Copyright and Community:
The Future of the Information Society

Professors Peter Lyman and Pamela Samuelson

SIMS 296A, Section 2. Fall 1997.
Mondays 4:00-6:00 pm. South Hall, Room 107.

Office hours:
Peter Lyman, South Hall, Room 110 - Friday 1:00-3:00 pm.
Pam Samuelson, South Hall, Room 305-B - Friday 1:30-3:00 pm.

NEW Instructions for joining the class e-mail discussion list

Course Description:

In order to construct an appropriate copyright policy for communities using digital documents in networked environments, one must define the kind of information society one is seeking to build. Recent policy documents, legislation and court cases aimed at charting a course for copyright law in networked environments have rested upon tacit and often unsupported assumptions about the nature of digital documents, information societies and knowledge economies. This seminar will probe the link between copyright and network communities from four directions: by studying representative copyright policy documents; by exploring various social theories for information society; by talking with technologists about the conception of society they are building into network technologies; and by examining the work of those who have recently tried to re-imagine copyright in the digital environment.

REQUIRED READING OVER THE COURSE OF THE SEMESTER:
Most required and recommended readings are in the Moffitt Library on two-hour reserve.

  1. Frank Webster, Theories of the Information Society (1996) - [whole thing]
  2. Brian Kahin & Ernest Wilson, eds., National Information Infrastructure Initiatives (1997) - [several chapters]
  3. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (1996) - [most chapters]
  4. Mark Stefik, ed., Internet Dreams: Archetypes, Myths and Metaphors (1996) - [several parts]
  5. Course packet containing other required readings

ASSIGNMENTS [this link leads to a separate document]

Other Links of Interest

COURSE THEMES AND SYLLABUS:
1. August 25 Introduction: What Does Intellectual Property Law Have To Do with Social Theories for an Information Society?
2. September 8 What is an Information Society?
3. September 15 The U.S. National Information Infrastructure Initiative (NII).
4. September 22 Information Society Initiatives in Europe and Japan.
5. September 29 Regulating Information and Communication to Achieve Cultural Goals: Singapore and the Communications Decency Act in the United States.
6. October 6 Copyright and Democratic Civil Society.
7. October 13 Law and the Social Construction of Authorship.
8. October 20 The Political Economy of Copyright, National and International.
9. October 27 Electronic Commerce and Electronic Marketplaces.
10. November 3 Does Information Want To Be Free?
11. November 10 Free Speech and Democracy Issues in Intellectual Property Law.
12. November 17 Virtual Communities and Collaboratories: Gift and Market Exchanges.
13. November 24 Code as Code: Will Technical Copyright Controls Achieve Progress in the Arts and Useful Sciences?
14. December 1 Intellectual Property in the Good Society.

1. Introduction: What Does Intellectual Property Law Have To Do with Social Theories for an Information Society?
August 25.

Intellectual property is expected to be a key commodity of the information economy. Hence it may play an important role in the information society more generally, as it will regulate uses that citizens can make of information. How social orders will adjust to the increasing commodification of information will be one focus of our concerns.

Since September 1 is a University Holiday, the seminar will begin with a two week reading period, holding its first full meeting on September 8. The instructors invite interested students to stop by their offices in South Hall on the afternoon of September 5 to begin formulating research topics for research papers. Your first assignment for this course is to write a 1-2 page paper on one of the information theorists discussed in Webster's book focusing on what you find promising or disturbing about that theorist's perspective. Please send this to the class listserv before our first meeting September 8 and come to class prepared to discuss that information society theory.

2. What is an Information Society?
September 8.

Webster summarizes the major sociological theories of the information society and the current state of the arguments for each, pro and con, providing an analytic framework for the course. The goals of this meeting of the seminar is to identify the major assumptions of each school, and for each participant to begin to define a theory of the social roles of information, and of information in the good society, since intellectual property law in the United States essentially concerns distributive justice and the public good.

Required Reading:

Frank Webster, Theories of the Information Society

Optional Reading:

  1. Seminar members with broad background knowledge concerning theories of the information society may prefer to read one of the major theorists in depth. We recommend Manuel Castells, The Rise of the Network Society (Blackwell, 1996).
  2. William Gibson, Neuromancer. Those unsure how intellectual property principles might be derived from Gibson may enjoy reading Arturo Escobar, "Welcome to Cyberia," Current Anthropology (June 1994) 35:211-23 and Chapter 9, "Spleens," in Shamans, Software and Spleens by James Boyle.

3. The U.S. National Information Infrastructure Initiative (NII).
September 15.

What theories of the information society and the good society underlie U.S. information policy? What is left out that might have been included?

Required Reading:

  1. The National Information Infrastructure: An Agenda for Action [course packet or http://sunsite.unc.edu/nii/NII-Executive-Summary.html]
  2. Report of the Working Group on Intellectual Property Rights of the National Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure (Sept. 1995) ("The White Paper") [course packet]
  3. Brian Kahin, "The U.S. National Information Infrastructure Initiative: The Market, the Net, and the Virtual Project," in National Information Infrastructure Initiatives

Recommended Reading:

  1. Henry H. Perritt, Jr., "President Clinton's National Information Infrastructure Initiative: Community Regained?" 69 Chic.-Kent L. Rev. 991 (1994)
  2. Pamela Samuelson, "The Copyright Grab", WIRED 4.01 (Jan. 1996)
  3. Jane Ginsburg, "Putting Cars on the 'Information Superhighway': Authors, Exploiters and Copyright in Cyberspace." 95 Columbia L. Rev. 1466 (1995)

4. Information Society Initiatives in Europe and Japan.
September 22.

Venturelli describes three models of communication regulation underlying debate in the EU, and by extension everywhere, reflecting different visions of information policy in the good society: the liberal (market) model, focused upon replacing national public sector control of communications with a single market mechanism; the public service model, focused upon balancing the property rights of the private sector with the rights of citizens to access to comprehensive information services; and the nationalist (or cultural) model, which is focused upon regulating the content of information to conform to a national identity or moral vision. How do other national information policies compare to that of the US? How do they reflect different social and economic realities, different theories of information, different political structures, and different views of the good society? How would information society theorists analyze these assumptions?

Required Reading:

  1. Commission of the European Communities, Green Paper on Copyright and Related Rights for the Information Society (July 1995) [course packet]
  2. Europe and the Global Information Society: Recommendations to the European Council. [Course packet or http://www2.echo.lu/eudocs/en/bangemann.html].
  3. Shalini Venturelli, "Information Liberalization in the European Union," in National Information Infrastructure Initiatives, pp. 327-375.
  4. Joel West, Jason Dedrick, and Kenneth Kraemer, "Back to the Future: Japan's NII Plans," in National Information Infrastructure Initiatives

Recommended Reading:

  1. Legal Advisory Board, Comments on European Commission's Green Paper
  2. Milda K. Hedblom & William B. Garrison, Jr., "European Information Infrastructure Policy Making in the Context of the Policy Capacity of the European Union and Its Member States: Progress and Obstacles," National Information Infrastructure Initiatives
  3. Kuk-Hwan Jeong and John Leslie King, "Korea's National Information Infrastructure: Vision and Issues," in National Information Infrastructure Initiatives

5. Regulating Information and Communication to Achieve Cultural Goals: Singapore and the Communications Decency Act in the United States.
September 29.

Both Singapore and the USA by virtue of its enactment of the Communications Decency Act have attempted to develop what Venturelli called a "nationalist or cultural model," to protect moral principles judged to be essential preconditions of community. Yet is there such a thing as local jurisdiction over information access in cyberspace? And, of course, every information society will eventually face new kinds of social problems growing from Web communication, if not pornography or radical speech. Can technologies like the V chip and PICS (platform independent content selection) manage these tensions?

Required Readings:

  1. National Computer Board of Singapore, A Vision of an Intelligent Island: The IT 2000 Report (March 1992) [course packet].
  2. Poh-Kam Wong, "Implementing the NII Vision: Singapore's Experience and Future Challenges," in National Information Infrastructure Initiatives, pp. 24-60.
  3. Reno v. ACLU, 521 U.S. û (1997) [course packet]

Recommended Reading:

  1. David R. Johnson and David G. Post, "Law and Borders: The Rise of Law in Cyberspace." 48 Stanford L. Rev. 1367 (1996) [course packet or http://www.cli.org/X0025_LBFIN.html]

  2. William Gibson, Disneyland With the Death Penalty, WIRED (1997)

6. Copyright and Democratic Civil Society.
October 6.

What is the proper balance between the public interest in universal access to information in a democratic society, and private property in copyright? Recall that the White Paper said: "Some participants have suggested that the United States is being divided into a nation of information 'haves' and 'have nots' and that this could be ameliorated by ensuring that the fair use defense if broadly generous in the NII context. The Working Group rejects the notion that copyright owners should be taxed, apart from all others, to facilitate the legitimate goal of 'universal access.'" What balance represents the public good?

Required Reading:

  1. Neil W. Netanel, "Copyright and a Democratic Civil Society," 106 Yale L.J. 283 (1996) [course packet]
  2. Niva Elkin-Koren, "Cyberlaw and Social Change: A Democratic Approach to Copyright," Cardozo Arts & Ent. L.J. [course packet]
  3. Monroe Price, "Free Expression and Digital Dreams: The Open and Closed Terrain of Speech," 22 Critical Inquiry 64 (Autumn 1995) [course packet]

Recommended Reading:

  1. Jurgen Habermas, The Structural Transformation of the Public Sphere (MIT Press 1996)
  2. Jessica Litman, "Reforming Information Law in CopyrightÆs Image," U. Dayton L. Rev. (forthcoming 1997)
  3. Robert D. Putnam, "Tuning In, Tuning Out: The Strange Disappearance of Social Capital in America." PS: Political Science and Politics (December 1995) 28(4)664-683.
  4. George Soros, "The Capitalist Threat," The Atlantic Monthly (February 1997)

7. Law and the Social Construction of Authorship.
October 13.

"Our copyright law is based on the charming notion that authors create something from nothing, that works owe their origin to the authors who produce them. Arguments for stregthening copyright protection, whether predicated on a theory of moral deserts or expressed in terms of economic incentives, often begin with the premise that copyright should adjust the balance between the creative individuals who bring new works into being and the greedy public who would steal the fruits of their genius." - Jessica Litman.

Required Reading:

  1. James Boyle, Preface and Ch. 1-6, Shamans, Software and Spleens: Law and the Construction of the Information Society.
  2. Jessica Litman, "The Public Domain" 39 Emory L. J. 965 (1990) [course packet]
  3. Michel Foucault, "What is an Author?" The Foucault Reader (Pantheon 1984) [course packet]

Recommended Reading:

Lawrence Lessig, "The Path of Cyberlaw," 104 Yale L.J. 1743 (1995) [course packet]

8. The Political Economy of Copyright, National and International.
October 20.

The information society is often described as a knowledge economy, in which intellectual property has become the new form of capital, and the subject of intense competition for control of emerging global markets. Framed in this way, intellectual property issues are subsumed under "competitiveness" categories, and the locale of discussion shifts to international treaty negotiations and issues of commerce.

Required Reading:

  1. Chapters 11-13 and Conclusion of Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society
  2. James Boyle, "A Politics of Intellectual Property," in Proceedings of Telecommunications Policy Research Conference (October 1996) [course packet]
  3. Joel Reidenberg, "Information Flows on the Global Infobahn: Toward New U.S. Policies," in The New Information Infrastructure: Strategies for U.S. Policy (1995) 251-268. [course packet]
  4. Carl Shapiro and Hal R. Varian, "US Government Information Policy," draft presentation at Highlands Forum, Department of Defense (June 1997) [course packet]

Recommended Reading:

  1. Manuel Castells, The Rise of Network Society, Chapter 2, "The Informational Economy and Globalization."
  2. Pamela Samuelson, "The U.S. Digital Agenda at WIPO," 37 Va. J. IntÆl L. (forthcoming 1997)
  3. Paul Edward Geller, "The Universal Electronic Archive: Issues in International Copyright." 25 IIC: International Review of Industrial Property and Copyright Law (1994) 54-69. [course packet]
  4. David Nimmer, The End of Copyright, 48 Vand. L. Rev. 1385 (1995)
  5. MITI, Toward the Age of the Digital EconomyùFor Rapid Progress in the Japanese Economy and World Economic Growth in the 21st Century (May 1997) [http:/www.glocom.ac.jp/NEWS/MITI-doc.html]
  6. Marci A. Hamilton, "The TRIPS Agreement: Imperialistic, Outdated, and Overprotective," 29 Vand. J. TransÆl L. 613 (1996)
  7. Hugh C. Hansen, "International Copyright: An Unorthodox Analysis," 29 Vand. J. TransnÆl L. 579 (1996)
  8. Charles R. McManis, "Taking TRIPS on the Information Superhighway,." 41 Villanova L. Rev. 207 (1996)

9. Electronic Commerce and Electronic Marketplaces.
October 27.

Many plans are underway for building the infrastructure to enable electronic commerce to flourish in global digital environments. Although it is clear that intellectual property rights will play some role in the evolution of these marketplaces, there are differences of opinion about how much a role this law will play. There are also clearly some other policy issues with which intellectual property must mesh in order for this global marketplace to evolve.

Required Reading:

  1. Mark Stefik, Part III. "The Electronic Marketplace Metaphor: Selling Goods and Services on the I-Way," in Internet Dreams, 173-254.
  2. Ejan Mackaay, "The Economics of Emergent Property Rights on the Internet" in The Future of Copyright in a Digital Environment (P. Bernt Hugenholtz ed. 1996) [course packet]
  3. Eric Schlachter, "The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet." 12 Berkeley Technology Law Journal 15-51 (1997) [course packet]
  4. Ira Magaziner, "A Framework for Global Electronic Commerce" (July 1997) [course packet]

Recommended Reading:
  1. A. Michael Froomkin, "The Essential Role of Trusted Third Parties in Electronic Commerce," 75 Ore. L. Rev. 49 (1996)
  2. A. Michael Froomkin, "Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases," 15 J.L. & Comm. 395 (1996) [course packet]

10. Does Information Want To Be Free?
November 3.

Some commentators predict that copyright will cease to play a role in regulating the flow of information in digital networked environments. "Information wants to be free," they say. They propose new models for how creative people and firms might get compensation for making their works available to the public. Other commentators question the viability of the rosy predictions of the information-wants-to-be-free pundits, and suggest that property rights in cyberspace will promote the public interest better than information anarchism.

Required Readings:
  1. John Perry Barlow, "The Economy of Ideas û A framework for rethinking patents and copyrights in the Digital Age (Everything you know about intellectual property is wrong)" WIRED (1994) 2(3)84-90, 126-129 [course packet]
  2. Esther Dyson, "Intellectual Value," 3.07 WIRED 136 (1995) [course packet]
  3. Margaret Jane Radin, "Evolving Property Rules for Cyberspace," 15 J. L. & Comm. 509 (1996) [course packet]
  4. Eugene Volokh, "Cheap Speech and What It Will Do," 104 Yale L.J. 1805 (1995) [course packet]

11. Free Speech and Democracy Issues in Intellectual Property Law.
November 10.

Commissioner of Patents Bruce Lehman argues, "The First Amendment has always provided a completely different standard with regard to liability for actions that constitute speech as compared to actions that constitute copyright infringementàAnd I think it really does a disservice both to the law of the First Amendment and the law of copyright to attempt to try to analogize from one to the other." What would a copyright law based upon First Amendment principles look like? Is it possible to analogize from one to the other?

Required Reading:

  1. Jerry Berman & Daniel J. Weitzner, "Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media," 104 Yale L.J. 1619 (1995) [course packet]
  2. Religious Technology Center v. Netcom (N.D. Cal. 1996) [course packet]
  3. Niva Elkin-Koren, "Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators," 13 Cardozo Arts & Ent. L. J. 345 (1995) [course packet]

Recommended Reading:

Gary Reback, "Why Microsoft Must Be Stopped," Upside [course packet]

12. Virtual Communities and Collaboratories: Gift and Market Exchanges.
November 17.

Digital networks seem to make it possible for people to form virtual communities for the exchange information, ideas, and experiences. While many of the virtual communities formed on the Internet are social in nature, some organizers of virtual communities look to these communities as a natural environment in which to make marketplaces for goods and services as well as for ideas. When communities collaborate in the development of an information resource, interesting questions arise as to ownership and sharing.

Required Reading:

  1. Part 4 of Stefik's Internet Dreams
  2. John Hagel III and Arthur G. Armstrong, Chapters 9& 10, Net.Gain: Expanding Markets Through Virtual Communities [course packet]
  3. John Seely Brown & Paul Duguid, "The Social Life of Documents," Release 1.0 [course packet]

Recommended Reading:

Jim Falk, "The Meaning of the Web," http://www.scu.edu.au/ausweb95/papers/sociology/falk/

13. Code as Code: Will Technical Copyright Controls Achieve Progress in the Arts and Useful Sciences?
November 24.

When computer programmers build networks and programs to technological innovation and the public good, by focusing on the balance between using technology as a protector for copyright, and its abuse when it begins to limit innovation or the public good. Is infrastructure the right question, as in the White Paper? Is it the only question? How does this balance shape digital publishing and digital libraries?

Required Reading:

  1. Joel Reidenberg, "Lex Informatica: The Formulation of Information Policy Rules through Technology," forthcoming in Texas Law Review [course packet]
  2. Mark Stefik, "Letting Loose the Light" in Internet Dreams

Recommended Reading:

  1. Amy Friedlander, "Infrastructure: The Utility of the Past as Prologue." (CNRI 1997)
  2. Robert Kahn and Robert Wilensky, "A Framework for Distributed Digital Object Services" Forum on Technology-Based Intellectual Property Management (June 1996)

14. Intellectual Property in the Good Society.
December 1.

Copyright has historically promoted public access to information while at the same time respecting the private realm of readers to be free from publisher surveillance and controls. Technical systems of protection for copyrighted works can be used both to limit public access to knowledge and to engage in surveillance of reader activities. Some publishers may look not only to technical systems of protection, but also to "shrink-wrap" licenses as a means to limit public access to protected works. Questions arise whether copyright policy should sometimes override the interests of copyright owners in using technology or contracts to limit public access or uses of protected works.

Required Reading:

  1. Julie E. Cohen, "A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace," 28 Conn. L. Rev. 981 (1996) [course packet]
  2. Jane C. Ginsburg, "Copyright Without Walls?: Speculations on Literary Property in the Library of the Future," 42 Representations 53 (Spring 1993) [course packet]
  3. Robert A. Kreiss, "Accessability and Commercialization In Copyright Theory," 43 UCLA L. Rev. 1 (1995) [course packet]

Recommended Reading:

Maureen OÆRourke, "Copyright Preemption After the ProCD Case: A Market-Based Approach," 12 Berkeley Tech. L.J. 53 (1997) [course packet]

Other Links:

Other Books Worth Looking At

Bibliography on Cyberlaw Site

Web Resources

Dinner Guests [under construction]

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