;

• The "first sale" rule, which allows purchasers of copyrighted materials to lend them, give them away, or share them with others; and

• The public domain - a realm of free access that includes not only government publications and other resources that are not subject to copyright, but all creative works, once the limited term of copyright protection expires.32

DRM techniques are basically technologies that enable media companies to limit, monitor, and control the transport and use of their products. Restrictive licensing agreements are one example: they now control access to digital materials - both copyrighted and public domain - that are compiled in numerous databases such as Lexis/Nexis. Some licenses are imposed on consumers as a condition of entering a Web site ("clickwrap" licenses) or when they download software. These non-negotiable agreements often prohibit fair use and prevent the kind of sharing permitted by the first sale rule.33

Other DRM techniques include encryption or scrambling of expressive material, or the embedding of a watermark or tag. They are designed to control access to and copying of online information (including backup copies for personal use).34 To prevent consumers, hackers, scholars, and others from circumventing encryption, media companies persuaded Congress to pass the 1998 Digital Millennium Copyright Act (the DMCA). The DMCA imposes criminal penalties for circumventing "technological measures" such as encryption, or even distributing circumvention tools.35 The Clinton Administration, which initially responded to the promise of the Internet with a National Information Infrastructure (or "NII") initiative that focused on promoting and protecting both technology and information, eventually helped shape the DMCA with a 1995 white paper that rejected user rights to browse, share, and make personal copies of digital works.36

Users attempting to circumvent encryption, scrambling, and other "technological measures," even for legitimate reasons such as fair use or lending and sharing as permitted under the first sale rule, are likely to violate the DMCA. Moreover, anyone - including a scientific researcher - who creates and distributes circumvention technology is in danger of both criminal prosecution and civil liability.

Thus far, courts have upheld the DMCA against First Amendment challenges, even while acknowledging its adverse impact on first sale and fair use rights.37 These courts have declined to follow a 1984 Supreme Court decision that turned back an earlier attempt by the media industry to outlaw a product of new technology - in that case, the video cassette recorder. Like circumvention tools, VCRs can be used to violate the law by copying and redistributing TV programs. But the Court ruled that a technology cannot be outlawed simply because it might be used for copyright infringement, as long as it also has "significant noninfringing uses."38

Public interest advocates have urged Congress to modify the DMCA and pass other legislation to protect first sale and fair use rights online. At the same time, media companies have lobbied for laws that would strengthen and enforce both copyright and DRM techniques.39 For example, the industry has asked Congress to overrule a 1991 Supreme Court decision that rejected an attempt to expand copyright to cover factual data such as telephone directory listings. The Court in that case affirmed that only "original works of authorship," not facts arranged in a directory, get copyright protection.40 The proposed "Database and Collections of Information Misappropriation Act" would overrule this decision and expand copyright control to compilations of facts.41

The same year that it passed the DMCA, Congress exacerbated the problem of enclosure with the Sonny Bono Copyright Term Extension Act (the "CTEA"). The CTEA extended the already lengthy duration of copyright protection for 20 years, to the life of the author plus 70 years for individuals and their estates, and 95 years for corporate-controlled works. It thereby prevented hundreds of thousands of writings, films, songs, and documents of all kinds, some produced as long ago as the 1920s and '30s, from entering the public domain, even though the great majority of them have no commercial value.42 The Supreme Court rejected a constitutional challenge to the CTEA in 2003, in a decision that seems to give Congress the power to extend the originally short copyright term almost indefinitely into the future.43

Finally, the efforts of media companies to shut down file-sharing services that enable users to exchange music and many other types of expression online, and their prosecution of individuals believed to be sharing copyright-protected files, have produced sharp political and cultural conflicts.44 Although debate continues over the right legal and policy approach to the phenomenon of file-sharing, it has many useful and legitimate purposes - for example, scholars sharing research - and its popularity suggests the need for commons-like alternatives to a monolithically property-based approach to online expression.

• • • • • •

The tensions between information as a public good and information as a commodity in our post-industrial era have given rise to a highly contested policy environment. The different priorities - to guarantee equal access to information so that all citizens can meaningfully participate in public discourse, to enable consumers to choose among products and services, and to protect the public from government intrusion into the free flow of ideas - have strained the information chain.

The longstanding drive to commodify information goods and services often overlooks a central fact about information: it is neither a pure public good nor a pure private good. It is a good that people simply do not use up, as they do other commodities. When transmitted, information often exhibits "network externalities" - that is, its value can escalate with increased use.45 Commodifying information also overlooks the importance of open access to innovation and creativity.

Media companies may have persuaded Congress and other policymakers that information is private property, and therefore under the control of an owner. But legal scholar Carol Rose counters that property regimes and even individual property holdings are "by no means self-evident constructs"; instead, they are "property arrangements that people have quite consciously talked themselves into." Consequently, "if property regimes cannot get over the self-interest problem without imparting some sense of a common good, then narratives, stories, and rhetorical devices may be essential in persuading people of that common good."46 As Rose suggests, a new narrative of the commons is needed to persuade policymakers and the public of the promises and opportunities of equitable access, free expression, and fair use in the digital age.

NEXT:
II. The Emerging Information Commons

III. The Future of the Information Commons

Appendix

NOTES [all URLs checked in March 2004]

4. Judge Alex Kozinski, dissenting in White v. Samsung Electronics America Ltd., 989 F.2d 1512, 1513 (9th Cir. 1993).

5. See Jorge Reina Schement and Terry Curtis, Tendencies and Tensions of the Information Age, New Brunswick, NJ: Transaction, 1995, p. 6, and the timeline of the historical evolution of information, pp. 257-278; World Information.Org, World Infostructure, Timeline of Communications, http://world-information.org/wio/infostructure/100437611796/
100438659725?opmode=contents.

6. James Madison, Letter to W. T. Berry, Aug. 4, 1822, in Letters and Other Writings of James Madison, 4 volumes, Philip R. Fendall, ed., Philadelphia: Lippincott, 1865, III, p. 276.

7. The Life and Times of Benjamin Franklin, The Franklin Institute Online,
http://sln.fi.edu/franklin/timeline/timeline.html. On circulating libraries in England and their contribution to the spread of reading and knowledge, see Diane Zimmerman, "Authorship Without Ownership: Reconsidering Incentives in a Digital Age," DePaul L. Rev., vol. 52, pp. 1121, 1131 (2003).

8. U.S. Constitution, Art. I, §8, cl. 8.

9. See Schement and Curtis, supra n. 5; James R. Beniger, The Control Revolution, Cambridge, MA: Harvard U. Press, 1986; James R. Beniger, "Origins of the Information Society," Wilson Library Bulletin, vol. 61, #9 (Nov. 1986): 12-19; Jorge Reina Schement and Leah A. Lievrouw, eds., Competing Visions, Complex Realities: Social Aspects of the Information Society, Norwood, NJ: Ablex, 1988: 33-45.

10. Communications Act of 1934, 47 U.S. Code §§151-614.

11. The "public interest" is not defined in the 1934 law, the Telecommunications Act of 1996, or other federal statutes that use the term. Although the nature of the public interest may be difficult to determine (see, e.g., Brian M. Barry, "The Use and Abuse of 'The Public Interest,'" in Nomos V, The Public Interest, Carl J. Friedrich, ed., NY: Aldine-Atherton, 1962, p. 203), one scholar defines a public interest policy as one that, "at least in the long run, affects everyone in an equally beneficial manner, receives public support through a principle of unanimity, and has costs that are widely and equally shared." William C. Dennis, "The Public and Private Interest in Wilderness Protection," Cato Journal, vol. 1, #2 (Fall 1981),
http://www.cato.org/pubs/journal/cj1n2-3.html.

12. 47 U.S. Code §151. On the Communications Act of 1934, particularly its public interest and universal service provisions, see Max D. Paglin, A Legislative History of the Communications Act of 1934, NY: Oxford U. Press, 1989; Robert McChesney, Telecommunications, Mass Media, and Democracy: The Battle for Control of U.S. Broadcasting, 1928-1935, NY: Oxford U. Press, 1993; and Milton Mueller, Universal Service: Competition, Interconnection, and Monopoly in the Making of the American Political System, Cambridge, MA: MIT Press, 1997.

13. Roger Summit, "Reflections on the Beginnings of Dialog: The Birth of Online Information Access," Dialog Corporation History, June 2002, http://support.dialog.com/publications/chronolog/200206/
1020628.shtml; see also Christine Borgman, From Gutenberg to the Global Information Infrastructure: Access to Information in the Networked World, Cambridge, MA: MIT Press, 2000.

14. Quoted in John N. Berry III, "Free Information and the IIA," Library Journal, vol. 100, #8 (Apr. 15, 1975), p. 795.

15. The privatization policy was promulgated by the Office of Management and Budget through its Circular A-130, "The Management of Federal Information Resources," 50 Federal Register 52730-51 (Dec. 24, 1985). When the policy was revised in 1993, it eliminated the phrase "maximum feasible reliance on the private sector." Office of Management and Budget, "The Management of Federal Information Resources, Circular A-130 Revised," 58 Federal Register 36070-86 (July 2, 1993).

16. Peter Hernon and Charles McClure, Federal Information Policies in the 1980s: Conflicts and Issues, Norwood, NJ: Ablex, 1987. See also Charles McClure, Peter Hernon, and Harold Reylea, eds., United States Government Information Policies: Views and Perspectives, Norwood, NJ: Ablex, 1989; Toby McIntosh, Federal Information in the Electronic Age: Policy Issues for the 1990s, Washington, DC: Bureau of National Affairs, 1990.

17. Walter Bolter, Telecommunications Policy for the 1980s: the Transition to Competition, Englewood Cliffs, NJ: Prentice-Hall, 1984. See also Barry G. Cole, ed., After the Breakup: Assessing the New Post-AT&T Divestiture Era, NY: Columbia U. Press, 1991; and Steve Coll, The Deal of the Century: The Breakup of AT&T, NY: Touchstone, 1986.

18. See Edward S. Herman and Robert McChesney, The Global Media: the New Missionaries of Corporate Capitalism, Washington, DC: Cassell, 1997; Patricia Aufderheide, Erik Barnouw, et. al., Conglomerates and the Media, NY: New Press, 1997; André Schiffrin, The Business of Books: How International Conglomerates Took Over Publishing and Changed the Way We Read, NY: Verso, 2000.

19. For more on mergers and acquisitions in the computer and networking fields, see John C. Dvorak, An Insider's Look at the Computer Industry, Berkeley, CA: Osborne McGraw-Hill, 1994; Jerry Ellig, ed., Dynamic Competition and Public Policy: Technology, Innovation, and Antitrust Issues, NY: Cambridge U. Press, 2001; and Michael Cusumano and David B. Yoffie, Competing on Internet Time: Lessons from Netscape and Its Battle with Microsoft, NY: Free Press, 1998.

20. Telecommunications Act of 1996, 110 Stat. 56 (1996); see Patricia Aufderheide, Communications Policy and the Public Interest: the Telecommunications Act of 1996, NY: Guilford Press, 1999; Reed Hundt, You Say You Want a Revolution: A Story of Information Age Politics, New Haven: Yale U. Press, 2000.

21. See C. Edwin Baker, Media, Markets, and Democracy, Cambridge, UK: Cambridge U. Press, 2002; Mark Cooper, "Abracadabra! Hocus-Pocus! Making Media Market Power Disappear with the FCC's Diversity Index," Washington, DC: Consumer Federation of America, July 2003, http://www.consumersunion.org/abrafinal721.pdf; Mark Cooper, Media Ownership and Democracy in the Digital Information Age: Promoting Diversity with First Amendment Principles and Market Structure Analysis, Palo Alto, CA: Center for Internet & Society Stanford Law School, 2003, p. 21, http://cyberlaw.stanford.edu/blogs/cooper/archives/
mediabooke.pdf; Robert McChesney, Rich Media, Poor Democracy, Urbana, IL: U. of Illinois Press, 1999; Peter DiCola and Kristin Thomson, Future of Music Coalition, Radio Deregulation: Has It Served Citizens and Musicians?: A Report on the Effects of Radio Ownership Consolidation Following the 1996 Telecommunications Act, Washington, DC: Future of Music Coalition, Nov. 2002, http://www.futureofmusic.org/research/radiostudy.cfm; Consumer Federation of America/Consumers Union, Lessons From the 1996 Telecommunications Act: Deregulation before Meaningful Competition Spells Consumer Disaster, Washington, DC: Consumers Union, Feb. 2001, http://www.consumersunion.org/telecom/lessondc201.htm. For arguments that the 1996 Act and deregulation have not resulted in more top-down media control, see Benjamin M. Compaine, Who Owns the Media: Competition and Concentration in the Mass Communications Industry, 3rd ed. Mahwah, NJ: L. Erlbaum Associates, 2000; Benjamin M. Compaine, "Domination Fantasies: Does Rupert Murdoch Control the Media? Does Anyone?," Reason, Jan. 2004, http://www.reason.com/0401/fe.bc.domination.shtml; Gerald W. Brock, Telecommunications Policy for the Information Age: From Monopoly to Competition, Cambridge, MA: Harvard U. Press, 1998; Thomas W. Hazlett, "Economic and Political Consequences of the 1996 Telecommunications Act," Regulation, vol. 23, #3 (Fall 2000): 36-45, http://www.cato.org/pubs/regulation/regv23n3/hazlett.pdf; Jonathan A. Knee, "Should We Fear Media Cross-Ownership?" Regulation, vol. 26, #2 (Summer 2003): 16-20, http://www.cato.org/pubs/regulation/regv26n2/v26n2-3.pdf.

22. Quoted from the publisher's blurb for Ben Bagdikian, The Media Monopoly, 6th ed., Boston: Beacon Press, 2000; see also Laurence Zuckerman, "Media Megadeal: The Power: Questions Abound as Media Influence Grows for a Handful," New York Times, Jan. 13, 2000: C6.

23. Bagdikian, supra n. 22.

24. FCC, 2002 Biennial Regulatory Review, 68 Federal Register 46286 (Aug. 5, 2003). This rulemaking increased any single company's permissible national TV market share from 35% to 45%, eased restrictions on the number of TV stations one company can own in a single market, and repealed a ban on one company owning both a newspaper and a broadcast station in most markets. Congress later reduced the 45% market share figure to 39%. In September 2003, in a case brought by the Media Access Project and other public interest groups, a federal appeals court issued a preliminary injunction blocking the rule changes. Prometheus Radio Project v. FCC, No. 03-3388 and consolidated cases (3d Cir., argued Feb. 11, 2004). On media ownership, see Lexis Nexis, "Corporate Affiliations: Who Owns Whom," New Providence, N.J.: LexisNexis Group, 2003; Columbia Journalism Review, "Who Owns What," http://www.cjr.org/tools/owners; The Center for Public Integrity, "Media Tracker," www.openairwaves.org; and Mark Crispin Miller, "The Big Ten Media Conglomerates," The Nation, vol. 274, #1, (Jan. 7/14, 2002): 26-31.

25. Mathew Hindman and Kenneth Neil Cukier, "Measuring Media Concentration Online and Offline," Paper Presented at the Ford Foundation Conference on Media Diversity, Dec. 15-16, 2003, http://www.cukier.com/writings/webmedia-jan04.htm.

26. "About the Well," 2002, http://www.well.com/aboutwell.html; see also Howard Rheingold, The Virtual Community, Homesteading on the Electronic Frontier, Reading, MA: Addison-Wesley, 1993, http://www.rheingold.com/vc/book/intro.html; "Gopher Protocol," Wikipedia, http://en.wikipedia.org/wiki/Gopher_protocol.

27. Reno v. American Civil Liberties Union, 521 U.S. 842, 870 (1997) (quoting in part from the lower court decision). Mail exploders is another term for listservs.

28. David Bollier, "Artists, Technology and the Ownership of Creative Content," Center for the Creative Community, Nov. 2003, p. 98, http://www.culturalcommons.org/comment-print.cfm?ID=10.

29. Yochai Benkler, "Freedom in the Commons: Towards a Political Economy of Information," Duke L. J., vol. 55, #6 (Apr. 2003): 1245-76, p. 1256, http://www.law.duke.edu/shell/cite.pl?52+Duke+L.+J.+1245.

30. Yochai Benkler, "From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access," Federal Communications L. J, vol. 52, # 3 (2000), p. 579, http://www.law.indiana.edu/fclj/pubs/v52/no3/benkler1.pdf.

31. See, e.g., the National Information Standards Organization (NISO), http://www.niso.org, and the International Organization for Standardization (ISO), http://www.iso.ch/iso/en/ISOOnline.openerpage. The importance of standards development to an open and accessible information commons is elaborated by Bollier and Watts, supra n. 3, pp. 25-38.

32. The first sale rule is found in 17 U.S. Code §109; the fair use defense to copyright infringement in 17 U.S. Code §107. For background, see Jessica Litman, Digital Copyright, Amherst, NY: Prometheus Press, 2001; Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, NY: NYU Press, 2001; Pamela Samuelson, "The Copyright Grab," Wired, vol. 4, #1, Jan. 1996, http://www.wired.com/wired/archive/4.01/white.paper_pr.html; National Research Council, The Digital Dilemma: Intellectual Property in the Information Age, Washington, DC: National Academy Press, 2000; Marjorie Heins, "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom, NY: Free Expression Policy Project, 2003, pp. 24-34; Chilling Effects Clearinghouse, http://www.chillingeffects.org, http://books.nap.edu/books/03090885OX/html/109.html (cataloguing cease and desist letters that industry sometimes uses to suppress fair use of copyrighted material).

33. See Julie Cohen, "The Challenge of Digital Rights Management Technologies," in National Research Council, The Role of Scientific and Technical Data and Information in the Public Domain, Washington DC: National Academies Press, 2003: 109-16; Christopher May, "Digital Rights Management and the Breakdown of Social Norms," First Monday, Nov. 2003, http://www.firstmonday.org/issues/issue8_11/may/index.html; Michael Godwin, What Every Citizen Should Know About DRM, a.k.a. "Digital Rights Management," Washington, DC: Public Knowledge and the New America Foundation, 2004, http://www.publicknowledge.org/content/overviews/
citizens-guide-to-drm/attachment; John Walker, The Digital Imprimatur: How Big Brother and Big Media Can Put the Internet Genie Back in the Bottle, Oct. 9, 2003, http://www.fourmilab.ch/documents/digital-imprimatur; Bill Rosenblatt, "2003 in Review: DRM Technology," DRM Watch, Dec. 31, 2003, http://www.drmwatch.com/drmtech/article.php/3294391; American Library Association Washington Office, "Digital Rights Management and Libraries," http://www.ala.org/ala/washoff/WOissues/copyrightb/digitalrights/
digitalrightsmanagement.htm; "Digital Rights Management (DRM) Systems and Copy Protection Schemes," http://www.eff.org/IP/DRM; and Electronic Privacy Information Center (EPIC), "Digital Rights Management and Privacy," http://www.epic.org/privacy/drm.

34. Another DRM tool is the "broadcast flag," a digital mark that signals conditions allowing or disallowing TV programs to be copied. In November 2003, the FCC mandated that all digital television (DTV) equipment recognize and obey a broadcast flag. "Report and Order and Further Notice of Proposed Rulemaking," In the Matter of: Digital Broadcast Content Protection," MB Docket 02-230, Nov. 4, 2003, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-273A1.pdf. In March 2004, the American Library Association and Public Knowledge filed suit challenging the FCC's authority to issue these regulations. American Library Association v. FCC, No. 04-1037 (D.C. Cir., filed Mar. 3, 2004). See also Center for Democracy and Technology, Implications of the Broadcast Flag: A Public Interest Primer (version 2.0), Washington, DC: Center for Democracy and Technology, Dec. 2003, http://www.cdt.org/copyright/031216broadcastflag.pdf; Public Knowledge, "Broadcast Flag," http://www.publicknowledge.org/issues/current-issues/
issue-broadcast-flag; Motion Picture Association of America, "Broadcast Flag: Frequently Asked Questions," http://www.mpaa.org/Press.

35. Digital Millennium Copyright Act, 112 Stat. 2863, 17 U.S. Code §§1201-1205.

36. U.S. Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure, Washington, DC: U.S. Department of Commerce, Patent and Trademark Office, Sept. 1995, http://www.uspto.gov/web/offices/com/doc/ipnii/ipnii.pdf.

37. See, e.g. Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001) (distribution of circumvention tool for DVDs violates DMCA); United States v. Elcom Ltd., 203 F. Supp.2d 1125 (N.D. Cal. 2002) (denying motion to dismiss DMCA prosecution for distributing e-book circumvention tool).

38. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

39. See, e.g., "Author, Consumer, and Computer Owner Protection and Security Act of 2003" (H.R. 2752), introduced by Reps. John Conyers and Howard Berman to curtail peer-to-peer file sharing of copyrighted music and videos; "Piracy Deterrence and Education Act of 2003" (H. R. 2517), introduced by Rep. Lamar Smith, and co-sponsored by Reps. Berman and Conyers, to enhance criminal enforcement of copyright law and "to clarify" the authority to seize unauthorized copies.

40. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

41. "Database and Collections of Information Misappropriation Act of 2003" (H.R. 3261), introduced by Rep. Howard Coble and co-sponsored by Reps. James Greenwood, Dave Hobson, James Sensenbrenner, Lamar Smith, and Billy Tauzin, Oct. 8, 2003. See Carol Ebbinghouse, "If at First You Don't Succeed, Stop!: Proposed Legislation to Set Up New Intellectual Property Right in Facts Themselves," Information Today, vol. 12, #1 (Jan. 16, 2004), http://www.infotoday.com/searcher/jan04/ebbinghouse.shtml; American Library Association Washington Office, "Database Protection Legislation," http://www.ala.org/ala/washoff/WOissues/copyrightb/
dbprotection/databaseprotection.htm.

Another example of restrictive legislation, the Uniform Computer Information Transactions Act (UCITA), supersedes consumer and privacy protections as well as copyright law by validating a "clickwrap" approach to electronic licensing. UCITA has been passed in Virginia and Maryland. Although the National Conference of Commissioners on Uniform State Laws announced in August 2003 that it would stop promoting UCITA, it did not formally withdraw the proposed law; thus, UCITA remains a viable option for legislators or others who might modify it to make it more palatable to its detractors. West Virginia, North Carolina, Iowa, and Vermont have enacted "bomb-shelter" legislation that protects residents from being subject to UCITA as enacted in Virginia and Maryland. See American Library Association Washington Office, "UCITA," http://www.ala.org/ala/washoff/WOissues/copyrightb/ucita/
ucita.htm; and AFFECT: Americans for Fair Electronic Commerce Transactions, "UCITA," http://www.affect.ucita.com.

42. Sonny Bono Copyright Term Extension Act, 17 U.S. Code §§301-304.

43. Eldred v. Ashcroft, 123 S.Ct. 769 (2003). The original term under the nation's first copyright law was 14 years.

44. In 2000, federal courts shut down the music file-sharing service Napster (A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001)), but less centralized systems like Grokster and KaZaA took Napster's place. They too have been sued by the music industry, but as of spring 2004, the courts had not found the distributors of these software tools liable for "contributory" copyright infringement. Metro-Goldwyn-Mayer Studios v. Grokster, 259 F. Supp.2d 1029 (C.D. Cal. 2003), appeal pending.

45. See Yochai Benkler, "The Political Economy of Commons," Upgrade, vol. 4, #3, (June 2003), http://www.upgrade-cepis.org/issues/2003/3/up4-3Benkler.pdf; Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World, NY: Random House, 2001; Joseph E. Stiglitz, "Knowledge as a Global Public Good," in Inge Kaul, et. al., Global Public Goods: International Cooperation in the 21st Century, NY: Oxford U. Press for The United Nations Development Program, 1999: 308-25; Vincent Mosco and Janet Wasco, eds., The Political Economy of Information, Madison, WI: U. of Wisconsin Press, 1988.

46. Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership, Boulder, CO: Westview Press, 1994, p. 6.


 


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