infoSpace - Information Policy

Technologies of Access and the Cultural Record

tkiehne — Thu, 02 Dec 2004 05:44:57 +0000

"Celestial Jukebox" or Digital Dark Age?

A Question of Information Access

Technologies of access redefine the social and cultural aspects of information access. Areas directly affected by this shift include fair use of copyrighted works and the balance of control over statutory rights. Considered over the duration of copyright, the long-term effects of new access regimes could be more extreme. Assuming that technological controls prevail over the public interest in information access, several questions must be asked: Can public access be preserved as information becomes predominantly digital? If not, does our society face a scenario where knowledge and our collective cultural record will be preserved only to the extent that it is profitable?

Although we can safely assume that the printed book and other physical forms of information are not likely to disappear from our libraries, new ways of retrieving information via digital media will have a significant effect on access. Digital information objects such as e-books and online information services may be controlled in ways that are not practical for their analog counterparts. The premise of library shelves full of locked books or journals that suddenly vanish after a few readers have viewed its pages seems incredible. Yet with digital objects, protected by access restriction technologies, such occurrences are not so unlikely.

Libraries, Now and in the Future

Libraries cater to all sorts of clientèle, including children, adults, and scholars. Users rely on libraries to provide access to information for many purposes, whether for research or academics, or for personal improvement and fulfillment. No single library contains all possible works within its walls. Libraries are networked in such a way, however, that if specific materials are desired, and are physically retrievable, then access to those materials may be obtained through alternate means. First sale doctrine and interlibrary loan comprise the traditional services that a library provides to the public as explicitly permitted under copyright law (17 USC §108 & 109). Because of this, access to a library's holdings is not revoked if a book goes out of print for whatever reason or if copyright terms are extended. Once a library has an item, access to that item is only affected by physical factors such as distance, the condition of the objects, and the funds that a library or its users have available to facilitate access.

Physical limitations and changes in information seeking behavior encourage libraries to implement digital information services (Bertot, 2003; Moyo, 2004). Subscriptions to digital content aggregators and publishers increase the number of works that a library can make available without having to increase its physical capacity. Furthermore, digital information services shift the focus of information seeking from the container to the content within which, arguably, can be seen as serving the needs of users accustomed to finding information on the Internet. Whether these digital services reduce the procurement costs expended by a library over time is not fully known (Bertot, 2003, p. 222), but the benefits to the users are usually enough to justify their implementation.

Current digital services are subscription based (Bertot, 2003, p. 222), and are offered by publishers such as Reed Elsevier (www.reedelsevier.com) and online content aggregators such as netLibrary (www.netlibrary.com). As these services continue to mature, the aforementioned benefits will be accompanied by significant disadvantages. Licenses that govern digital services will be enforced by technologies that shift control over access from libraries to the entities that provide the services. Such a shift affects uses that are traditionally allowed by copyright law. To understand the implications of this shift we must understand the technologies of access and the laws that affect them.

Technologies of Access

Copying is an intrinsic property of digital information. When users view a text via a digital information service, they view a copy that was ostensibly derived from an authoritative original maintained by the service provider. Information services currently exercise very little control over what happens with the copy that is provided beyond informing users of the terms of contract and protecting the copy with basic access controls. Once a copy of a text is made, the copy can be removed from its licensing environment and thus from its contractual restrictions – the license only restricts the original user. It is this loss of control over the copies that compels content providers to pursue technological means of contractual enforcement.

Digital access controls are more broadly known as Digital Rights Management (DRM). DRM involves converting digital objects to an encrypted form that is configured to allow access only under certain conditions. Access policies may be established at very granular levels for a variety of tasks, such as read-only access or the ability to copy (Erikson, 2003, pp. 35-36). For example, if a library were to subscribe to a publication in digital form, the governing contract could specify that only a certain number of users at a time may view the publication, which would be monitored by software designed to access DRM-aware objects. Should the maximum number of concurrent users be reached, the system's licensing policy might allow additional access for an extra fee (Stefik, 1997, Section D).

As it stands now, such granular control over a digital object is not possible without imposing excessive costs on the participating agency. For DRM to perform as described requires more than object-level control – it is necessary that the systems that access protected content respect these controls. These so-called “trusted systems” include hardware and software that are certified to comply with DRM controls (Stefik, 1997; Erikson, 2003). It is conceivable that trusted systems could restrict transfers between software and devices, such as denying the ability to cut-and-paste text from a controlled work. Additionally, “watermarking” could be implemented to prevent capture of audio or video by devices external to the trusted system.

From the publisher's perspective, DRM is an ideal technology for controlling the use of digital objects. As a means of modeling the social expectations of copyright, however, DRM's binary architecture is not so ideal. Copyright is a deliberately “leaky” system that contains many, often loosely defined, exceptions to certain enumerated rights. Content provided under a DRM-controlled contract can readily overstep the boundaries of copyright law (Cohen, 1998, p. 472; Samuelson, 2003, p. 48). For instance, a system that is programmed to prevent copying will not know how to differentiate a fair use copy from an illegal copy (Felten, 2003, p. 58). One might say that if a copy is allowed by law, then any means by which it can be made should be allowed. Unfortunately, it is not that simple. Once control is removed for a legal use, how will unauthorized uses of that copy be prevented? A fundamental conflict arises between arbitrary copyright exceptions and rigid access controls.

The Digital Millennium Copyright Act (DMCA, PL 105-304) was designed to update copyright law in anticipation of technological changes. Some of the most prominent portions of the DMCA criminalize the circumvention of access controls and the development and distribution of tools that can do the same (17 USC §1201). The statute simultaneously states that nothing in the circumvention prohibitions affects the rights of fair use or any of the exceptions granted in the Copyright Act (17 USC §1201(c)). Assuming that technological controls mature and computing environments become complicit in enforcing these controls, these assurances are rendered virtually useless (Burk & Cohen, 2001, p. 54). The conflict between the code of DRM and the code of law is embodied in section 1201. As a result, copyright is defined by contract, enforced by code, and leaves no legal recourse to do what would otherwise be legal.

Failures of Access Control

Let us assume that the current trends in rights management technologies and the laws that affect them continue unabated into the future. We can envision a time when DRM and trusted systems lock down digital information in all its forms, including the subscription services used by libraries to increase inventory and better serve their users. Every conceivable action, including reading, copying, and printing, can now be audited by the service provider and billed incrementally to the library or passed through to the user, as defined by contract. Setting aside privacy concerns for a moment (see writings by Julie Cohen), we can already see how fair use is revoked in this environment (Erikson, 2003; Felten, 2003; Samuelson, 2003). But what other effects will such control have?

Should the majority of a library's digital offerings be provided in the form of service subscriptions, collection management decisions are delegated to the service providers. Decisions by the service provider that affect the type, quantity, and character of their offerings will directly determine what is available to the library's users. One might query that if all possible works are made available, much like Goldstein's “celestial jukebox” (2003), would collection management become irrelevant? Perhaps much further in the future, when digital storage is essentially free and the difficulties with preserving the reliability of and access to such an enormous volume of data are resolved. Until then, there are several points of failure that may reduce or eliminate access to digital works. These failures may be characterized as technical, economic, and social.

Technical failure is already at issue in current subscription services. If a library has a subscription to a periodical, and later cancels the subscription, patrons may still use the copies that were received before cancellation. Under the digital model, however, cancellation of a subscription may leave the library without access to any of the periodicals (Moyo, 2004, p. 229). Technical failures of this sort result from the characteristic differences between digital and print media.

Additional failures of access are characterized by economic instabilities. Assuming that a service provider must prioritize its holdings because of technical limitations, the relative value of the works will be influential. Only a small percentage of works has an economically viable life approaching the current term of copyright (Rappaport, 1998, p. 4). Likewise, it can be expected that many works beyond a certain age will fail to be of interest or use for other than historical purposes, especially in the case of scientific works or news. A service provider may audit usage data for their inventory and determine that certain works no longer meet the interest criteria to justify the expense of maintaining them. These works may simply be removed from the service (and, presumably, archived), or perhaps exchanged with other content aggregators. Unless a devalued work finds its way to another subscription service of the library, it will be inaccessible to the patrons. Permanent losses due to economic competition is unfortunate since recent findings reveal that usage trends become difficult to predict, deviating from profitability as selection increases (Anderson, 2004).

Similarly, none but the most well-established publishers are likely to operate indefinitely. Publishers are bought and sold or otherwise succumb to economic changes. One hopes that the works controlled by a failing publisher would be transferred or otherwise preserved in some way. Since the decision is one of market value and not of value to the public, however, preservation of the works is not assured (Kuny, 1998). In recent years, digital collections have nearly vanished as a result of corporate volatility. For example, the music archives of MP3.com were nearly lost when the company was sold to CNET Networks in 2003 (Bialik, 2003). USENET news archives dating back to 1981 narrowly escaped disappearance when Google bought them in 2001 (Google, 2001). These cases illustrate how collections of digital information are susceptible to commodification.

Another economic threat to access results from the consolidation of service providers. Scholarly journals are currently undergoing a transition, due in part to the fact that fewer companies hold more of the assets while charging increasing rates for access (Ganshorn, 2002, p. 1, 3). If such a trend manifests in other digital content services, libraries with smaller budgets could find themselves unable to gain access to some or all of the available holdings, thus perpetuating the digital divide.

A social failure of access is characterized by First Amendment concerns. Removing control of collections from a local agency to a centralized provider exposes the possibility that external pressures could force the removal of politically inexpedient works. The normalization of community standards could potentially affect all subscribers to the service. At the least, a service provider would be compelled to deny access to certain works in certain locales to satisfy complaints. If service providers tend to be risk-averse, such localized measures would circumnavigate the traditional barriers to censorship that community libraries currently employ.

Taken together, these failures result in the denial of access to works that library patrons seek. These losses may not be absolute; the market may provide remedies for some of these problems, or patrons could seek alternative facilities to find the information they desire. Furthermore, these failures are not completely foreign to traditional libraries, but the effects are more acute in the case of digital information. Unfortunately, the problem indicated by these points of failure is larger than that of mere convenience (Kuny, 1998). Libraries, from the Library of Congress down to the smallest local library, contain a vast amount of printed material that captures a significant portion of our cultural heritage in literature, music, and scholarly works. The library system, taken in its entirety, represents a massively redundant, fault-tolerant system for preserving the cultural record. Reexamining the digital situation just described, no such system exists for securing digital works beyond that of securing intellectual property. Commercial services have suddenly found themselves having to address issues previously relegated to public archives (Rosenzweig, 2003, p. 752). We may face a time when the only digital works that survive the coming decades are those that are the most profitable or popular.

Towards Preserving the Digital Cultural Record

The problem of long-term digital preservation is significant, even without considering the tension between access and rights. Research in digital archives addresses many of the key problems for ensuring the reliability of digital information across standards and exchanges. Digital archivists are wary of encryption for digital objects, often avoiding the problem altogether by not accepting encrypted objects into their repositories (Waugh, et al., 2000, p. 181). Such policies will not suffice for public information agencies that provide DRM protected objects. Because of the complexities, long-term digital preservation must involve all parties, public and private, in a coordinated effort to ensure that the balance of public access and private compensation enshrined in copyright is maintained for digital information.

The complexities of the problem and the relatively recent ascension of the digital preservation field discourage the formulation of generalized solutions. We may look to policy to provide the impetus for action. For printed information, the Copyright Act contains provisions that allow libraries and archives to make copies of works for preservation purposes (17 USC §108). The intent of Congress in this case is clear, if only for a relatively narrow definition of preservation. No such intent for digital information is implied in the statute. In fact, the anti-circumvention prohibitions of section 1201 of the Copyright Act seem to remove such concerns from the public interest entirely. If the public interest in preserving digital information is to be served this dichotomy must be resolved. Provisions for digital archiving that take the restrictions of DRM into account and allow libraries to act before the format becomes obsolete may provide a solution.

Alternately, content providers could be held accountable for ensuring the long term reliability of their information. If information can be seen as an asset worthy of copyright protection, then compulsory measures for information preservation are reasonable. A public digital deposit system using trusted third parties could assist these efforts. Congress enacted the National Digital Information Infrastructure and Preservation Program (NDIIPP) in 2000 to begin planning for long-term digital preservation (Friedlander, 2002). Unfortunately, such support from the Federal government is rare and the effect of this legislation has yet to be observed(Rosenzweig, 2003, pp. 752-754). In the private sector, Elsevier Science, a division of Reed Elsevier, is currently involved in trusted repository agreements with Yale University and the National Library of the Netherlands for preservation of electronic journals (Ayre, 2004, §5). Actions such as these constitute the beginnings of preservation policy.

If self-archiving and digital deposit fail to materialize or to provide adequate solutions, then the basis of current copyright statutes may need to be reexamined. Much of the reasoning behind recent copyright laws is the assumption that digital media eliminates content creator's income because of massive, near-perfect distribution. Should DRM become the norm, and remuneration be extracted at the most granular level, then content providers stand to make greater profits than ever. It follows in this scenario that the exclusive rights could be exchanged for greater control over content. A shorter term of copyright could reduce the impacts of format obsolescence and market instability by allowing the content to enter the public domain and the relative safety of unrestrained distribution.

Conclusion

Preserving the cultural record as it becomes digital is a significant challenge. Technologies of access and the transfer of control over information access from public to private interests increase the risk of information loss. The volatility of digital information should compel us to act in a decisive way, in both the public and private interest. Failure to do so will create gaps in our cultural record as digital objects become permanently inaccessible or lost completely.

References

Anderson, C. (2004). The long tail. Wired, 12(10), 170-177.

Ayre, C. & Muir, A. (2004). The right to preserve: The rights issues of digital preservation. D-Lib Magazine, 10(3). Retrieved on 15 November, 2004, from http://www.dlib.org/dlib/march04/ayre/03ayre.html.

Bertot, J. (2003). Internet-based library services. Library Trends, 52(2), 209-227.

Bialik, C. (Nov. 14, 2003). CNET to buy MP3.com assets from Vivendi's U.S. net unit. Wall Street Journal Online. Retrieved on 8 November, 2004, from http://online.wsj.com/article/0,,SB106882967943658100,00.html.

Burk, D. & Cohen, J. (2001). Fair use infrastructure for rights management systems. Harvard Journal of Law & Technology, 15(1), 42-83.

Cohen, J. (1998). Lochner in cyberspace: The new economic orthodoxy of "rights management.” Michigan Law Review, 97(2), 462-574.

Erikson, J. (2003). Fair use, DRM, and trusted computing. Communications of the ACM, 46(4), 34-39.

Felten, E. (2003). A skeptical view of DRM and fair use. Communications of the ACM, 46(4), 57-59.

Friedlander, A. (2002). The National Digital Information Infrastructure Preservation Program: Expectations, realities, choices and progress to date. D-Lib Magazine, 8(4). Retrieved on 30 November, 2004, from http://www.dlib.org/dlib/april02/friedlander/04friedlander.html.

Ganshorn, H. (2002). Workshop on alternative publishing: Summary report. University of Calgary: Calgary, Canada. Retrieved on 6 November, 2004, from http://www.ucalgary.ca/library/plans/altpub/altpub.doc.

Goldstein, P. (2003). Copyright's highway: from Gutenberg to the celestial jukebox. Chap 1. New York: Hill and Wang.

Google (2001). Google acquires Usenet discussion service and significant assets from Deja.com. Press release. Retrieved on 8 November, 2004, from http://groups.google.com/press/pressrel/pressrelease48.html.

Kuny, T. (1998, May). The digital dark ages: Challenges in the preservation of electronic information. International Preservation News, 17. Retrieved on 29 October, 2004, from http://www.ifla.org/VI/4/news/17-98.htm#2.

Moyo, L. (2004). Electronic libraries and the emergence of new service paradigms. The Electronic Library, 22(3), 220-230.

Rappaport, Edward (1998). Copyright term extension: Estimating the economic values (CRS 98-144 E). Washington D.C.: Congressional Research Service. Retrieved on 30 October 2003 from http://www.ipmall.info/hosted_resources/CRS_Index_1998.asp.

Rosenzweig, R. (2003). Scarcity or abundance? Preserving the past in a digital era. American Historical Review, 108(3), 735-762.

Samuelson, P. (2003). DRM {and, or, vs.} the law. Communications of the ACM, 46(4), 41-45.

Stefik, M. (1997). Shifting the possible: How trusted systems and digital property rights challenge us to rethink digital publishing. Berkeley Technology Law Journal, 12(1). Retrieved on 30 October, 2004, from http://www.law.berkeley.edu/journals/btlj/articles/vol12/Stefik/html/reader.html.

Waugh, A., Wilkinson, R., Hills, B. & Dell’oro, J. (2000). Preserving digital information forever. Proceedings of the fifth ACM conference on digital libraries, San Antonio, Texas, 175-184.

The Future of Fair Use in a Digital World

tkiehne — Thu, 23 Sep 2004 06:06:54 +0000

Is There a Future for Fair Use?

Fair use is a notoriously vague portion of copyright law, that provides a balance between incentives to create intellectual works and promotion of the dissemination of knowledge. Technological and legal developments, however, leave many wondering if fair use has a future. Analyzing trends in areas that affect copyright law should provide insight into the future of fair use (Holland, 2002, p. 171). I will focus on developments in three areas: copyright law, judicial review of fair use, and the development of information access technologies.

Trends in Copyright Law

Exclusive rights granted by copyright law have significantly expanded since the first copyright act in 1790. Affected rights include extended copyright terms, new rights, and compulsory licenses, among others (U.S. Copyright Office, 2004). On the other hand, fair use and other exceptions to the exclusive rights of copyright holders are fewer and more narrow. These expanding rights effectively reduce the number of intellectual works that revert to the public domain. When the public domain shrinks, less material is available from which to create new works without additional cost. A tension is created between fair use and commercial interest in copyright, and because of competition between public and commercial interests, fair use is held in contention. To quote Loren: “[s]upporters of each new expansion inevitably remind those opposing the expansion of the existing fair use doctrine, as if the mere existence of fair use renders any expansion of the copyright monopoly acceptable” (Loren, 1997, II para 7). Extrapolating the trends in law into the future, it is likely that copyrights will continue to expand and eclipse fair use.

Trends in Judicial Review of Fair Use

Fair use doctrine originated in the judiciary (Loren, 1997, I(D) para 4) and it is in the judiciary where fair use is tested and defined. The vagueness of the law facilitates its manipulation in court according to economic and other external factors, which results in precedent that fails to maintain the original purposes of fair use. Of particular concern is the circular logic of the fourth fair use test, that which considers the “potential market for or value of the copyrighted work” (17 USC 107(4)). Opinions in fair use cases increasingly consider potential for economic benefits over other factors. For instance, in Texaco, the majority took a narrow view of fair use in the presence of licensing mechanisms (American Geophysical Union v. Texaco Inc., opinion, para. 80). Furthermore, in Sony, the dissent stated that harm is done to the value of a copyright if a copyright holder can establish revenue mechanisms for new technologies (Sony Corp. of Amer. v. Universal City Studios, Inc., dissent, p. 498). In each of these cases the judges emphasized the market value of copyrights over the value of the uses in question. Consideration only of the market for information promotes market exploitation over public benefit and undermines the basic purpose of copyright: to promote new works and the dissemination of knowledge. The trend in the judiciary is for copyright interests to leverage potential markets against benefits for the public, and it is likely to continue into the future.

Trends in Information Access

Regardless of the trends in law, the development of information technologies may be decisive in determining the fate of fair use. A critical difference between analog (e.g.: books, radio) and digital information sources is the potential for content creators to exert control over the use and distribution of digital information. Such control is enabled in two ways: by changing access technologies and by influencing the laws affecting these technologies.

A prevalent development trend is the creation of media formats that give content creators absolute control over the usage and distribution of their works. The Secure Digital Music Initiative was one of the earliest attempts at Digital Rights Management (DRM) (SDMI, 2004). SDMI sought to develop a standard for securing digital content within a licensing framework controlled only by content distributors such as record labels and movie studios. SDMI failed to gain momentum but other technologies have continued in the same direction. Microsoft's Windows Media format currently embeds DRM technologies that allow complete control over how often a work may be accessed, where it may be accessed, and the ways in which it can be copied (Microsoft, Inc., 2004). The format's licensing terms may be changed at will by the licensor and do not allow exceptions for fair use. Beyond file formats, computer and software manufacturers are developing computing architectures that could enforce rights at the hardware level (Trusted Computing Platform Alliance, 2003). Such “trusted computing,” if DRM-enabled, will prevent “unauthorized” software or hardware from enabling fair uses.

In addition to new access controls, legal mechanisms protect such technologies from circumvention. Circumvention is often necessary to unlock proprietary formats in instances where fair use is warranted. For example, a program called DeCSS allows access to DRM-controlled Digital Video Discs (DVDs) on a computing platform for which no means to access such media exists (Lessig, 2001, pp. 187-190). The Digital Millennium Copyright Act specifically prohibits the circumvention of access restriction technologies (DMCA, PL 105-304 & 17 USC 1201). Under the DMCA, DeCSS is illegal. Although the act contains procedures for circumvention in certain cases, such exceptions are not likely to prevail in light of judicial preferences in the matter.

Contractual methods of access control are also peculiar to digital information. Subscribers to subscription or paid services must accept licensing terms that often waive rights granted by copyright law, including those of fair use. For example, a satellite radio network's terms of use will not allow a subscriber to record any part of a broadcast for any reason, a use that would normally be allowed for traditional broadcast media (XM Radio, 2004, 1(b)). The trends in technology indicate that copyright law will be bypassed when DRM technologies and the laws that protect them are combined with licensing contracts.

The Trends in Summary

When considered together, changes in law, judicial review, and technology portray a bleak outlook for fair use. The dominant reason for this trend is summarized in the relative strengths of the major stakeholders: “public good” versus private interests. There is virtually no support for the public interest when compared to those of Hollywood and the intellectual property industry as a whole. As long as this is the case, attempts to limit the ever-expanding powers of copyright holders will remain reactive and lack momentum.

The imbalance between copyright stakeholders is significant, but not insurmountable. Efforts by people such as Lawrence Lessig and groups like the Electronic Frontier Foundation bring awareness of copyright issues to the public. Such awareness may help build momentum in legislatures and courts to bring copyrights into balance. But, if the law does not address the technologies of access, copyright holders will continue to bypass copyright law through centralized access controls and licensing regimes. Fair use may soon become insignificant as a result.

References

American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994). Retrieved on 13 September 2004 from http://www.law.cornell.edu/copyright/cases/60_F3d_913.htm.

Holland, John H. (2002). What is to come and how to predict it. In J. Brockman (ed.), The Next Fifty Years (pp.170-182). New York: Vintage Books.

Lessig, Lawrence (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books.

Loren, L. P. (1997). Redefining the market failure approach to fair use in an era of copyright permission systems. Journal of Intellectual Property Law, 5(1), 1-22. Retrieved on 16 September 2004 from http://www.lclark.edu/~loren/articles/fairuse.htm.

Microsoft, Inc. (2004). Windows Media DRM. Retreived on 20 September 2004 from http://www.microsoft.com/windows/windowsmedia/drm/default.aspx.

SDMI (2004). Secure Digital Music Initiative. Retrieved on 20 September 2004 from http://www.sdmi.org.

Sony Corp. of Amer. v. Universal City Studios, Inc., 464 U.S. 417 (1984). Retrieved on 16 September 2004 from http://www.law.cornell.edu/copyright/cases/464_US_417.htm.

Trusted Computing Platform Alliance (TCPA) (2003). Home page. Retrieved on 7 February 2004 from http://www.trustedcomputing.org/home.

U.S. Copyright Office (2004). Copyright law of the United States of America and related laws contained in title 17 of the United States Code. Circular 92. Retrieved on 21 September 2004 from http://www.copyright.gov/title17/92preface.html.

XM Radio (2004). XM Satellite Radio Customer Agreement. Retrieved on 13 Sep 2004 from http://www.xmradio.com/get_xm/customer_service.html.

Systems Security: Problems and Potential Solutions

tkiehne — Tue, 10 Feb 2004 07:11:28 +0000

With the increasing connection of computers to networks comes a corresponding increase in the threats to the integrity and security of data on those computers. Outbreaks of Internet “worms,” computer viruses, and other “malware” are becoming more frequent and virulent as witnessed by the reports of maladies named “Melissa”, “ILOVEYOU” (Weaver, 2001), and, most recently, “MyDoom” (Legon, 2003). Malicious code, or “malware,” generally describes all types of infectious programs, including viruses and worms (McAfee Security, 2003). Malware attacks in all their forms use a combination of human psychology and the vulnerabilities or design weaknesses found in software to spread rapidly from computer to computer across a network. Such attacks cause tangible damage such as depletion of computing resources, time spent to repair the damage, and loss of electronic data. Additionally, malware attacks have lasting, yet less tangible, effects on the behaviors of computer users and software developers. The problem of systems security and information assurance requires a sophisticated mix of behavioral changes by individual users, software vendors, and possibly governments to solve. Given the complexity of the problem, however, the vulnerabilities of computer systems may never be completely eliminated.

The Problem of Systems Insecurity

Computer malware has existed since the 1970s. The earliest programs were academic experiments in self-replicating code which were programmed for early versions of the Unix operating system (OS). With the advent of the personal computer in the early 1980s, viruses began to appear with greater frequency and potential for harm (Weaver, 2001). Virtually every computer operating system that has been developed is a potential virus target, with the virus population ranging from at least 5 identified variants that affect Unix systems, to over 45,000 that affect Microsoft Windows systems (year 2000 estimates, Hancock, 2000, p. 389). In the years before widespread computer networking, viruses spread slowly, relying on physical transfer by humans using removable media (e.g.: floppy disks) to spread the programs from computer to computer. Once computers become networked with each other, however, the opportunities for viruses to spread increases as do the methods by which they may spread. Malware can now spread across a network at a high rate of speed for a variety of reasons.

The effects of viruses and worms vary greatly. Some viruses may replicate and spread with no visible effect to the user, while others are designed specifically to inflict damage to the systems they infect, other systems on the network, or both. Even in the most benign cases resources are consumed, usually in the form of hard drive space, memory, processor time, or network bandwidth. Additionally, viruses meant to be benign, as is usually the case with artificial life experiments, may become malignant in certain operating environments or may potentially mutate into newer, more harmful programs as a result of transmission errors (Weaver, 2001, Propagation). Viruses that are meant to cause harm most often do so by deleting or altering files on the infected system, causing the loss of electronic data. Furthermore, virus outbreaks may consume processor or network resources, which tends to deny the use of the affected machine or network (Weaver, 2001, Malicious Payloads). When such effects are multiplied across many computers in a network, the costs to those who maintain the network, in time, money, and lost productivity, are significant (Geer, et al., 2003, p. 9).

In addition to the physical damages, there are significant behavioral effects caused by malware outbreaks. Firstly, the openness and trust that characterized early networks has virtually disappeared, partially because of malware and security problems. For example, email is frequently used as a carrier of viruses and malignant programs. The abuse of email progressively deteriorates the trust that people are wiling to have in its use, which leads to the implementation of communication barriers such as filtering, “blacklisting”, and “whitelisting.” The overall effect is that of a fragmented and unreliable communications environment, where one cannot be certain that one's message will be received. The second effect is that software becomes more complex as software vendors respond to revealed security vulnerabilities. Patches, security updates, and upgrades produce more complex code that may actually expose new vulnerabilities or degrade the performance of the system (Schultz, 2003b), which further erodes people's trust in technology.

Perspectives on the Causes of Network Security Problems

The ability of malware to reproduce quickly over a network is attributable to a variety of interrelated factors, but two areas appear to be dominant. One perspective that has gained much attention recently focuses on the near homogeneity of computer operating systems. A report released by the Computer & Communications Industry Association (CCIA) examines the antitrust suits against Microsoft, as well as the dominance that Microsoft products have in the personal computer market, with regard to the effects of these developments on the security of computer networks. Microsoft operating systems and applications have become the de facto standard for personal computer (PC) systems because of a combination of ease of use, integration between programs and the operating system, and, sometimes, by dubious business practices by Microsoft. The CCIA report describes a network monoculture dominated by Microsoft products that allows the rapid distribution of malware (Geer, et al., 2003, p. 12). The monoculture argument is based primarily on dominance in PC systems, as opposed to server systems where there is more variance in operating system software. Additionally, server environments tend to be better monitored and maintained than personal computers, and the design and implementation of such systems are more considerate of security and access concerns.

The monoculture perspective draws upon research that compares computer networks to biological ecologies. Jorgensen, et al., describe how electronic ecologies exhibit behaviors and traits similar to natural ecologies (2001). An analogy is described that relates computer code to DNA, the computer that contains the code to a cell, and the network of computers as organism. Such an analogy allows one to analyze the spread of computer viruses using well established epidemiological principles. The network-as-ecology metaphor is also presented by Wassenaar & Martin (2002). The researchers state that, like natural monocultures, “[t]he electronic monoculture that improves communication also increases the risk for contagion” (2002, p. 336).

The monoculture argument is a compelling assessment of the ability of the creators of malware to exploit common vulnerabilities across a large population of similar platforms where epidemiological concepts are valid. Unfortunately, the monoculture perspective fails to account for the possibility that, because Microsoft systems are so ubiquitous, their products may draw more of the attention and effort of malware creators. A high density of similar operating systems presents an ideal environment for malware that ensures successful dissemination of the programs across a network. Perhaps, if a different operating system, such as Unix or Macintosh, were dominant, there would likely be a corresponding reversal in the amount of malicious code available for the dominant system (Hancock, 2000).

In contrast to the monoculture argument, another perspective on the network security problem implicates the basic causes of security vulnerabilities: the integrity of software code. The software perspective recognizes that perfection in complex systems of software is impossible to attain. In order to seek perfection in software, programmers would have to be able to anticipate and simulate all possible conditions in which the software would be used, which requires excessive amounts of time to perform. Thorough testing is seldom possible in the development of software due to market pressures to release products quickly. The push to release software quickly forces a compromise between quality assurance and the security and stability of the product (Schultz, 2003a). Additionally, the more complicated the product, as is the case with operating systems, the more likely the software will be sold with unknown vulnerabilities. Furthermore, software developed before the prevalence of “always-on” networked environments were not designed for the new security concerns of the network, which is particularly true of older versions of Microsoft software, which tend to enable many insecure features by default. For example, the “Love Bug” virus in 2000 took advantage of Microsoft Windows Visual Basic Scripting (VBS) support, which allowed the malicious program to run, with full access to the operating system, but without a user's knowledge or ability to intervene (Hancock, 2000, p. 390).

Two Regions of Complexity in Security

Two broad, interrelated areas define the complexity of the network insecurity problem and account for the reasons that the problem cannot easily be solved. One area defines a continuum between usability and security. Security features necessitate some compromise in ease of use (Schultz, 2003a, p. 271). For a computer program or operating system to be easy for non-technical users, security features must be nearly or totally transparent to the user. Security features such as encryption and anti-virus programs often require user intervention or configuration to be effective. Furthermore, disabling networking or communication features by default makes it difficult for users to take advantage of these features. For example, using a firewall to block network access to one's computer may interfere with other programs, including instant messaging, various streaming media, and games. Enabling firewall access for specific programs is typically not easy for inexperienced computer users and is a common source of confusion and frustration. If a user has difficulty using a program, the program is, by definition, unusable, which defeats the purpose of the software's existence.

Another area defines the continuum between software complexity and reliability. As programs and operating systems integrate more new features, they become more complex. The larger and more voluminous the code, the more likely it is that vulnerabilities and errors will go unnoticed by the software's programmers. As mentioned earlier, this problem is exacerbated by the continual process of fixing newly discovered security vulnerabilities, which adds more size and complexity to the code. As a result, the software becomes less reliable and, therefore, less secure. A solution to network security must find a balance between these disparate concerns or fail, either because the solution will require too much adaptation by computer users, or because the solution will fail to resolve all potential software vulnerabilities.

Potential Solutions

A number of solutions to systems security problems have been proposed. In response to the monoculture perspective, security could be improved by reducing the homogeneity of networked platforms. Creating a heterogeneous network is a difficult proposition which would require that viable alternatives to Microsoft operating systems are made available. Linux is often cited as a competitor to Microsoft Windows, but no comparable user interface yet exists for Linux that can match the ease of use and administration helped to make Windows a dominant OS. The Macintosh OS was once a viable competitor to Windows, but it could not maintain a competitive advantage due in large part to the lack of third-party software products (Kling & Star, 1998, p. 26). Barring the emergence of a suitable competitor to Microsoft Windows, government regulation or influence may be the only way that the heterogeneous PC market could be diversified (Geer, et al., 2003, p. 19). Pol\icy instruments that could increase diversity include economic incentives for diversification, endorsement and use of alternatives to Microsoft products, regulation of critical infrastructure networks, and the subdivision Microsoft in response to monopoly litigation.

In response to the software design perspective, security can only be increased by improving the integrity of software through mandated security standards. The software industry, or potentially the government, could define regulations that prescribe minimum standards for security testing and evaluation of all new software products, particularly those that involve operating systems and networks. Such standards entail increased development costs and time, which would increase the cost of the software to the end user. For additional product costs to be accepted by computer users, the costs would have to be less than the estimated or perceived costs associated with losses from malware outbreaks.

A third set of solutions proposes altering computer designs to resolve network security issues. Various software and hardware vendors, including Microsoft, have proposed a set of standards called “trusted computing” (TCPA, 2003). Such standards would use new hardware designs, along with software encryption and verification technologies, to redesign computer communication and operation. In a trusted computing system, communications with non-trusted platforms, software, or networks would be mediated, which would reduce the likelihood of intrusion or abuses by anonymous network users or malware. Trusted computing directly affects the interoperability of computer hardware and software and will take some time to develop. Once available, trusted computing is likely to take a significant amount of time to be adopted by the average computer user which, in the interim, will likely create a number of unanticipated complications with electronic communications. Furthermore, the notion of trust is amorphous and difficult to define, and may either prove to be just as exploitable as current systems and networks, or unreasonably restrictive for computer users (Schoen, 2003).

Conclusion

Network security problems have existed as long as computers have been interconnected. Malicious code, in the form of viruses, worms, and other malware, exploit vulnerabilities in software and may cause significant damage to electronic data and computer systems. As networks continue to expand and more information is made available through them, the risks of serious data loss also increases. The causes of network insecurity are many and are made complex because of interactions between two major areas: security versus usability and complexity versus reliability. Several sets of solutions may be pursued that require behavioral and policy changes by computer users, the software industry, and governments. Regardless of the solutions that are implemented, no solution is likely to be ideal for all stakeholders and network insecurity will continue to be a problem for the foreseeable future.

References

Geer, D., Bace, R., Gutmann, P., Metzger, P., Pfleeger, C., Quarterman, J. & Schneier, B. (2003). CyberInsecurity: The cost of monopoly, how the dominance of Microsoft's products poses a risk to security. Retreived on 2 February, 2004 from http://www.ccianet.org/papers/cyberinsecurity.pdf.

Hancock B. (2000). Microsoft a popular virus target due to ubiquity. Computers and Security, 19(5), 389-391.

Jorgensen, J., Rossignol, P., Takikawa, M. & Upper, D. (2001) Cyber ecology: looking to ecology for insights into information assurance. DARPA information survivability conference & exposition II, 2001 (DISCEX '01) proceedings, 2, 287-296.

Kling, Rob & Star, Susan L. (1998). Human centered systems in the perspective of organizational and social informatics. Computers and society, 28(1), 22-29.

Legon, Jeordan (2003). Tricky 'MyDoom' e-mail worm spreading quickly. Retrieved on 7 February, 2004 from http://www.cnn.com/2004/TECH/internet/01/26/mydoom.worm/.

McAfee Security (2003). Virus glossary. Retrieved on 6 February, 2004 from http://us.mcafee.com/virusInfo/default.asp?id=glossary.

Schoen, Seth (2003). Trusted computing: Promise and risk. Retrieved on 7 February, 2004 from http://www.eff.org/Infra/trusted_computing/20031001_tc.php.

Schultz, E.E. (2003a). Why can't Microsoft stay out of the InfoSec headlines? Computers and security, 22(4), 270-272.

Schultz, E.E. (2003b). Patching pandemonium. Computers and security, 22(7), 556-558.

Trusted Computing Platform Alliance (TCPA) (2003). Home page. Retrieved on 7 February, 2004 from http://www.trustedcomputing.org/home.

Wassenaar, Trudy & Blaser, Martin (2002). Letter to the editor. CDC emerging infectious diseases, 8(3), 335-336.

Weaver, Nicholas (2001). A brief history of the worm. Retrieved on 6 February, 2004 from http://www.securityfocus.com/printable/infocus/1515.

The Digital Performance Right and its Effects on Diversity in Webcasting

tkiehne — Sat, 13 Dec 2003 06:22:02 +0000

Abstract

In 1998, the United States Congress passed the Digital Millennium Copyright Act as an implementation of the World Intellectual Property Organization's Copyright and Performances Treaty of 1996. The DMCA, in concert with an earlier law, the Digital Performance Right in Sound Recordings Act of 1995, altered the legal balance between copyright holders and broadcasters, particularly those who broadcast on the World Wide Web. The new right granted to the recording industry as well as differences in the consideration of traditional broadcasters and webcasters suggest a broad redefinition of the role of copyright with respect to digital networks. This paper analyzes two important questions: First, how has the DMCA and related laws and rulings affected webcasting? Second, what are the implications of these developments for the diversity and future of digital broadcasting?

Introduction

SomaFM, a San Fransisco-based Internet radio station, is one of a multitude of emerging small webcasters. Created by Rusty Hodge in February of 2000, SomaFM is a prototypical underground webcaster – the station literally operates out of Rusty's basement – that is run by volunteers, eschews advertising, and is funded by the contributions of its volunteers and donations (SomaFM, 2003, about SomaFM). SomaFM runs on the love that its volunteers have for very specific styles of music, which is rewarded by the support of a sizable audience who enjoy niche programming on the 11 channels that SomaFM offers.

During the Spring of 2002 the station's staff learned about copyright arbitration negotiations that were occurring in Washington D.C. The station continued broadcasting while its members learned about the implications that recent copyright legislation had for the station and implored its listeners to voice their concerns to their lawmakers. Despite the potential threat of imminent financial disaster, hopes ran high, until, on June 20^th, 2002, the following terse statement was posted on SomaFM's Web site:

As of June 20th, 2002, SomaFM was forced to suspend our broadcasts or else pay well over $15,000 a month in royalties. We are sorry we had to do this, and continue to fight to restore our broadcasts. (SomaFM, news and events page)

Webcasting, also known as “audio streaming,” is a technology that one may use to listen to audio recordings using the Internet. Unlike “peer-to-peer” file sharing, webcasting does not leave a permanent copy of the audio file on the listener's computer.¹ Webcasting is most often used for streaming music, both as rebroadcast by traditional radio stations and as Internet-only programs. Although music programming dominates, other major uses of webcasting include news, political commentary, simulcasts of events or business conferences, and anything that can be converted to an audio signal. The barriers to entry for webcasting are extremely low – all that is required is an Internet-connected computer and streaming software, some of which is free. Webcasting has increased in popularity since the introduction of streaming software in the mid-1990s to the point that it is often understood by consumers to be simply another form of radio.²

The diversity in programming and the potentially large audience for webcasting has threatened traditional modes of music promotion and marketing. Copyright holders, mainly represented by major media conglomerates such as the members of the Recording Industry Association of America (RIAA), have identified webcasting and other new media as a threat to traditional revenue sources and have sought to use copyright to exert control over the new media. As with the ongoing file sharing debate, the problem posed by copyright holders is that webcasting poses a threat to music sales. Within the three year period from 1995 to 1998, United States copyright law was changed to include a digital performance right for music, thus granting a right of remuneration for artists and distributors of music when their works are played online. By 2002, compulsory license fees were established by the U.S. Copyright Office causing many small webcasters to stop broadcasting to avoid paying large, retroactive royalty payments, as was the case with SomaFM.

Although it is reasonable to entitle artists and distributors to fair compensation for their works, the veracity with which the RIAA and other copyright interests have pushed for greater royalty rates and compensation is somewhat disturbing. Smaller webcasters are at a significant disadvantage against the collusion of larger webcasters and established copyright interests in exploring this relatively new technology. Copyright interests leverage this imbalance in their favor, which forces smaller webcasters off the air and correspondingly reduces the diversity of programming that is available. Furthermore, by forcing webcasters to adopt a for-profit model in order to meet high royalty rates, the trend in webcasting may match that of traditional broadcasting, where the majority of media outlets are owned by a small number of companies, further reducing the diversity of the medium. Legislative remedies have helped to sustain small webcasters, but the debate over the future of webcasting is ongoing.

This paper analyzes two important questions: First, how have recent laws and decisions regarding digital performance copyright royalties affected webcasting? Second, what are the implications of these developments for the diversity and vitality of webcasting? The example of SomaFM is used as a case study in this analysis.

Several services fall outside the scope of this paper. One of these is subscription webcasting, or “on-demand” services. Although these services are affected by the same laws that affect non-subscription webcasters, the business model for such services is significantly different and does not warrant the same analysis. Additionally, satellite and cable services that are also categorized as digital transmissions are not covered here. This paper, however, may serve as a suitable starting point for exploration into these areas.

On Promotion, Distribution, and Diversity

Before these questions are answered, it is helpful to clarify several terms as they are used in this analysis. First, promotion is considered to be the process of attributing a musical work to its performers in the interest of advocating the works of the artists or compelling the purchase of recorded musical work. Promotion in this sense contrasts with the music industry's conception of promotion, which will be broadly referred to here as marketing. Marketing is an integrative approach used to enhance not only sales of music, but to develop an overarching image that is used to sell all manner of products whether related to music or otherwise. The essential difference between promotion and marketing is that the intended effects for the former constitutes a relationship between artists and listeners, while the latter is a business model that is more concerned with the establishment and maintenance of multiple revenue streams. Understanding the conceptual difference between these two terms helps one to understand the unbalanced relationship between digital broadcasting and analog broadcasting that is described later.

Second, distribution is the act of creating a copy of an original work for the purpose of multiplying the original work for others to have. Because digital performances transfer digital data representing original works, they are considered by the music industry and copyright interests to constitute distribution of music with the potential for reducing revenue from music sales. As will be demonstrated later, not all digital data is identical nor is the quality of an original work maintained via streaming.

Third, diversity, in the context of webcasting, means a multiplicity of voices and artistic expression that is generally free from editorial control by government or the music industry. Unlike radio broadcasting, webcasting is not a limited resource, or, as Lessig would say, the webcast spectrum is non-rivalrous (Lessig, 2001, p. 21). Webcasting bandwidth is virtually unlimited, and the presence of an excess of webcasters does not in itself diminish the usefulness of the medium. Given that the webcast medium is so potentially expansive, the editorial controls that the music industry exerts on traditional radio broadcasts is not warranted, or desired.

Furthermore, the limited choices and selections that we have grown accustomed to in the rivalrous, analog broadcasting industry, where music is treated as a front-end to a massive marketing industry, clouds our perception of what is possible with music. The earliest adopters of webcasting included many genres of music that were and are under-represented in broadcasting. Often, these niche styles later influence more mainstream music, a process which demonstrates the artistic discourse of music and the benefits of diversity in broadcasting. Alternately, music is not neutral with respect to political and social problems and may reinforce other forms of expression, particularly those involving social and political commentary. Furthermore, the DJ culture that developed within the last decade treats songs not as discrete packets to be strung together end-to-end, but as a piece of a greater work of art, where songs and fragments of songs create a tapestry of music that is meant to be greater than the sum of its parts. Viewing music as an art form and a means of expression, as opposed to a packaged commodity, alters one's perspectives on copyright, especially when considering the copyright clause in the Constitution – “To promote the... useful Arts” (Article I, §8, Clause 8). For these reasons, protecting diversity in broadcast, as well as other media, is a compelling cause.

Stakeholders in the Digital Performance Right

The stakeholders in the debates over the digital performance right closely resembles those found in a number of other copyright debates. The table below enumerates the major stakeholders present in this analysis.

For	Against
Recording Industry Association of America (RIAA) World Intellectual Property Organization (WIPO) Large, commercial webcasters and aggregators	National Association of Broadcasters (NAB) Small, commercial webcasters Non-commercial, non-profit, educational, and hobbyist webcasters Webcasting listeners

For

Against

Recording Industry Association of America (RIAA)

World Intellectual Property Organization (WIPO)

Large, commercial webcasters and aggregators

National Association of Broadcasters (NAB)

Small, commercial webcasters

Non-commercial, non-profit, educational, and hobbyist webcasters

Webcasting listeners

Table 1 - Stakeholders in the digital performance right debate

In table 1, the political power and economic influence of the pro-performance right sphere is considerably greater than those against the digital performance right. The RIAA is estimated to represent over 90% of the copyrighted music produced in the United States (U.S. Congress, 2000, p. 121). The RIAA controls the rights to music which webcasters wish to play, which creates an unbalanced relationship when copyright is extended to performances. Because of this relationship, the virtual monopoly of the RIAA over recorded music is a considerable threat to the diversity of webcasting. Furthermore, the only stakeholders able to influence this unbalanced relationship are those webcasters that have large and diverse revenue streams that empower them to negotiate fairly with the RIAA. These larger webcasters also have an interest in policies that reduce the number of potential competitors in the webcasting market. Finally, the WIPO represents international trade interests which have considerable influence over intellectual property policies in the United States.

The largest stakeholder opposing the digital performance right is the NAB, which represents a considerable number of traditional broadcasters that retransmit their broadcasts over the Internet. The NAB performs an integral marketing function on behalf of the recording industry, but since the digital performance right includes the rebroadcasting of analog radio over the Internet, the NAB sought to exempt its members from the effects of the new rights.³ The NAB does not, however, explicitly oppose the digital performance right, as long as it does not affect analog broadcasters in any way. The remainder of the stakeholders constitute far less economic power and consist of all varieties of small and non-commercial webcasters. Also included are the listeners of webcasts, most of whom would not support a digital performance right because they would rather not pay for music streaming as a result of performance royalties. Small webcasters implored their listeners to voice opposition to webcasting royalties in the months surrounding the CARP decision (SomaFM, 2003, news and events page).

Conspicuously absent from this debate are the recording artists. Recording artists could conceivably benefit from either side since diversity in webcasting increases promotion while a digital performance right establishes new royalty revenues for artists. The literature regarding the digital performance right and the CARP proceedings, however, makes no indication about the position of recording artists in these debates.

The Digital Performance Right

To better understand the rapid changes to copyright with respect to digital performances, one must understand the changing structure of copyright in the United States. Prior to 1971, neither copyright holders nor artists and producers of works had any right to remuneration for broadcast of their works. In 1971, Congress passed the Sound Recording Amendment (PL 92-140), which authorized a performance fee for the performance of a musical work. The performance right in this case is paid to songwriters and performers through one of the various performing rights organizations such as ASCAP or BMI (Jackson, 2003, p. 452). Since the means of performance is not considered distribution in any traditional sense, organizations that own the distribution rights for a copyrighted work do not receive similar compensation for performances of the work.

Several years later, Congress passed the Copyright Act of 1976 (PL 94-553). The 1976 Copyright Act amended title 17 of the U.S. Code, which is the law that governs copyright in the United States. Five exclusive rights are granted to creators of copyrightable works; These rights are:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly (17 USC §106)

In addition to codifying these rights, the act established the U.S. Copyright Office within the Library of Congress (LOC), and created a Copyright Royalty Tribunal (CRT). The CRT was created “for the purpose of periodically reviewing and adjusting statutory royalty rates for use of copyrighted materials pursuant to compulsory licenses.” CRTs review the compulsory licenses that were established in the 1976 act for retransmission of broadcasts over cable, jukeboxes, and “mechanical” reproductions or performances. CRTs may also convene to arbitrate disputes over the distribution of statutory royalty fees (17 USC Ch.7, §701 & Ch.8, §801).

After the passage of the 1976 act, copyright law remained essentially unchanged with respect to performance rights until the early 1990s. The first change to occur was the passage of the Copyright Royalty Tribunal Reform Act of 1993 (PL 103-198). The CRT Reform Act abolished the CRT and transferred its functions to the Library of Congress and the Copyright Office. Thereafter, the functions previously performed by the CRT would be performed by ad hoc committees called Copyright Arbitration Royalty Panels, or CARPs. CARPs will be discussed later in this paper.

The second change that is of interest to performance copyright came with the passage of the Digital Performance Right in Sound Recordings Act of 1995 (DPRA or the “Digital Audio Act,” PL 104-39). The language of DPRA reflected the growing concern the recording industry felt about the availability of digital broadcast services, particularly in existing satellite and cable music services. DPRA added a sixth exclusive right to those defined by the 1976 Copyright Act, specifically, the right, “in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission” (17 USC §106(6)). The act specifically addressed subscription-based, interactive transmissions, while omitting non-interactive, digital subscription transmissions (17 USC §114(f)). These rights addressed the concerns of distributors of copyrighted works who believed that on-demand digital transmissions could decrease sales of recorded music. DPRA granted distributors the right to collect royalties on certain transmissions to allay the concerns of copyright holders (Jackson, p. 456).

Meanwhile, the World Intellectual Property Organization (WIPO) of the World Trade Organization worked on revising international copyright agreements. The WIPO sought to harmonize the myriad of international agreements and conventions, as well as to update copyright laws in anticipation of changes caused by new technologies.⁴ These negotiations resulted in the WIPO Performances and Phonograms Treaty of 1996 (WPPT). The treaty is largely prescriptive in that it allows member nations to determine the specifics about the enforcement of the treaty's terms within a more general framework that seeks to maintain a basic level of harmony in copyright among participating nations. Of particular interest to digital performances is article 15 of the treaty, entitled “Right to Remuneration for Broadcasting and Communication to the Public.” Article 15 of the treaty prescribes that performers and producers of phonograms shall be compensated for the public broadcast of their works.⁵ Furthermore, the treaty prescribes that, in the absence of agreement in the proportion of compensation divided between the performer and producer, national legislation may be enacted to set the terms by which the parties will abide. Finally, article 15 defines broadcasting as both by “wire and wireless means,” which includes all traditional radio broadcasts, as well as cable, satellite, and other digital networks, such as the Internet (WPPT, Ch. IV, Art. 15).

Subsequent to the development of the WPPT, the Clinton administration initiated the WIPO Copyright Treaties Implementation Act, later renamed the Digital Millennium Copyright Act (DMCA, PL 105-304). The DMCA implemented the WPPT treaty and amended the 1995 digital performance right. First, the DMCA created a new statutory license for the creation of an "ephemeral recording" of a sound recording by certain digital broadcasters (17 USC §112(e)). Furthermore, the DMCA revised the language of the DPRA to clarify that the digital sound performance right applies to non-subscription audio services such as webcasting (17 USC §112 & §114). Finally, the act directed CARPs to use specific standards for judging royalty rates for digital transmissions different than those that are applied to determining other copyright royalties (see the discussion about CARP below).

The DMCA did not, however, fully implement the terms of the WPPT. As mentioned above, the WPPT offers a technology-agnostic definition of “broadcast,” which includes both wire and wireless transmissions. Instead, the DMCA defines the performance right only in terms of digital transmissions. Analog transmissions of sound recordings, including broadcast radio and television, do not require royalties as prescribed by the WPPT. Rather than restructure copyright law to conform to the WPPT, the U.S. ratified the treaty with a reservation under article 15 with respect to analog transmissions (Schrader, 1998). Digital transmissions are considered to be perfect copies of the work and, unlike analog transmissions, constitute distribution of the work.⁶ As will be shown, this distinction between analog and digital transmissions is a considerable source of dissensus.

Analysis of the Digital Performance Right

The copyright laws affecting music broadcasts are unbalanced in favor of traditional analog broadcasters. The DPRA and DMCA apply only to digital broadcasts due to the perception that these broadcasts constitute distribution of copyrighted works (Fausett, 2003, p. 15). Furthermore, analog broadcasts are considered by the music industry to be of greater value in promoting sales of music through traditional distribution networks than digital broadcasts (OMB Watch, 2002, DMCA & DRPA).

Each of these points, however, is not entirely compelling. First, all streaming technologies used to date implement compression for data transmission. Compression algorithms reduce the size of a digital file so that it may be streamed more effectively, particularly when the listener's computer is connected to the Internet via a low-bandwidth connection. Unlike files that are traded over peer-to-peer (P2P) networks, streamed data must be compressed and loses information in the process, thus degrading sound quality.⁷ The audio quality of a Real Audio or similar stream, compressed for a modem connection (usually less than 32 kbps), is essentially comparable to AM radio signal or a weak FM radio signal. Higher quality streams over broadband connections are also compressed and cannot be considered to be a perfect copy of the original work. Even if a user were to record the resulting data, a perfect copy would not result (Hacker, 2000). Streaming technology in the future may approximate perfect transmission, but otherwise the assumption that digital performance equals distribution is flawed.

Second, the assertion that digital broadcasts have no promotional potential compared to analog broadcasts is similarly unfounded. For example, SomaFM encodes its broadcasts in the MP3 data format, which allows additional information about the track to be embedded in the data stream. Additional information about the song is sent concurrently with the stream for display on the listener's software, and the station's Web site also displays a list of current and recently played tracks. Another webcaster, Radiovalve, also posts playlists on its Web site along with links to a major online music distributor's e-commerce site that allows users to directly purchase the works that were played (Radiovalve, 2003, playlist). Although not all webcasters use such methods in their broadcasts, the promotional value of such methods is clear. For example, listeners of these sites know the exact spelling of identifying information, such as the artist and song name, as the songs are played, the accuracy of which is of immense value to those seeking to purchase music that they heard during the broadcast. Additionally, Web based playlists are more accessible than analog radio DJs when one is trying to determine recently played tracks. Finally, the ability of digital broadcasters to link directly to retail sites for the purchase of music is unmatched by analog broadcasts (U.S. Congress, 2000, p. 159).

Considering that the claims by the recording industry that digital broadcasts have no apparent promotional value fails on its merits, there must be some other reason for digital broadcasts to be treated differently than analog broadcasts. One may assume that, given the technology available at the time the DPRA was drafted, there was no indication about the ways that digital broadcasts could be used to promote music. Alternatively, one may believe that the distinction made between analog and digital broadcasts indicates that the recording industry sought to use copyright to retain the same implicit editorial influence over digital broadcasts as it has over analog broadcasts. An example of such editorial control is the “sound recording performance complement,” which is a strict set of rules that a digital broadcaster must abide by in order to be eligible for a compulsory license under the digital performance right. Among other things, the performance complement prescribes the maximum frequency of play allowed for individual artists and music releases (Gasaway, 2003).⁸ The recording industry's major functions include both the production and marketing of music releases from a limited number of recording artists. The success of any particular recording artist traditionally depends upon established marketing structures, particularly that of editorial influence availed in syndicated programming and a variety of non-musical promotion venues. The potential for promotional competition from a multitude of non-syndicated, independent digital broadcasters threatens these traditional marketing networks and, thus destabilizes the music industry's business model.⁹ The distinctions made between analog and digital broadcasters under copyright law appear to be unnecessarily dichotomous in light of these assertions.

The Copyright Arbitration Royalty Panel

As previously described, the CARP system evolved from the Copyright Royalty Tribunal established by the Copyright Act of 1976. The current CARP system is an ad hoc, three-member arbitration panel that is appointed by the Librarian of Congress for a particular proceeding. CARPs review statutory royalty rates every five years, or in the case of digital transmission rates, every two years (17 USC §801). CARPs are bound by several different standards when considering royalty rates (U.S. Congress, 2002, statement of Rep. Zoe Lofgren). Under title 17 of the U.S. Code, the CARP must consider the following five guidelines when evaluating or recommending royalty rates:

(1) The rate should maximize the availability of diverse creative works to the public.

(2) The rate should afford the copyright owner a fair income, or if the owner is not a person, a fair profit, under existing economic conditions, in order to encourage creative activity.

(3) The rate should not jeopardize the ability of the copyright user -

(a) to earn a fair income, or if the user is not a person, a fair profit, under existing economic conditions, and

(b) to charge the consumer a reasonable price for the product.

(4) The rate should reflect the relative roles of the copyright owner and the copyright user in the product made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, risk, and contribution to the opening of new markets for creative expression and media for their communication.

(5) The rate should minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices. (17 USC §801(b)(1))

These guidelines were established with the 1976 Copyright Act, but do not apply to cable rate arbitration (17 USC §801(b)(2)). Furthermore, these guidelines make clear that consideration shall be given both to the public interest of access to diverse works and a fair compensation to the copyright owner. Finally, these guidelines do not apply to the arbitration of rates for digital transmissions, for which the DMCA established the following guidelines:

The copyright arbitration royalty panel shall establish rates that most clearly represent the fees that would have been negotiated in the marketplace between a willing buyer and a willing seller. In determining such rates and terms, the copyright arbitration royalty panel shall base its decision on economic, competitive, and programming information presented by the parties, including—

(A) whether use of the service may substitute for or may promote the sales of phonorecords or otherwise interferes with or enhances the copyright owner’s traditional streams of revenue; and

(B) the relative roles of the copyright owner and the transmitting organization in the copyrighted work and the service made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, and risk. (17 USC §114(f)(2)(B))

The difference in these sets of guidelines emphasizes the underlying concern of music distributors for the disruption of traditional modes of distribution. The new standards shift the determination of fair royalty rates for digital transmissions away from considering the availability of works to the public, and towards the consideration of market value and the sustainment of traditional streams of revenue. Furthermore, determining rates in consideration of a “willing buyer and a willing seller” proved to be troublesome for the CARP that convened following the enactment of the DMCA since no reliable precedent existed for establishing such rates.

The CARP Ruling

The DMCA expanded the digital performance right but left the task of determining reasonable rates and terms to the Librarian of Congress. A convoluted, three year process began at the end of 1998 that was marked by confusion, negotiation, and delays that are summarized in this section.

As directed by the DMCA, the Copyright Office initiated a 6-month period of voluntary negotiations in November 1998 to allow copyright holders and digital broadcasters to reach agreement about royalty rates and terms. These negotiations were intended to determine standard rates for both the compulsory digital performance licenses (§114 licenses) as well as the ephemeral copy license (§112 licenses) for the two-year period from the enactment of the DMCA through 31 December, 2000.¹⁰ Should the voluntary period expire without the adoption of industry-wide rates, or without an interested party filing a petition opposing the negotiated rates, the Librarian of Congress would adopt the terms of the negotiation without convening a CARP (U.S. Copyright Office, 1998, p. 65555).

Following the initiation of the voluntary negotiation period, the RIAA, representing the major record labels, entered negotiations with a number of online broadcasting services, but was unable to reach an agreement suitable to be considered industry-wide. Since no agreement was reached, the Librarian of Congress initiated CARP proceedings in order to establish initial royalty rates (U.S. Copyright Office, 1999, p. 52108). These proceedings had not yet completed when the next two-year negotiation interval began in January 2000. The Librarian of Congress initiated a second voluntary negotiation process for the years 2001 and 2002 (U.S. Copyright Office, 2000, p. 2195).

Soon after the second voluntary negotiation period was announced, the initial CARP proceedings were suspended pending the outcome of a petition filed with the Copyright Office by the RIAA. The RIAA sought to clarify whether or not analog broadcasts that are retransmitted over the Internet were statutorily exempt from the §112 and §114 provisions of title 17 (RIAA, 2000). Because of the controversy over the RIAA's petition, the LOC stopped first proceeding to await the outcome of the resulting court case initiated by the NAB (Bates, 2002). In the intervening time, the RIAA reached agreements with 26 separate webcasters, but, again, could not agree on an industry-wide rate agreement. Consequently, the RIAA filed a petition to initiate CARP proceedings for the 2001/2002 negotiation period, contingent on the resolution of the first CARP proceeding (U.S. Copyright Office, 2000b, p. 55303). In response to the second petition and the resolution of the impasse over broadcaster determination, the Copyright Office consolidated the hearings for both CARP proceedings (U.S. Copyright Office, 2000c, p. 77393).¹¹

On 20 February, 2002, after over three years of delays and deliberations, the consolidated CARP published recommended rates and terms pursuant to sections 112 and 114 of the copyright code. The final recommendation set three different rate structures for digital transmissions under §114. For broadcasts that retransmitted AM/FM radio broadcasts, the rate was set at seven cents per song per 100 listeners (.07¢ per song per listener). For all other webcasts, the rate was set at 14 cents per song per 100 listeners (.14¢ per song per listener). A third rate was set for non-Corporation for Public Broadcasting (CPB), non-commercial webcasters in three brackets: .02¢ per song per listener for retransmissions of AM/FM broadcasts; .05¢ per song per listener for other Internet broadcasts with up to two side channels; and .14¢ per song per listener for all additional side channels. The §112 rates for ephemeral recordings was set at nine percent of the §114 fees for all brackets (U.S. Copyright Office, 2002a, App. A).¹²

On 21 May, 2002, after a period of review, the Register of Copyrights rejected the CARP ruling (U.S. Copyright Office, 2002b). Subsequently, in a report released on 8 July, 2002, the Librarian of Congress set the §114 rate for retransmissions and webcasts to the same rate at seven cents per song per 100 listeners (.07¢ per song per listener) and the §112 rates for these transmissions to 8.8% of the §114 fees. For non-CPB, non-commercial webcasts, the retransmissions and webcast only rates were set at .02¢ per song per listener , the transmissions of other side channels set at .07¢ per song per listener, and the §112 rates also set to 8.8%.¹³ The Librarian of Congress based these adjustments on the assertion that the rates set by the CARP “do not reflect the rates that a willing buyer and willing seller would agree upon in the marketplace.” Furthermore, the Librarian of Congress noted that the panel was arbitrary in its consideration of previously negotiated royalties as a basis for the rates (U.S. Copyright Office, 2002c, Section IV).

Reactions to the CARP Ruling

Predictably, the final ruling by the Register of Copyrights was the source of a marked dissensus among copyright holders and webcasters. Three distinct problems characterize this dissensus: 1) the CARP rates were based on rates negotiated in an unbalanced relationship between the RIAA and webcasters, 2) the CARP proceedings excluded small and non-commercial webcasters, and 3) the rates set by the CARP compel webcasters to adopt a revenue-generating business model and constitute a penalty to webcasters for success.

First, the rates were based on previously negotiated rates reached in an unbalanced relationship. Webcasters maintained that the rates were too high, while the RIAA asserted that the rates were too low (Palenchar, 2002). Each side invoked the argument that the rates do not reflect the terms that would be set by a “willing buyer and willing seller,” and with good reason: no party in the proceedings could accurately define what constituted a willing buyer and willing seller in the case of digital broadcasts. Without a basis in precedent, the rationale used by the CARP in determining the initial recommendations based the rates on those that were negotiated individually between the RIAA and 26 different webcasters. Of these 26, only the rates negotiated with Yahoo! were considered by the panel, mainly because many of the other 25 companies that negotiated with the RIAA could not maintain operations under the negotiated rates. Furthermore, the rates set by the RIAA in these agreements are believed to have been artificially inflated by the RIAA's unfair bargaining position in order to influence the CARP proceedings and stifle competition from smaller webcasters (U.S. Copyright Office, 2002a, section V).¹⁴

Second, smaller and non-commercial webcasters complained that they were left out of the CARP process and had no voice as “willing buyers.” The CARP proceedings in 2000 spanned many months and required on-site representation in Washington, D.C. Larger companies and business entities normally have little difficulty meeting the expenditures required for such proceedings, however, smaller webcasters as a nascent industry have fewer resources available and are unable to represent themselves before the CARP (Kidd, 2003). To complicate matters, in order to challenge a CARP ruling, the petitioner must have been a party to the negotiations. Because of this exclusion, lawsuits initiated by certain smaller webcasters were dismissed outright. Consequently, smaller webcasters had no means of relief and faced large retroactive royalty payments if they wished to continue broadcasting. As it happened with SomaFM, many webcasters and analog re-broadcasters simply stopped their webcasts rather than be held liable for the required payments (Kidd, 2003; Jackson, 2003; Maloney, 2002).

Third, an indirect consequence of the ruling is to dissuade new and existing webcasters from adopting a not-for-profit model of business. As mentioned earlier, webcasting requires very little capital investment. The copyright royalties for digital performance increased the operating costs for webcasters and effectively raised the barriers to entry for the establishment of a webcasting operation. Furthermore, under a per-listener royalty rate, unbounded increases in listenership accrue large royalty payments while not affecting the revenue of the station. Many of the stations that ceased broadcasting were hobbyists and niche broadcasters that did not operate for profit or as part of a revenue-generating business model and could not sustain operations because of increased operating costs due to royalties. Even without a listener surge, these webcasters could not continue to broadcast under the new rate structure without establishing a revenue-generation model, most likely based on program formats favored by established music industry conglomerates which support well-known, heavily marketed music. Understandably, such an approach conflicts with the efforts of broadcasters whose programming caters to niche markets. In summary, the royalty rates effectively constitute a form of control by the music industry over the diversity of webcasting, made possible by the unbalanced relationship between broadcasters and music conglomerates (U.S. Congress, 2000, p. 158).

Alternatives and Remedies

SomaFM ceased broadcasting after the CARP ruling, but not entirely. The station continued broadcasting one of its channels using a new technology, peer-to-peer broadcasting, specifically, a program called Peercast. First made available in April of 2002, PeerCast, like other P2P software, creates a semi-anonymous network over the Internet that relies on connections to other computers using the same software. If implemented and used properly, PeerCast allows broadcasting stations to remain completely anonymous and thus able to avoid broadcasting prohibitions such as local laws and community standards. PeerCast can be used by dissidents to avoid censorship by repressive regimes as well as by hobbyists as a platform for low cost digital broadcasting – the software is free, and the Internet bandwidth required to broadcast is significantly less than what is required by other webcasting software (PeerCast, 2003). SomaFM sought to retain some of its audience while waiting to see what sort of legislative or judicial copyright royalty relief would occur. They would not have to wait long.

Soon after the CARP ruling and subsequent adjustment, a series of bills entered consideration in Congress to offer royalty relief for small and non-commercial webcasters. The first bill, the Internet Radio Fairness Act (IRFA, H.R. 5285, 107^th Congress) directed a CARP to determine new, lower rates for small webcasting businesses and organizations. While this bill was in committee, a second bill was introduced by Representative James Sensenbrenner (R-WI), the Small Webcaster Amendments Act (SWAA, H.R. 5469, 107^th Congress). The SWAA began by simply requiring a six month moratorium on the payment of royalties to allow for further negotiations between webcasters and copyright holders. Sensenbrenner personally took the initiative to bring the parties together for negotiations. By the end of these negotiations, the SWAA was considerably more complex having integrated the terms of the negotiations, including a revenue-based royalty model (Kidd, 2003).

The SWAA passed in the House and was immediately referred to the Senate. There the SWAA was replaced by a similar bill introduced by Senator Jesse Helms (R-NC), the Small Webcasters Settlement Act (SWSA, PL 107-321). The SWSA also prescribed a moratorium on royalty payments to allow webcasters to negotiate with copyright holders. Unlike the SWAA, however, the SWSA authorized SoundExchange, a company established to collect and distribute broadcasting royalties, to negotiate directly with webcasters.¹⁵ The Copyright Office is also obliged by the act to report any such agreements in the Federal Register. Additionally, the SWSA defined two classes of webcaster, one class for non-commercial webcasters, including colleges and public radio, and another class for small commercial webcasters. The SWSA further recommended differential royalty rate consideration for the two classes of webcasters. Furthermore, the act specified that privately negotiated rates should not be considered in future CARP proceedings, which remedied some of the failings of the initial CARP proceedings. Finally, the SWSA directed the Comptroller General to report to Congress in June 2004 about the effects of the new rates on webcasters. The SWSA was signed into law on December 4, 2002.

Upon hearing about the passage of the SWSA, SomaFM announced that it would resume broadcasts. The new law allowed the station some time to raise funds to pay back royalties and potentially take advantage of any newly negotiated rates (SomaFM, news and events page). A major agreement was negotiated in December 2002 between SoundExchange and Voice of Webcasters, an organization made up of small webcasters that formed in response to the exclusive nature of the CARP proceedings. The agreement, announced on December 24, 2002, set several new terms that could be used by small webcasters instead of the adjusted CARP rates set in July 2002. Among these terms is a provision for qualified small webcasters to pay royalties on a percentage of revenue or expenses instead of a per song per listener basis. Additionally, the agreement established minimum annual royalty payments for two types of small webcasters, those earning less than $50,000 annually and those earning between $50,000 and $500,000 annually. The agreement also set new minimum retroactive payment amounts and reduced the reporting requirements for eligible stations (U.S. Copyright Office, 2002d).

A second agreement was announced in May 2003. SoundExchange and a group of membership organizations representing educational, religious, and non-profit webcasters, agreed to new retroactive fees for educational, non-profit, and hobbyist webcasters that were more appropriate to the resources available to these webcasters. Additionally, the agreement set a flat annual rate for 2004 (U.S. Copyright Office, 2003a). As an alternative to the CARP rates, these agreements, made possible by the SWSA, helped to remedy some of the problems that the CARP negotiations had in excluding small webcasters.

Effects and Future Remedies

In light of the background and issues in digital performance copyright, what was the effect on webcasting in general? Despite the fact that a number of small webcasters quit broadcasting rather than pay four years worth of retroactive royalties, broadcasts by small webcasters in general have not ceased. SomaFM, having revived eight of its original eleven channels without radically altering their format or business practices, is an example of a station that has thus far avoided the potentially deleterious effects of the CARP decision. The CARP decision and subsequent rulings, then, did not defeat webcasting, however, the effects on diversity have yet to be seen. The provisions of the Small Webcasters Settlement Act set a precedent of support for the cause of small and non-commercial webcasting. These provisions will expire in 2004, however, and do not assure that small webcasters will be protected indefinitely from the RIAA and other copyright interests. The 2003/2004 negotiation period is underway as of this writing, but, so far, no significant changes have occurred. Even without new royalties and instruments of control, the long term effects of the existing royalty rates on small webcasters are yet to be determined.

Regardless of the indeterminate effects of the CARP ruling and recent digital performance copyright laws on diversity, discontent over the royalty determination process has helped to identify flaws in the system that may be remedied by legislation. For example, a bill currently in Congress, the Copyright Royalty and Distribution Reform Act (CRDR, H.R. 1417, 108^th Congress), seeks to remedy the inconsistencies and ad hoc procedures demonstrated by the CARP. The CRDR replaces the CARP panel with a permanent copyright judge having full power to make binding decisions and serving renewable 5-year terms. A permanent copyright judge remedies the arbitrary and inconsistent decisions handed down by the temporary, ad hoc CARP panels. Additionally, the CRDR makes the decisions of the copyright judge appealable to the U.S. Court of Appeals in Washington D.C. The appeals provision of the CRDR eliminates the controversy that exists over the current, exclusive CARP review system. A second bill under consideration extends the provisions of the SWSA for another year, delaying the payment of retroactive royalties and allowing more time for small webcasters to mature as an industry (H.R. 2255, 108^th Congress).

Current legislation addresses some of the immediate concerns for the diversity in webcasting, however, the assumptions on which the digital performance right is based as well as the inequities between analog and digital performances should also be addressed. As discussed earlier, digital performances offer new and innovative methods for promoting music that has the potential to exceed the promotional capabilities of traditional radio. Furthermore, the sound quality of webcasts seldom exceeds that of analog radio broadcasts. Consequently, recordings made from such webcasts cannot be considered distribution any more than recordings made from analog radio. The DRPA and subsequent legislation regarding the digital performance right failed to account for these mitigating factors. For these reasons, the unequal consideration of analog radio in deference to digital transmissions should be remedied in future legislation. Furthermore, the CARP guidelines for digital performance royalties should be altered to restore consideration of the availability of diverse works to the public in addition to fair compensation for copyright holders. Although such legislation may prove to be politically inexpedient because of the political advantage that broadcasters have in the media, the introduction of digital broadcast radio is likely to renew this debate. Congress will then be faced with one of two choices: either to continue to enforce the dichotomy between traditional broadcasters and digital broadcasters, or to redefine the performance right in a more equitable way, accounting for both diversity and fair compensation for performance.

Conclusion

As is the case with all media, diversity in webcasting supports the national interest to promote the “useful arts” and free expression in general. In the late 1990s, efforts by corporate copyright holders and the influence of international treaties succeeded in granting exclusive rights to copyright holders for digital broadcasts. The laws that created and amended these rights, the Digital Performance Right Act and the Digital Millennium Copyright Act, enforced an uneven legal landscape between the traditional broadcast industry and the emerging digital broadcasting industry.

The unbalanced relationship between these two stakeholders is characterized by two critical assumptions. First is the assumption that digital transmissions of music are equivalent to exact duplication. Second, the potential for webcasting as a promotional medium is highly understated. Furthermore, copyright royalty rates that were determined in 2002 by the U.S. Copyright office sustained these inequities and threatened to cause the failure of small webcasting operations. Soon after the royalty rates were determined, the Congress passed legislation to assist small, non-commercial webcasters and sustain the nascent webcasting industry. New efforts to assist small webcasters and reform the copyright arbitration process are ongoing, but should be expanded in order to protect diversity and eliminate the inequities in the performance right. Although webcasting did not disappear or consolidate to significantly fewer outlets as a result of the CARP decision, the overall effects on diversity in webcasting are as yet indeterminate.

Notes

1Software is available that may allow a user to create copy of the program via the computer's sound hardware or by intercepting the incoming datastream from the network. Additionally, one may record the program, via a sound card, onto a recording medium separate from the computer (e.g., a cassette deck). The average user, however, is not typically aware of these methods. Furthermore, streaming typically creates temporary files to buffer the recording and improve network performance. These temporary files are destroyed in the process of playing the stream and do not constitute a useable copy of the program (Porcelli et al., 2002).

2From Arbitron surveys in 2001 and 2003: “When It Comes To Choosing Internet Audio, It's the Content, Not the Signal” (2001, p.20); “Listening to Radio Station Webcasts Exceeds One in Three Online” (2001, p.23). ”Consumers tell us that they perceive Internet audio to be another form of radio, rather than something new or different from radio.” (2003, p. 24); “One out of Five Americans Have Used Internet Audio or Video in the Past Month“ (2003, p. 11).

3Edward O. Fritts, President and CEO, National Association of Broadcasters in 2000: “The symbiotic relationship with the music industry benefits both industries. As we go forward into the world of Internet, I would suggest that the system continues to operate well.” (U.S. Congress, 2000, p.131); “legislative history of the Act manifests Congress's clearly expressed desire not to affect the long-standing, mutually beneficial relationship between radio broadcasters and the record industry.” (U.S. Congress, 2000, p.138)

4The U.S. is a signatory to the Berne Convention for the Protection of Artistic and Literary Works, which does not recognize copyrights for musical works. Meanwhile, the E.U. is party to the 1961 Rome Convention on Neighboring Rights that explicitly protects musical works. In negotiations leading to the WPPT, the E.U., against the desires of the U.S., staunchly refused to modify the Berne Convention to include musical works, desiring instead to create a new treaty for the purpose (Schrader, 1998, pp. 4-5).

5A “phonogram,” as defined by the WIPO, embodies both the recorded work and the underlying musical composition. In contrast, the United States considers these two entities to be distinct under the law: the recorded work is referred to as a “phonorecord” (Schrader, 1998, p. 5).

6“The digital environment of today allows users to transmit perfect versions of copyrighted material over the Internet on computers. As the deployment of technologies such as broadband make streaming more commonplace, we will see a positive exploitation of copyrighted works webcast over the Internet.” Quotation from the opening statement of chairman Coble (U.S. Congress, 2000, p. 11)

7This assertion is not entirely true. Most files traded on peer-to-peer networks are encoded in MP3 format, which is also a compressed format. The difference to note here is that P2P networks do not require compression while streaming does.

8The full conditions of the sound recording performance complement: “(1) The webcast may not be a subscription service; in other words, users must not be able to select and play songs on demand. (2) Within a three-hour period, the webcaster cannot play more than three tracks from an album, and no more than two consecutively, nor more than four tracks by a given artist, and no more than three consecutively. (3) If the webcast is archived, the archive must be at least five hours long, and it may not be made available for more than two weeks. (4) If the webcast repeats itself (plays in a loop), then the loop must be at least three hours long. (5) Prior playlists of songs may not be published. (6) The webcaster must identify the song title, album title, and the featured artist during the performance of the song. (7) Finally, the webcaster must not encourage users to copy or record the music being played and must disable copying by users in possession of technology capable of copying the recording.” (Gasaway, 2003, p. 38)

9Bill Goldsmith of KPIG Radio, an early adopter of webcasting: “[A] member of the RIAA legal staff... looked me in the eye and... [said] that unless we were running tightly-controlled playlists of nothing but the top big-label hits they saw no promotional value whatsoever to them in our efforts to promote artists & CD sales” (Searls, 2002)

10The ephemeral copy royalty applies to the copy that the webcaster makes in order to facilitate streaming. The temporary copies made throughout the network and in the buffer of the listener's computer are considered to be fair use copies and exempt from remuneration (Porcelli et al., 2002).

11The resolution of the RIAA request for determination of broadcaster status is tangential to this discussion, but, for the record, the Copyright Office ruled that retransmissions of AM/FM broadcast signals are not exempt from the licensing provisions of the DMCA (Bates, 2002).

12Jackson (2003) offers an excellent account of the considerations and the process that the CARP followed.

13In comparison, the final digital performance rates are more than three times larger than the corresponding performance royalties for the underlying work (Jackson, 2003, p. 476).

14Mark Cuban, founder of Broadcast.com (which was later sold to Yahoo!) and architect of the RIAA-Yahoo! deal in 1999: “The Yahoo! deal I worked on... was designed so that there would be less competition, and so that small webcasters who needed to live off of a 'percentage-of-revenue' to survive, couldn't” (Maloney & Hanson, 2002)

15SoundExchange was incorporated by the RIAA in November 2000, however, the company became a fully independent, nonprofit performance rights organization in September 2003 (SoundExchange, 2003, News). Additionally, the Copyright Office issued regulations governing royalty transactions by SoundExchange in June 2003 (U.S. Copyright Office, 2003b).

References

Arbitron (2001). Internet 9: The media and entertainment world of online consumers . Retrieved on 21 November 2003 from http://www.arbitron.com/ad_agencies/ratings_reports_freestudies.htm.

Arbitron (2003). Internet and multimedia 11: New media enters the mainstream. Retrieved on 21 November 2003 from http://www.arbitron.com/home/internet11.asp.

Bates, Andrea (2002). Webcasters face retroactive royalties in October. National Law Journal, 25(3), B8.

Fausett, Brett (2003). Radio, radio why not let the webcasters play? New Architect, 8(2), 14-15.

Gasaway, Laura (2003). Webcasting and copyright. Information Outlook, 7(2), 38-40.

Hacker, Scot (2000). MP3 : The definitive guide. Sebastopol, CA: O'Reilly.

Jackson, Matt (2003). From broadcast to webcast: Copyright law and streaming media. Texas Intellectual Property Law Journal, 11(3), 447-482.

Kidd, Allison (2003). Mending the tear in the Internet radio community: A call for a legislative band-aid. North Carolina Journal of Law & Technology, 4(2), 339-373.

Lessig, Lawrence (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books.

Maloney, Paul & Hanson, Kurt (2002). Cuban says Yahoo!'s RIAA deal was designed to stifle competition. Radio and Internet Newsletter, 24 June, 2002. Retrieved on 21 November, 2003 from http://www.kurthanson.com/archive/news/062402/.

Maloney, Paul (2002). Silenced by royalties. Radio and Internet Newsletter, 1 October, 2002. Retrieved on 21 November, 2003 from http://www.kurthanson.com/archive/news/100102.

OMB Watch (2002). Complaints broadcast response to webcasting CARP. Retrieved on 20 November, 2003 from http://www.ombwatch.org/article/articleview/892/1/77/.

Palenchar, Joseph (2002). All sides dislike federal ruling on webcasting. This Week in Consumer Electronics 17(16), 6.

PeerCast (2003). Retrieved on 22 November, 2003 from http://www.peercast.org.

Porcelli, Natalia, Selby, Sharon, Tantono, Welly, Bagner, Jessica, & Sonu, Christine (2002). House judiciary holds hearings on Internet music report. Intellectual Property & Technology Law Journal, 14(3), 27.

Radiovalve (2003). Retrieved on 31 October, 2003 from http://www.radiovalve.com.

Recording Industry Association of America (RIAA) (2000). Petition for rulemaking. Retrieved on 14 November, 2003 from http://www.copyright.gov/carp/RIAApetition.pdf.

Schrader, Dorothy (1998). WIPO performances and phonograms treaty: An overview (CRS 97-523A). Washington DC: Congressional Research Service. Retrieved on 31 October, 2003 from http://www.ipmall.info/hosted_resources/CRS_Index_1998.asp.

Searls, Doc (2002). The continuing death of Internet radio in the US. Suitwatch: Views on Linux in business (October 17, 2002). Retrieved on 21 November, 2003 from http://www.ssc.com/pipermail/suitwatch/2002q4/000032.html.

SomaFM (2003). Retrieved on 14 November, 2003 from http://www.somafm.com.

SoundExchange (2003). Retrieved on 14 November, 2003 from http://www.soundexchange.com.

U.S. Congress (2000). House hearing before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary: 15 June, 2000. Retrieved on 20 November, 2003 from http://purl.access.gpo.gov/GPO/LPS8066.

U.S. Congress (2002). Copyright Arbitration Royalty Panel oversight: Hearing before committee on House Judiciary Subcommittee on Courts, the Internet and Intellectual Property: 13 June, 2002. Retrieved on 14 November, 2003 from http://www.house.gov/judiciary/lofgren061302.htm.

U.S. Copyright Office (1998). Docket no. RM 98-4 CARP: Digital performance right in sound recordings and ephemeral recordings. Federal Register, 63(228), 65555-65557. Retrieved on 14 November, 2003 from http://www.copyright.gov/fedreg/1998/63fr65555.html.

U.S. Copyright Office (1999). Docket no. 99–6 CARP DTRA: Digital performance right in sound recordings and ephemeral recordings. Federal Register, 64(186), 52107-52109. Retrieved on 21 November, 2003 from http://www.copyright.gov/fedreg/1999/64fr52107.pdf.

U.S. Copyright Office (2000). Docket no. 2000–3 CARP DTRA2: Digital performance right in sound recordings and ephemeral recordings. Federal Register, 65(9), 2194-2195. Retrieved on 14 November, 2003 from http://www.copyright.gov/fedreg/2000/65fr2194.pdf.

U.S. Copyright Office (2000). Docket no. 2000–3 CARP DTRA2: Digital performance right in sound recordings and ephemeral recordings. Federal Register, 65(178), 55302-55303. Retrieved on 14 November, 2003 from http://www.copyright.gov/fedreg/2000/65fr55302.pdf.

U.S. Copyright Office (2000). Docket no. 2000–9 CARP DTRA1 & 2: Digital performance right in sound recordings and ephemeral recordings. Federal Register, 65(238), 77393-77394. Retrieved on 21 November, 2003 from http://www.copyright.gov/fedreg/2000/65fr77393.pdf.

U.S. Copyright Office (2002). Report of the copyright arbitration royalty panel. Retrieved on 14 November, 2003 from http://www.copyright.gov/carp/webcasting_rates.html.

U.S. Copyright Office (2002). In the matter of digital performance right in sound recordings and ephemeral recordings. Retrieved on 21 November, 2003 from http://www.copyright.gov/carp/webcasting-rates-order.html.

U.S. Copyright Office (2002). Determination of reasonable rates and terms for the digital performance of sound recordings and ephemeral recordings: Final rule. Federal Register, 67(130), 45239-45276. Retrieved on 14 November, 2003 from http://www.copyright.gov/carp/webcast_regs.html.

U.S. Copyright Office (2002). Notification of agreement under the small webcaster settlement act of 2002. Federal Register, 67(247), 78510-78513. Retrieved on 14 November, 2003 from http://www.copyright.gov/fedreg/2002/67fr78510.html.

U.S. Copyright Office (2003). Notification of agreement under the small webcaster settlement act of 2002. Federal Register, 68(112), 35008-35012. Retrieved on 23 November, 2003 from http://www.copyright.gov/fedreg/2003/68fr35008.html.

U.S. Copyright Office (2003). Determination of reasonable rates and terms for the digital performance of sound recordings. Federal Register, 68(117), 36469-36470. Retrieved on 23 November, 2003 from http://www.copyright.gov/fedreg/2003/68fr36469.html.

Eldred v. Ashcroft: Copyright Extensions and the Threat to the Public Domain

tkiehne — Thu, 06 Nov 2003 06:25:41 +0000

Copyright law in the United States derives from the Constitution, which charges Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Title I, §8, Clause 8). The expression of this seemingly uncomplicated statement is a compromise between the right of free speech as granted by the First Amendment, and investment in the creation of new works by granting a temporary monopoly on the expression of ideas and inventions. In the time between the passage of the Copyright Act of 1790 and the passage of the Copyright Term Extension Act of 1998 (CTEA), a fundamental changes occurred in the way that information is valued by society which corresponds with the ascension of the concept of “intellectual property.” The legal challenge to the CTEA in the case of Eldred v. Ashcroft is an expression of a dichotomy between the free exchange of ideas and compensation for those who express the ideas. The development of an imbalance between opposing sides of this dichotomy and the implications the imbalance has for the public domain will be explored in this paper.

The CTEA was the first major change in copyright since the 1976 Copyright Act. European Union (E.U.) directives in the mid-1990's promulgated the extension of U.S. Copyright durations in order to at least match the duration of copyright in the E.U. and ensure that works produced in the United States would be afforded similar copyright protection in Europe as in America. The current term of life of the creator plus 70 years (95 years in the case of “works for hire”) meets, and in may cases exceeds, the durations of copyright in the E.U. (Schrader, 1998). The extended duration of copyrighted works, as with previous extensions, were applied not only to works emerging subsequent to the passage of the CTEA, but also to all works that were under copyright at the time of passage.

The retroactive copyright extension, as well as concern for the balance of the public domain versus exclusive monopolies over creative works, compelled Eric Eldred and others to present a legal challenge to the CTEA in 1999. Eldred is the founder of Eldritch Press, which is a collection of online texts that are mostly derived from works that have left copyright and entered the public domain. Eldred recognized the power of the Internet for enhancing access and adding value to intellectual works, which is why he took particular exception to the retroactive copyright extensions granted by the CTEA. Eldred claimed that the new law exceeded the intent of the “limited times” clause in the Constitution. Eldred further asserted that the CTEA abridged his First Amendment right to freedom of the press (Lessig, 2001).

Eldred's case before the Supreme Court did not challenge copyright term extension in principle, but specifically challenged the authority of the Congress to extend copyrights that had already been granted. The justification for this argument was that the extension of copyright for works just about to enter the public domain directly prevented him from publishing such works, curtailing his right to freedom of the press. By approaching his case in this way, however, Eldred avoided the larger issue of the “limited time” of copyrights in favor of a weaker assertion that Congress could not amend copyright terms that were already in effect. In his dissent, justice Breyer presents a much stronger case against copyright extensions than Eldred, citing, among other things, a cost-benefit analysis that was provided to the Congress during its deliberations on the CTEA (Eldred, 537 U.S., Breyer, J. dissenting & Rappaport, 1998). The majority opinion of the court was not in agreement with justice Breyer's and the court readily dismissed Eldred's argument, citing precedent in previous Congressional acts that had enhanced existing copyrights along with copyrights not yet granted (Eldred, opinion).

Additionally, Eldred claimed that the CTEA represented a regulation of speech that overstepped the bounds of the First Amendment, and, thus, a broader examination of the balance between copyright and free speech was warranted. The court examined this claim in the context of the “idea/expression dichotomy” expressed by the copyright clause and determined that the CTEA did not change the balance of copyright and freedom of speech. Furthermore, the court invoked the concept of “fair use,” stating that copyright law grants the public unrestricted use of the knowledge gained from copyrighted works and does not abridge speech that is based upon such knowledge (Eldred, opinion). Eldred's First Amendment claim addressed the theoretical underpinnings of copyright law, but failed to generate the momentum that could be forced by a more fundamental examination of Congressional copyright term extensions.

Thus, the two sides presented in the Eldred v. Ashcroft case may be viewed as a modern expression of the dichotomy between the right to free speech and the rights of creators, the issues which also confronted the framers of the U.S. Constitution. The language of the copyright clause represents a delicate compromise that balances the need to promote the creation of new ideas with the need to allow for the free exchange of such ideas. None but the most radical of opinions believes that one side of the free speech versus copyright equation should prevail absolutely. As Vaidhyanathan so eloquently stated: “There is no 'left' or 'right' in the debates over copyright... There are those who favor 'thick' protection and those who prefer 'thin'” (2001, p.8). The debate is generally over degrees: the degree of economic benefit for creators versus the degree of public access to information. As we will see, however, these two sides have become highly unbalanced.

Balancing Incentives and Access

The framers of the Constitution recognized the need to provide financial incentive for the creation of intellectual works and inventions. The scope of this compensation, however, has changed greatly since the 1790s, when an author of a work could expect no more than two 14-year terms of exclusive rights to his work (Vaidhyanathan, 2001). The 28 year maximum term of copyright represented direct compensation to the original author for the work created. In contrast, the current life plus 70 years represents not only compensation for the author, but for up to two succeeding generations as well. While it may not be arguable that the extended term is a form of incentive for creators, it is reasonable to assume that a term of copyright that benefits the heirs of a work prefers economic benefit for copyright holders over promoting intellectual creation for the benefit of the public. As justice Breyer mused, “How will extension help today's Noah Webster create new works 50 years after his death?” (Eldred, Breyer, J. dissenting)

Additionally, changes in the copyright stakeholders have occurred in addition to the changes in copyright duration. Copyrights granted under the original copyright laws were literally granted to individual authors and inventors for works they created. Social and economic changes have since defined authorship to apply to corporate entities and others that are not creators in the traditional sense. The preponderance of copyrighted material is “owned” by large corporations that have obtained these materials as “works for hire” or by various transferrals of rights from the original creators. The image of the struggling author or inventor is an anachronism in this time of “intellectual property” (Vaidhyanathan, 2001). We realize instead that the stakeholders in the copyright issue are primarily corporations seeking to retain and extend their property rights over intellectual works, and secondarily the public at large which represents, ironically, both the source of new ideas and of revenue for corporate works.

Furthermore, within the last century, transnational corporations began to realize the potential value of their “intellectual capital” and, via non-governmental organizations such as the World Trade Organization (W.T.O.), sought to take measures to maximize control of their “intellectual property.” The court opinion in the Eldred case expressed that the alignment of U.S. Copyright laws to those of the E.U. is a major justification for supporting the CTEA as it represents further protection in Europe for American works (Eldred, opinion). Considering that the changes in the E.U. copyright law were promulgated by the W.T.O., however, we realize that a situation has arisen whereby copyright holders have indirectly dictated copyright law through the actions of unelected multilateral nongovernmental bodies (Vaidhyanathan, 2001). In effect, corporate stakeholders extended the definitions of both the duration and beneficiaries of copyright without effective review by public stakeholders.

Despite these fundamental shifts in what constitutes “limited times” and “authors,” the court took no stance against Congress' jurisdiction over defining these terms. Additionally, the court's decision effectively validated the constitutionality of the CTEA and all previous copyright laws, and potentially rendered future review of Congress' actions under the copyright clause to be “judicially unreviewable” (Eldred, Stevens, J. dissenting). The net effect of the Eldred case is to acknowledge the increased powers of copyright holders over their works which “rewards the established at the expense of the emerging” and sets the precedent for further strengthening copyright holders' powers at the expense of the public (Vaidhyanathan, 2001, p.186).

The court offered “fair use” as a guarantee that copyrighted works may be used to enrich other forms of expression within certain limits (Eldred, opinion). We must consider, however, that fair use is a statutory provision that is not explicitly supported in the copyright clause, and, if the Congress, as influenced by copyright holders, is willing to loosely interpret the definition of an explicit term such as “limited times,” then it is plausible that fair use could be curtailed or eliminated. Furthermore, new technologies enable copyright holders to exercise tighter control over how their works are disseminated and used. These technologies are generally exclusive of any kind of use other than explicit commercial use which, by definition, excludes fair use (Lessig, 2001). The assertion of fair use as a statutory bulwark for the public domain against powerful copyright interests in an already unbalanced relationship is hardly reassuring.

Furthermore, we must consider other effects on the public domain of the increasing control of intellectual works. The confluence of long copyright durations and ephemeral media, particularly volatile formats such as film or electronic media, exacerbates the problem of access to information. For such copyrighted works to be preserved for longer than 70 years, one of two conditions must be met. Firstly, the copyright holder must have sufficient economic incentive to preserve the work, either through publishing of the original work, or creation of derivatives on newer, more stable media. The percentage of works meeting this first criteria, however, is exceedingly small, on the order of 1-2% over the term of an extended copyright (Rappaport, 1998). Alternately, preservation efforts of less profitable works must be made, either by the copyright holder, or by libraries and archives, as it is permitted under the CTEA during the last 20 years of a copyright term. While an intellectual work is economically valuable initially, it becomes historically valuable over a sufficiently long time. Therefore, barring either of the aforementioned efforts at preservation, there is a significant likelihood of gaps in popular memory as expressed by works that eventually enter the public domain. A cultural history remembered only through works that are financially solvent lacks the diversity and richness represented by all creative efforts. Furthermore, building on existing public domain works is critical to perpetuating innovation and creativity in the public sphere and the denial of access to creative effort due to obsolescence and the whims of the market weakens this form of social conversation.

Conclusion

Creation is driven by the combination of availability of public domain material and incentives gained from copyright. Copyright holders have never before had so much control over their works as permitted under the current laws and, as a result, the public domain has never been weaker. Additionally, Congress has seldom proved to be unwilling to increase copyright controls, while the Supreme Court, as expressed in the opinion of Eldred v. Ashcroft, has so far decided not to intervene on the behalf of the public domain. The degree to which copyright holders control their works will only increase as new technologies are developed and will further shift the balance to the holders' benefit at the expense of fair use and the open exchange of ideas. Furthermore, increased copyright control diminishes the pool of ideas and knowledge from which new works that build on the existing cultural dialog may be derived. In effect, our cultural memory risks being relegated to the fewer, more profitable works, while the greater body of works that represent a much greater diversity falls into obscurity.

References

Eldred et al. v. Ashcroft, 537 U.S. XX (2003). Retrieved on 30 October 2003 from http://supct.law.cornell.edu/supct/html/01-618.ZO.html.

Lessig, Lawrence (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books.

Rappaport, Edward (1998). Copyright term extension: Estimating the economic values (CRS 98-144 E). Washington D.C.: Congressional Research Service. Retrieved on 30 October 2003 from http://www.ipmall.info/hosted_resources/CRS_Index_1998.asp.

Schrader, Dorothy (1998). Proposed U.S. copyright term extension (CRS 95-799 S). Washington D.C.: Congressional Research Service. Retrieved on 30 October 2003 from http://www.ipmall.info/hosted_resources/CRS_Index_1998.asp.

Vaidhynathan, Siva (2001). Copyright and copywrongs: The rise of intellectual property and how it threatens creativity. New York: New York University Press.

The USA PATRIOT Act: An Analysis of Privacy in the Context of a Changing Definition of Security

tkiehne — Thu, 23 Oct 2003 06:28:09 +0000

The terrorist attacks of September 11, 2001, and the subsequent “war on terror” have created a divisive climate in terms of discussions of personal privacy and management of public information. One side of the issue supports limited privacy and retention of “sensitive” information in the interest of greater security and a means of defeating terrorism. The opposite side notes the loss of privacy and posits a “Big Brother” scenario. Regardless of the differing views, an infirm definition of privacy in the context of the evolution of the national security concept created conditions for a marked dissensus in privacy and information policy. Laws created in reaction to the terror attacks have compelled greater discussion of privacy law and illustrated fundamental alterations to the balance of power within the Federal government. In this paper I will consider the following questions: 1) How has the concept of national security evolved, especially with respect to information policy and the power of the executive branch? 2) What are the effects of the homeland security concept on privacy, particularly with regards to political dissent? 3) How have these changes affected the structure of privacy policy in the United States?

From “National Security” to “Homeland Security”

To understand how federal information policy has changed with recent events, it is helpful to understand some history behind the concept of national security and the ways in which the sense of national self has changed. The concept of national security in the United States is an expression of the idea of a national self that projects national defense into the realm of foreign policy. Scholarly discussions of U.S. foreign policy and national interests in the mid-1930's described foreign policy interests at the time to be primarily economic in scope. During the intervening years between World Wars One and Two, events occurring outside the borders of the nation were increasingly viewed as being directly pertinent to internal interests. A corresponding assertion held that the U.S. should have the ability to protect its internal values from external threats, and advocated the integration of American military power and foreign policy,¹ a concept which came to be known as “national security” (Relyea, 2003).

The national security concept matured after the U.S. emerged from the Second World War into primarily an information restriction concept that attributed greater powers to the executive branch of government. The National Security Act of 1947 codified the national security concept and established a number of institutional structures for managing information that the executive thought to be sensitive to the cause of national security. In addition to specifying procedural methods, the executive branch of government controlled the new national security instruments: the Central Intelligence Agency, National Security Council, and a reorganized military. The public, as represented by the legislative branch, was largely removed from the decision process for determining what, exactly, constitutes national security² (Relyea, 2003).

The interactions of the various security instruments soon came to define national security in terms of restraint of information. For example, classification of government information (e.g., “secret”, “top secret”) became a primary tool for determining the potential for accessibility of documents available outside and within the security apparatus. Furthermore, restriction of scientific research and the authorization of exceptions to patent law were implemented to protect against the hindrance of technological advancements considered to be in the interest of national security (Relyea, 2003). In each of these cases, the determination of what information is vital to national security originated from within the executive branch, and thus an increasing amount of government-generated information was removed from the scrutiny of the public.

Threats to the security of the United States came to be defined during the Cold War as both external and internal in nature, particularly as directed against the government. During the course of the Cold War, the primary external concerns to the security of the United States were related to various communist and socialist nations and insurgencies, particularly the Soviet Union and the Warsaw Pact states in Eastern Europe and conflicts in Eastern Asia. By the mid-1960's, domestic unrest over civil rights and Vietnam led many within the government to believe that foreign interests supported domestic dissent as well as traditional espionage. These sentiments defined the security of the nation in terms of security of the government, a definition that marks a shift of the idea of the national self from one that includes the nation at large to one that excludes the opinions of those who express dissent. The fundamental assumption supporting the redefinition of national self is that what is good for the government is good for the public (Flaherty, 1997, p. 173).

Although the attacks of September 11, 2001, did not change the fundamental definition of the security threat to the U.S., they provided the impetus for the conceptual shift from national security to “homeland security.” The homeland security concept maintains the idea of an exclusive national self and shares the characteristics of national security involving information restriction and executive authority. Furthermore, homeland security borrows from the civil defense concept in that both are related to imminent physical threats to the security of the nation (Relyea, 2002). The definition of the threats to national security remained essentially the same, but the decentralized and unconventional nature of the organizations which were considered to be responsible for the attacks validated and increased fears of domestic threats.

The most prominent embodiment of the homeland security concept is the USA PATRIOT Act of 2001³ which, among other things, enacted measures to remove barriers to the cooperation of foreign and domestic intelligence activities, enhanced domestic surveillance, and deferred to the executive certain judicial proceedings for accused terrorists and selected foreign combatants. Additionally, the executive initiated a number of information policy changes in response to the attacks including major procedural restrictions to Freedom of Information Act requests, the wholesale removal of “sensitive” information from government Web sites, and new executive orders regarding the disposition of records created by previous administrations (Relyea, 2002). The political atmosphere that resulted from these measures removed from public view some of the actions of the government and consequently revived a “war-in-peace” mentality similar to that of the Cold War.

The USA PATRIOT Act and Privacy

Having examined the evolution of the homeland security concept we may now ask: how has the transition to homeland security affected privacy, particularly considering the redefined national self? One of the trends implied by the laws implemented under the homeland security concept is that individual privacy and security are necessarily opposed. The new powers of the executive branch give wide latitude for restricting the flow of information about the government, while increasing the amount of information that may be gathered by the government in the interest of security. The conflict between security and privacy is not a new one – for example, the Privacy Act of 1974 was a result of earlier concerns about privacy with respect to government's use of personal information.

Gellman provides the perspective that many of the changes caused by the PATRIOT Act are incremental and necessary for addressing the threat of terrorism (2002). The changes made by the act, he asserts, are mostly involved in extending existing intelligence authority and do not alter the scope or function of the majority of the privacy laws. Yet the speed with which the new measures were adopted has caused alarm for privacy advocates. Additionally, initiatives by the administration have demonstrated the willingness of the executive to continue making such incremental changes and to extend existing changes.⁴ On the other hand, proposed legislation would modify the original act, mostly in favor of limiting the powers that were originally granted.⁵ The debates conducted by the legislative branch suggest that the public is generally wary about actions by the executive that indicate preference for security over privacy and further suggest opportunistic motives.⁶

Gellman also asserts that the passage of the PATRIOT Act suggests that the public is willing to accept diminished privacy in order to deter terrorism (2002). It is plausible that fear and anger among the public following the September 11^th attacks may be reflected in the provisions of the PATRIOT Act, but a number of incidents that occurred during the deliberations in Congress during the five-week lifespan of the act suggest that the opinion of the public had little direct effect on the proceedings. Access to the Congress was restricted due to anthrax attacks that occurred early in October, 2001, which effectively stopped for a period of time most postal and face-to-face communications between the public and their representatives.⁷ Furthermore, many of the deliberations were held in closed-door sessions in Congress. Finally, many legislators did not have sufficient opportunity to review the final text of the act before it was brought to vote (McCullagh, 2001 & E.F.F., 2001). These factors suggest that the attitudes of the public may not have been fully realized by the Congress while it drafted and reviewed the PATRIOT Act.

Some of the most important changes made by the PATRIOT Act regarding privacy and confidentiality of information involves the disclosure of various types of records. Title V, §507 and §508, grants the Justice Department authority to request access to records from educational institutions and the National Center for Educational Statistics (NCES) respectively. Each of these provisions requires that the investigating authority seeking access to the records does so for purposes of a terrorism investigation, and relieves personnel from the agency or institution of liability for the disclosure. The NCES provision is particularly interesting in that the new rules violate the privacy laws under which the NCES operates.⁸ The change now allows such records, originally collected in the understanding of confidentiality, to be used to assist federal investigations. This change will more than likely complicate collection of such data from voluntary providers in the future (Gellman, 2002). Similarly, a provision in Title II, §215, modifies the Foreign Intelligence Surveillance Act of 1978 to allow the FBI to clandestinely access private and business records and “tangible things” in the course of a terrorism investigation. Unlike the provisions in §507 and §508, access granted under §215 would prohibit disclosure about the occurrence of such access.

The records access provisions of the PATRIOT Act, particularly those of §215, grant significant new powers to law enforcement. Exceptions have been made, however, for prohibiting the investigation of people based solely on the exercise of First Amendment rights under the Constitution. Furthermore, Congress provides oversight of all attempts to access records. The warrants for such access, however, are issued by a secret court for charges of terrorism which are much more subjective than traditional criminal charges. The definition of what constitutes terrorist activity is malleable under law, and attempts have been made to redefine terrorism to such a lower standard that common crime could be considered terrorism.⁹ The danger of a shifting definition of terrorism is that many acts of dissent that involve incidents that might ordinarily be considered as common crime could instead be defined as terrorism and expose the participating groups to investigation under more powerful and less accountable law enforcement powers.

The Privacy Landscape

It is generally accepted that the balance of privacy and security has shifted, but what effect have the changes had on the structure of U.S. privacy policy? As a whole, the PATRIOT Act has lowered the privacy “baseline” in the United States, but privacy has certainly not disappeared. Continued shifting of the privacy baseline is made possible because of the nature of the American privacy law, which developed as a patchwork of laws and judicial discourse that essentially legalized existing practices. The primary federal privacy law, the Privacy Act of 1974, is based in the conceptual framework of the Fair Information Practices (FIPs), but in practice the law has unevenly applied FIPs across the public and private realms, and the law is often insufficiently supported by the agencies to which the law is applicable (Gellman, 1997). One of the problems is that the Privacy Act is applicable only to the executive branch, and no such similar measures exist for protecting privacy in the remainder of the Federal government or in the private sector. Another problem is that commercially maintained information is subject to an array of incomplete and conflicting sectoral laws. Inconsistent privacy standards for commodified information presents an irony in that security in this case could actually be compromised by less privacy.¹⁰ The undulating privacy landscape is confusing in itself without the added uncertainty due to security concerns. Therefore, it is difficult to discern what level of privacy Americans have had by law, let alone to be able to discern how it has changed and to what degree.

Conclusion

The problem is not that we have too much privacy or no privacy in the United States, it is that we do not have an adequate means of determining how much privacy we have or how much we should have. Absolute statements regarding the degree to which privacy and security are at odds does little to address inconsistent application of privacy law to both public and private information and to discern the degree to which our political system is responsive to the needs of both privacy and security. True national security may best be realized through policies that assure security for the nation as a whole, both in terms of personal privacy and reasonable procedures for law enforcement.

Notes

1From the perspectives of Charles A. Beard, Edward M. Earl, Arnold Wolfers, and Nicolas Spykman (Relyea, 2002, p. 214).

2Quotations: “[T[he cumulative effect... was one of giving the executive overwhelming latitude to determine national security and, accordingly, what actions could be appropriately taken regarding it.” (my emphasis) and “[E]very president since Truman has relied on two doctrines to justify executive initiatives to protect national security: inherent presidential power and posthoc congressional ratification.” (Relyea, 2002, p. 216)

3The full title is the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act; PL 107-56, 115 Stat. 272 (2001).

4The administration, particularly the Justice Department, is an outspoken proponent of the USA PATRIOT Act. Attorney General John Ashcroft has been the most outspoken and has conducted promotional tours to increase support for the PATRIOT Act and similar legislation. The Justice Department sponsors a Web site for the purpose of supporting PATRIOT against dissenting views (Department of Justice, 2003). Finally, the Justice Department helped to draft legislation (“Domestic Security Enhancement Act”) in early 2003 that was quickly dubbed “PATRIOT-II” due to the prescriptions for greater FISA authority and removal of the FISA requirement for a terrorists to be identified with a foreign power (Library of Congress, 2003).

5Selected bills prescribing lesser or modified authority under USA PATRIOT and similar acts proposed in 2003: H.R. 3171 - “Benjamin Franklin True Patriot Act”; S.1552 - “Protecting the Rights of Individuals Act”; S.1695 - “‘PATRIOT Oversight Restoration Act of 2003”; S.1701 - “Reasonable Notice and Search Act”; S.1709 - “Security and Freedom Ensured Act of 2003” or the “SAFE Act”; S.609 - “Restoration of Freedom of Information Act of 2003” (Library of Congress, 2003).

6Regarding actions taken by key decision makers within the executive branch: “Some of the information restrictions are realistic responses to the attack and its uncertain aftermath. Other actions seem more like opportunistic moves to tether an ideological agenda to an overarching event.” (Feinberg, 2002, p. 266).

7The first contaminated letter was found on 15 October, 2001; http://www.cnn.com/2001/HEALTH/conditions/11/20/senate.anthrax/index.html ; USA PATRIOT was signed into law on October 26th.

8The NCES operates under the Department of Education and falls under the executive branch. The Privacy Act of 1974 applies specifically to all areas of the executive.

9For example, the State of Utah created statutes in 2001 to punish acts of “commercial terrorism” which closely resemble many common crimes of property and person, specifically “intent to... damage, deface, or destroy any property on the premises of the business; commit an assault on any person; or commit any other felony.” no specific mention is made of political intent as it would apply to the traditional definition of terrorism. The law allows exceptions under the Labor Relations Act and the First Amendemnt. (Utah Code, Title 76, Chapter 10, Sections 2401 & 2402; http://www.le.state.ut.us/~code/TITLE76/76_0C.htm).

Also, the definition of terrorist was expanded in draft legislation introduced in January 2003 named the “Domestic Security Enhancement Act of 2003” sought to remove the requirement that a terrorist be affiliated with a “foreign power”; Described in H.R. 3171, 108^th Congress (Library of Congress, 2003).

10One may envision a situation where a terrorist organization obtains personal data for use in establishing false identities through indirect commercial transactions.

References

Electronic Frontier Foundation (E.F.F.) (2001). EFF analysis of the provisions of the USA PATRIOT Act that relate to online activities. Retrieved on 18 October, 2003 from http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html

Feinberg, F.E. (2002). Homeland security: Implications for information policy and practice—first appraisal. Government Information Quarterly, 19(3), 265-288.

Flaherty, D. (1997). Controlling surveillance: Can privacy protection be made effective? In Agre, P. & Rotenburg, M. (Eds.), Technology and privacy: The new landscape (pp. 167-192). Cambridge, MA: MIT Press.

Gellman, R. (1997). Does privacy law work? In Agre, P. & Rotenburg, M. (Eds.), Technology and privacy: The new landscape (pp. 193-219). Cambridge, MA: MIT Press.

Gellman, R. (2002). Perspectives on privacy and terrorism. Government Information Quarterly, 19(3), 255-264.

McCullagh, D. (2001). USA Act stampedes through. Wired. Retrieved on 18 October, 2003, from http://www.wired.com/news/print/0,1294,47858,00.html

Relyea, H.C. (2002). Homeland security and information. Government Information Quarterly, 19(3), 213-223.

U.S. Department of Justice (2003). Preserving life and liberty. Retrieved on 16 October, 2003, from http://www.lifeandliberty.gov/

U.S. Library of Congress (2003). Thomas – Legislative information on the Internet. Retrieved on 18 & 19 October, 2003, from http://thomas.loc.gov

Frame-Restructuring as a Value-Critical Approach to Information Policy

tkiehne — Thu, 18 Sep 2003 06:33:20 +0000

In analyzing various research tools and methodologies for application to the study of information policy, Ian Rowlands concluded that research tools were needed that could provide a “value-critical and paradigm-critical approach to the study of information policy.” Rowlands recognized that policy makers should take careful consideration of the variables and assumptions used in determining the “right” answer (Rowlands, 1996, p. 23). The implications of using incomplete methodologies in the study of information policy, an area of study which encompasses a wide variety of disciplines and societal influences, can be far-reaching. The rate of change and complexity associated with information policy necessitates frameworks that policy-makers can use to retain focus on values while accommodating new and often conflicting perspectives. Donald Schön describes such a framework in his essay, “Generative Metaphor: A Perspective on Problem-setting in Social Policy” (Schön, 1993). In this paper, I will explore what Schön means by generative metaphor and the framework that he described. From there, I will examine how his framework is applicable to the examination of US Federal information policy.

Schön asserts at the beginning of his essay that metaphors are central to the task of accounting for our perspectives on the world (1993, p. 138). Metaphor ascribes properties from one concept to another by invoking an image in the mind of the receiver which, in turn, allows the receiver to understand the point of view held by the creator of the metaphor. In essence, metaphor is a means to communicate understanding from one frame of reference to another.

In a more technical sense, a concept, “A”, when associated with concept “B” via metaphor, allows the receiver of the metaphor to “draw upon a repertoire of additional ways of perceiving and understanding both A and B” (1993, p. 149). Through a process of “naming and framing,” the metaphor is used by policy-makers to construct a frame consisting of selected pertinent aspects of the experience that are determined to embody the desired focus (p. 146). In this way, metaphor is effective in communicating the essence of a perspective without becoming otherwise burdened by the complexity of the experience. When used in the generative, or hypothetical, case, metaphor serves an instructional purpose as a powerful means of introducing or extending the scope of a complex topic to an uninformed listener.

The instructional nature of generative metaphor is well suited to the framing of problems. “Problem settings are mediated... by the 'stories' people tell about troublesome situations – stories in which they describe what is wrong and what needs fixing” (p. 138). Schön asserts that stories are told to describe perspectives in a problem-setting context. Problem-setting – the ways we frame the purposes to be achieved – is considerably less effective without the benefit of clarity and focus that is imbued by the use of metaphor (p. 138).

During the process of problem-setting, complex phenomena are related by policy-makers through metaphor. The tendency for policy-makers is to view the problem-setting and related assumptions as static and secondary in importance to finding the obvious solution. Schön states that “[i]f problems are assumed to be given, this is in part because they are taken always to have the same form” (p. 143). Problems cannot be assumed to remain unchanged over time, which establishes a key consideration in the development of Schön's method: that problem definitions that remain tacit are potentially incomplete and may lead to the development of inadequate solutions.

To address the difficulties inherent in the solution-centric approach to the study of public policy, Schön defines a narrative-sensitive approach which he calls “frame restructuring” (p. 152). “Frame restructuring and the making of generative metaphor are closely related processes” (p. 159). Frame restructuring is a recursive process of integrating otherwise unresolvable and conflicting frames into a new problem-setting story while guiding policy-makers to resist the tendency to adopt “ready-made category schemes” (p. 152). This approach mitigates the tendency of policy-makers to be locked into frame conflicts, which are often unresolvable by appeal to facts (p. 150).

Another aspect of the frame-restructuring approach, and one of its greatest strengths, is its ability to accommodate changes of problem form. Problems, as it is told by Schön, “are not given,” particularly because they are the result of the interactions of people and inherently unpredictable (p. 144). When policy-makers reflect on a problem, they interact with an information-rich environment in which they “are experiencing the phenomena of the problem” and creating a new frame from the experience and through critical assessment of assumptions (p. 158). This helps the participants realize the implications of change on the problem-setting. Policy-makers shift away from seeking the solution implied by an otherwise inflexible problem definition, and the policy discussion becomes flexible enough to incorporate the new features, thus changing the problem-setting to reflect changes in form.

The frame-structuring approach also addresses another value-critical tenet in the consideration of a multiplicity of value judgments. By recognizing that problem-setting is not immutable, and through critical questioning of the basic assumptions, the potential exists for policy-makers to incorporate perspectives that may not have seemed obvious at the outset. “One is not limited to the features captured by the category-schemes with which one began” and can include values that were not initially considered (p. 158). By integrating and maintaining values, frame-restructuring adds flexibility and utility to the policy-making process.

Additionally, Schön addresses potential weaknesses or misuses of his method of frame-restructuring. First, he warns that there is a tendency for the opposing sides to attempt “the mere recasting of a problem-setting story so as to escape a dilemma.” By invoking this strategy, the dilemma is often not dissolved, but simply omits values that were accounted for earlier in the process (p. 155). A second weakness is the tendency for the parties involved to perceive the process as desiring a “compromise, [or] an average or balance of the values” discovered during the process (p. 159). Another weakness occurs when the inquirers fail to retain the richness of their experiences during an attempt to move forward in the process by developing a coordinated model of the earlier descriptions (p. 159). A final weakness involves a more fundamental human trait, that people under difficulty or stress fail to “draw upon existing cognitive capacity” (p. 161). Each of these weaknesses implies that policy-makers and analysts must show diligence and perseverance to ensure that the frame-restructuring technique performs correctly.

Finally, having analyzed Schön's approach and its inherent strengths and weaknesses, we can ask about what insights the approach offers for U.S. federal information policy making.

First, Information policy is implicitly related to social policy in that information policy has significant effects across many different areas of society outside of the technology industry. Schön states that the intent of his inquiry is to improve the “capacity for engaging social policy dilemmas,” which implies that the process is equally suitable for analysis of information policy dilemmas (p. 161).

Second, when Schön says “[w]e find closely related versions of [the frame-restructuring] process in the problem-setting inquiries central to technological invention and to social-policy debate,” he confirms the linkage of his technique to information policy through the experience of social policy. Schön further implies that his process is suited to inquiries into technological development – a field that is enmeshed within the information policy debate and is as rapidly changing and mutable as information policy itself (p. 160). The problem-setting is malleable based on the occurrence of changes in the policy environment and related assumptions. By accommodating changes in problem form, frame-restructuring is a beneficial tool for policy-makers who address information policy dilemmas.

Third, the frame-restructuring process informs policy-makers of the basic assumptions that define the frames under consideration. These assumptions, which are derived from the generative metaphor, embody essential values which the participants intend to maintain while resolving the policy dilemma. Retaining values is crucial to information policy because it tends to have such a deliberative effect upon many aspects of a society.

In conclusion, Schön provides us with a value-critical framework for engaging social policy discussions that lends itself well to the field of information policy. Frame-restructuring, as I have shown, can accommodate the pace of change found in technologically-focused discourse while maintaining contact, through the application of generative metaphor, with the range of values that information policy represents.

References

Rowlands, Ian. (1996). Understanding information policy: Concepts, frameworks and research tools. Journal of Information Science, 22(1), 13-25.

Schön, Donald A. (1993). Generative metaphor: A perspective on problem-setting in social policy. In Andrew Ortony (Ed.), Metaphor and thought (2nd ed.) (pp. 137-163). Cambridge, UK: Cambridge University Press.