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Deposing the information

Pamela Samuelson doesn't come off as the hell-raiser she is. The 48-year-old law professor speaks in the measured, long sentences of one long accustomed to delivering classroom lectures, not diatribes.

22 min read
CNET News.com Newsmakers
July 9, 1997, Pamela Samuelson
Deposing the information age
By Margie Wylie

Staff Writer, CNET NEWS.COM

Pamela Samuelson doesn't come off as the hell-raiser she is. The 48-year-old law professor speaks in the measured, long sentences of one long accustomed to delivering classroom lectures, not diatribes. Her beige suit evokes board meetings and her Yale law school pedigree, not rallies. Yet it is Samuelson who has repeatedly gone up against big media companies, the Clinton administration's patent commissioner Bruce Lehman, and public indifference to stop a massive, looming information freeze.

Software companies, media giants, and information aggregators are using the hysteria whipped up by the Internet to pass laws that would lock down their empires and lock out competition, academic and medical research, and democracy, Samuelson warns. In the Information Age, she says, it's more important than ever that we keep a balance between the rights of copyright holders and rights of the rest of us.

It's that sort of hell-raising that's won Samuelson praise and honor. Last month, she was awarded a MacArthur Foundation "genius" grant. She also sits on the board of the Electronic Frontier Foundation and recently accepted a joint appointment in the University of California at Berkeley schools of law and information technology.

For Samuelson, it's been a long ride based on a casual start. When she was in law school, a friend asked her to help with a software patent filing. That's when Samuelson got an inkling of how big a problem our society faces today.

On one hand, people who make their livings off brain power, rather than manpower, need a way to protect their work. If software firms don't get money for their software, why make it? But on the other hand, there is the need to keep some information circulating in society. If you lock down everything from novels to databases, how do you get innovation? Software makers today routinely "decompile" their competitors' products to see how they work, then write similar programs.

Today's laws don't draw the lines clearly between what's a fair use and what's piracy. So the Congress and, more recently, the World Intellectual Property Organization have attempted to rewrite copyright rules to fit our new circumstances. Unfortunately, they asked the fox to guard the henhouse by turning to the information industry to draft them. Samuelson, along with libraries, scientists, consumer groups, and others objected to the new rules, because rather than extending the balance of rights today into the digital age, the new rules overreacted, handing exclusive "property rights" over to anyone who happens to get there first.

Copyright industries--movie makers, information brokers, and software companies--argue that they have inalienable property rights in their ideas and creations. They say they own them just as one can own a plot of land. As such, they can control every access to them. But Samuelson says that ideas can't be owned. Instead, as with public spectrum or rights-of-way, the public grants a limited monopoly to creators and developers. That way, more are encouraged to compete.

Samuelson notes we have to carry over a common-sense balance of rights into the next age, not only to preserve our democratic ideals but also to spur competition. "Many of the businesses in Silicon Valley glean public information every day and add value to resell it," she says. Besides, you can't enact rules that make everyday behavior so complex and restrictive they'll be ignored across the board, she points out.

After the defeat of the most heinous information lockdown laws, Samuelson's ideas are gaining more adherents. The White House has backed off its hell-bent pursuit of these rules, if only temporarily, and offered tepid support for keeping fair use intact in the digital age.

Why is copyright law so difficult to apply in the digital age?
Samuelson: It's really a hard thing to understand, in part because the thing that copyright protects is so intangible. Even when it's embodied in a book or in a movie, the real thing that the copyright protects is the intangible stuff, the content that's embodied in that artifact.

So you have not only intangible subject matter, but also intangible rights in this intangible subject matter. Then in the digital environment, you don't even have a tangible physical artifact like a videotape. You have all these bits flowing around. It's one intangible thing on top of another intangible thing on top of another intangible thing.

It's hard for ordinary people to get a grasp of what this thing is about and why it should constrain our behavior. We've got to keep copyright law relatively simple because it's supposed to be controlling the behavior of ordinary people. You can't make intellectual property lawyers into high priests that we have to consult every time we use copyrighted information.

NEXT: Fair is fair  

Age: 48

Claim to fame: Cyberlaw "genius"

Claim to infamy: Opposing the power grab of "copyright" industries

Selected writings:
"The Copyright Grab," Wired

"Is Information Property?" Communications of the ACM

"Should Program Algorithms Be Patented?" Communications of the ACM

CNET News.com Newsmakers
July 9, 1997, Pamela Samuelson
Building a brand for women

Copyright law seems unfathomable to the average human being. It's a vague mishmash of accepted practices, laws, and court precedents. Yet as we use computers and the Internet more and increasingly make our livings from these technologies, it's having a direct impact on our lives.
That is one of the challenges of this body of law. But it's also the case that people have some very simple understandings of what copyright is about. They can make private uses, they can share things with their friends, but they shouldn't go into competition with the publisher. That's more or less what people think copyright is. So the law has to make sense to the ordinary person.

One of the problems I see is that the intellectual properly lawyers almost like how complicated and obtuse it is. They like to say, "Everything is so complicated that you have to consult me and pay $350 an hour every time you want to get a clear answer." Then the clear answer is often going to be, "Well, it depends..."

So it's law that really should be more simple because it's got to regulate our behavior. In some sense, it doesn't make any difference what those people in Washington do. If the ordinary person still has the same conception of copyright, then they're not going to do these fancier or more complicated things that the people in Washington might want them to do, but there can be some very, very angry exchanges between publishers and groups of users because they have such different concepts about where the boundary lines are.

If, in fact, we're going to move in the direction of stronger and stronger protectionism, which is what some entertainment and other publishing industries have been pushing for, we're going to have to do massive reeducation of the population about why stronger protection is really a good idea. The [White House's National Information Infrastructure] white paper said that we should have a copyright education campaign. Children should be taught as early as kindergarten that copyright protection is really important and that they shouldn't copy things. Children should "just say yes" to licensing and they should have a unit of copyright education in every year of school through college.

Now the truth is that most of us, I think, are not willing to undergo this massive reeducation, and I think you can understand that some people when they heard this part of the Clinton administration program said, "This sounds like a propaganda machine, and we don't want our children to be subjected to that."

But I think in some measure they're right--if we're going to change everybody's behavior, then it's got to start that early. Now I'm hoping that we can more or less carry over the balance that we have in current law to the digital environment.

From your writing I'd say that one big issue for the average person is fair use. Why is that?
We have kind of a status quo in the print environment. You know that when you buy a book you should be able to use it, you should be able to share a copy with your friend and you should be able to make a photocopy of a couple of pages if you want to especially remember something. The rules are well understood.

But take that same information, put it into the electronic environment, and all of the sudden it's really much more difficult to find the right balance of norms.

If you share something with a friend, a book or a magazine, you're not sharing it with everybody in the world. But if, for example, you post something on an [electronic] bulletin board just to share it with your friends, in fact, you become a kind of alternative publisher.

A lot controversy crops up in relation to temporary copying. A Clinton administration paper said if you share a copy of an electronic journal with somebody else, that is copyright infringement, whereas if you share a print magazine, it's clearly not copyright infringement.

So what's the difference? They argue that the difference is that in order to share the electronic journal with somebody else, you have to make a copy of it. Your machine makes a copy in order to forward it to somebody else. So even if you delete your copy, then you've made a copy that wasn't authorized and that's a terrible thing, whereas obviously if you share a copy of the print magazine, you don't have to make a copy in order to do that.

Now the Clinton administration says all temporary copies in computer memory are copyright-significant acts. So the copyright owners have the right to control each and every one of them.

If you take that literally, then telephone companies and online service providers would be liable for infringing made as works are transmitted through their equipment and through their telephone lines, and yet that can't possibly be a sensible rule.

So one of the things that people have been trying to do from the technical community is talk to policymakers and say, "Listen, you can't make rules that don't make any sense and you can't control every copy. It's just not feasible, it's not sensible. We sort of have to find a different way of thinking about this."

There is tremendous insecurity in the publishing industry right now. It wants all the rights because it's not really sure what its business models are; it's not really sure what rights it's going to need. But this "if you give me everything, then I won't use the things that I don't really need" is not a comforting thought to me.

So why not just lock everything down?
In fact, that's one of their arguments: "Give us more rights and we'll be more creative." But actually the economists will tell you that it doesn't exactly work that way. A balance between the rights of the consuming public and the rights of subsequent authors to be able to appropriate some things from copyrighted works is really part of how we keep knowledge going.

Under our constitutional tradition, the purpose of copyright law isn't just to induce an author to be creative but ultimately to promote knowledge. So if you lock things up too tightly, then you're going to impede our long-term objective, which is to try to keep that knowledge system going year after year after year.

How do you convince new electronic industries that making a profit, a good profit, is enough?
It's obviously in their interest if everybody pays them every time a copy is made. But historically, and in terms of the economic understanding of why we have copyright law, it isn't to allow them to get revenue for every use and every copy. The economic model says that what you want to do is provide enough protection in order to create the right incentives so that people will be willing to invest in the work's creation and in dissemination. If it works mostly, that's enough.

Even though software is very easy to copy, the software industries are doing pretty well. So I think other publishers of digital information ought to recognize that if software industries can thrive in that kind of climate, so can they. Maybe one of the things that will work is for them to just relax a little bit and try to develop some business models that will provide value to their customers but also give them enough revenue so that they can recoup their investment. That's really where the creative effort ought to go into: "What is my business model?"

If the entertainment industries, the copyright industries were allowed to have everything they wanted, what would happen?
Sometimes I wonder whether they know what's really in their long-term best interest. Take the example of the videotape recording systems: Universal Studios and Walt Disney sued Sony to try to stop them from selling Betamax machines. That effort was unsuccessful, but the result of having all these videotape machines in homes all across America was that the motion picture industry ended up with an installed base for the videocassettes they ultimately started selling. It's one of the best things that ever happened to them, and yet they tried to shut that whole industry down.

New technology upsets the balance periodically, and I think that they were understandably scared when they saw all these people out there with videotape machines taping movies. They thought: "If they do that, we won't be able to make any money at the theater anymore, and that's going to kill our profits." It turned out that they just developed a different strategy for how they release movies and then how they release videotapes so that they didn't undercut their own sales.

It turns out most people nowadays, because it's so cheap to rent a movie, don't bother to copy the movies. The motion picture industry has learned at least some lessons from this. Now, when they look at the Internet and think about digital technology, it scares the bejesus out of them. The Internet is a gigantic copying machine. They don't want their stuff to be copied. It's simple.

The market works better, in my view, because people do a little bit of private, noncommercial sharing of information. There have been studies that suggest that a lot of the private noncommercial copying isn't really harmful to the copyright owner's interests. It spreads more information and actually introduces a lot of people to copyrighted works.

Libraries are especially concerned. That's really one of the places where fair use has been extraordinarily important. If some of the proposals that are being put forward this last couple of years, both on national and international scales, were adopted as regards to the digital environment, I think it would lead to the outlawing of libraries. I don't think that's a good thing.

So we have to find some ways to figure out what's the right balance. Yes, copyright owners need to be protected against unauthorized commercial exploitations, but there's got to be some room for ordinary people, scholars, and really for other authors to be able to make use of works. That's what fair use does for us.

How do we find that balance?
Copyright law is based on a very simple premise, which is that if somebody creates something and shares it with other people he or she deserves some sort of reward. In order to create incentives for [people] to be creative in the first place, it's a good idea to give them some protection against unauthorized commercial exploitations.

We want people to be creative, we want them to make works available, and we want works to build on top of other works. If we want that--and especially if we want our information industries and our entertainment industries to thrive and be a source of economic strength in the American economy--then we need copyright protection.

The balance that's traditionally been struck is between public, commercial exploitation on the one hand and private, noncommercial sharing or private noncommercial activities on the other. So copyright law regulates public distributions, public performances, and other kinds of commercial exploitations--including reproductions of works in multiple copies and selling them on the marketplace--whereas the law has left in a vacuum over here all kinds of private, noncommercial activities.

So there is this boundary that has been with us for a long time. When we sing a copyrighted song in the shower, we're not infringing copyright. Copyright law only protects against public performances, not private performances. My argument is that we already have these rules that say you shouldn't be able to become an alternative publisher, but you should be able to do some sharing of information. Particularly if you delete your copy after you share it with a friend, there's still really only that one copy in circulation. That's in the spirit of what copyright law calls the "first-sale rule," which is the rule that you can redistribute something once you've bought your own copy.

The question is, how do you carry something like that over into the digital environment? A lot of the things people feel are private, noncommercial activities on the Internet--sharing something with a few friends--feel to the copyright owners like public activities that are undermining their markets. That makes them want to be able to control even very temporary copies that come into our homes. They want to reach out and control more of that private, noncommercial conduct, and a lot of people are resisting that.

NEXT: Ideas as property

CNET News.com Newsmakers
July 9, 1997, Pamela Samuelson
Ideas as property

Let's talk a little bit about some of the proposals that copyright holders have come up with. One of the ideas is a new right called sui generis, which would allow databases--even databases that show no "original art" in the selection, arrangement, or presentation of information--to be protected by copyright law.
This is a really different kind of law. Sui generis means "of its own kind." There is nothing else like it. There actually is copyright protection today on data compilations where there's some creativity in the selection and the arrangement of the data. But that copyright protection doesn't extend to the data themselves. What's new about this law is that it would create a new intellectual property right in the contents of the data, so that even if you reselected and rearranged them, if you took data from somebody else's data compilation that would in and of itself be illegal.

That seems to run afoul of our First Amendment tradition; it seems to run afoul of our copyright tradition that allows people to take facts from preexisting works and rearrange them and write about them and things of that sort. So it's a very new law and the Europeans, I think, didn't entirely think it through before they proposed it. I'm hoping that the scientific agencies and many educational institutions will be able to work with Congress to try to either not adopt this law until we're really sure that we need it or maybe tailor it so that it's not quite as dramatically overbroad.

Let me give you an example. This proposed law is so broad that it would give virtually perpetual protection against the use or reuse of the contents of databases, even for private, noncommercial purposes.

For example, a telephone book?
You try to copy out parts of a telephone book, and you could be liable for appropriating data from a database.

But when you start pushing copyright laws that far, doesn't it work the other direction, too? Can't I say that my name and my telephone number is copyrighted and when the telephone company puts it in a database without my permission that they are in violation of the law? Going that far doesn't seem to be good for anybody.
I really believe that we have to figure out a way to protect personal information from abuse, but I think property rights in this information is just the wrong idea. I think that you can get carried away with property rights and information because we really need for information to flow around a little bit freely as part of our democratic discourse, educational process, and information industries.

Lots of firms in Silicon Valley and elsewhere rely on information that's out there that they mine and add value to. That's their business strategy! So if you lock up information too tightly, I think you can end up closing down a lot of new industries that you don't want to squelch, and you can also end up dumbing down the population, making it difficult for people to be educated and for scientists to be able to do the pioneering work that really we all benefit from in ways that sometimes we don't understand.

But that's another place where you discover that everybody has an interest in balance. I think it's perfectly fair for database companies to say, "Listen, we have to have a way to protect our investment in data. A lot of that value-added stuff isn't all that creative, but we depend on people making the investment and cleaning up the data. We have a public interest in there being well-maintained databases out there that are full of accurate information."

You've got to be able to protect the investment of companies that are willing to do all that data collection. The problem is that in digital form it's so easy to copy a database and just rearrange the data. So copyright protection may not be enough to protect the investment of database companies in these new electronic forms of data. I agree that there needs to be a law, but I think that we can craft something that's narrower and that protects that investment without cutting out competition in value-added services down the stream and without doing harm to science and education.

But it isn't just the information industry that is taking patents and trademark and other intellectual goods laws to their almost absurd extreme, is it? You were talking about doctors patenting surgical techniques.
The American Medical Association for a long time actually had a kind of ethical norm that doctors wouldn't patent their innovations. But nowadays, when you see computer programmers doing patents--and even investment companies like Merrill Lynch are getting patents on cash management account systems--doctors say, "Well, why shouldn't I get rich? If I come up with a new surgical technique that everybody wants to use, why shouldn't I get a royalty on that? Why shouldn't they pay me $10? Just add it to the bill." But then there are people who are dying and if that would save their lives, it's pretty hard to say, "You can't have it because you haven't paid your $10 yet."

Why do you think there is this craze, this great desire to push to its most absurd length all intellectual goods laws right now?
It's one of those symptoms of this transition from a manufacturing economy to an information economy That's a pretty profound transformation. In the transformation, everybody is seeing that there are these new opportunities: "But those opportunities will only bring rewards flowing in my direction if I have some sort of intellectual property right in it."

For a lot of the companies in the manufacturing era, you didn't need a patent on things because you would keep secret how to do something that was the best way to make a particular product. Nobody used to try to patent services and nobody even thought it was patentable stuff.

But now, what is software? Is it a product, is it a service, or is it both? These are questions that keep arising, and as more and more things become so information-intensive we can't rely on trade secrecy law so much anymore. People just see other people making huge amounts of money from intellectual property, so I think it kind of gets a bug going. Then once it gets started it's really hard to stop.

One of the things we have to do is remember our core values; one of the things I try to help us remember in my writing is that the purpose of copyright is to promote knowledge. It's not just to protect the interests of authors and publishers; it is to promote knowledge.

We also need for that law to promote democracy and democratic values. That's one of the things fair use does for us: promote democratic values, free expression, and knowledge. One of the reasons why I argue that we really need to carry over balancing principles into the new environment, like fair use, is because we need doctrines to make sure that we still keep our core values alive, to make sure we don't turn everything into a commodity so that you can never use another piece of information without paying money immediately to the copyright owner.

If you take certain things to their logical conclusion, if you start humming a copyrighted song in your head there's some temporary reproduction being made in your skull! Should you have to pay the copyright owner for that?

We have to just remember to keep our core values with us and I think we have to keep our common sense. It's also really important for people in the technical community to work with lawyers and with people in the copyright industries so that we can evolve an understanding and create a law that will adapt well to the digital environment and not either overprotect or dramatically underprotect works. There has got to be a happy medium, and that's one of those things that we can only reach if we work together.

Is there anything that individuals can do?
It's very important for individuals to make their voices heard about things like this sui generis database law. It was very encouraging to me that last December when the patent office opened up this proposed treaty on database protection to public comment. Hundreds of individuals let their voices and concerns about this legislation be known to the Patent and Trademark Office. Similarly, last year when the white paper legislation was pending before Congress, lots of individuals contacted their Congresspersons and said, "We really believe in fair use and we really think that it's important that we still be able to make some private, noncommercial sharing of information on the Internet."

That actually had an impact. People took notice. I really do encourage people to say, "I have a stake in this policy, just like I have a stake in the encryption policy."

This is a policy that affects every single one of us. We all use copyrighted information all the time and we depend on there being a balance in that law and a way to make sure that it continues is for us to make our voices heard in Washington.

One thing that there seems to be a big push for right now is harmonizing copyright laws worldwide. Is that necessary?
If we're going to have an international market on the Internet or some other part of emerging information infrastructure, it's hard for each country's own law to be applied to each transaction. There is kind of a recognition that the principle that's been embodied in international agreements so far, which is that every nation agrees that it will treat the works of foreign nationals the same way that it treats its own nationals works, won't totally cut it in the digital networked environment because national boundaries just don't mean very much anymore.

So the question is, how can you harmonize when each country has its own tradition? In France, for example, authors are thought to have inalienable, moral rights in their creation that protect the work from being mutilated, so if I sell you a copy of a sculpture or a painting in France and you paint a moustache on the sculpture or on the painting, I can sue you. If I see that you're about to do it, I can stop you from mutilating my work because I have not only economic rights, but I have the moral right to control the integrity of my work from mutilation.

The United States has a very different tradition. We say, "You buy a copy, you want to destroy it, no problem. You want to paint a moustache on it, no problem." So that's a very, very different kind of tradition. We're, generally speaking, only interested in protecting the works in terms of economic interest, not in terms of these moral rights. Relatively recently, the United States agreed to join an international copyright treaty known as the Berne Convention, which requires some recognition to moral rights. So a very narrow class of authors--essentially artists who work in the visual arts, painters and sculptors--now can protect their works against moustaches on the sculpture or on the painting. But the United States has a very strong fair use tradition that other countries don't have. So how are you going to reconcile these different traditions when people in different nations say, "This is really important to us?"

I think that there's going to be a time where we have to say, "Let's simplify. Let's try to sort of harmonize on a fair set of rules that can work in this international marketplace. Maybe we don't need to have life of the author plus 50 years of protection anymore." I'm not sure that will happen, but I think there's a chance that it will happen.

President Clinton's recent policy on electronic commerce talked about a lot intellectual goods issues. What did you think of its take on the issues?
I agree with the Ira Magaziner report's assertion that protection of intellectual property rights is important to the evolution of electronic commerce and that the World Intellectual Property Organization treaties signed last December contribute to an improved environment for international intellectual property protection. It was also good to see some endorsement of the importance of balance in copyright law and in particular a recognition that the U.S. fair use doctrine is consistent with international treaty obligations.

However, I found somewhat disturbing the frequency with which the report made use of such terms as "piracy," "theft," "fraud," and "crimes" when referring to copyright infringements. There are, of course, some commercial "chop shops" that churn out thousands of illegal cassettes and discs that will only be deterred by criminal penalties, but I worry about the rhetoric of copyright enforcement that equates infringement with theft. Before the U.S. Supreme Court in the Sony Betamax case, two motion picture companies argued that copying a movie off TV was no more "fair" because the copy was for private, personal use than a jewelry thief could justify stealing a bracelet because she only planned to wear it in the privacy of her own home. The Supreme Court rejected this argument, but movie companies have persisted in regarding virtually any unauthorized copy of their works as infringing. We need to be very clear about what acts are criminal wrongs and not invoke "piracy" every time an unauthorized copy is made.

I would be more encouraged about the Magaziner report's statement about understanding the "sensitivities" surrounding copyright management information and technological protection for copyrighted works if it had been more specific in articulating the reasons there has been criticism of administration proposals. If the administration would admit there are serious privacy implications to copyright management information and serious competition policy and freedom of information issues as regards to technical protection, then it might be possible to work toward a good solution.

What would you like to see happen in the next five or ten years?
I think the best thing that can happen is for people in the technical community to work with people in the authoring communities and people in the copyright industries to see if we can come to grips with what are a fair set of rules that are a simple, a fair set of rules that will adequately protect the commercial interest authors and publishers, but leave the rest of us with a little bit of room to do some private, noncommercial sharing and other kinds of uses of these protected works. I think that that's a feasible thing if we enter into it in good faith, but I think if we don't try, then we're going to be in difficulty.