The Digital Dilemma
Intellectual Property in the Information Age
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NATIONAL ACADEMY PRESS • 2101 Constitution Avenue, N.W. • Washington, D.C. 20418
NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance.
Support for this project was provided by the National Science Foundation. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of the sponsors.
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THE NATIONAL ACADEMIES
National Academy of Sciences
National Academy of Engineering
Institute of Medicine
National Research Council
The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences.
The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. William A. Wulf is president of the National Academy of Engineering.
The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine.
The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. William A. Wulf are chairman and vice chairman, respectively, of the National Research Council.
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COMMITTEE ON INTELLECTUAL PROPERTY RIGHTS AND THE EMERGING INFORMATION INFRASTRUCTURE
RANDALL DAVIS, Massachusetts Institute of Technology, Chair
SHELTON ALEXANDER, Pennsylvania State University
JOEY ANUFF, Wired Ventures
HOWARD BESSER, University of California, Los Angeles
SCOTT BRADNER, Harvard University
JOAN FEIGENBAUM, AT&T Labs-Research
HENRY GLADNEY, IBM Almaden Research Center
KAREN HUNTER, Elsevier Science Inc.
CLIFFORD LYNCH, Coalition for Networked Information
CHRISTOPHER MURRAY, O'Melveny & Myers LLP
ROGER NOLL, Stanford University
DAVID REED, Cable Television Laboratories Inc.
JAMES N. ROSSE, Freedom Communications Inc. (Ret.)
PAMELA SAMUELSON, University of California, Berkeley
STUART SHIEBER, Harvard University
BERNARD SORKIN, Time Warner Inc.
GARY E. STRONG, Queens Borough Public Library
JONATHAN TASINI, National Writers Union/UAW Local 1981
Staff
ALAN S. INOUYE, Program Officer
JERRY R. SHEEHAN, Senior Program Officer
MARJORY S. BLUMENTHAL, Executive Director
MARGARET MARSH, Project Assistant
NICCI T. DOWD, Project Assistant
MICKELLE RODGERS, Senior Project Assistant
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COMPUTER SCIENCE AND TELECOMMUNICATIONS BOARD
DAVID D. CLARK, Massachusetts Institute of Technology, Chair
FRANCES E. ALLEN, IBM T.J. Watson Research Center
JAMES CHIDDIX, Time Warner Cable
JOHN M. CIOFFI, Stanford University
W. BRUCE CROFT, University of Massachusetts, Amherst
A.G. FRASER, AT&T
SUSAN L. GRAHAM, University of California, Berkeley
JAMES GRAY, Microsoft Corporation
PATRICK M. HANRAHAN, Stanford University
JUDITH HEMPEL, University of California, San Francisco
BUTLER W. LAMPSON, Microsoft Corporation
EDWARD D. LAZOWSKA, University of Washington
DAVID LIDDLE, Interval Research
JOHN MAJOR, WirelessKnowledge
TOM M. MITCHELL, Carnegie Mellon University
DONALD NORMAN, Unext.com
RAYMOND OZZIE, Groove Networks
DAVID A. PATTERSON, University of California, Berkeley
LEE SPROULL, New York University
LESLIE L. VADASZ, Intel Corporation
Staff
MARJORY S. BLUMENTHAL, Executive Director
JANE BORTNICK GRIFFITH, Interim Director (1998)
HERBERT S. LIN, Senior Scientist
JERRY R. SHEEHAN, Senior Program Officer
ALAN S. INOUYE, Program Officer
JON EISENBERG, Program Officer
GAIL PRITCHARD, Program Officer
JANET BRISCOE, Office Manager
MARGARET MARSH, Project Assistant
MICKELLE RODGERS, Research Assistant
SUZANNE OSSA, Senior Project Assistant
DAVID (D.C.) DRAKE, Project Assistant
DANIEL LLATA, Senior Project Assistant
BRANDYE WILLIAMS, Office Assistant
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COMMISSION ON PHYSICAL SCIENCES, MATHEMATICS, AND APPLICATIONS
PETER M. BANKS, Veridian ERIM International Inc., Co-chair
W. CARL LINEBERGER, University of Colorado, Co-chair
WILLIAM F. BALLHAUS, JR., Lockheed Martin Corp.
SHIRLEY CHIANG, University of California, Davis
MARSHALL H. COHEN, California Institute of Technology
RONALD G. DOUGLAS, Texas A&M University
SAMUEL H. FULLER, Analog Devices Inc.
JERRY P. GOLLUB, Haverford College
MICHAEL F. GOODCHILD, University of California, Santa Barbara
MARTHA P. HAYNES, Cornell University
WESLEY T. HUNTRESS, JR., Carnegie Institution
CAROL M. JANTZEN, Westinghouse Savannah River Company
PAUL G. KAMINSKI, Technovation Inc.
KENNETH H. KELLER, University of Minnesota
JOHN R. KREICK, Sanders, a Lockheed Martin Co. (Ret.)
MARSHA I. LESTER, University of Pennsylvania
DUSA McDUFF, State University of New York, Stony Brook
JANET NORWOOD, Bureau of Labor Statistics (Ret.)
M. ELISABETH PATÉ-CORNELL, Stanford University
NICHOLAS P. SAMIOS, Brookhaven National Laboratory
ROBERT J. SPINRAD, Xerox PARC (Ret.)
NORMAN METZGER, Executive Director (through July 1999)
MYRON F. UMAN, Acting Executive Director
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Preface
The revolution in information technology is changing access to information in fundamental ways. Increasing amounts of information are available in digital form; networks interconnect computers around the globe; and the World Wide Web provides a framework for access to a vast array of information, from favorite family recipes and newspaper articles to scholarly treatises and music, all available at the click of a mouse. Yet the same technologies that provide vastly enhanced access also raise difficult fundamental issues concerning intellectual property, because the technology that makes access so easy also greatly aids copyingboth legal and illegal. As a result, many of the intellectual property rules and practices that evolved in the world of physical artifacts do not work well in the digital environment. The issues associated with computerization are also amplified by the rise of the Internet and broader and more pervasive networking. These are the issues that inspired The Digital Dilemma.
This project grew out of a long history of Computer Science and Telecommunications Board (CSTB) interest in the legal issues related to computer technology in general and to intellectual property in particular. In 1991, CSTB published Intellectual Property Issues in Software, the report of a strategic forum in which I participated, and in 1994, it published the report of its second strategic forum, addressing intellectual property and other issues, entitled Rights and Responsibilities of Participants in Networked Communities. Recognizing the growing questions about intellectual property in the networked environment, CSTB hosted a project-planning meeting in December 1994 chaired by Pamela Samuelson (now at the
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University of California, Berkeley) and involving experts from the areas of law, computer science, technology, library science, and publishing. In spring 1996, the former Federal Networking Council Advisory Committee (FNCAC) recommended that CSTB be asked to undertake a project in this area. After clarifying a division of labor with another part of the National Research Council (NRC) regarding the issues related to scientific databases as intellectual property,1 CSTB transmitted a proposal in late 1996 to the National Science Foundation (NSF), which then administered the FNCAC; the project was funded in the fall of 1997, and CSTB empaneled the Committee on Intellectual Property Rights and the Emerging Information Infrastructure at the end of 1997. The course of this project reflected the circumstances of the time in which it was undertaken: the climate in the late 1990s for thinking about intellectual property policy reflected the early and mid-1990s history of public debates associated with attention to national and global information infrastructure, a period in which information policy (which includes intellectual property, privacy, and free speech issues) began to inspire unusually vigorous public-interest-group and commercial advocacy activity.
CSTB's project was designed to assess issues and derive research topics and policy recommendations related to the nature, evolution, and use of the Internet and other networks, and to the generation, distribution, and protection of content accessed through networks. Box P.1 outlines the statement of task.
Committee Composition and Process
The study committee convened by CSTB included experts from industry, academia, and the library and information science community, with expertise that spanned networks, computer security, digital libraries, economics and public policy, public and academic libraries, intellectual property law, publishing, and the entertainment, software, and telecommunications industries (see Appendix A for the biographies of study committee members). It did its work through its own expert deliberations and by soliciting input and discussion from key officials from the sponsoring agencies, other government officials, technologists, legal experts, economists, social scientists, librarians, industry experts, and advocacy
1A concurrent NRC study produced A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases (National Academy Press, Washington, D.C., 1999), which identifies and evaluates the various existing and proposed policy approaches (including related legal, economic, and technical considerations) for protecting the proprietary rights of private-sector database rights holders while promoting and enhancing access to scientific and technical data for public-interest uses.
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group spokespersons (see Appendix B for a list of briefers to the committee). The committee met first in February 1998 and five times subsequently; it revised and strengthened its report during mid-1999.
Central to the content and flavor of The Digital Dilemma is the fact that the authoring committee is, by design, a microcosm of the diverse community of interest. Because of the contentious nature of intellectual property issues, every effort was made to ensure that a broad range of perspectives was representedon the membership of the study committee, in the solicitation of briefings and other inputs to committee meeting agendas, and in the materials distributed to the study committee. The contention was evident throughout the course of the study, beginning
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with adjustments to committee composition to assure balance and continuing through committee debates on the numerous issues it addressed. It is an accomplishment that the committee agreed on its characterization of key issues and on a number of recommendations. It is not surprising, however, that the committee could not agree on all of the recommendations that it contemplated. In Chapter 6, uncharacteristically for a CSTB report, a number of issues are presented by articulating the different schools of thought. In these areas, the committee sought to inform debates that must continue because coming to a national consensus nowand deciding on policy that will have far-reaching impactsis premature. Among the contributions of the report, therefore, is an articulation of the nature and concerns of multiple stakeholderswhose involvement is important for sound policy makingand a description of the issues where progress may be difficult in the near term.
Acknowledgments
The committee appreciates the financial support and guidance provided by the National Science Foundation. Within the Directorate for Computer and Information Sciences and Engineering, the Division of Information and Intelligent Systems (Programs on Computation and Social Systems and Information and Data Management), the Division of Experimental and Integrative Activities, and the Division of Advanced Networking Infrastructure and Research provided support for this study, coordinated through Suzanne Iacono and Les Gasser (formerly at NSF; now at the University of Illinois, Urbana-Champaign). In addition, the Directorate for Social, Behavioral, and Economic Sciences provided support for this study through the Division of Science Resources Studies and the Division of Social and Economic Sciences (Programs on the Law and Social Sciences and Societal Dimensions of Engineering, Science, and Technology), coordinated through Eileen Collins.
We would also like to acknowledge the role of the Large Scale Networking Group of the Subcommittee on Computing, Information, and Communications (formerly the Federal Networking Council) and the instrumental efforts of Carol C. Henderson (formerly of the American Library Association) and Frederick Weingarten (American Library Association) in helping to launch this study.
Throughout the course of this study, a number of individuals contributed their expertise to the committee's deliberations. The committee is grateful to those who agreed to provide testimony at its three open meetings (see Appendix B). In addition, the committee would like to acknowledge Rick Barker (Digital Stock), Steven M. Bellovin (AT&T Labs-Research), Bruce Bond (The Learning Company), Scott Carr (Digimarc),
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Stephen Crocker (Steve Crocker Associates), William Densmore (Clickshare), Laurel Jamtgaard (Fenwick & West), Robert P. Merges (University of California, Berkeley), Steve Metalitz (International Intellectual Property Alliance), Diane Pearlman (Online Monitoring Services), Shira Perlmutter (U.S. Copyright Office), Burt Perry (Digimarc), Marybeth Peters (U.S. Copyright Office), Paul Schneck (MRJ Technology Solutions), John Schull (Softlock Services), Oz Shy (University of Haifa), Linda Stone (Mitretek), Robert Thibadeau (Television Computing Inc.), and David Van Wie (Intertrust).
The committee appreciates the thoughtful comments received from the reviewers of this report and the efforts of the review monitor and review coordinator (who represent the Report Review Committee and the Commission on Physical Sciences, Mathematics, and Applications, respectively). These comments were instrumental in helping the committee to sharpen and improve this report.
Finally, the committee would like to acknowledge the staff of the National Research Council for their hard work. As the primary professional staff member responsible for the study, Alan Inouye crafted meeting agendas; drafted, edited, and revised text; and completed numerous other tasks that were instrumental in moving the committee from its initial discussions to this final report of the committee. Alan's consistent and apparently bottomless energy, insight, dedication to the task, and willingness to nag when needed were instrumental in getting this project to completion; it would not have been done nearly so well without his involvement. Jerry Sheehan shared the primary staff responsibilities with Alan Inouye during the first half of the study and continued to provide comments on the report manuscript as it progressed. Marjory Blumenthal provided input and guidance that were valuable in improving the final drafts of this report. Margaret Marsh, Nicci Dowd, and Mickelle Rodgers provided the committee with excellent support for meetings during the course of the study. The contributions of editors Susan Maurizi and Kim Briggs are gratefully acknowledged. Angela Chuang and Tom Lee, doctoral candidates at the University of California, Berkeley and the Massachusetts Institute of Technology, respectively, Jim Igoe, and Margaret Marsh provided valuable research assistance. D.C. Drake and Suzanne Ossa of the CSTB and Theresa Fisher, Claudette Baylor-Fleming, and Sharon Seaward of the Space Studies Board assisted with the final preparation of this report.
RANDALL DAVIS, CHAIR
COMMITTEE ON INTELLECTUAL PROPERTY RIGHTS AND THE EMERGING INFORMATION INFRASTRUCTURE
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Acknowledgment of Reviewers
This report was reviewed by individuals chosen for their diverse perspectives and technical expertise, in accordance with procedures approved by the National Research Council's (NRC's) Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the authors and the NRC in making the published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The contents of the review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. We wish to thank the following individuals for their participation in the review of this report:
Stephen Berry, University of Chicago,
Lewis M. Branscomb, Harvard University,
Julie E. Cohen, Georgetown University Law Center,
Charles Ellis, John Wiley & Sons,
Edward W. Felten, Princeton University,
Laura Gasaway, University of North Carolina, Chapel Hill,
Jane C. Ginsburg, Columbia University School of Law,
Stuart Haber, InterTrust,
Trotter I. Hardy, College of William and Mary Law School,
Peter F. Harter, EMusic.com Inc.,
Michael Hawley, Massachusetts Institute of Technology,
James Horning, InterTrust,
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Mitchell D. Kapor, Kapor Enterprises Inc.,
Kenneth H. Keller, University of Minnesota,
Eileen Kent, Consultant,
Andrew Lippman, Massachusetts Institute of Technology,
Deanna Marcum, Council on Library and Information Resources,
Michael Moradzadeh, Intel Corporation,
Andrew Odlyzko, AT&T Labs-Research,
Ann Okerson, Yale University,
Harlan Onsrud, University of Maine,
Bruce Owen, Economists Inc.,
Anthony Stonefield, Global Music One,
Morris Tanenbaum, AT&T (Ret.),
Hal Varian, University of California, Berkeley,
Frederick W. Weingarten, American Library Association,
Richard Weisgrau, American Society of Media Photographers,
Steven Wildman, Northwestern University, and
Kurt Wimmer, Covington & Burling.
Although the individuals listed above provided many constructive comments and suggestions, responsibility for the final content of this report rests solely with the study committee and the NRC.
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