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Republished with permission from Lingua Franca, The Review of Academic Life, published in New York.
This article originally appeared in the December/January 1999 issue.
As journals and other academic publications move into cyberspace, avid readers might expect to benefit from more information at lower cost. But that's not necessarily the way things are going. For cyberenthusiasts, the Internet may promise a world in which words will become ever easier and cheaper to distribute. But cyberspace will also allow publishers to tighten their control over texts. Already, they are turning to law and politics to do just that.
The Association of Research Library's Mary Case warns, "Not only are Reed Elsevier and the British conglomerate Thomson intent on maximizing their profits through pricing and consolidation, they are actively pursuing legislative agendas to ensure long-term protection of their revenue streams — but at the expense of education and the public good."
The commercial publishers' legislative agendas involve both copyright, in the Digital Millennium Copyright Act, and contracts, in Article 2B of the Uniform Commercial Code. The purpose of the Digital Millennium Copyright Act is a reasonable one: to protect the owners of intellectual property — writing, art, and music — from unauthorized duplication over the Internet. But many library advocates are concerned about the impact of this law on fair use, the principle which allows a person to distribute copyrighted material in a reasonable manner without the consent of the copyright owner. Interlibrary loans traditionally fall under fair-use laws, but commercial publishers have attempted to block interlibrary loans of on-line articles. This summer, Reed Elsevier ceded important ground on this front: The company announced it would allow libraries that subscribe to its electronic journals to fill interlibrary-loan requests for articles from them. Librarians can now produce printouts of articles when other libraries ask for them, but they cannot share the electronic files.
In October the House and Senate agreed on a compromise version of the Digital Millennium Copyright Act, a major piece of legislation that makes it a criminal act to disable the technologies — or "digital wrappers" — that are intended to prevent unauthorized copying. Software publishers and the entertainment industry had argued for this "black box" provision because they said the Internet makes it easier for people to engage in "digital piracy." Academic interests had opposed the provision, saying it would allow companies to prevent a professor from copying a section of a digital work for personal or instructional use. Librarians stressed that publishers could prohibit them from lending pay-per-use works freely to their patrons. "If it really wanted to strike a balance in the most evenhanded way," said Adam Eisgrau, legislative counsel for the Washington, D.C.-based American Library Association, Congress would have made it "illegal for someone to go through these digital wrappers . . . for the intent of what we would call digital piracy. They could have said, 'But you are permitted to go through a digital wrapper if you are doing something other than digital piracy.' What we ended up with is that it is illegal, flat out, to go through a digital wrapper."
Libraries did, however, win the database-protection debate, which had divided the House and Senate. Under current law, most databases do not receive strong copyright protection. In 1991, the Supreme Court ruled unanimously that you can copy a telephone directory without infringing copyright because facts cannot be copyrighted, and the listings, though expensive to create, are just facts. A listing represents mere "sweat of the brow," not creative work. Ever since that ruling, database owners such as Reed Elsevier have wished to pass legislation protecting their databases by prohibiting other companies from using their information to develop other businesses.
The Digital Millennium Copyright Act originally included such a provision, but it was removed at the request of the White House and a group of senators who had objected to passing a measure that had not been addressed in public hearings. Librarians are not yet relaxing, however. Senator Orrin Hatch, the Utah Republican who chairs the Senate Judiciary Committee, has argued strongly for the database measure and said that passing a database protection bill will be "one of the highest orders of priority for the Senate Judiciary Committee" next year.
Meanwhile, commercial publishers have found another battleground: the Uniform Commercial Code (UCC), which was devised to unify the laws of the fifty states in certain key areas and deals with contracts for the sales of goods. Article 2B of the UCC, which is currently being formulated by The American Law Institute, will specifically outline the laws for the licensing of information, including databases, journals, and books. Although the details have not yet been hammered out, it promises to limit the rights of the consumer.
Pamela Samuelson, a law professor at the University of California at Berkeley, says Article 2B "could totally transform the way we deal with information." Since the late 1980s, Samuelson has been producing scholarship on digital information. (For her efforts, she received a MacArthur Fellowship last year that will be worth $290,000 over the next four years.) She says, "Book publishers could start shrink-wrapping books and including licenses inside; once you break the shrink-wrapping, you would be agreeing, for example, not to review the book negatively." Worried about the impact of Article 2B on fair use, Samuelson has blasted the committee that is drafting the law.
"Even some of the experts seem befuddled"
Professor Raymond Nimmer of the University of Houston Law Center, who has been selected to draft the actual text of the law, says Samuelson shouldn't fear that Article 2B may endanger scholarship. It's extremely unlikely, he believes, that the publishers of books or journals would place onerous restrictions on readers. As for the software industry, he points out that restrictive licenses are already here, and here to stay. "She's making an assumption that's wrong, then building an argument from there," he says. "She says that without Article 2B, such contracts would not be legally enforceable. This is just not true." Nimmer notes that the entire software industry currently relies on contracts that are put into effect by opening the wrapper. (In a recent Atlantic Monthly article, Charles Mann cited the particularly egregious example of a Microsoft software program for the creation of animated characters; it comes with a license stipulating that users "have no right to make the figures 'disparage' Microsoft.")
Both the Digital Millennium Copyright Act and Article 2B are extremely complex — even some of the experts seem befuddled. Heated discussions will continue for months to come. After changes are made to the draft of the article, it could be approved — at the earliest — at the annual meeting of the ALI in May and then by the National Conference of Commissioners on Uniform State Laws next July. Then it has to be sent to the fifty state legislatures for adoption. Article 2B could be adopted by 2000, but Robert Oakley, a professor at the Georgetown University Law Center, says, "I think it's likely to be much later than that."
The one thing that everyone agrees on is that the unique problems of information commerce will require new laws that were not necessary in the world of books. For example, software publishers argue — and rightfully so — that lending a book to a friend is not the same as sending him a copy of a digital text: The second action can be repeated over and over again and is far more likely to dry up a publisher's revenue stream. To avert that possibility, a publisher may choose to send out information on a disk that will become unreadable after five minutes of use or that can only be used in Utah. But even measures like those won't solve the problems. Change on the legal front is as inevitable as it is difficult, because large sums of money are at stake, and because there are parties with radically different agendas. Consumer advocates like Samuelson want to make sure intellectual-property laws continue to offer relatively open access to information; meanwhile, publishers like Elsevier want to make sure that they can continue to profit from their properties.
Mark Rambler is an assistant editor at The American Lawyer magazine. His work has appeared in Newsweek, The Washington Post, Newsday, and Lingua Franca. He graduated from Princeton University in 1996 with a B.A. in English. He will be attending law school this coming September. You may contact him by e-mail at email@example.com.