Information Technologies and Social Transformation (1985)

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Property Rights in Information ANNE WELLS BRA3~SCOMB Hi The subject of this paper the laws of the Information Age and, more specifically, property rights in information is a difficult one, but it is absolutely essential to pursue if we are to enter the Information Age knowledgeably and with an understanding of the consequences. After an introductory section which presents definitions of property and historical background on information protection, the paper reviews recent developments with respect to property rights in information, analyzes several of the major areas of concern, and develops some general principles to guide us in the application of the law to the new technologies. For almost every right in this area there is an opposing claim or an adversarial relationship. Therefore, in each individual case it is a matter of balancing equities and sensibilities that often defy codification. As discussed in individual sections below, the rights include: 1. the right to know information about ourselves and the world we live in 2. the right to collect information—the investigative function 3. the right to acquire information—archived by others 4. the right to withhold info~matio~about ourselves, personal, corporate, or national 5. the right to control the release of information 6. the right to receive compensation for information 7. the right to protect informatio~the security function 8. the right to destroy or expunge information 9. the right to correct or alter information 81

82 ANNE WELLS BRkSCOAIB 10. the right to publish or disseminate information access to the market- place of ideas INTRODUCTION Many scholars, including Colin Cherry,l Fritz Machlup,2 and Harlan Cleveland,3 rightfully argue that information has characteristics differ- ent from those of natural resources and manufactured goods upon the exchange of which our economic system rests. However, if we are to transform our economy into one that relies primarily upon the economic value of gathering, storing, processing, and distributing information, we must develop principles from which we can derive economic value for such activities. Therefore, it is not very helpful to the public debate to insist that information must by its nature be shared or that it is naturally leaky or uncontainable. In civilized societies, especially in information societies that are firmly rooted in an educated citizenry and intellectual prowess, we will not tolerate the unnecessary spilling of proprietary information any more than we will tolerate oil spills polluting our oceans. Neither will we tolerate exclusivity with respect to information upon which our livelihood as a nation depends. Inevitably we must turn to our legal system to develop and to sustain those rights that we consider inalienable and equitable and to delineate the boundaries between what is considered public and what is to be protected by the law as private. Definitions of Property Property is a legal concept that dates back to the earliest history of civilization and that is central to the efficient functioning of market economies. The word deals with the boundary line between what is yours and what is mine, or between what belongs to everybody and what belongs to nobody. Property, according to Black's Law Dictionary' is "that which is peculiar or proper to any person; that which belongs exclusively to one; in the strict legal sense, an aggregate of rights which are guaranteed and protected by the government." The word is derived from the Latin word proprio meaning to "own." The verb appropriate means "to make a thing one's own; to make a thing the subject of property, to exercise dominion over an object to the extent, and for the purpose, of making it subserve one s own proper use or pleasure." According to Webster's, the word property means. for tangible objects, "something to which a person has legal title," and for intangible rights, that "in which a person has a right protected by law.'' The

PROPERTY RIGHTS IN lNFOR~ATIO:I 83 word proper itself is the root from which property is derived. Webster~s defines proper as that "which is socially appropriate: according with established traditions and feelings of rightness and appropriateness," or that which is "sanctioned as according with equity, justice, ethics, or rationale," or that which is "marked by nghtness, correctness, or rectitude . . . entirely in accordance with authority, observed facts, or other sanction." Our Founding Fathers followed John Locke's definition of property as including "that property which men have in their persons as well as goods," and James Madison concluded: "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his nghts."4 In Spanish law the propios or proprios were certain plots of land reserved as the unalienable property of the town, for the purpose of erecting public buildings, markets, and so forth, or to be used in any other way, under the direction of the municipality, for the advancement of the revenues or the prosperity of the place. In recent years international lawyers have become enmeshed in defining the ownership of international public spaces. Antarctica is the world's only landmass not territorially designated by proprietary ownership. However, the ocean seabed and outer space have been subject to much debate over what constitutes the "common heritage of mankind'' or ''the province of all mankind."5 Information is neither naturally proprietary nor naturally shared any more than the earth, or ocean seabed, or space is naturally the province of mankind or the property of individuals, nation-states, or other legal entities. Although we have lagged behind the Japanese in our research and study of the social impacts of the Johoka Shakai (the Japanese term for infonnation society),6 we have led the world in litigation, legislation, and judicial interpretation of legal rights and obligations with respect to information. Public discourse for many years to come will concen- trate on defining property rights in information that are marked by rightness and in accord with equity, justice, ethics, or reason, and will focus especially on defining those rights that are subject to an effective sanction. History of Information Protection The conflict between public and private information is as deeply rooted in our historical documents as is the protection of both private and public real estate. New England villages were built around a

84 ANNE WELLS B~SCO.llB "common," or public area, in which villagers gathered on public occasions, much as the Spaniards promenaded around their central parks in the cool of evenings. In both cases the open spaces were essential to the exchange of information in communities that depended upon face-to-face voice communications. Counterparts of such places include the ancient Greek agora, or marketplace, and London's Hyde Park Corner. We have protected our seacoasts for public access up to the high- water mark and have developed a great national park system for the protection of animals and for recreational activities. The concept of public ownership of airwaves arose at the time of Teapot Dome scandals when the public was outraged about the private exploitation of our great natural resources. There was no natural obligation to make the airwaves a public asset, as lawyers could map out private rights in spectrum resources just as easily as they have in land masses. It was considered the right and proper way of handling the Tower of Babel that existed on the airwaves and prohibited anyone from using that resource efficiently. The Constitution provides for Congress to protect patents and copyrights, whereas the Bill of Rights in the First Amendment estab- lishes an unregulated marketplace of ideas. Thus the Founding Fathers pursued the contradictory goals of protecting the work products of inventors and writers while at the same time preserving the public interest in the availability of information. We have tried to walk a tightrope between providing too much or too little protection for information. Cases abound in the law with regard to what constitutes "fair use'' of information generated by another without his or her permission. The basic philosophy was that facts and ideas could not be protected, but only the composition (in the case of authors) and the embodiment of an idea in a product or process (in the case of patents).7 Consequently, we have preserved the open access to laws of nature and to mathematical formulas that can be easily replicated. At the same time we have attempted to provide authors and inventors with legal protection for their expertise in order to compensate them for their efforts, to encourage greater productivity, and to increase the body of knowledge upon which human progress depends. This concept of protection of intellectual property is not shared by all the nations of the world, nor is it denved from any natural law. Other cultures have their own concepts of propriety with respect to intellectual output. There is nothing universal about copyright, patents, or trade secrets. These are devices for reconciling the interests of society with those of the individual and of linking intellectual produc-

PROPERTY RIGHTS IN INFORMATION 85 tivity with commercial gain. Their origins are in Western cultural history and are deeply rooted in the development of the printing press and industrial manufacturing societies. These are legal concepts de- signed to encourage a positive attitude toward innovation and social change. These concepts began to develop in the late Middle Ages; they have no logical counterpart in early civilizations where the products of intellectual expertise belonged to the community and not to their creators.8 All societies have developed an information policy, the most stringent of which is exemplified by the burning of books in China in 213 B.C. and the burying alive of some 460 scholars who were thought to be able to teach their contents from memory. Throughout history knowl- edge has been closely guarded, usually by a priesthood whose continuity depended on the maintenance of secrecy concerning rituals, herbs, hieroglyphs, or, in the case of American Indians, secrecy of the sand paintings used to heal the sick and bless newlyweds. Thus we can consider computer hackers a new breed of priests. whose primary motive has been to disseminate information about new computer software as widely as possible rather than to keep their expertise closely guarded. It is a startlingly new concept, therefore- that of considering information as a natural resource which in its natural state will tend to permeate the society. Such dissemination has always depended upon skills that must be acquired, nurtured, and supported by social sanctions. Knowledge can only be acquired by developing one's intellectual skills. Thus, the protection of intellectual activity developed alongside the rise of a class of individuals who had the leisure to produce artistic, literary, or useful inventions. There is substantial evidence that early Greeks recognized the rights of artists to be identified with their works and to have them performed or presented as created.9 The first adjudication of a copyright issue seems to have taken place in the Middle Ages when a zealous clergyman visited his former teacher long enough to make a burned copy of his Book of Psalms, the copying of which was not sanctioned by the king.'° The elaborate rules that we are attempting to follow today awaited the advent of the printing press in 1436 and the rapid industrialization of Western Europe.~' The Constitution of the United States'2 endows the federal govern- ment with the power to regulate copyrights and patents as a device to "promote the progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Thereby authors and inventors were encouraged to share their output with the nation. Surprisingly,

86 ANNE WELLS BRANSCO1~B there was little debate concerning this clause. The Federalist papers merely reflect that '`the utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals...."13 In both cases it was assumed that it was in the public interest to encourage the widespread dissemination of knowledge and to nurture native intellect. Interestingly enough, the copyright law that was enacted gave protection only to American authors, denying any protection to imported works, which led to widespread copying of English publications. ]4 This had the opposite effect from that of encouraging native talent allegedly intended by the legislation. As the piracy and copying of English information products were far cheaper than acquiring the original works of American authors, a flourishing publishing industry developed primarily for textbooks copied from English sources. Thus the Copyright Act of 1790, a high priority on the calendar of the First Congress, was a cornerstone in the philosophy of the new nation to encourage literacy and widespread dissemination of useful knowledge an early development of technology transfer. It took another century to amend the act to recognize international copyright arrangements that gave mutual protection to American authors from unauthorized reprints by foreign publishers.'5 Despite the long and complex historical experience with copyrights and patents developing protection for the production of information, it was only late in the last century that we began to build a body of law limiting the use of personal information. ~6 In the last ~ years we have made great progress in accommodating ourselves to the intrusion into our personal and political lives of an independent press, both print and electronic media, and we are beginning to forge a new law with respect to computer communications as well. THE RIGHT TO KNOW The right to know can involve either simple or complex matters, e.g., the simple matter of the right of individuals to know of their origins and who their true parents are, or the more complicated matter of the right of the public to information that provides the basis for public decisions. However, no such right is absolute. For example, with the advent of amniocentesis, which permits identification of the sex of an unborn child dunug periods of pregnancy when an abortion can still be legally performed, it has become a controversial issue t

PROPERTY RIGlITS IN INFO~ATION 87 whether or not the couple should be told the sex of the child. Relatives and doctors withhold the information that a patient has a terminal disease where, in theirjudgment, it would be psychologically damaging to the patient. Geraldine Ferraro and her husband confronted a difficult decision with respect to the release of information that Mr. Zaccaro considered would be damaging to his business interests. His tax returns were not legally required by the strictest interpretation of the campaign disclo- sure laws, but the public believed it had a right to know the facts in order to pass judgment on Ms. Ferraro's qualifications to be vice- president. ]7 "Anatomy of a Libel Suit," an excellent two-hour program produced for public television by the Columbia School of Journalism, dramatized the dilemma between the public's right to know and the private right to control personal information. It contrasted the role of the press in acting as surrogate for the public with the right of individuals to maintain secrecy about their personal affairs and the right of co~po- rations to protect internal memoranda and documents that may prove embarrassing or damaging to their business. The rule of law that has evolved, as enunciated in Times v. Sullivan'8 two decades ago, is that the public's right to know takes precedence over the personal right to privacy. If one is a "public figure'' (e.g., a public official—even a policeman on the beat) or a quasi or limited public figure (e.g., one who is well known in the press already with respect to the controversy in question), then the press can be held liable for misstating facts only where malice (e.g., intentional lying or flagrant disregard for the facts) can be shown.~9 THE RIGHT TO COLLECT INFORMATION The right to collect information is vested primarily in the government and is differentiated from the right of journalists to investigate the facts. Many businesses and institutions collect information banks, insurance companies, credit institutions, hospitals, universities—but there is no legal right to do so. Most of the information is freely given or exchanged for services. In most cases there is a quid pro quo for the disclosure of the information based upon either an explicit or an implied contract. Having delivered sufficient consideration to legitimize a contract, the institutions consider the information proprietary and are loathe to release it even to the subjects of the information, be they patient, customer, or student. It has taken federal and state laws as well as court orders~to require universities to make their records

88 ANNE WELLS BRANSCOMB available to students and their parents,20 and universities are still troubled about the consequences of having what they consider sensitive records open to inspection because it will inhibit professors and other staff from being candid about their observations. Also, a recent case holding that individuals have no inherent legal interest in records concerning themselves held by others is quite troubling.2' States as well as the federal government have been forging a new framework for privacy over the past several decades, and the effort has become more intense since the 1960s. The primary federal privacy legislation now in effect controls access of the public to government data banks in which information is collected and aggregated.22 How- ever, the right of the government to collect information is fundamental to the survival of the nation. Its economic health as well as its physical and political health is at stake. The census, which was started in 1890, is a fundamental function of the federal government. In order to collect demographic data and aggregate it for analysis, the government must have the power to compel citizens to respond. This is a very sensitive area, and many citizens do not agree that they should be compelled to release the necessary data. However, allocation of public funds is based upon percentages of identifiable groups, for example, children of the military living within a school district. Also, market information- important to a healthy private sector- is gleaned from the economic statistics that are collected by the Bureau of Economic Affairs in the Department of Commerce. Stringent legislation exists to protect individuals from disclosure of information that is identifiable as specific to an individual or corpora- tion. However, the access laws have made it extremely complicated to protect such anonymity for large enterprises, and many corporations feel that their trade secrets may be jeopardized even though one of the exceptions to the law is that such disclosure may occur. A very disturbing decision was handed down recently by the New York State Court of Appeals. Under New York law domestic insurance companies are required to keep certain books and records, including minutes of their corporate board of directors' meetings. Such records have been voluntarily sent to the State Insurance Department under a promise of confidentiality. However, the court ruled that the agency must disclose the minutes of the directors' meetings to the Washington Post under New York's Freedom of Information Law, which defined "records" as "any information kept, held, filed, produced or repro- duced by, with or for any agency . . ." and that an amendment to the act had eliminated any reference to an exemption for records "confi- dentially disclosed."23

PROPERTY RIGHTS IN INFORMATION THE RIGHT TO ACQUIRE INFORMATION 89 The right to acquire infonnation is a public access issue that goes beyond the right of the press to investigate and/or the right of the government to collect information. It involves the right of citizens to acquire information already collected by others. James Madison ob- served that "a popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both." Based upon that verity, the United States has built its information policy upon a broad base of public education, public libraries, public subsidies for newspapers and other printed materials, and a government printing office that publishes the information gathered and processed by the federal government. Strictly speaking, public access may be difficult to conceive of as a property right. However, it is basically a legal entitlement to use public property, e.g., that information which is gathered arid processed and published with federal funds and/or has become generally available to the public. Patents and copyrights are the legal means by which authors and inventors are encouraged to share their creative endeavors with the public in exchange for the legally protected right to control the use of their intellectual products.24 However, there has been considerable concern that many of these patents become buried in government archives and are never turned to productive use. This concern is especially pertinent for patents owned by the government, where private enterprises have no incentive to develop the technology. Only 4 percent of the government's 30,000 patents have been developed and marketed.25 In response to this concern, Congress amended the patent and trademark laws in 1980 to permit universities, small business firms, and nonprofit institutions to apply for patents on federally funded research and to retain exclusive licenses on these patents for as long as eight years.26 Although this legislation has offered a cure for one problem—the loss of productivity from development of government patents—it has created another the concern that the basic purposes of universities will be altered. In particular, there is concern that university efforts to sponsor research jointly with industry, in response to diminishing public funding of research, may change the public availability of information produced in universities.27 For the general purpose of making information available to the public, aside from the Government Printing Office (GPO), there are extensive federal libraries including the Library of Congress (LC), the National Library of Medicine (NLM), and the National Technical

90 ANNE WElI,?B~SCOMB Inflation Service (NTIS). These organizations collect and dissem- inate information developed with federal funds (as in the case of NTIS), registered with the Copyright Office (as in the case of the LC), or collected because it is pertinent to basic research being conducted by scientists and physicians both in federal employment and around the country (as in the case of NLM). In recent years there has been much turmoil about the dissemination of information that has been processed by federally owned computers and is available in machine-readable form. The most recent policy enunciated by the present administration is that such information will be offered to private contractors for electronic dissemination. Users will pay for the direct cost of accessing the data from computer-based systems, but the federal government will exercise no influence over the fees that contractors or subcontractors may charge the public to access such on-line data.28 Another pioneering project has been undertaken by the Trademark Office, which has entered into barter arrangements with private companies to exchange government data for services in designing the computer graphics software and entering the data to access trademark registrations on-line through an electronic data base. The ultimate goal is to produce the paperless office in~which manual files will no longer be maintained.29 This is a far cry from the previous practice of agricultural data being distributed freely and without charge by congressmen to their constituents and from that of county agents offering their consulting services to local farmers. Congressman Byron Rogers from Colorado's First Congressional District used to send baby books to all new parents with his compli- ments, and many useful publications are offered at a modest cost by the Government Printing Office. Public libraries agonize over the high costs of distributing information on-line, as charges are not imposed on the the use of books unless they are overdue.30 There is, of course, no natural rationale that requires public libraries to permit readers to read books in their collections without charge. Indeed, in former times libraries were very carefully guarded assets, access to which was strictly regulated. Neither is there a natural rationale which requires that access to computer- based information be subject to usage-sensitive charges. The main difference is that it is more convenient to measure and collect the marginal cost of computer access than it is for manual systems. THE RIGHT TO WITHHOLD INFORMATION The personal right to privacy is basically a right to withhold information from public dissemination or disclosure. It is quite limited

PROPERTY RIGHTS lN INFORMATION 91 in a society that believes in the free flow of information. In the United States the press is encouraged to serve as a watchdog and to seek out wrongdoing in public and private institutions. As the press has become more and more diligent in its role and the means of surveillance and investigation have become more sophisti- cated, it is not surprising that public agitation with respect to the advent of new information technologies has sparked an interest in privacy laws. The most basic property right is the protection and integrity of one's own person" the right to withhold information about oneself that one considers to be Knees own, the right to disclose information about oneself at such time and place and under such conditions as one chooses, and the complementary right to know of and to correct information about oneself that is inaccurate and damaging to one's pride or reputation. Scholars of privacy insist that privacy is a natural instinct that has roots in the earliest of civilizations. However, when one visits the pueblos and cliff dwellings of the Southwest Indians it is difficult to believe that our early forebears on this continent enjoyed very much pnvacy. And those of us who grew up in small-town America also have serious doubts that privacy is so deeply rooted histoncally. Indeed, it seems a newly won privilege of urban civilization where the sheer numbers of citizens living together make it virtually impossible for everyone to keep track of everyone else. Therefore, it comes as something of a surprise that there is such commotion about inform citation technologies that have the capability to reimpose the surveillance that was characteristic of small, tightly knit communities. Nonetheless, it is a characteristic of our evolving civilization that we are developing an increasing respect for the individuality and privacy of every human being in addition to a recognition of proprietary rights in real estate and other material possessions. Therefore, it follows logically that we will also evolve a body of law to protect information about ourselves as well as information concerning our corporate enteIpnses and public institutions. Some rights have become universally accepted and require no legal sanction. For example, many women in our society prefer not to tell their age, and that preference is usually respected. The privacy of other information, such as that about sexual behavior, is less universally accepted; e.g., we are only recently beginning to accept overt homo- sexuality among those in positions of power and influence such as the teaching profession and the judiciary. Consequently, there has been a strong incentive to protect such information from disclosure. Criminal activity, physical illness, psychiatric treatment, credit history, and

92 ANNE WELLS BRANSCOMB sources of income are all areas in which we have developed concerns about disclosure if disclosure would be damaging to personal interests or if such information would be damaging to the public interest. A case in point was disclosure of the information concerning the psy- chiatric treatment of Senator Eagleton, which affected his viability as a candidate for the vice-presidency of the United States in 1972. Trade secrets are protected under a very extensive body of law developed through state legislation and the common law. However, trade secrets law is full of contradictions and inconsistencies with the laws of copyrights and patents, particularly with respect to the protection of proprietary interests in computer software. The basic philosophy of both copyright and patents is to disclose information in order to expedite the public dissemination of information but to provide compensation to the authors or inventors, whereas trade secrets law rests upon nondisclosure to the public. Attorneys for computer software companies are in a great dilemma about whether to withhold, disclose, license, release, or rely upon royalties. To cover all bases is very difficult, since reliance upon one theory of law may foreclose use of another.3~ Use of the social security number as a universal identifier has met with great opposition from proponents of privacy. Thus, many people refuse to disclose their social security number because they fear that the government will misuse the personal information referenced by social security number in many data banks. Nonetheless, social security numbers as identifiers have become widely used by both the government and private organizations. The majority of citizens seem to have no qualms about disclosing the number, and many feel that the advantages of cross-referencing data bases far outweigh the dangers. Another area of the law that is very controversial and rapidly developing is the asserted right of journalists to withhold the identity of their sources. Here the right of the public to know is in conflict with the right of those accused of wrongdoing to know the source of the accusation. Investigative reporters claim that they will be unable to obtain information from those with knowledge, especially where their source's future may be jeopardized (e.g., by discharge from employment for "whistle-blowing" or by retribution at the hands of criminals for "squealing". This area of the law is still very much in a state of flux.32 The Supreme Court, when reviewing a journalist's plea for a special privilege,33 noted that Congress might elect to legislate a special privilege for those who inform the public, but it failed to restrict the category to journalists. The Court included lecturers, pollsters, nov-

PROPERTY RIGHTS IN INFO~ATION 93 elists, academic researchers, and dramatists among those who might seek or merit the right to protect the confidentiality of their sources. This right is greatly desired by most scientists, despite the seeming contradiction between the philosophical basis of an open exchange of information in the pursuit of knowledge and the closed system of individual sovereignty of the researcher over the management of the data, subject to a peer group review.34 In 1971 Professor Samuel Popkin of Harvard University went to jail for a week for refusing to disclose the sources of his research related to issues in the Pentagon papers litigation.35 The only two areas in which scientific researchers can obtain protective orders to protect their sources are in cases of psychiatric illnesses or drug abuse.36 Efforts to persuade Congress to enact the protection alleged to be required by scientific researchers in other areas have been unsuccessful.37 THE RIGHT TO CONTROL THE RELEASE OF INFORMATION The corollary to the right to withhold information is the right to release information at a time or place of one?s own choosing. This right is recognized for corporate products, and corporations carefully guard the release of information about new products. Similarly, news releases are dated, and publishers usually respect the embargo both as a matter of common practice and in order to preserve the relationship with the source of the information for future publication. The right to control the release of information is particularly important to those engaged in scientific research. Traditionally (until recently), basic researchers neither sought nor received much financial reward for their discoveries, but they jealously guarded their rights of paternity. Dorothy Nelkin summarized their position as follows: Scientists resist external control as a threat to the quality and integrity of research and as an infringement on their right to control the production and dissemination of their work. From this perspective, the question of ownership is unambiguous: the concept of individual sovereignty guides scientific behavioral There is nothing more zealously guarded by scientists than the peer group recognition that comes from first publication of research results that may lead to an esteemed professorship or even a Nobel Prize. In his study of scientists, R. K. Merton concluded that a scientist's claim to intellectual property rights was limited to such recognition and esteem.39 However, with the changing economic environment in which academic research is being conducted and with large profits to be

94 ANNE WELLS BRANSCOMB claimed, especially in the field of genetic engineering, all this may be changing. The incentive to claim property rights in scientific research that extend beyond paternity is becoming more compelling Nelkin has astutely observed: This assumption [that scientific sovereignty is in the public interest] leads to a fundamental contradiction: the use of secrecy to maintain sovereignty within a community whose work is based on open communication of research findings.40 Interestingly enough, at the same time that the incentive to control research findings more efficiently has increased, the technological imperative is in the direction of making it easier and easier to share scientific research. Computer networking among scientists has become widespread, facilitating the cooperative efforts of scientists from many parts of the world in joint research projects. Such simultaneous and sequential exchanges in a dynamic electronic environment often make it difficult to determine paternity with any kind of legal validity,4~ and the bits and bytes flowing freely via satellite from laboratory to laboratory may make it difficult to trace what librarians call an "intellectual audit trail." Thus, the dilemma arises for scientists that the economic environment in which they now work impedes the optimum use of a technology that has the greatest promise for sharing their intellectual output with the rest of the world. An additional problem has arisen with the public outcry to be able to see the information upon which the scientists judgment is based rather than to rely upon the expert opinion of the research scientist as reviewed and validated by a peer group. This is the primary reason for controlling the release of scientific data. Research scientists check and recheck their data until there is reasonable assurance that it is reliable before sharing it with the court of peers who will judge its authenticity and validate it for public distribution. However, the data in a university computer may not be as easily protected from premature release as the research notebooks of a pre-computer period. There are many other types of data bases where release of information provided by individuals is routinely made available to the public or even sold for profit by both private and public institutions. Have you noticed, for example, how quickly you receive solicitations from boating magazines and commercial houses after you have purchased a new boat and registered it with the state authorities or documented it with the Coast Guard? Direct mailers ace notorious for the speed with which they sell your name to their colleagues after you purchase

PROPERTY RIGHTS IN INFORMATION 95 an item. All of this is expedited by the use of computers for recording and distributing addresses. In most jurisdictions there is at present no legal right to require entities to which you disclose your name and address to protect that information. However, there seems to be a groundswell of increasing concern about such use.42 A few states have acted to prohibit the use of motor vehicle registration lists for direct marketing without the consent of the registrant,43 and a number of others have enacted legislation restricting the distribution of cable television subcription lists.44 Most companies are able to acquire such infonnation quite easily. Several companies specialize in the distribution of motor vehicle registration lists, which are considered to be the most valuable and up-to-date address lists. Some institutions, such as American Express, voluntarily inquire whether you wish to have your name distributed to other commercial enterprises, and the Direct Marketing Association promises to have your name removed from all mailing lists if you so request. However, a trial run of this system by the author merely precipitated a deluge of catalogs from many direct mail houses that had not previously known the address. Perhaps in an open society whose economy rests upon commercial enterprise, some of us do not cherish the protection of our own names from disclosure to third parties without our pennission. Indeed, the telephone company requires those who cherish privacy to pay extra for the privilege of an unlisted telephone number. However, it should be a prime tenet of the right to privacy that government agencies should not disclose personal information for commercial purposes without prior consent of the person. Credit agencies freely exchange information about one's reliability. The legal status of such information within the care and within the files of another is not entirely clear. However, some recent cases are troubling. A bank was held legal owner of the information about a depositor, who had no right to enjoin release of that infonnation.45 Medical doctors are usually held to be the owner of their own files about patients, and attorneys are the custodian and rightful owner of their own files about their clients. The attorney-client privilege protects disclosure by the attorney of client information to third parties, and doctors operate under an ethical mandate not to disclose medical information about the contents of their files to outsiders. However, the ease with which electronic files are being invaded today suggests that the law is not yet in place that will protect such files in the Info~atior~ Age and/or that neither public nor commercial enterprises are willing to pay the price of data protection by encryption.

96 AN1VP WELD B~SCOMB The case of material obtained illegally is another instance in which the right to control release of information is important. Where criminal liability is predicated upon such information, it has been a long-standing principle of U.S. law that inflation obtained by illegal search and seizure is not permitted to be used to convict.46 However, recent Supreme Court cases suggests that this rule may be weakened.47 In the case of publication of illegally obtained information, the law is not so protective of the source, and the government was unable to obtain an injunction against the New York Times to prevent publication of the Pentagon papers.48 However, the former the case of material obtained illegally rests upon a basic principle offairness to defendants and the latter that of publication of illegally obtained information- upon the overriding right of the public to know. Consequently, in each case there is a balancing of public against private interests in release of information. There is an implicit conflict between the interests of the First Amendment in open and uninhibited circulation of information and the rights of interested parties (whether individuals, corporations, or governments) to prevent the disclosure of information that they consider may be damaging to them. The most interesting case to date in this area has been the Elizabeth Taylor action to enjoin ABC from televising a docudrama about her life in which she had enjoyed no participation nor had had any opportunity to review the contents. It was Miss Taylor's argument that the story of her life was hers to distribute.49 As she was an actress of note whose family fortune rested upon her abilities as an actress and her resultant fame, it was a reasonable argument that she had not merely a personal right of privacy not to be invaded by publication of information about herself but that she had a commercial interest to be protected from exploitation by an unauthorized commercial enterprise. Usually the legal claims in such cases are based upon libel, privacy, or false light, but Miss Taylor's claim was a more novel claim of misappropriation of information rightfully belonging to her. She based her claim upon statutory rights and the common law "right of publicity.~950 Libel cases against producers of historical documentaries have been dismissed on the grounds that certain events are of such historical significance that the First Amendment confers "leeway'' to permit the public to view the reconstructed portrayal.5~ The problem is more critical with living subjects, especially those like Miss Taylor whose livelihood is based upon the electronic presentation that is also the vehicle being used for the historical representation. Courts have held that the right to file suit for invasion-of privacy would not be available

PROPERTY R1CHTS IN INNOVATION 97 tO Descendants, although "merchandising nghts" have been held to be passed to subsequent generations.52 Inevitably, in such cases there is a conflict of many interests: those of the authors to the integrity of their creative freedom, those of the public to view historical events in perspective and in the latest information technology, and those of the subject or the subjectts heirs either to protect the integrity of infor- mation or to retain the right to receive compensation for distribution of information that was generated through the efforts of the subject. Rights of paternity and integrity have not traditionally been covered by U.S. copyright law, but are established by contract.53 THE RIGHT TO PROFIT FROM INFORMATION There are many mechanisms for supporting the creation of intellectual products, such as the maintenance of monasteries, public universities, and venture-capital firms or the patronage of wealthy families, for example, in Italy during the Renaissance. Yet copyright and patent laws have been the mainstay of public policy in market economies since the Statute of Anne was enacted in 1709.54 Basically, this first copyright law protected the right of authors to dispose of their works in return for financial remuneration rather than for public acclaim.55 As this system was designed for the print media and primarily for the protection of the financial interests of publishers rather than of authors, it has been the subject of much controversy in the electronic age. The law had great difficulty in accommodating itself to machines. Even as early as the days of the player piano, the courts had difficulty in finding that the instructions to the piano were a "copy', of the underlying work that could be perceived by the human mind rather than a machine.56 The author john Hersey, a commissioner on the Commission on New Technological Uses of Copyrighted Works (CONTU), which advised the Congress on the applicability of copyright principles to computer software, wrote an anguished dissent to the CONTU recommendation that software be so considered: Works of authorship have always been intended to be circulated to human beings and to be used by them- to be read, heard, or seen, for either pleasurable or practical ends. Computer programs, in their mature phase, are addressed to machines.... The computer program communicates, if at all, only with a machine.57 Hersey's colleagues on CONTU did not have as much difficulty coping with computers as he did, and recommended to the Congress that computer software be absorbed within the rubric of copyright protection.58 Indeed, even with doubts about the statutory protection,

98 ANNE WEI ~ BR~SCOMB lawyers have shown great ingenuity in devising methods to protect the interests of their clients through licensing agreements, centralized royalty exchange programs, and contractual arrangements. Computer Software Apple v. Franklin The arguments over legal protection for computer software have been extensive and have only temporarily been resolved with the enactment of a special amendment in 1980 to the Copyright Act of 1976. The amendment was specifically intended to authorize copyright law to cover computer programs,59 although the Copyright Office had been accepting computer software for copyright registration since 1964.6° The Copyright Office had, in fact, registered more than 2,000 such programs prior to the investigative hearings of CONTU, primarily offered by IBM and Burroughs, two of the largest developers of computer software. Much of the success of Apple in introducing the personal computer to the marketplace rested upon its successful efforts to encourage the free exchange of software programs by its users and the offer to facilitate the opportunity for circulation. However, when the Franklin Computer Company copied its operating program in order to facilitate the running of software designed for Apple computers on Franklin hardware, Apple went to court to enjoin the practice. There was no question about the source of the software, as the Franklin version even contained references to Applesoft. The basic legal argument was that object code, in which the Apple operating system was written, was not copyrightable. The lower court, in the spirit of John Hersey, was unable to cope with this "baffling" new technology and found no infringement. Where were the original '~works of authorship" in this electronic gibbensh? What was "fixed in a tangible medium of expression"? The defendant also suggested that for the copyright laws to cover the situation there must be some representation of irreparable financial harm. Rather than harm to the plastic, the defendant argued that the irreparable harm would ensue upon issue of an injunction against Franklin, a fledgling personal computer manufacturer with only 1,000 machines sold, compared with Apple, the then leader in the field, with 440,000 computers sold and sales of over $335 million in 1981. Franklin argued that equities and public interest were on its side to foster competition in the industry and to keep a balance between competition and protection. However, the appellate court disagreed. Although finding that the underlying interest of the copyright law required a

PROPELS MGHTS IN INFO~ATION 99 presumption of irreparable harm to the plaintiff, the court said the copyright law required no such actual' showing. The court had no difficulty in finding that the $740,000 invested by Apple in developing its operating system software represented a substantial investment in jeopardy, which would satisfy the underlying public policy consider- ations. It also found no difficulty in obviating the necessity of discrim- inating between object and source code,62 since one is used to more readily get access to the other. In effect the two satisfy the same functional purposes to tell the computer what routines it is to perform. The Supreme Court agreed, or at least refused to enter the argument.63 However, the debate about the appropriate protection for software continues.64 Some software firms, such as Freeware, offer their programs for a contribution on the theory that wide dissemination is desirable and, at least in their judgment, profitable. Other software houses, while attempting to protect their intellectual efforts through licensing agreements to control unauthorized copying, nonetheless admit that staying ahead of the competition in innovative programs is what protects their financial investment. It remains doubtful whether or not this will be true in the more stable economic environment when software programs have matured and found their natural niches in the marketplace. Indeed, some of the young geniuses who started their careers as computer hackers have admitted to being devastated by the 'piracy of their work product after hours and hours of labor expended in its creation. How public policy addresses this issue will remain of high priority in the Information Age, as economic interests become more and more tied directly to information products and services. Videotape Piracy Sony Corp. v. Universal City Studios An even more difficult copyright issue, one that is no nearer resolution, is that of videotaping television programs off the air through the use of videocassette recorders (VCRs). As recently as the early 1970s, network programs did not carry a copyright notice, because the law presumed that broadcasting a program on television was not a "publication" but a private performance to be governed by the contract negotiations and agreements reached between the two par- ties the network originator and the broadcasting station that aired the program. At the time there was no conceivable way a user could record and resell the performance. Consequently, there was no "copy" that could be the subject of copyright registration. All that has changed with videotaping, which is flourishing. Some 4 to 5 million VCRs are now purchased annually65 (13 percent of the

100 ANNE WELLS B~SCOMB American public already owns VCRs66), and more than 14,000 videotape leasing outlets have cropped up all across America.67 However, the receipt of royalties from the rentals of such recordings is prohibited by law under the doctrine of "first sale," which grants a copyright owner the right to transfer the ownership but not to control the secondary uses thereafter.68 As a consequence, no royalties are collected on the millions of rentals of videotapes of popular motion pictures. The sale of such tapes has not been large, but the market is growing steadily. The release of Raiders of the Lost Ark just before Christmas in 1983 precipitated a record of 500,000 purchases in less than a month.69 The rentals now reach close to a billion dollars annually and run about nine to one over purchases.70 Most of the litigation has involved the taping off the air of television distributed programming. The time to resolve the issue has taken almost a decade, as the initial suit was filed in 1976. Although the lower court did not see a violation of the Copyright Act in the at-home taping of television programs, the Ninth Circuit Court of Appeals agreed with the complainants that their rights had been infringed and that they deserved relief. The Supreme Court disagreed, admonishing the appellate court for enlarging the scope of "an article of commerce" that is not the subject of copyright protection and beyond the power authorized by Congress. In addition, the Court found that the wide- spread primary use of VCRs was for "time-shifting" or otherwise viewing a program that could not be seen at the time it was first televised. Thus, the respondent was unable to '~show that the practice has impaired the value of their copyrights or has created any likelihood of future hann." Also, the Court determined that VCRs were used for other, quite legitimate purposes in addition to that of recording plastics intellectual products.7~ Taping of television programs for personal use appears to have become accepted as a fair use of copyrighted matenal. This is not in accord with the historical interpretation of fair use, since the programs are taped in their entirety. The use of the doctrine in the past has usually been restricted to copying portions of the work "for purposes such as criticism, comment, news reporting, teaching (including mul- tiple copies for classroom use), scholarship, or research."72 The rationale of the court must have been the unlikely efficacy of trying to put Pandora back into the box and the fact that no commercial use of the tapes was either alleged or documented. The case might go quite differently for the resale of programs taped off the air. The holding was consistent with the photocopying case,73 which had to reckon with the efficacy of trying to hold back a technology that

PROPERTY RIGHTS IN INFORMATION 101 had produced countless street-corner copying houses all over the country a development that makes it possible for any citizen to become an information provider. Furthermore, the Williams & Wilkins case involved the photocopying by the National Library of Medicine and National Institutes of Health (NIH) of scientific articles (many of which were taken from the plaintiff's 37 professional journals) in single copies for distribution to the NIH staff of 12,000 plus satisfying thousands of requests from cooperating libraries around the country. In each case the Court was concerned about dealing with a new technology in a judicial context rather than leaving the legislative function to Congress, but in both cases the justices were divided in their opinions. The motion picture producers are now taking their case to Congress and seeking repeal of the first-sale doctrine. They are also pursuing their legal rights in the courts against all potential defendants in the videotaping industry but without any redress being sought against users whose only videotaping is for their personal use in the home.74 Insider Information SEC v. Winans Another concern of the public is that insiders not be permitted wrongful financial gain from the use of information prior to its disclosure to the public. The Securities and Exchange Commission (SEC) regulates the buying and trading of stock by the executives and owners of businesses who have available to them information that could affect the stock market priced Historically, financial information has carried monetary value second only to that of military information. Indeed, the Rothschilds are supposed to have based their fortune upon advance inflation of the defeat of Napoleon at Waterloo brought to them by their fleet of carrier pigeons. In an open society such as ours, there has been considerable ferment about manipulation of the stock market by those with sensitive jobs. The most recent case and the most innovative one is the indictment of R. Foster Winans, a former employee of the Wall Street Journal and columnist of "Heard on the Street,'' for using the advance information that he controlled for personal profit in stock market trading.76 Indicted along with Winans were two others, another former Journal employee and a former stockbroker from Kidder, Peabody, & Company. Also expected to be indicted is an attorney who allegedly used the information and profited therefrom. Over a million dollars in profits were reputed to be gained by the four in the alleged conspiracy

102 ANNE WELD B~SCOMB to defraud the readers of the Journal through a failure to disclose the financial interest of the writer in the outcome of his articles. Although the indictment contains allegations of securities, mail, and wire fraud, it is this novel legal theory of a fiduciary obligation to his readers that has precipitated much speculation among legal scholars. Proponents of the First Amendment and defenders of the press such as Floyd Abrams deplore such disclosure of financial interest as a forced speech that is inherently abhorrent to the constitutional right of free speech. However, investors in the stock market who rely upon such reputable sources as the Wall Street Journal for their financial information must necessarily be concerned about the opportunity for manipulation of the data and the stock market. This case presents an interesting dichotomy for those who prefer an unregulated marketplace, since the integrity of the information must necessarily rely upon either the ethics of the profession or the rule of law. Certainly the dispatch with which Winans was released from his employment by the Journal underlines the concern of the paper for its reputation. Clearly the SEC insider rules were not originally intended to anticipate such a situation. A basic sense of fairness to the stock- trading public suggests where the equities lie. However, the legal situation is not so clear. While the theory of a legally enforceable fiduciary duty has appeal to those concerned with fairness in the marketplace, it may not technically lie within the Supreme Court's restrictive definition of insider trading. Winans was not an officer of any of the companies in which he traded. He was in the position of gathering information about them and/or disclosing it at a time and place convenient to his trading posture. The most solid legal argument may be that he embezzled the information about the time of publication of his column from his employer and released it to his coconspirators, who became thereby participants in the alleged theft. The most expansive exposition of the legal position of the courts was expressed in a 1968 case: "Anyone—corporate insider or not who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose.... [Federal securities laws] created a system providing equal access to information necessary for reasoned and intelligent investment decisions."77 Prior decisions have concluded that the fiduciary relationship necessary to bring the SEC rules into action required direct responsibilities to the stockholders.78 Conse- quently, the goverrunent may lose the case on technical points. Nonetheless, the indictment itself is a major step forward in focusing public attention upon the problem of authenticating sources of infor-

PROPERTY RIGHTS IN INFORMATION 103 mation and protecting the integrity of information upon which the public must make decisions. Certainly, there will be amicus curiae beefs filed by representatives of the working press, and publishers will argue that government intrusion upon the self-regulation of the industry will do more harm than good. However, where financial interests affecting the buying public are concerned, I suspect that the scales will fall more heavily upon the side of regulation if the courts fail to protect the integrity of financial information. One caveat, however: When the state of Alabama enacted legislation requiring reporters covering state government to disclose their economic interests that might constitute a conflict, the reporters succeeded in obtaining an injunction against its use.79 There was no presumption of wrongdoing as in the Winans case, since the dangers were prospective rather than retrospective. Certainly, this is one of the areas in which the divergent thrusts of the First Amendment draw a clear line of battle. Other Cases Another area for concern in the future is that of public officials commercializing their memoirs or using information from their official experiences for profit. However, public servants may argue that their "stock in trade" is their intellectual output during their incumbencies much as Elizabeth Taylor claimed a commercial interest in her professional persona and the right to exploit her name, image, and reputation. The difference, of course, is that public officials receive their financial support from public coffers, whereas performers are dependent upon commercial exploitation of their performances as the economic basis of their livelihood. The public policy question is whether news gatherers are derelict in their duties to the public when they pay their news sources for disclosure of information. A more serious probing occurs in cases such as that of Watergate defendants Haldeman and Ehrliclunan, who were paid for their ap- pearances on television. Since Watergate, there is growing concern about the right of public servants to financial gain from their public service, or especially for their public disservice. However, there is very little case law on the subject. This is probably because there is no one to represent the public interest --no injured party to litigate the issue. Several decades ago litigation arose over the right of Admiral Rickover to claim a copyright in his speeches delivered during gov- ernment service.80 In another case, Richard Nixon was not permitted to claim executive privilege to block the subpoena of the special prosecutor for the famous incriminatory tape recordings. More

104 ANNE WELI S BRANSCOMB recently, the Ford memoirs became the subject of litigation when The Nation published excerpts or paraphrasings of some of Gerald Ford's observations about Watergate and its aftermath prior to the publication date scheduled and precipitating the cancellation of a contract with Time magazine to publish portions of the manuscript.82 The court held that The Nation's article—only 2,250 words, of which at most approx- imately 300 were copied was a fair use of facts contained in the 200,000-word manuscript and were "the very essence of news and of history." After reviewing cases holding that neither news events, historical facts, nor biographical facts are copyrightable, the court summarized its view that public events cannot be monopolized by participants in them.83 We have been asked to examine complex questions concerning the Copyright Act and the memoirs of a public official. Throughout our consideration, we have been guided by the conviction that the statute was not meant to obstruct the citizens' access to vital facts and historical observations about our nation's life. By far the greatest part of the article in The Nation was no more than the reporting of information concerning political decisions at the highest level of government. These facts were sown in and gathered from the shared ground of our country's history. They are the "property of all"....84 Inroads are also being made into the quite disreputable practice of some criminals committing their crimes for the purpose of gaining notonety. Given the enthusiasm with which publishers pursue the right to publish such stories, it is not surprising that we have begun to think twice about the consequences of promoting financial gain from anti- social acts as we become more dependent upon information products for our economic health. A prudent and wise rule, it could be argued, would not permit a criminal to profit from his or her own wrongdoing. Proceeds should more equitably be allocated to the victims or their families or be used to reimburse the government for the cost of incarceration. The former has been addressed in the enactment of what are called the Son of Sam laws. These were precipitated by the chain of murders committed by David Berkowitz in New York several years ago.8s TEIE RIGHT TO PROTECT INFORMATION There are many areas in which we have recognized a right to protect sensitive information that has already been gathered, processed, and archived. For example, the dockets of juvenile offenders are not available for public inspection in many jurisdictions. Medical records

PROPERTY R1CHTS IN INFORMATION 105 are not open to the public. Government documents are sometimes stamped TOP SECRET, SENSITIVE, or EYES ONLY. Yet all of these protected areas are suspect under the opposing theory of the public's right to know and the fear that activities that take place in secret and that are not recorded in publicly available documents will cover up actions that are not in the public interest or that reflect negligence or incompetence. Sunshine Laws and Freedom of Information Laws Sunshine laws and freedom of information laws86 have wreaked havoc with the traditional practices of organizations to conduct their business in private and to disclose actions to the public after debate is over. Universities as well as industry smart under pressure to open up their inner circles to greater representation from the public. Seats on college and university governing boards now include student members as well as faculty and staff, and corporations seek board members with public constituencies. All of this is a very healthy and inevitable trend in an open and vital information society. It may encumber decision making and render it more costly, but democratic governance demands broad participation in making public policy. Such participation necessarily requires wide- spread dissemination of information upon which public decisions are predicated. Strategic Information However, sunshine laws and freedom of information laws also present new obstacles to security agencies. Gathering of strategic intelligence by tradition is assumed to operate in seclusion beyond the reach of public surveillance. Many people are concerned that the new technologies make it even more difficult to protect information of a sensitive nature because of the ease with which invaders can break into the system. The movie War Games is a good example of the fear that has been engendered concerning the potential for harm by unauthorized entry into computerized defense systems. Yet advances in computer cryptography have swung to the side of those who encrypt, if they use sound methods. We are assured that breaking into the data bases of the Department of Defense and the Central Intelligence Agency and National Security Agency is far more difficult than is represented by Hollywood. Still, it is a worrisome problem both from a technical and from a legal standpoint. Recently officials were

106 ANNE WELLS BRANSCOMB astonished to discover that wiretapping a voice line was prohibited by statute, yet tapping into a digital transmission was not. The law lags far behind the technology. Other countries are more concerned than ours is about the vulner- ability of information that is gathered, processed, and/or maintained in data bases outside their own boundaries. This is not entirely a specious argument, as the assets of Iran were impounded during the Iranian hostage crisis. Also, the billions of dollars whirling daily through the SWIFT computerized network from bank to bank inter- nationally are a good example of information of high value that cannot by its nature be controlled physically within the confines of a single nation. A country that tried to do so would become isolated from the international economy and would have to fall back upon its own resources. This has not inhibited countries such as Sweden from elevating the question of national vulnerability to a high level of public anxiety. In the case of Sweden the concern was prompted initially by discovery that the Malmo fire department processed its data in a computer time- sharing service in the United States. To be invaded by aliens and to discover that your strategic data were stored in an enemy computer would certainly put an end to a war prematurely. As a result of such fear, nation-states purchase and maintain computers for their own essential information rather than use the more expeditious and less costly route of t~me-sharing with other countries. However, this is the price of maintaining national sovereignty over critical information in the absence of any international protocols for such protection outside their own geographical boundaries, within which they are presumed to have absolute junsdiction. Export Control of Technical Data The current argument over new legislation to replace the old Export Administration Act,89 which has now expired, highlights the problems that ensue when technical data are treated as a controlled commodity. Despite the long-standing existence of the restrictive clauses contained in the earlier versions of the act, it has only recently come to the attention of scientists that much of their existing open practice concerning the exchange of unpublished scientific data, in person, by mail, by conference, and by computer, is permitted only by the notion of a General License by the Department of Commerce. The Bucy Report of the Defense Science Board90 recommended that the export control system should reduce the number of controlled

PROPPR~ RIGHTS IN INFO~ATIO.Y 107 items on the Controlled Commodities List and concentrate on the transfer of applied technologies, the mastery of which would permit hostile nations to replicate U.S. military manufacturing capability. Thus, they recommended restricting only "arrays of design and manufacturing knowledge,', and "keystone" manufacturing equip- ment. However, although the Congress incorporated the board's definitions into the 1979 act, it had left no guidelines concerning how such determinations were to be made. The extensive proposals of the Department of Defense, such as the highly controversial and secret Militarily Critical Technologies List, have not yet been approved by Congress. Because the proposed new legislation permits U.S. law to reach out and control companies in other friendly countries to which technology has been transferred, the European Economic Community (EEC) has filed formal complaints through diplomatic channels deploring this intrusion upon national sovereignty and noting that the economic sanctions of the U.S. government over the Soviet pipeline had led to considerable "political and commercial damage."9~ Transborder Television- Protection of Cultural Identity Another example of protective policies has been initiated in Canada, which is concerned more about cultural identity and its own economic independence than about strategic security, since the main threat it seers from the United States is to its cultural and economic integrity. In certain respects Canada has been ahead of the United States in entering the Information Age. Marconi's first transatlantic radio trans- mission was from Nova Scotia rather than from Truro, Italy. Morse's telegraphy found uses in Canada before it came into use in the United States, and Canada orbited domestic communications satellites two years before the United States was able to "get off the ground." Furthermore, Canada has been years ahead of the United States in its anticipation of the social impact of the new technologies and in integrating public policy towards the use of new technologies into national priorities. One of the primary concerns of the Canadian Department of Communications has been the spillover of U.S. television stations across the Canadian border and the widespread development of cable television to pick up such stations.92 As a consequence of these nearby sources of prime-time entertainment, Canada is one of the most heavily cabled countries in the world. The first reaction of the Canadian authorities was to propose not licensing cable systems that undertook

108 ANNE WE! ~ ~ B~SCOMB to retransmit foreign broadcasts.93 However, the public response to this proposal was so overwhelming that it was never put into action. The next effort was intended to stop advertising dollars (estimated at $20 million to $25 million annually) from going to U.S. television stations rather than their going to the Canadian Broadcasting System. Canadian authorities in 1971 determined that Canadian cable systems should delete the U.S. advertising from their retransmissions of U.S.- originated television programs and substitute Canadian advertising instead.94 This brought an uproar from border broadcasters who took their fight into Canadian courts and began to agitate in the United States for retaliation. The Canadian Radio-Television Commission (CRTC) suspended further implementation of the commercial deletion policy, but initiated as an alternative a rule that Canadian companies could not deduct the cost of advertising on non-Canadian communications facilities.95 This added fuel to the long-standing controversy between U.S. and Canadian authorities that has yet to be resolved. Variously, the U.S. Congress has tried to implement retaliatory measures that would prompt the Canadian authorities to relent. An effort has been made to enact reciprocal legislation, although there are no genuine economic sanctions that would be comparable. Efforts have been made to restrict the deductibility of U.S. attendance at conventions in Canada and to restrict the marketing of the Telidon videotex system in the United States. A complaint filed with the Special Trade Representative96 resulted in a finding that the Canadian practice was unreasonable, burdensome, and restrictive to U.S. commerce. A1- though both Presidents Carter and Reagan have called for mirror- image legislation, no practical solution has yet been reached. This Canadian border spillover problem is a good example of a nation-state's determination to protect information that it considers proprietary and to exclude information that it finds objectionable. However, it is also evident that the two countries have widely divergent philosophies underpinning their information policies the United States is dedicated to a free marketplace for information as protected by the First Amendment and best achieved through an unregulated economy, whereas the Canadians look upon information policy as a means to an end the promotion and protection of their own cultural identity and economic viability. THE RIGHT TO DESTROY OR EXPUNGE INFORMATION Just as the Chinese more than 2,000 years ago resorted to book burning to remove the collective memory of prior social systems,

PROPERTY RIGHTS IN INFORMATION 109 governments today use less stringent but similar methods of changing the course of history. It is usual to call attention to the Soviet practice of rewriting history with a Marxist interpretation, but we are not as aware of efforts within our own society to do the same thing. Frances Fitzgerald reports her findings that textbooks used in American schools have changed their views of history on the average every five years since the 1930s.97 Little Black Sambo is no longer black, and the 1930s version of King Kong with its fearful monster finally overcome has turned into a 1970s version with the multinational oil company ex- ploiting the beast and destroying the island culture by depriving the natives of their religious symbol. Each reflects the social concerns of its own generation, and such reinterpretation of fiction is accepted as literary license. Aside from a very real ethical concern about accuracy, objectivity, and reliability of information, every society will accom- modate its information policy to its own political circumstances. There are sound reasons for destroying some records when they have served their purposes. Shredding machines would not sell so well were it not so. In a society where the printed word is pervasive and copies abound, it is not so easy to destroy all copies. However, within a centralized data base where it may be more efficient to keep the source material on file and merely make copies at the convenience of the user, we may need to worry about what is to be expunged and when in order to avoid information overload or overspill and/or to get rid of redundancy. With computerized archives being so roomy and so cheap, it may become uneconomic to clean out the files. In addition, with so many coauthors and coinventors, it may be difficult to determine who has the right to expunge or delete. THE RIGHT TO CORRECT OR ALTER INFORMATION Public Records As important as the right to acquire public information is the right of individual access to personal information. This was the consensus of data protection leaders from nine European countries attending a 1984 conference in Bellagio. The mere existence of such right, they concluded, is likely to have a salutary effect upon keepers of records.98 Although many European countries have centralized governmental authorities who license data bases and act as ombudsmen to enforce the rights of citizens, the United States has no counterpart. Such rights as are available are left to the courts to enforce. These include the right to compel the correction of inaccurate or untrue data In govern- ment files.99

110 ANNE RELIT BRANSCOMB Broadcasting The broadcasting counterpart of the right of the individual to access personal information in public records is the personal attack doctnne, which permits the subject of an attack to obtain a copy of the offensive audio or video broadcast and to reply.~°° Newspapers There is no right in the pnut media, comparable to the personal attack doctrine, that permits an individual to reply to material already published. In order not to chill the freedom of speech that the First Amendment seeks to protect, the appropriate recourse to an inaccurate or untrue statement is a libel action after the fact for money damages. However, in California, where many libel actions are filed by prominent entertainers, the libel action may not be pursued if the publication voluntarily published ~ retraction of the alleged inaccurate informa- tion.~°' Also under the rubric of privacy protection (a competing First Amendment right), an injunction may be obtained to prevent publication of material that will place the plaintiff in a "false light.''~02 Efforts to establish news councils to serve as watchdogs on such abuses and to urge offenders to publish replies have not been very successful, as some of the major news companies refuse to participate. The effort of the Flonda legislature to enact a right of reply for newspapers was struck down by the Supreme Court as intrusive upon the editorial judgment of the news media.~03 Consequently, the new technologies of both broadcast and computer have come under more stringent rules than the old media. However, it must be remembered that the abuses to be corrected at the time of the First Amendment were strong government intrusions into news content, whereas today the greater fear is the danger of private corporate control over the means of distributing information. Many of the major newspapers and magazines regularly publish corrections of items from previous editions. They should continue to do so in their own interest and that of the public. As they enter the age of electronic publishing (and many, such as Gannett, Time, Inc., and Dow Jones, are already delivering their content via satellite or engaging in the delivery of videotext, they may become subject to the laws governing the electronic media. However, they may find that the public is more sympathetic with the later evolution of the law as a more equitable and workable solution to balancing property rights in information in the sophisticated technological environment. The First Amendment shield, with which they so vociferously assert their right

PROPER RIGHTS IN INFO~ATION 111 to be protected from public accountability, may not serve them well unless they have themselves conformed to the tenets of its underlying philosophy. THE RIGHT TO DISSEMINATE INFORMATION None of the other rights would be very meaningful if there were no right to send forth the information into the marketplace of ideas. However, such dissemination carries an economic cost when any technology other than the human voice is employed. Every community has some place that operates as a public forum. In small-town America it was around the steps of the county courthouse. Portuguese sailors who settled New Bedford met on street corners, and some New England villages meet at the town dump. Most societies have large squares in which great numbers of citizens can assemble for public festivals and pronouncements of policy- the Mall in Washington, O.C., Red Square next to the Kremlin in Moscow, St. Peter's Square in the Vatican, Red Square next to the Forbidden City in Beijing, and Marcos Square in Manila. Lafayette Square in Washington, D.C., may have once served that purpose, but it has long since been landscaped with gardens and walks that discourage protectors from marching near the White House. However, the technologies of print, broadcast, and computer have made this method of disseminating information obsolete except as a backdrop for television versions that can be disseminated to many millions more than could ever be accommodated in one place. In the United States we accommodated our policies very rapidly to the print media by establishing a system of post roads over which the mails and the newspapers could travel. We have provided preferential rates to books, newspapers, and magazines, and even to merchants' catalogs and a special franking privilege to congressman for expediting messages to their constituents. A nationwide penny postcard made it possible for the constituents to reply with low cost, and even to send their messages to each other. The applicability of this principle of a public forum cames over into a concept of common carriage for voice messages on telephone and telegraph. The law has had great difficulty, however, in coping with the broadcasting industry because content decisions and carriage media are both under the control of a regulated broadcaster. Nonetheless, there is a limited public forum responsibility in the fairness doctrine which requires that broadcasters devote time to opposing viewpoints when issues of public importance are aired.~04 Numerous efforts have

112 ANNE WE! ~ ~ B~SCOMB failed to establish a right to communicate over the broadcast media for the purpose of responding to commercials on the basis that they were really "infomercials"~05 or to obtain a right of access to the electronic media for the initiation of public issues.~06 The courts have been very protective of broadcasters and only recently reaffirmed the long-held view that television is not a public forum even if it is controlled by a public agency.'07 Viewers have no right to compel any particular kind of expression over the public airwaves. The Constitution requires content neutrality only with respect to an activity that has traditionally functioned as an open marketplace of ideas. However, the Supreme Court did not view public television as assuming this role. In renouncing the Federal Communications Commission's (FCC's) aborted attempt to establish public-access channels on cable television, the Supreme Court concluded that the FCC was attempting, without legislative authorization, to create a public right that did not exist, and it commented that the right to speak does not include a right to an audience in a nonpublic forum such as newspapers, magazines, or on the Senate floor.~°8 However, the power of the press, as a surrogate of the people, is a powerful too} for redo. As the movie Gandhi so vividly portrayed, the presence of the New York Times reporter and that paper's publication of Gandhi's fight for India's independence gave interna- tional credibility to the separation movement, increasing its influence internally. For the protection of human rights the exposure of violations to public view may be the only way to impose sanctions upon the wrongdoers. The student demonstrators and ghetto youth of the late 1960s understood this better than did public authonties. As Arthur Clarke so eloquently expounded concerning his brainchild, the geo- stationary orbital communications satellite: The very existence of the myriads of new information channels, operating in real-time, will be a powerful influence for civilized behavior. If you are arranging a massacre, it will be useless to shoot the cameraman who has so conveniently appeared on the scene. His pictures will already be safe in the studio five thousand kilometres away; and his final image may hang you.~09 Certainly, both the access of the news gatherer or researcher to the subject matter and the availability of a means of distributing the information are essential to the health of the public enterprise in a democratic society. How to assure this access in an economy that puts high priority both on using private businesses to provide the

PROPERTY RIGHTS IN INFORMATION 113 technological means of access and on noninterference with freedom of speech is a quandary of utmost importance to the legal profession and the public. SOME OBSERVATIONS ON PRACTICAL PRECEDENTS AND PHILOSOPHICAL PRINCIPLES The renewer information technologies have created some options and opportunities that transform the environment for interactive commu- nications. They have also precipitated much soul-searching concerning basic principles that should apply to their use. However, these technologies do not come to us in a legal vacuum. As a nation we have many legal theorems and practical precedents gleaned from a rich heritage of concern about basic rights in information in other media to guide us. We can, with some assurance, make several observations: 1. We are reluctant to reward wrongdoers for their wrongdoing. 2. We prefer to encourage and reward innovation even through novel legal theories based upon notions of common sense, commercial fairness, and human justice. 3. The courts will not do a useless thing like trying to curtail the videotaping of broadcast material in private homes or to prohibit the photocopying of published copyright materials for personal use. 4. The courts will not try to expand a legal theory that is ridiculous in its application, e.g., attempting to differentiate between source and object code as a means for determining copynghtability of computer software. 5. The courts are reluctant to apply novel legal theories that have not received the sanction of the administrative agency which has jurisdiction over the subject matter, e.g., enunciate a judicial First Amendment right of access to the broadcast media. 6. The law must conform to public acceptance of what is right and equitable. 7. The concept of property rights, whether applied to material goods or to intangible information, is neither simple nor absolute. It reflects the values of a society that equally cherishes individual freedom of action and the sharing of information for the common good. It is also possible to derive some basic principles that underpin our philosophy of property rights in information. 1. We must have a public medium through which information may be exchanged freely between infonnation providers and information users. This may be a common-carrier channel (for telephone, telegraph, or electronic mail), a public-access channel for cable television, an op-ed page in newspapers, or a public bulletin board such as the Democracy Wall in the People's Republic of China. The village green or public

114 ANNE WED B~SCOMB auditorium simply will not suffice in the age of electronic information highways. 2. Liability for content should rest upon the originators and producers of information, not on the earners, unless they are one and the same. 3. The sources of information and the nature of them economic interest must be appropriately identified and authenticated in order to establish credibility and to permit those harmed by a message to seek redress, unless there is some overriding public interest in protecting the identity of the source who may be personally harmed or put in jeopardy by the disclosure. 4. Proprietary rights in information generated for commercial purposes should be recognized, legally protected, and compensation provided through justic~able means. 5. The piracy, embezzlement, misappropriation, or misuse of information should be punished. 6. Freedom of speech should not be impaired except in circumstances in which there is a clear and present danger that the health and safety of the nation is in question or that the health and safety of an individual is in serious jeopardy. This should be true whether or not the person in question is a public figure or private person. CONCLUSIONS The basic principles outlined above need not be circumvented in an electronic age any more than they have been in the past.~° They are derived from a long legal history of concern about the integrity and independence of the individual in a free society. What is needed is a commitment to preserve the principles we hold dear in a digital environment no less than in a voice circuit or on a printed page. The late Ithiel de Sola Pool, who devoted his last intellectual effort to the preservation of First Amendment principles in the Information Age, wrote: The mystery is how the clear intent of the Constitution, so well and strictly enforced in the domain of pent, has been so neglected in the electronic revolution. The answer lies partly in changes in the prevailing concerns and historical circumstances from the time of the founding fathers to the world of today; but it lies at least as much in the failure of Confess and the courts to understand the character of the new technologies. Judges and legislators have tried to fit technological innovations under conventional legal concepts. The errors of understanding by these scientific laymen, though honest, have been mammoth. They have sought to guide toward good purposes technologies they did not understand. These good and well-intentioned public servants need the sound judgment and sage guidance of scientists and engineers if the law is to

PROPERTY RIGHTS IN INFO~ATION 115 make reasonable sense in the Information Age. It is important that there be mutual understanding among those involved in both legal and technological innovations as these developments clash at the crossroads of change. NOTES 1. C. Cherry, A Second Industrial Revolution? (unpublished manuscnpt). 2. F. Machlup, The Production arid Distribution' of Knowledge in the United States, Princeton University Press, Princeton, N.J., 1962. 3. H. Cleveland, "Information as a Resource," The Futurist, pp. 3~39, December 1982. 4. ''Legal Lore," New York State Bar Journal, pp. 49-50, May 1984. 5. Compare art. I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.X. 205, signed at Washington, London, and Moscow on January 27, 1967, and entered into force on October 10, 1967, with the Preamble of the Information Composite Negotiating Text of the United National Third Conference on the Law of the Sea, A/Conf. 62/WP, 10 Rev. 2, done at Caracas on April 1, 1980, not yet in force and as yet unsigned by the United States. 6. Y. Ito and K. Ogawa, "Recent Trends in Johoka Shakai and Johoka Policy Studies," Keio Communication Rev. 5:15ff, March 1984. I. A. R. Miller and M. H. Davis, Intellectual Property: Patents, Trademarks and Copyright, pp. 18-19, West Publishing Co., St. Paul, 1983. 8. E. W. Ploman and L. C. Hamilton, Copyright: Intellectual Property in the Information Age, pp. ~9, Routledge & Kegan Paul, London, 1980. 9. These rights can be traced down to the so-called moral rights of "paternity" and "integnty" contained in art. 6 of the Paris Convention of 1971 (the latest version of the Berne Convention). U.S. copyright does not protect these nghts, and the opposition of Hollywood producers to them may explain the failure of the United States to ratify the Berne Convention. See generally R. Brown, Kaplan and Brown's Copyright, p. 656, Foundation Press, Mineola, N.Y., 1978. 10. Ploman and Hamilton, op. cit., supra note 8, at 8. 11. Ibid., at9. 12. Art. I, sec. 8, cl. 8. 13. B. Ringer, "Two Hundred Years of American Copyright Law," in Twenty Years of English & American Patent, Trademark & Copyright Law, p. 117, American Bar Association, Chicago, Ill., 1977. 14. Ibid. 15. Copyright Act of March 3, 1891, 26 Stat. 1106. See generally Ringer, op. cit., supra note 13, at 127. 16. S. Warren and L. Brandeis, "The Right to Privacy," Harvard L. Rev. 4:193, 1890. 17. Dow Jones News Service documents 120827~219, August 24, 1984; 120822-0348, August 21, 1984; 120821-0312, August 20, 1984. 18. 376 U.S. 254 (1964). 19. B. W. Sanford, "Twenty Years of Actual Malice," 2 Communications Lawyer 1, Summer 1984. The definition of `'public figure" has been greatly expanded beyond that of public of ficials by the recent reversal of the $2.05-million judgment awarded

116 ANNE WELLS BRANSCO~IB by a jury in the libel suit of William Tavouleareas, president of Mobi} Corporation. Tavouleareas unsuccessfully argued that if he had become a "public figure" it was because of notoriety brought about by the libel and was not due to any inherent public function of his position. In announcing his intent to appeal his case to the Supreme Court, he said, "I am appealing because I believe the law must not accord one institution in our society the unrestrained power to so damage our leaders that it jeopardizes our society's ability to [unction." Communications Lawyer 1(3): IO, Summer 1983. 20. See, e.g., The Family Educational Rights and Privacy Act of 1974, P.L. 98-380 sec. 513, 20 U.S.C.A. sec. 1231g, and the Texas Open Records Act, sec. 7 of art. 6252-17a, V.T.C.S., and Office of the Attorney General of Texas, Open Records Decision nap. 229, October 26, 1979. 21. U.S. v. Miller, 425 U.S. 435 (1976). 22. The Privacy Act of 1974, P.L. 93-579, December 31, 1974, 88 Stat. 1896, Title 5 U.S.C. sec. 552a, as amended P.~. 9~394, September 3, 1976, 90 Stat. 1198, P.O. 95-38, June 1, 1977, 91 Stat. 179. 23. In the matter of the Washington Post Company v. State Insurance Department et al. No. 73, State of New York, Court of Appeals, March 29, 1984. 24. In the case of copyrights for a period of the lifetime of the author plus 50 years, 17 U.S.C. sec. 302(a); in the case of patents for a period of 17 years, 35 U.S.C. sec. 154. 25. "New Patent Bill Gathers Congressional Support," Bioscience 29:281, May 1979. 26. The Patent and Trademark Amendment Act, P.L. 96-517, December 12, 1980. 27. See generally, D. Nelkin, "Proprietary Secrecy Versus Open Communication in Science," Science as Intellectual Property: Who Controls Scientific Research?, pp. 9-30, Macmillan, London and New York, 1984. 28. Department of Agriculture REP 84 00 R0-6, March 15, 1984. According to remarks reported in Commerce Business Daily, February 28, 1984, the Of lice of Management and Budget considers this REP a prototype for distribution of electronic data by the federal government. Examples include Market News Reports from the Agri- cultural Marketing Service and Situations Reports from the Economic Research Service. 29. The authorization for this project contained in P.L. 9~517, sec. 9, requiring development of a comprehensive plan for transferring the files to an electronic data base, and P.L. 9~247, Title 35 U.S.C. sec. 6, authorizing "cooperative exchange ventures," are being challenged by the "cottage industry" of trademark searchers who use the hard-copy files without paying fees for access. 30. This was not always the case. The first public library in the United States was started by Benjamin Franlclin in Philadelphia in 1731 as a subscription library. There were 50 original members, who paid 40 shillings to join and 10 shillings per annum. Subscribers paid double for books not returned. It was not until 1800 that the Library of Congress was started, and the New York Public Library opened in 1837. M. C. Tyler, '`The Historic Evolution of the Free Public Library in America and Its True Function in the Community," in B. Taylor and R. J. Munro, eds., American Law Publishing 1860-1900, Glanville, Dobbs Ferry, N.Y., 1984. 31. D. M. Davidson, "Protecting Computer Software: A Comprehensive Analysis," Jurimetrics Journal 23(4):339 at 400f, Summer 1983. 32. The leading Supreme Court case in this area is Branzburg v. Hayes, 408 U.S. 665 (1972), which recognized the necessity to compel disclosure to a grand jury when

PROPERTY RIGHTS IN INFORMATION 117 carnal behavior is involved. See also 99 A.L.R. 3d 37 and P. L. Glenchur, Hastings L. J. 33:623-6S2. Courts will not countenance tortious behavior in the gathering of news. See Galella v. Onassis, 487 Fed. 986 (2d Cir. 1973) where defendant was enjoined from approaching the plaintiff closer than 25 feet. 33. Branzburg v. Hayes, supra note 32. 34. For an excellent discussion of this issue, see D. Nelkin, chap. 4, "Rights of Access Versus Obligations of Confidentiality," in Science as Intellectual Property: Who Controls Scientific Research? Macmillan, New York and London, 1984. 35. United States v. Doe (In re Popkin), 460 F. 2d 328 (1st Cir. 1972), cert. denied, sub nom. Popkin v. United States, 411 U.S. 909, 1973. 36. Public Health Service Act, as amended 1974, 42 U.S.C. sec. 242(a) and the Comprehensive Drug Abuse, Prevention, and Control Act of 1970, P.L. 95-633, 21 U.S.C. sec. 242a(b) and sec. 872(d). 37. E.g., Privacy of Research Records Bill, S. 867 (Apnl 4, 1979) and H.R. 3409 (April 3, 1979), 96th Cong. 1st Sess. 38. Nelkin, op. cit., supra note 27. 39. R. K. Merton, ea., The Sociology of Science, p. 273, University of Chicago Press, Chicago, Ill., 1973. 40. Nelkin, op. cit., supra note 27. 41. Pool & Solomon, "Intellectual Property and Transborder Data Flows," Star?. J. Int'l. L. 16:113, 1980. 42. I he Direct Marketing Association has been monitoring some 80 pieces of proposed legislation dunog the last several years. 43. E.g., New Jersey, Pennsylvania, Nevada, and Virginia. 44. E.g., Illinois, California, Connecticut, and Wisconsin. 45. Op. cit., supra note 21. 46. Miranda v. Arizona, 384 U.S. 436 (1966); see generally 30 A.L.R. Fed. 824. For cases concerning illegal beepers, bugging, and wiretapping, see 57 A.L.R. Fed. 646, 59 A.L.R. Fed. 959, and 97 L. Ed. 237. See also M. Goldey, "Aspects of International Voice Communications to and from the United States," Jurimetrics J. 24(1):8-12, Fall 1983, regarding electronic surveillance of international mts calls outside the United States and the admissibility of such evidence in courts. 47. Minnesota v. Marshall, U.S. , 79 L. Ed. 2d 409 (1984); New York v. Quarles, U.S. _, 81 L. Ed. 2d 550 (1984); Berkemer v. McCarty, 468 U.S. _, 82 L. Ed. 2d 317 (1984); Massachusetts v. Sheppard, 468 U.S. , 82 L. Ed. 2d 737 (1984). 48. U.S. v. New York Times, 403 U.S. 713 (197I). 49. Elizabeth Taylor v. American Broadcasting Compames, Inc., 82 Civ. 6977 (S.D.N.Y. 1982). 50. New York Civil Rights Law, sec. 5~51; the Lanham Act for damage to protectable service and trademarks, and unfair competition under New York General Business Law, sec. 368(d). 51. See Street v. NBC, 645 F. 2d 1227 (1981), settled and cert. dismissed, 70 L. Ed. 2d 636 (1981). 52. Compare Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978) and Maritote v. Desilu Productions, Inc., 345 F. 2d. 418 (7th Cir. 1965) with Lugosi v. Universal Pictures Co., Inc., 172 U.S.P.Q. 541 (Cal. Super. 1972) and Price v. Hal Roach Studios, Inc., 400 F. Supp. 836 (S.D.N.Y.).

118 AN1VE WELLS BR~SCOMB 53. See, e.g., Gilliam v. American Broadcasting Companies, Inc., 538 F. 2d 14 (2d Cir. 1976). 54. 8 Anne, c. 19, republished in R. S. Brown, Copyright, p. 851, Foundation Press, Mineola, N.Y., 1978. 55. Ploman and Hamilton, op. cit., supra note 8, at 30. 56. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908). This inadequacy has been cured by the 1976 act, which defines a "copy" as anything tangible from which the author's work can be replicated. 17 U.S.C. sec. 102(a). 57. Final Report of the National Commission on New Technological Uses of Copy- righted Works, 27-31, Library of Congress, Washington, D.C., 1979. 58. Ibid., at 12; subsequently enacted 17 U.S.C. sec. 101, 117, as amended P.L. 96- 517, sec. 10, 94 Stat. 3028. 59. Computer Software Copyright Act of 1980; Act of December 12, 1980; L. No. 96- 517, sec. 10; 94 Stat. 3015, 3028; 17 U.S.C. sec. 101, 117. 60. Office of the Register of Copyrights, Announcement SML47 (May 1964); Copyright Office Circular 31D (January 1965). 61. CONTU Final Report, op. cat., supra note 57, at 85. 62. `'Computer programs are the ordered set of instructions which can operate a computer.... Source code can be written in languages which are English-like, such as BASIC or FORTRAN.... Source code instructions are either directly used by a computer or are first translated into the computer's machine language as 'object' code. Object code is usually printed as ones and zeros, but can also be printed as octal numbers (~7) or hexadecimal numbers (0-15), with A-F representing decimal (1~15). Object code can be directly translated into 'assembly' language, in which machine instructions are represented by mnemonics.... Object code, the direct symbolic representation of the machine language, is intelligible to trained engineers,' (e.g., like the piano player that was only readable by experts). D. M. Davidson, "Protecting Computer Software: A Comprehensive Analysis," Juri- metrics Journal 23:339, 341 (Summer 1983). 63. Apple Computer, Inc. v. Franklin Computer Corp., 545 F. Supp. 812 714 F. 2d 1240 (3d Cir. 1983), cert. den., 104 Sup. Ct. 690 (1984). 64. See generally the excellent article by Duncan Davidson, op. cit., supra note 31, which discusses the various methods of protecting software and the concerns of lawyers about the viability of each. 65. Dow Jones News Service, Doc. no. 120118~360, January 7, 1984. 66. Dow Jones News Service, Ooc. no. 120706 0544, July 6, 1984. 67. Dow Jones News Service, Doc. no. 110512-1159, May 12, 1983. 68. 17 U.S.C. sec. 109(a). 69. Dow Jones News Service, Doc. no. 120119-0661, January 19, 1984. Until that release Flashdance and Jane Fonda's Workout had been the top-selling videotapes, with 200,000 copies each. See also "Hollywood Thriving on Video-Cassette Boom,' ' New York Times, Monday, May 7, 1984, pp. Al, C17. 70. Dow Jones News Service, Doc. no. 110512-1159, December 5, 1983. 71. Sony COIN. v. Universal City Studios, U.S. (1984), 104 Sup. Ct. 774, at 778. 72. 17 U.S.C. sec. 107. 73. Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975). 74. Dow Jones News Service, Doc. no. 110512-1159, May 5, 1983. 75. Rule 10(b)(5).

PROPERTY R1GlITS IN INFOR~IATION 119 76. New York Times, August 29, 1984, pp. Al, D4; New York Times, Sunday, May 27, 1984, pp. F1, F21. 77. S.E.C. v. Texas Gulf Sulphur Co., 401 F. 2d 833 (2d Cir. 1968). 78. See Chiarella v. United States, 455 U.S. 222 (1980), involving an employee of a financial printing house who decoded documents about mergers and acquisitions; S.E.C. v. Dirks, cert. granted, 459 U.S. 1014 (1982) involving a stockbroker; U.S. v. Newman, 664 F. 2d 12 (2d Cir. 1981) involving employees of Morgan Stanley who traded shares in a takeover target represented by their firm; S.E.C. v. Thayer (pending) involving friends of LTV Corp. CEO who may have benefitted from passing confidential information to his personal fnends; and S.E.C. v. B rant (the civil case against Winans and his fnends). For a discussion of all of the above cases, see L. Wayne, "Inside Trading by Outsiders," New York Times, May 27, 1984, pp. F-1, F-21. 79. Lewis v. Baxter, 368 F. Supp. 768 (D.C. Ala. 1973). 80. Public Affairs Press, Inc. v. Rickover, 369 U.S. 111 (1962). The case raises interesting questions about the copynghtability of the speeches, i.e., whether they were government documents that cannot be copyrighted under Title 17 U.S.C. sec. 105, whether they were already in the public domain because of their oral delivery and circulated copies, or whether they were the private utterances of a public official in a nonofficial capacity. On remand it was decided that the speeches were delivered in the admiral's "pnvate capacity" and that the fact that they were typed, duplicated, and cleared by the Navy was irrelevant, 268 F. Supp. 444 (1967). 81. Nixon v. Sirica, 487 F. 2d 700 (D.C. App. 1973). 82. Harper & Row, Publishers, Inc. and the Reader's Digest Association, Inc., v. Nation Enterpnses and the Nation Associates, Inc., 723 F. 2d 195 (1983). 83. Tune, Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968); International News Service v. Associated Press, 248 U.S. 215 (1918); Hoehling v. Universal City Studios, Inc., 618 F. 2d 972 (2d Cir.) cert. den., 449 U.S. 841 (1980); Rosemont Ente~pnses, Inc. v. Random House, Inc., 366 F. 2d 303 (2d Cir. 1966) cert. den., 385 U.S. 1009 (1967). 84. 723 F. 2d 195. 85. "Fifteen states haste passed 'Son of Sam' laws freezing proceeds from moneymaking ventures such as book sales of those locked up for capital crimes until claims by victims of their survivors are satisfied.'' Christian Science Monitor, April 5, 1983, p. 1. 86. The Government in the Sunshine Act, P.L. 94 409, September 13, 1976, 90 Stat. 1241, Title 19 U.S.C. sec. 420, Title 5 U.S.C. sec. 551f., and the Freedom of Information Act, P.L. 89-487, July 4, 1966, 80 Stat. 250, Title 5 U.S.C. 552, as amended, P.L. 90 23 sec. 1, June 5, 1967, 81 Stat. 54, P.L. 93-502 sec. 1-3, November 21, 1974, 88 Stat. 15-61. 87. 18 U.S.C. sec. 2511 arguably might not include such transmissions. 88. Compression on New Information Technology, New Views: Computers and New Media Anxiety and Hopes (1979). See also J. Freese, "The Vulnerability of Computerized Society," Transnational Data Rep. 4(5) at 21 (1981). 89. 50 U.S.C. sec. 2402 et seq., as amended. 90. Defense Science Board Task Force on Export of U.S. Technology, An Analysis of Export Control of U.S. Technology—A DOD Perspective, Office of the Secretary of Defense, Washington, D.C., 1976. 91. Dow Jones News Service, Doc. no. 110325-0319, March 24, 1984.

120 ANNE WED BRANSCOMB 92. For an excellent discussion of these transborder issues, see Cultures in Collision: A Canadian-U.S. Conference on Communications Policy, Praeger, 1984, esp. chaps. 3 and 6. 93. CRTC Public Announcement, The Improvement and Development of Canadian Broadcasting and the Extension of U.S. Coverage in Canada by CA TV, Ottawa, December 3, 1969, p. 1. 94. CRTC Public Announcement, The Integration of Cable Television in the Canadian Broadcasting System, Ottawa, February 26, 1971. See also CRTC Policy Statement, Cable Television: Canadian Broadcasting: A Single System, Ottawa, July 16, 1971. 95. Canadian Bill C-58, An Act to Amend the Income Tax Act, September 1976. 96. Under sec. 301 of the Trade Act of 1974. The complaint was filed on August 29, 1978, and hearings were held in November 1978. 97. F. Fitzgerald, America Revised, Atlantic Little Brown, Boston, Mass., 1979. 98. Transnatiorzal Data Report, vol. vii, no. 4, p. 195, June-July 1984. 99. Privacy Act of 1974, 5 U.S.C.S. sec. 552a(g) and (1) (A); see also R.R. v. Department of Army, 482 F. Sup. 770 (D.C. 1980). 100. 28 U.S.C. sec. 315, (a); 47 C.F.R. sec. 73.123, 73.300,73.598, 73.679. 101. Sec. 48a of the California Civil Code n2 provides in part: "1. In any action for damages for the publication of a libel in a newspaper, or of a slander by a radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as herinafter provided...." The California court hearing the Carol Burnett libel suit against the Enquirer cleared the way for the record $1.~million verdict by ruling that the publication was a magazine not a newspaper. 102. Seattle Times v. Rhinehart, 82-1721, is on the Supreme Court docket to determine whether the Washington State Supreme Court was correct in upholding an injunction for defamation and invasion of privacy by the leader of a religious group who sought to suppress publication of information obtained during preparation for teal, National Law Journal, October 17, 1983, p. 5. Injunctions are more often sought to protect so-called merchandising rights or the right to publicity. See, e.g., Haelan Laboratories, Inc. v Topps Chewing Gum, Inc., 202 F. 2d 866 (2d Cir. 1953) cert. den. 34S U.S. 816. '`This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.'' 103. Miami Herald v. Tornillo, 418 U.S. 241 (1974). 104. 47 U.S.C. sec. 315 (1976), afield, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). 105. Friends of Earth v. FCC, 449 F. 2d 1164 (D.C. Cir. 1971). 106. Columbia Broadcasting Systems, Inc. v. Democratic National Committee, 412 U.S. 94 (1973). 107. Muir v. Alabama Educational Television Commission, 688 F. 2d 1033 (Sth Cir. 1982) cert. den., U.S. , 75 L. ed. 2d (1984). 108. Midwest Video Corp. v. FCC, 571 F. 2d 1025 (8th Cir. 1978). 109. "Beyond the Global Village." Address on World Communications Day, United Nations, New York, May 17, 1983. 110. Which is only to say that we have sometimes been more and sometimes less successful in preserving and protecting them. 111. Technologies of Freedom, Belknap Press, Cambridge and London, 1983.