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The Public-Access Computer Systems Review 2, no. 1 (1991):
164-170.
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Recursive Reviews
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Copyright, Digital Media, and Libraries
by Martin Halbert

Running a branch library devoted to computational materials, I am
frequently amazed at patrons' lack of understanding of copyright
issues.  One patron, an otherwise very intelligent research
scientist, was baffled concerning the restrictions inherent in
checking software out of the library.  The magnitude of his
misunderstanding came home to me when he asked if our
restrictions meant that he didn't need to bring his own disks to
copy the software onto.  He thought, in all honesty, I finally
realized, that copying the software was what checking out
software was all about.  After a very long discussion with him
about copyright and why it is illegal to copy software, he went
away somewhat shocked, but at least informed.

While most librarians have a better understanding of the concept
of copyright than my patron, how many of us have really thought
about all the ramifications of copyright and new digital media
technologies?  Librarians are ostensibly supposed to be experts
on the proper use of the collections of information they
administer.  This month's column is devoted to a brief
bibliography on the subject of copyright and digital media.  I
know that I had never considered many of the issues raised in the
sources reviewed below, so I think they will be of interest to
all librarians who have added any kind of digital media (e.g.,
software and CD-ROM databases) to their collections.

+ Page 165 +

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U.S. Congress, Office of Technology Assessment.  Intellectual
Property Rights in an Age of Electronics and Information.
Washington, D.C.: U.S. Government Printing Office, April 1986.
OTA-CIT-302.
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This 1986 report by the Office of Technology Assessment is the
best existing review and discussion of how new technological
developments have impacted the concept of intellectual property
in the United States.  Many discussions of the topic begin with a
review of this source (see below), which is justifiable
considering its quality.  The 300-page report concisely covers
the conceptual framework and goals of intellectual property
rights, how current laws have tried to accommodate technological
change, enforcement issues, and the role of the federal
government as a regulator.  The conclusion of the report is that
the new technologies, especially functional works like software,
have rendered the existing concepts and implementations of
domestic intellectual property law obsolete.  An entirely new
approach to the issue of what constitutes intellectual property
and how to regulate it will have to be developed by congress.
The OTA report raises profoundly troubling issues for librarians
and the entire information industry.


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U.S. Congress, Office of Technology Assessment.  Computer
Software and Intellectual Property--Background Paper.
Washington, D.C.: U.S. Government Printing Office, March 1990.
OTA-BP-CIT-61
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Drawing on the 1986 OTA report and others, this OTA background
paper further analyzes software issues.  It goes into greater
detail concerning questions peculiar to software, such as
addressing the following questions.  Can an interface be
copyrighted?  Can the concept of an algorithm be unambiguously
defined?  Patented?  Is a neural net to be considered a software
system or a hardware system?  The paper includes a few
developments which happened after the 1986 OTA report, but
fundamentally the paper only raises questions and provides a
context for discussing the problem.  Real answers may be a long
way off.

+ Page 166 +

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Duggan, Mary Kay.  "Copyright of Electronic Information: Issues
and Questions."  Online 15, no. 3 (May 1991): 20-26.  (ISSN
0146-5422)
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Because developments in the law have lagged so far behind
technological developments, many issues of copyright and digital
media are being resolved in practice, if not in legal fact.
Duggan discusses emerging views about what constitutes "fair use"
of electronic information sources.  She concludes that while some
consensus is developing about use of search results from CD-ROM
and dial-up databases, little agreement has yet been reached
about LAN and WAN access to databases and other network
information sources.


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Garret, John R.  "Text to Screen Revisited: Copyright in the
Electronic Age."  Online 15, no. 2 (March 1991): 22-24.  (ISSN
0146-5422)
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John Garret is the director of market development at the
Copyright Clearance Center.  Taking a very different view from
most of the other sources reviewed in this column, he maintains
that current copyright laws are perfectly capable of dealing with
the new electronic environment.  He calls into question many of
the assumptions about computer systems and monetary funding that
(he claims) underlie the move to overhaul the copyright system.
He describes a variety of small-scale pilot projects that the
Copyright Clearance Center has undertaken in conjunction with
publishers and researchers "to provide owner-authorized,
text-based information electronically for internal use to various
sets of users, and to determine what they use, when they use it,
why, how often, and to what end."  He further claims: "For these
pilots, and for other, larger-scale programs that will be
developed in the future, existing copyright law provides a
perfectly adequate context for the development and elaboration of
systems to manage computer-based text."

+ Page 167 +

While one has to wonder whether Mr. Garret is unbiased in this
matter given his position, he does make a convincing argument for
the limited case of electronic access to text-only databases.
However, his points do not address the larger issues raised in
the OTA intellectual property studies.


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Alexander, Adrian W., and Julie S. Alexander.  "Intellectual
Property Rights and the 'Sacred Engine': Scholarly Publishing in
the Electronic Age."  In Advances in Library Resource Sharing,
ed. Jennifer Cargill and Diane J. Graves, 176-192.  Westport,
Conn.: Meckler, 1990.
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Adrian and Julie Alexander give a fine overview of the 1986 OTA
report, as well as a conference on intellectual property rights
held in 1987 by the Network Advisory Committee of the Library of
Congress.  They conclude with a broad discussion of the potential
for electronic publishing for the scholarly research and
publication process, which echoes many of the themes discussed at
recent meetings of the Coalition for Networked Information.

They maintain, as some CNI speakers have, that electronic
publishing represents an opportunity for universities to
recapture their intellectual property from the expensive and
fruitless cycle of sale back and forth to publishers.  They also
point out that publishers want to capture this potential
publication medium as well.

+ Page 168 +

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Shuman, Bruce A., and Joseph J. Mika.  "Copyrighted Software and
Infringement by Libraries."  Library and Archival Security 9, no.
1 (1989): 29-36.  (ISSN 0196-0075)
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Shuman and Mika provide a good overview of the current state of
software piracy and copyright infringement, with a few additional
comments that describe the situation of libraries which circulate
software.  They are quite critical of the practice of
"shrink-wrap" licensing which many vendors have taken up.  This
is the familiar tactic of pasting a license agreement with many
restrictions on the outside of a shrink-wrapped software package,
with a statement to the effect of "if you open this package, you
thereby agree to this license."  They describe the many problems
involved in trying to police the use of software by library
patrons, and state that: "Librarians will continue to find
themselves between copyright holders and license-vendors, eager
to recover the money they feel entitled to, and patrons (and
sometimes library employees) who wish to 'liberate' programs,
whether out of simple greed, a love of the challenge, altruism,
or a 'Robin Hood' complex."


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Denning, Dorothy E.  "The United States vs. Craig Neidorf."
Communications of the ACM 34, no. 3 (March 1991): 24-32.  (ISSN
0001-0782)
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Finally, I would like to conclude this column with an example of
the kinds of troubling legal actions that are surely brewing on
the horizon.

The March 1991 Communications of the ACM was partly devoted to a
debate concerning electronic publishing, constitutional rights,
and hackers.  The article by Dorothy Denning was a description of
the trial of Craig Neidorf, a pre-law student at the University
of Missouri.  Neidorf was charged by a federal grand jury with
wire fraud, computer fraud, and interstate transportation of
stolen property.

+ Page 169 +

All this because he published a document (containing what turned
out to be public domain information) in an electronic journal he
edited.  The electronic journal was called "Phrack," a
contraction of the terms "Phreak" (the act of breaking into
telecommunications systems) and "Hack" (the act of breaking into
computer systems).  The document in question concerned the E911
system of Southwestern Bell, and it contained only information
that was already in the public domain.  The charges against
Neidorf were dropped when this was brought up during the trial,
but Neidorf was left with all his court costs, amounting to
$100,000.

Now, regardless of what one thinks of Neidorf or the ethics of
hacking, the fact that the U.S. government can bankrupt an
individual (or institution!) by making groundless accusations of
publishing "secret" electronic documents bears attention!
Neidorf's case may potentially mark the beginning of entirely new
types of censorship revolving around electronic media.  Denning's
article points out that currently the government can seize all
computer equipment and files of an individual or organization,
and hold them for months.  This kind of search and seizure (again
on mistaken grounds) devastated one small company called Steve
Jackson Games.  Denning discusses this incident as well, and it
is chilling to imagine happening by accident to one's own
organization.

Problems of copyright and the new digital media are only now
beginning to surface, but they have been inherent in the new
technologies since at least the sixties.  Libraries and society
as a whole will increasingly have to face these issues, either in
legislation by a forward-looking congress, or more likely in
painful court trials like the United States vs. Neidorf.

+ Page 170 +

About the Author

Martin Halbert
Automation and Reference Librarian
Fondren Library
Rice University
Houston, TX 77251-1892
[e-mail]

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