FREE SOFTWARE PAGE
July 3, 2003
Copyright (c) 2003 Law and Contemporary Problems
Law and Contemporary Problems
Winter / Spring, 2003
66 Law & Contemp. Prob. 147
LENGTH: 12900 words
THE PUBLIC DOMAIN: MAPPING THE DIGITAL PUBLIC DOMAIN: THREATS AND OPPORTUNITIES
* Chancellor's Professor of Law and of Information Management, University of
California at Berkeley. This article is a derivative work of a paper presented
at a conference on the public domain held at Duke University School of Law on
November 9-10, 2001. My thanks to James Boyle, David Lange, and J. H. Reichman
for convening this event and inviting me to participate in it, as well as for
their many contributions to the literature on this subject. Research support
for this paper was provided by NSF Grant No. SES 9979852.
... Whether the public domain is a virtual wasteland of undeserving detritus
or the font of all new creation is the subject of some debate. ... The main
reason that the CIAA has not been enacted is that organizations of scientists
and a coalition of Internet-based firms, prominently including Yahoo!,
recognized the serious threats that the CIAA posed to the digital public domain
and mobilized against this legislation. ... Although the CIAA and the EU
database law pose substantial threats to the digital public domain, more
narrowly crafted legislation to protect data compilations against market
failures would not. ... Efforts, such as the Secure Digital Music Initiative ("SDMI"), which aim to establish standards that can be built into equipment or
rendering software to technically protect digital content, are not easy to
bring to fruition because the content industry has very different interests
than the consumer electronics industry. ... The harm UCITA may do to the
digital public domain is more likely to occur indirectly from the manner in
which information providers license information and the extent to which they
enforce license limitations. ... The THOMAS database of materials on
legislation pending before Congress is an example of a digital public domain
resource of great value to the public. ...
Whether the public domain is a virtual wasteland of undeserving detritus or
the font of all new creation is the subject of some debate.
n1 Those who adhere to the former perspective do not worry about
"threats" to this domain any more than they would worry about scavengers who go to
garbage dumps to look for abandoned property. Adherents of the latter view,
interestingly enough, are not of one mind about
"threats" to this domain. Some believe that propertizing value residing in the public
domain will produce more social benefit than letting content languish there,
n2 while others regard propertization itself as the main threat to the public
At the risk of seeming a contrarian, I concur with all three views: some of
what is in the public domain is detritus; some of what is valuable in the
public domain might be better utilized if propertized to some degree; other
parts of the public domain need to remain open and unownable as sources for
future creations. In the course of explaining why I embrace this seemingly
[*148] perspective, I will offer a map of the public domain.
n4 This map is a useful prelude to a discussion of possible impacts of various
legal and policy developments affecting the digital public domain. Some
initiatives would have adverse effects on the digital public domain, while
others may not. This article will identify a number of threats to the public
domain that deserve attention. It will also celebrate contributions that
digitalization and digital networks have made in extending the public domain
and enabling projects to preserve the digital commons. In some respects,
digital information and digital networks have made the public domain more
vibrant and robust, and if various digital commons initiatives attain their
goals, the public domain may flourish as never before.
II Mapping the Public Domain as an Aid to Understanding Its Present State in
the Digital Environment
The public domain has been, for the most part, an uncharted terrain. Sometimes
it seems an undifferentiated blob of unnamed size and dimensions.
n5 More often, discourse about the public domain focuses on one, or a small
number, of its component parts or traits.
n6 As a number of scholars have recognized, the public domain consists, in fact,
of a vast and diverse assortment of contents.
n7 The public domain is, moreover, different sizes at different times and in
n8 Sometimes the public domain grows, as when patents or
copyrights expire, or as in the aftermath of decisions such as Feist Publications, Inc.
v. Rural Telephone Service, which held that uncreative compilations of facts
[*149] cannot be protected by U.S.
n9 Sometimes it shrinks, as when the European Union promulgated a directive
requiring EU member states to protect the contents of databases
n10 or when U.S. courts decided that business methods could be patented.
n11 The public domain also has some murky areas. For example, some intellectual
creations are, in theory, in the public domain, but for all practical purposes,
do not really reside there.
n12 Although I define the public domain as a sphere in which contents are free
from intellectual property rights, there is another murky terrain near the
boundaries of the public domain consisting of some intellectual creations that
courts have treated as in the public domain for some, but not all, purposes.
Across the border from the public domain are several categories of content that
are so widely usable that, for practical purposes, they seem to be part of the
n14 This includes, importantly, much content that is technically protected by
copyright law but is widely available to the public, as when it is posted on publicly
accessible web sites available to all comers without fee or apparent
restrictions on use. Also outside the public domain in theory, but seemingly
inside in effect, are such things as open source software; a penumbra of
privileged uses under fair use, experimental use, and other
copyright rules that permit unlicensed uses and sharing of information to take place;
and standards that are licensed without payment of royalties.
n15 Also at the perimeter of the public domain are works whose intellectual
property rights are on the verge of expiring and, arguably, some creations that
are about to be made - such as a new computer programming language or the
solution to a longstanding mathematical problem - that, once they exist, will
be part of the public domain. In the map below, the public domain is akin to
its own nation-state. Various categories of public domain information are akin
to regions of that nation. The contents of each category are akin to the cities
or villages within that region that, in turn, have populations of various
sizes. Some artifacts may reside in more than
"town;" for example, a scientific article may contain three or four categories of
public domain contents.
Mapping the public domain and contiguous terrains is useful for several
reasons. First, it can help in an assessment of the likely impacts of certain
developments on the public domain, such as the digitization of information and
the development of global digital networks. Second, the map can be a tool for
calibrating the extent to which a particular legal or policy initiative may
affect the public domain, either in a positive or negative way. Some legal and
policy initiatives, as we shall see, have broader and more serious potential
impacts than others. Third, it can contribute to an analysis of which among the
contents of the public domain are detritus (for example, grocery lists), which
are gems (for example, Mozart symphonies), which are among the constitutionally
core elements of the public domain (for example, scientific principles), which
elements are there more by chance than design or necessity (for example,
exercises), and which of the public domain's contents will be most harmed if
propertized (for example, information).
A Map of the Public Domain
[SEE FIGURE IN ORIGINAL]
[*152] That digitization of information can have a very positive impact on the
effective existence of the public domain is readily apparent. To the extent
scientific data are either collected in or transposed into digital form, they
can then be shared and processed more readily than if they remained in paper
files in the basement of a scientist's lab.
n16 Global digital networks mean that scientists from around the world can share
data sets and conduct experiments, leading to discoveries that will contribute
to further growth of the public domain. Similarly, digitization of government
information, such as bills pending before the legislature, government reports,
schedules for hearings before legislative committees or administrative
tribunals, and posting of this information on the Internet makes the
information more widely accessible than print equivalents. This makes the
public domain more effective and robust in serving that part of the public
interested in such information.
Digitization of information and the existence of digital networks do not, of
course, necessarily enhance the public domain. Firms may be able to attain
meaningful exclusive control over digital information that is in the public
domain, both in theory and in law, through technological access controls or
licensing or both. The LEXIS and Westlaw databases contain hundreds of
thousands of public domain judicial opinions and other legal texts in digital
form that the database owners control both technologically and by licenses.
n17 Do these technical controls or licenses diminish the public domain? Some would
argue yes; others would argue no. Printed forms of these materials are, for the
most part, still widely available without license or technical restrictions,
and they may be a resource for further digitization projects having a
non-proprietary character. Even those who care deeply for the continued
existence of the public domain in legal information would have to admit that no
firm could justify undertaking the very substantial expense of digitizing
public domain legal information and building a database of these contents and
software tools to enable effective use of the database without some way to
recoup these expenses, as through some exercise of exclusive control over the
resource. When Mead Data Central initially made its investments in digitizing
judicial opinions, neither the government nor non-profit organizations had the
foresight or the willingness to undertake such a project.
n18 Legal scholars have greatly benefited by the existence of databases such as
LEXIS and Westlaw. These scholars would be less capable of producing new works
and making their own contributions to the public domain without access to these
[*153] Concern about restrictions imposed by proprietary databases of legal
information has, moreover, generated a variety of initiatives to
"free" legal information from these constraints. Courts themselves have undertaken to
publish judicial opinions on court web sites. Legislatures post pending bills.
Certain law schools, most prominently Cornell, have undertaken to establish
non-proprietary databases of key legal information, such as Supreme Court
decisions, open to all comers.
n19 Some for-profit firms provide open Internet access to digitized legal
information without charge in the hopes of attracting customers to their sites.
n20 In these and other initiatives, digitization of the information and the
availability of digital networks have been essential components of the strategy
for effectively contributing to an enhancement of this aspect of the public
Should the data in the LEXIS and Westlaw databases be available free on the
Internet without restrictions? Perhaps so, and this is surely achievable,
although not without cost. The U.S. government could clearly exercise its
eminent domain power to acquire rights to make this information freely
available on the Internet. But even if the political will could be mustered to
do this (about as likely as Osama bin Laden's conversion to Christianity),
would society be better off with a public domain LEXIS? Who would continue to
invest in maintaining the database, extending it, and improving its tools?
Perhaps social welfare is enhanced by a mix of digital public domain and
proprietary databases of legal information, with the public domain sites
providing some competition to hold in check the duopolistic tendencies of the
market players and providing access to key information, such as pending bills
and Supreme Court opinions, to those who cannot afford to pay database access
III Threats to the Public Domain in the Digital Environment
Threats to the public domain come in different shapes and sizes. A relatively
small, although still significant, incursion on the subset of the public domain
consisting of digital information is represented by the Anti-Cybersquatting
Consumer Protection Act ("ACPA").
n21 ACPA extends property rights of trademark owners in the digital networked
environment well beyond the bounds of trademark law.
n22 Insofar as ACPA is being used to seize domain names from legitimate
organizations and users, this incursion on the public domain is troublesome.
n23 As compared with other initiatives, however, ACPA
[*154] is a relatively minor threat to the digital public domain. Its impact only
extends to one subset of the most southern terrain of the public domain map.
A more substantial and differently configured threat to the digital public
domain arose from Congress' enactment of the
Copyright Term Extension Act ("CTEA") in 1998.
n24 Strictly speaking, it was a threat when enacted, but is now a virtual dam
blocking the flow of information into the public domain. It will remain so
unless a challenge to its constitutionality is eventually successful.
n25 The CTEA's incursion on the public domain is more substantial and more
economically significant than ACPA's because it affects a larger region of the
public domain, altering the legal status of hundreds of thousands of works for
decades. Its principal impact may be on non-digital components of the public
domain; in contrast, ACPA's impact is only in the digital domain. That the CTEA
impacts the digital public domain can be seen in the thwarted plans of Eric
Eldred to build a digital library of works that, but for the CTEA, would be in
the public domain.
n26 The CTEA's raid on the public domain has more constitutional significance than
ACPA's because the constitutional provision that authorizes Congress to enact
intellectual property laws requires limits on the term of
Among the legal initiatives primarily aimed at digital information with major
implications for the public domain are these: the Uniform Computer Information
Transactions Act ("UCITA"),
n28 the Collections of Information Anti-Piracy Act ("CIAA"),
n29 and the Digital Millennium
Copyright Act of 1998 ("DMCA")
n30 in tandem with its inevitable brother legislation to mandate installation
[*155] of standard technical measures in digital media devices.
n31 Each of these initiatives poses threats to the digital public domain that are
broader in scope and scale than those posed by the CTEA. This is, in part,
because of their implications not just for one region of the public domain map,
but for multiple regions. Of these initiatives, only the CIAA directly offers
protection to what is, under current law, public domain material. The other
three mainly aim to give an extra layer of protection to intellectual
creations, most of which are already protected by intellectual property law,
although each affects the public domain and contiguous territories as well.
Before probing each initiative in detail, it is worth pointing out that there
may be synergies amongst these initiatives that multiply their effects. Further
magnifying the potential effects of these legal initiatives are certain
non-legal developments such as the formation of the Secure Digital Music
Initiative ("SDMI") and the DVD Copy Control Association ("DVD-CCA") that aim to provide a secure technical infrastructure to avert leakage of
digital works that the law alone would be unable to control.
UCITA's most obvious implications for the digital public domain arise from its
validation of mass-market licenses for computer information. Pro-CD, Inc. v.
n33 - a case decided, it should be said, under state commercial law rules, not
under UCITA - is a widely cited example of the use of mass-market licenses to
undermine the public domain in digital information.
n34 ProCD manufactured and mass-marketed a CD-ROM containing white pages listings
from thousands of telephone directories in digital form. ProCD could not get
copyright protection for this compilation because the Supreme Court's Feist decision
held that the white pages listings of telephone directories are in the public
domain because they consist of facts that
copyright law does not protect and because, as compilations, they lack sufficient
originality to qualify for
n35 ProCD put a license in the package containing the CD-ROM of telephone
directory information that permitted only personal uses of the data, a
restriction that Zeidenberg violated by posting the contents of ProCD's disks
on an open site on the Internet. In the view of the trial judge in the ProCD
case and of many commentators, enforcing this license restriction interfered
with achieving policy objectives of
n36 The appellate court disagreed,
[*156] asserting that the existence of a contract between ProCD and Zeidenberg
distinguished ProCD's claim from
n37 Because ProCD's license only created rights as between the parties and not
rights against the world, the license did not create rights equivalent to
If UCITA's only impact on the public domain was to protect compilers of
unoriginal data against market-destructive appropriations, there would be
little reason to worry about this law. In a variety of ways, however, UCITA
protects the interests of purveyors of digital information beyond - and in some
respects in contradiction with - the default rules of intellectual property and
other information laws. First, UCITA's willingness to enforce licenses
protecting digital forms of public domain information does not depend on
whether this is necessary to avert market failures. Second, to the extent that
licenses are drafted to bind subsequent users, the distinction between contract
rights that bind only the two parties to the transaction and property rights
that bind the world erodes significantly.
n39 Third, in a variety of subtle ways (for example, in presumptively enforcing
confidentiality restrictions as to data that would generally be deemed
"public" by virtue of its being mass-marketed), UCITA aims to stop leakages of
information into the public domain.
n40 Fourth, UCITA affects the penumbra of privileged uses lying adjacent to the
public domain in significant ways. Under UCITA, the paradigmatic transaction is
a license, not a sale.
n41 This characterization of the transaction affects rights that
copyright law confers on owners of copies of copyrighted content (for example, to make
backup copies of software, to modify software, and to sell or otherwise
redistribute one's copy of software).
n42 In addition, UCITA presumes that all license terms are enforceable without
regard to whether they aim to override public policy limitations on
intellectual property rights.
n43 For example, many software licenses restrict the right to reverse-engineer
computer programs, even though
[*157] this activity would be acceptable under trade secrecy and
copyright law as a means to get access to information that, once known, may become part
of the public domain.
n44 UCITA's presumption of enforceability may also apply to clauses in mass market
licenses that direct the licensee not to criticize or reveal flaws in the
licensed computer information,
n45 which affects the legal status of many uses of information at the borders of
the public domain.
There are, however, several ways in which the public interest in balanced
licensing rules may be protected even if UCITA is, over time, more widely
adopted than now. First, section 105 of UCITA recognizes the possibility that
courts may rule some license provisions conflict with federal law or otherwise
violate fundamental public policies, and insofar as they do, they may be
n46 Courts may interpret this broadly and not enforce anti-reverse-engineering
clauses or license restrictions on public domain information when there is no
danger of market failure. Second, courts may invoke other legal doctrines, such
as misuse of intellectual property rights and First Amendment values, to limit
the enforceability of computer information licenses in appropriate cases.
n47 This, too, may enable reuse of public domain information. Third, new legal
doctrines may emerge in the case-law, such as
"fair breach" of licenses to reach similar results under UCITA licenses as under
copyright's fair use doctrine.
n48 Fourth, the desire of licensors to impose unreasonable restraints on users by
means of licenses may be held in check to some degree by market forces.
How much comfort one should take in these checks on UCITA licenses is hard to
gauge, given that UCITA essentially allows vendors of computer information to
give themselves more rights than intellectual property law would and to avoid
the burdens of public interest limitations.
n50 Licensor restrictions are guarded, under UCITA, by a heavy presumption in
favor of enforceability; this presumption can only be overturned after lengthy
and expensive litigation that
[*158] those injured by UCITA licenses may not have the means or will to undertake.
n51 Many will simply be chilled from engaging in activities that would be
determined legitimate had they been able to challenge a UCITA license term.
Parents may blithely ignore the license term for the Adobe e-book version of
Alice in Wonderland that forbids reading the book aloud,
n52 but libraries have greater reason to worry about the potential enforceability
of such a term.
In contrast to UCITA, whose scope is presently restricted to transactions in
n53 legislation proposed to protect the contents of data compilations resembles
the CTEA in affecting more than the digital public domain. Much of the
rationale for such legislation relies, however, on the vulnerability of
information in digital form to market-destructive appropriations,
n54 and this legislation would certainly affect the size and scope of the digital
public domain. Under current U.S. law, neither unoriginal compilations nor the
data in original (and, hence, copyrightable) compilations is legally
protectable unless it is a trade secret or otherwise confidential.
n55 Several times in the past five years, the U.S. Congress has considered
legislation to protect the contents of databases akin to measures adopted by
the European Union in 1996.
n56 The EU regime grants those who have invested substantial resources in making a
database fifteen years of exclusive rights to control the extraction and reuse
of all or substantial parts of the contents of that database.
n57 Database rights are renewable upon further expenditures of resources, and
substantiality is to be judged in qualitative as well as quantitative terms.
n58 The most recent EU-style database bill introduced into the U.S. Congress was
Although its sponsors characterize the CIAA as a regulation of unfair
n60 opponents characterize it as an intellectual property regime that is
unconstitutional, bad public policy, or both.
n61 The CIAA differs from the EU
[*159] Directive in requiring proof of harm to actual or potential markets
n62 and in its
"reasonable use" limit on the liability of scientific and educational users for extractions and
uses of data in protected compilations,
n63 as well as in several exemptions such as those for news reporting,
verification, and genealogical information.
n64 By conferring rights on compilers to control the use or extraction of all or a
substantial part of a collection of information that is the product of
n65 however, the CIAA would substantially contract the digital public domain - and
not just as to items of information, but also as to public domain works such as
Shakespeare's plays, which fall within the meaning of
"data" under the legislation.
n66 The main reason that the CIAA has not been enacted is that organizations of
scientists and a coalition of Internet-based firms, prominently including
Yahoo!, recognized the serious threats that the CIAA posed to the digital
public domain and mobilized against this legislation.
n67 In the aftermath of the September 11 attacks on the World Trade Center and the
Pentagon, Congress has had other more urgent matters to consider, but like the
Terminator, the CIAA will almost certainly be back.
Although the CIAA and the EU database law pose substantial threats to the
digital public domain, more narrowly crafted legislation to protect data
compilations against market failures would not. H.R. 1858 is the alternative
bill to the CIAA, considered during the same congressional session.
n68 It forbids duplicating another firm's database and then engaging in direct
competition with that firm.
n69 While this bill would, of course, affect the public domain, it does so in a
much narrower and more targeted way than the CIAA. Assuming there was
persuasive evidence that market failures were occurring or imminent in the
database industry because firms were competitively duplicating existing
databases, this limitation on the reuse of public domain information would be
n70 This approach is consistent with the Supreme Court's ruling in
[*160] International News Service v. Associated Press, which held that INS had
engaged in unfair competition with the Associated Press ("AP") when its reporters took news from early editions of AP newspapers and
published it verbatim in International News Service ("INS") papers that were in direct competition with AP papers.
n71 The Supreme Court's Feist decision may have said that
"raw facts may be copied at will,"
n72 but the Court qualified this statement with a reference to its INS v. AP
The DMCA, like UCITA, principally aims to provide an extra layer of protection
for commercially valuable digital information that is already protected by
intellectual property law.
n74 Like UCITA, the DMCA posits that private firms are free to devise regulatory
regimes that deviate from the default rules of intellectual property law.
n75 The principal difference between UCITA and the DMCA is that the DMCA's extra
layer of protection is focused on technical measures used to protect digital
information, whereas UCITA's extra layer protects licenses. Following on
Lawrence Lessig's insights,
n76 we might characterize the DMCA as code (law) that reinforces code (program
instructions) as code (a private regulatory regime). Hacking is the act of
civil disobedience (or user self-help) to which code as code is vulnerable.
This is why the DMCA makes it illegal to
"hack" certain technical measures and to make or distribute hacking tools.
Although not principally aimed at protecting public domain works, the DMCA has
significant implications for the digital public domain and for territories
contiguous to the public domain. Technical measures will be effective in
protecting public domain information as long as the vendor has the presence of
mind to use the same technical measure to protect digital versions of both
public domain and copyrighted works.
n78 Technical measures will, unless programmed
[*161] otherwise, persist after
copyrights expire, thereby undermining new entrants to the digital public domain. Even if
one could successfully argue that bypassing an access control used to protect a
public domain work was not actionable under the DMCA's anti-hacking rule
(because that provision only protects technical measures used by
copyright owners to protect access to their works),
n79 it would generally be necessary to build a tool to bypass any technical
measure that controls access to public domain and copyrighted information. That
tool would arguably be illegal under the DMCA because it would necessarily
enable bypassing of an access control protecting copyrighted works.
n80 Even Judge Lewis Kaplan, who found the application of the DMCA untroublesome
as to Eric Corley's posting of circumvention software on the Internet, seemed
somewhat concerned that the DMCA might be used to protect public domain works
in contravention to
The more serious and immediate concern about the DMCA is not about its
implications for the public domain, but about its implications for territory
contiguous to the public domain, where fair use and other privileged acts have
n82 Under existing law, technical measures do not need to be designed to enable
privileged uses, and few thus far deployed do so.
n83 For example, the Content Scrambling System ("CSS"), the technical measure widely used to protect DVD movies, does not enable
fair uses to be made; indeed, it does not even permit users to skip through
commercials included on the disk.
Debates have raged in the law review literature as to whether Congress intended
to preserve some room for fair uses under the DMCA and whether the DMCA is
constitutional to the extent they did not so intend.
n84 A substantial
[*162] consensus exists among scholars that without some room for fair use hacking,
the DMCA would be unconstitutional.
n85 Federal judges, however, may be reluctant to strike down the DMCA given the
vulnerability of digital information products to uncontrolled infringements.
They may be disinclined to second-guess the congressional judgment that the
DMCA is necessary to the survival of the entertainment industry, exaggerated
though this claim may be.
Senator Hollings has recently introduced a bill to mandate technical measures
in every digital media device.
n86 The assumption underlying this legislation seems to be that digital content
cannot be protected effectively by software because the software's protections
are too easy to hack, and the programs to bypass them, even though illegal
under the DMCA, can be distributed easily via the Internet.
n87 Content will not really be secure until and unless hardware systems have
embedded technical protections. The Hollings bill would require all digital
media devices to comply with standard technical protection measures.
n88 In this respect, the Hollings bill resembles the Audio Home Recording Act ("AHRA"), which requires vendors of consumer-grade digital audio taping ("DAT") technologies to install serial copy management system ("SCMS") chips that prevent the making of perfect digital copies of digital sound
n89 The AHRA represents a compromise between
copyright owner and consumer interests because the SCMS chip allows consumers to make
usable first generation copies of music, thereby allowing some fair uses of the
n90 Any copies made from those copies, however, degrade in quality.
The Hollings bill does not contain a similar compromise provision, and the
entertainment industry will undoubtedly resist efforts to add one. If it is
enacted, the Hollings bill would have substantial implications for the public
domain and contiguous terrain. Once technical protection measures are embedded
in hardware, hacking to release public domain information or to enable fair or
other privileged uses will become much more difficult than at present - and
indeed, that would seem to be the point of making systems more secure.
n91 The computer industry has successfully opposed legislation that would
[*163] have required them to install copy-protection systems in the past,
n92 so they may be allies of advocates of the digital public domain in lobbying
against the Hollings bill.
More likely, at least in the short run, is scaled-back legislation applicable
to consumer electronics equipment, but not (yet) to computers. This would
address a key problem for the content industry: Manufacturers of consumer
electronics equipment want to make products that customers will be eager to
buy, and customers prefer technologies that enable them to copy and share
digital content over those that lock the content down to one device. Efforts,
such as the Secure Digital Music Initiative ("SDMI"), which aim to establish standards that can be built into equipment or
rendering software to technically protect digital content, are not easy to
bring to fruition because the content industry has very different interests
than the consumer electronics industry.
n93 Why waste all that time, money, and energy in a long, drawn-out negotiation
with a consumer electronics industry that does not share your perspective on
the need for technical protections, when generous campaign contributions and
years of successful lobbying experiences provide access to a group with a long
history of sympathizing with
copyright industry concerns, namely the U.S. Congress? If private legislation proves
unsuccessful, public legislation offers an alternative means to the desired end.
Which among these three initiatives - UCITA, the CIAA, and the DMCA/Hollings
bill - poses the most serious threat to the digital public domain? Each is a
serious threat in its own right, but more significant are the potential
synergies among them, assuming all are enacted in the form currently proposed
and are deemed constitutional. Any compilation of digital information
protectable by the CIAA may also be protected by a UCITA license and by a
technical protection measure capable of enforcing any restriction imposed on
the digital information and legally validated by the DMCA and the CIAA. Even if
the CIAA exempts
"reasonable uses" from liability, such uses may be thwarted by the terms of a UCITA license or
by a technical measure controlling what the user can and cannot do with the
As between UCITA licenses and technical measures (backed up by the DMCA), the
more significant threat to the digital public domain and to reasonable uses of
digital information would seem to be from technical measures. Secure systems do
not allow reasonable uses to be made of protected digital information unless
those uses have been authorized, whereas one can always ignore a UCITA license
provision purporting to override rights to use information arising under other
laws or challenge its enforceability in a legal proceeding. A person who makes
reasonable uses of UCITA protected information in breach of the license can at
least argue that the license term interferes with federal
[*164] intellectual property policy and should be preempted, is a misuse of
intellectual property rights, is a fair breach of the license, or is
n94 Ignoring a technical measure will be ineffectual because it will simply
enforce the licensor's rules regardless of what the law says. A legal challenge
to a technical measure that interferes with reasonable uses, given early court
interpretations of the DMCA, is unlikely to succeed or be cost-effective. Some
scholars have endorsed
"self-help" measures by users to preserve the public domain or have argued for changes to
the DMCA, making anti-circumvention protections only available to
copyright owners who had escrowed keys to unlock technical measures and get access to
the blocked material.
Although the Internet was initially constructed as an open information
environment, it is capable, as Lawrence Lessig has pointed out, of evolving
into an architecture of perfect control.
n96 The DMCA and the Hollings bill are elements of a legal infrastructure to
support such a secure technical infrastructure. Governments and commercial
entities may prefer architectures of control to architectures of openness.
n97 Although the reasons for their preferences may differ, their goals may
converge sufficiently to make governments and commercial entities allies in
insisting on greater control over the online environment. This would diminish
the digital public domain.
As between UCITA and the CIAA, it is difficult to say which would have the most
harmful effects on the digital public domain. The CIAA would have a more
immediate impact on this domain because it would propertize collections of
digital information across the board. Analysts who have studied the CIAA's
exceptions and limitations do not believe they adequately protect the public
n98 It is possible, of course, that courts will construe the exceptions and
limitations more generously than intended in order to comport with
n99 The CIAA has not yet been enacted and may evolve into a more balanced piece of
legislation in response to criticisms leveled at highly protectionist versions
of the bill.
n100 UCITA does not directly diminish the public domain; it only presumptively
validates license terms that implicate the public domain and adjacent terrain.
The harm UCITA may do to the digital public
[*165] domain is more likely to occur indirectly from the manner in which information
providers license information and the extent to which they enforce license
limitations. The same may be true for the DMCA. How much harm it ultimately
does to the digital public domain and contiguous terrain depends in large part
copyright owners deploy technically protected products in the marketplace and the extent
to which courts limit uses (if they limit uses) of the DMCA against liberators
of public domain information or fair users.
Threats to the digital public domain should also be gauged in terms of the
statutes' likelihood of enactment and success. The CTEA constitutes the most
substantial threat to the digital public domain because it has already been
enacted and, thus far, has successfully blocked works from entering the public
domain. The DMCA's anti-circumvention rules are also in effect, and its
anti-tool rules have so far withstood constitutional challenges.
n101 In the years since its initial promulgation, UCITA has been enacted in two
n102 It has met with resistance in several state legislatures, and its future is
clouded because of the controversies surrounding it. As noted above, Congress
has not adopted the CIAA, although the House of Representatives passed it twice
n103 Compromise legislation may be necessary to attain enactment, and this would
presumably limit the damage that the CIAA would do to the digital public
domain. The Hollings bill has very little immediate chance of passage, but it
is an ominous portent for the future.
As for private initiatives, DVD-CCA has, through a complex licensing
arrangement, successfully ensured that all DVD players sold in the United
States. and elsewhere have technical measures embedded in them. The huge
success of the DVD movie market shows that the content industry's fond hope
that consumers will buy technically protected content once they get used to it
may have some chance of being actualized. The overwhelming majority of movies
distributed on DVDs are works in
copyright, not public domain works. Although the impact on the digital public domain from
CSS-protected DVDs is consequently limited, impacts on fair uses are
considerable. SDMI has been unsuccessful as a recording industry initiative to
ensure secure content and secure players, but there is every reason to believe
that the major players in the sound recording industry will move forward with
distributing technically protected content. The major players are, moreover,
aggressively challenging through litigation a range of technologies they
perceive as threats to their interests. MP3 files of commercial sound
recordings and technologies for distributing
[*166] MP3 files have come dangerously close, in the industry's view, to an
involuntary dedication of this digital content to the public domain.
n104 While some commentators assert that efforts to use technical measures to
protect mass-marketed digital content and legislation such as the DMCA will
prove as futile as trying to make water not wet,
n105 it remains an open and hotly contested question how technology, digital
content, and the law will evolve and interact in the next decade or so.
IV Strategies for Preserving and Nurturing the Public Domain in the Digital
One of the goals of this symposium is to articulate strategies for preserving
and nurturing the public domain as a natural, if intangible, resource. This
goal is particularly appropriate for digital information because it is so cheap
and easy to collect, store, process, and make available via global digital
networks. The THOMAS database of materials on legislation pending before
Congress is an example of a digital public domain resource of great value to
n106 Other federal government web sites publish agency reports, procedures for
applying for benefits, schedules of hearings, judicial opinions, rulemaking
data, and the like in digital form on the Internet.
n107 Numerous states have made similar resources available on open sites on the Web.
n108 In addition, projects to establish digital libraries, digital repositories,
knowledge conservancies, creative commons, and the like already exist, and more
such initiatives will surely be undertaken in the coming years.
n109 Scientists have created a variety of digital public domain resources,
including libraries of reusable code and databases of scientific and technical
information in digital form, which are also available on the Internet.
n110 The Library of Congress has undertaken digitalization projects of historically
significant parts of the Library's collection.
n111 It has also convened a group to consider strategies for digital preservation
n112 Both initiatives have very substantial and positive implications for the
[*167] domain. As much information may be lost to the public domain because it was
stored in proprietary formats that are no longer readable by current
generations of technologies as by legislation such as the CIAA or UCITA.
Entrepreneurial individuals have also taken advantage of the Web to make
available a wide array of materials that, strictly speaking, are protected by
copyright, but nonetheless are posted on open web sites with few or no restrictions on
copying or distribution. This includes articles written by academics posted on
their home pages,
n113 pre-print archives of articles enabling scientists to share the latest
learning in their fields,
n114 electronic journals,
n116 web resources on the poster's favorite topic,
n117 and MP3 files of music posted by bands wanting to attract new audiences.
n118 Brewster Kahle has created a vast non-profit digital archive of the Internet
and World Wide Web so that researchers can investigate such things as how much
the Web has grown over time, what changes occur in the languages used on the
Web over time, and what proportion of Web content is taken down or put up in
units of time, just to name a few researchable questions.
n119 A very substantial amount of high quality free content is available on the
Web, although junk information is also prevalent. Even sites of profit-making
entities, such as espn.com, cnn.com, and nytimes.com, post a large volume of
high quality information on the Internet which are accessible by those who are
willing to let cookies be planted on their hard drives or sign up as users.
Open source or
"free" software is among the most interesting developments contributing to the digital public
domain, even though open source software is not, strictly speaking, in the
n120 Open source software contributes to the public domain because its licenses
require that source code instructions be publicly available. All of the
know-how embodied in the program is thus accessible. Because open source
licenses encourage follow-on innovation, open source contributes to ongoing
learning that further enhances the public domain. Open source software,
however, is not itself in the public domain. Rather, it invokes intellectual
property rights as the basis for a licensing strategy aimed at preserving the
digital commons that the program's developer wished to establish for it.
n121 From the standpoint of many open source developers, dedicating a
[*168] program to the public domain is a suboptimal strategy for achieving open
source objectives because proprietary derivatives can be made of public domain
programs. Those who breach the terms of an open source license by making a
proprietary derivative program will be deemed infringers of the underlying
intellectual property rights in the program and may be enjoined from this form
of free-riding on open source development. Thus, open source licenses use
property rights to preserve and maintain a commons in an existing intellectual
n122 While the initial subject matter of open source development was software, some
efforts are being made to adapt open source licenses to other subject matters,
such as digital music.
As admirable as open source is as an example of a strategy for preserving and
extending the digital commons, there is also value in preserving a public
domain from which proprietary derivatives can be made. One of the key
objections to the CTEA concerns new works that will not be created because of
it. An inducement to the creation of new works from the public domain is the
copyright protection for the derivative work. Writers would be less likely to adapt a
public domain story into a dramatic play if the play, once written, had to be
dedicated to the public domain because its genesis was a public domain work.
Concerns about risks to the public domain should not blind us to risks to
investing in high-value digital information products. The marginal cost of
reproducing and distributing digital information may be zero (or nearly so),
but initial development costs may still be high, as may be costs of
transforming digital information into marketable form and then marketing it.
While some have hoped that advertising would provide a sustainable revenue
stream through which digital content providers could recoup investments, this
seems a less viable long-term strategy after the dot.com bust. Some
commentators have proposed that firms give digital content away for free and
rely on what were previously ancillary markets as their new primary markets,
for example, selling support or customization services instead of software, or
selling concert tickets instead of copies of digital music.
n124 This strategy may be more viable for some digital content than for others.
Some economists have suggested that digital
[*169] content providers may be able to sell different versions of their products on
different terms to different customers, for example, giving away some content
to create demand for one's product, but offering higher value versions for a
higher price, or offering some information for free or at very low cost, but
charging more to those willing to pay for earlier access to the information.
n125 With a good business model, intellectual property rights may be much less
n126 The digital information market is quite unstable right now, in part because no
one is sure what business models are viable for distributing digital
information via global networks. The fear, uncertainty, and doubt this has
engendered among content providers may explain why they have been so intent on
getting stronger legal rights. They do not exactly know what they need, but
want more rights just in case an emerging business model might be based on
those rights. What they don't need, they won't use.
This article has considered a variety of ways in which the digitalization of
information and the development of global digital networks have made positive
contributions to the public domain. It mapped the public domain as an aid to
assessing how various legal and policy initiatives threaten the digital public
domain. UCITA, the CIAA, and the DMCA affect a broad swath of the digital
public domain and contiguous territories, such as the realm of fair uses and,
as shown above, these legislative initiatives may produce negative synergistic
effects that further undermine the digital public domain.
There are several ways to avert these threats to the digital public domain.
First, Congress, or in the case of UCITA, state legislatures, can become more
aware of and attentive to expressions of concern about the deleterious effects
these laws would have. Legislators can decide not to enact them, or to amend
them to alleviate the problems they present. Second, courts can construe these
laws more narrowly than they were initially drawn, strike them down as
unconstitutional, or interpret them as unconstitutional unless limited by
public domain and fair use principles. A key obstacle to reliance on the
Constitution is that courts too often behave as though there is an intellectual
property exception to the First Amendment.
n128 They have been quite deferential to legislative
[*170] judgments, using rational basis analysis rather than intermediate scrutiny.
n129 Judges sometimes act as though the limits in Article I, section 8, clause 8,
both express and applied, lack meaningful substance.
n130 The progress of science and the useful arts depends on information being in
the public domain and available for reuse, as much as on the grant of
intellectual property rights. Third, the public can refuse to accept laws that
impede socially desirable uses. If people just say no to licensing and to
technically protected content, the content industry, the courts, and the
legislature will have to adjust.
Those who care about preserving and nurturing the public domain should pay
attention to legal and policy initiatives affecting this domain, analyze their
implications, assess their constitutionality, and write and speak to various
audiences to raise consciousness about the negative impacts that particular
initiatives may have. Some will undertake litigation to preserve the public
domain and contiguous territories.
n131 Others will draft testimony about pending or proposed legislation or offer
alternative proposals. The rhetoric of scholarly discourse lacks the crispness
of the vernacular. Legal scholars need to search for new vocabularies and
metaphors to convey messages of concern. Efforts to affect policymaking will
sometimes bear fruit (for example, the CIAA has not been enacted, and UCITA has
encountered more difficulties than its drafters expected), but sometimes they
will not (for example, DMCA and CTEA). To achieve our public interest
objectives, we need not only to keep doing what we do well but also to reach
beyond the communities we already inhabit to find friends and allies among
those likely to be affected by initiatives that concern us. And, we need to be
cheerful about it, too.
It is possible to construct a new politics of intellectual property that has
regard for the public domain and fair uses.
n132 To be successful, a new public-regarding politics of intellectual property
must have a positive agenda of its own. It cannot just oppose whatever
legislative initiatives the major content industry organizations support
(although it almost certainly will need to do this as well). It should be
grounded on the realization that information is not only or mainly a commodity;
it is also a critically important resource and input to learning, culture,
competition, innovation, and democratic discourse. Intellectual
[*171] property must find a home in a broader-based information policy, and be a
servant, not a master, of the information society.
n1. Among those who seem to adhere to the former characterization are Benjamin
Kaplan, An Unhurried View of
Copyright 45-46 (1967) and Robert DeNicola,
Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary
81 Colum. L. Rev. 516, 521-22 (1981). Among those who adhere to the latter are James Boyle, Shamans, Software,
& Spleens at x-xi (1998) and Jessica Litman, The Public Domain,
39 Emory L.J. 965, 968 (1990).
n2. See, e.g.,
Eldred v. Reno, 239 F.3d 372, 379 (D.C. Cir. 2001), cert. granted sub nom.
Eldred v. Ashcroft, 534 U.S. 1126 (2002), and cert. amended,
534 U.S. 1160 (2002) (suggesting that more works will be available if
copyright terms are lengthened than if the works go into the public domain); Jessica
Copyright 77 (2001) (quoting Jack Valenti of the Motion Picture Association of America
as saying that
"[a] public domain work is an orphan," an observation that would seem to provide a rationale for perpetual protection
for motion pictures).
n3. See, e.g., Boyle, supra note 1, at 125-43; Yochai Benkler, Free As the Air To
Common Use: First Amendment Constraints on Enclosure of the Public Domain,
74 N.Y.U. L. Rev. 354, 397 (1999); David Lange, Recognizing the Public Domain, 44 Law
& Contemp. Probs. 147, 147 (Autumn 1981).
n4. The idea of mapping the public domain is not original to me, but rather to
Laurel Jamtgaard, formerly a Boalt student and now a practicing lawyer, who
proposed to write a paper on this subject on the theory that such a map might
prove fruitful in analysis of public domain issues.
n5. See, e.g., Edward Samuels, The Public Domain in
Copyright Law, 41 J.
Copyright Soc'y U.S.A. 137, 137 (1993) (public domain is what remains when all forms of
protected information are taken into account).
n6. See, e.g., Paul J. Heald
& Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual
Property Clause as an Absolute Constraint on Congress,
2000 U. Ill. L. Rev. 1119, 1168-76 (2000) (arguing that the
Copyright Term Extension Act is unconstitutional, as was earlier legislation restoring
copyrights in foreign works that had been consigned to the public domain by U.S.
formality requirements prior to 1989); Paul J. Heald, Reviving the Rhetoric of
the Public Interest: Choir Directors, Copy Machines, and New Arrangements of
Public Domain Music,
46 Duke L.J. 241 (1996) (discussing illegitimate claims of derivative work
copyrights in public domain music); Arti Rai, Regulating Scientific Research:
Intellectual Property Rights and the Norms of Science,
94 Nw. U. L. Rev. 77 (1999) (expressing concern about efforts to propertize human genome data).
n7. See, e.g., Boyle, supra note 1, at 209 n.8; Litman, supra note 1, at 992-95.
n8. Some things are in the public domain in one country but not another. Some
countries, such as the United Kingdom, allow
copyright protection for laws and other government works, whereas U.S. law precludes
17 U.S.C. 105 (2002). Some categories of intellectual creations that once were in the public
domain are now subject to intellectual property rights. Compare
17 U.S.C. 102(a) (architectural works are listed as among the original works of authorship
protected under the
Copyright Act of 1976, as amended) with
17 U.S.C. 5 (repealed 1976) (listing protectable subject matters of
copyright protection under the
Copyright Act of 1909, now superceded, a list that did not include architectural works).
499 U.S. 340, 363-64 (1991).
n10. Council Directive 96/9 of 11 March 1996 on the Legal Protection of Databases,
1996 O.J. (L 77), 20 [hereinafter EU Database Directive].
State St. Bank & Trust Co. v. Signature Fin. Servs., 149 F.3d 1368, 1375 (Fed. Cir. 1998). Policy-makers in the European Union have decided not to follow the United
States in this respect.
n12. A painting from the mid-nineteenth century that remains in a private
collection or was destroyed in a fire is, in theory, in the public domain as a
copyright law, but its non-public nature or its destruction mean that it may, in fact,
be there only in theory.
n13. See, e.g.,
Frederick Warne & Co. v. Book Sales, Inc., 481 F. Supp. 1191, 1196 (S.D.N.Y. 1979) (holding that illustrations from Beatrix Potter's Peter Rabbit stories were in
the public domain as a matter of
copyright law, but were nonetheless protected by trademark law when a competing
publisher included the illustrations in its books).
n14. Some commentators consequently treat some of these contiguous areas as part of
the public domain. See, e.g., Benkler, supra note 3, at 358 n.16 (treating fair
uses as part of the public domain).
n15. Until very recently, the World Wide Web Consortium had a policy of
standardizing on patented technologies only if they were licensed on a
no-royalty basis for W3C purposes. A change in the W3C policy that would allow
royalty-bearing licenses has generated some controversy. See, e.g., Kendall
Grant Clark, Patents, Royalties, and the Future of the Web, O'Reilley XML.com,
Oct. 10, 2001, at http://www.xml.com/pub/a/2001/10/10/patents-web-future.html.
n16. See, e.g., National Research Council, Bits of Power: Issues in Global Access
to Scientific Data 2-3 (1997).
n17. Mead Data Central, a forward-looking paper company, anticipated an era in
which digital information might displace paper. It started the LEXIS legal
database by scanning print copies of the same cases contained in West
Publishing Company's books of laws and judicial opinions to make digital source
n18. West Publishing Company did not initially perceive the market potential for
online databases of legal information. It introduced its Westlaw database in
1975, nine years after the introduction of LEXIS. See About Westlaw, at
http://www.westlaw.com/about/?tf=91&tc=0 (last visited Nov. 13, 2002); About Lexis Nexis, at
http://www.lexisnexis.com/about/default.asp (last visited Nov. 13, 2002).
n19. See, e.g., Legal Information Institute, at http://www.law.cornell.edu (last
visited Nov. 13, 2002).
n20. See, e.g., FindLaw, at http://www.findlaw.com (last visited Nov. 13, 2002);
Bureau of National Affairs, Inc., at http://www.bna.com (last visited Nov. 13,
n21. Pub. L. No. 106-113, 113 Stat. 1536 (1999).
n22. See, e.g., Jessica Litman, The DNS Wars: Trademarks and The Internet Domain
Name System, 4 Small
& Emerging Bus. L. 149, 163 (2000).
Ford v. Great Domains.com, 177 F. Supp. 2d 635 (E.D. Mich. 2001) (Ford claimed that a domain name incorporating the word
"jaguar" violated ACPA even though defendant had posted information on the domain name
web site about preserving these animals).
n24. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered
17 U.S.C. including 101-106, 203, 301-304).
n25. One legal challenge to the CTEA's constitutionality has so far been
unsuccessful. See, e.g.,
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), en banc denied sub nom.
Eldred v. Ashcroft, 255 F.3d 849 (D.C. Cir. 2001). However, one judge dissented from this decision insofar as the CTEA extended
the terms of existing
Eldred, 239 F.3d at 380-83. The U.S. Supreme Court has granted a petition for certiorari to hear Eldred's
appeal of this decision.
Eldred v. Ashcroft, 534 U.S. 1126 (2002), and cert. amended,
534 U.S. 1160 (2002).
Eldred, 239 F.3d at 374. Other plaintiffs in the Eldred case were non-digital distributors of public
domain works affected by the CTEA extension. Id.
n27. U.S. Const. art. I, 8, cl. 8 (exclusive rights may be granted only for
"limited times"). The characterization of the CTEA as an instance of perpetual
copyright on the installment plan derives from the work of Peter Jaszi. See The
Copyright Term Extension Act: Hearing on S.4839 Before the Senate Comm. on the
Judiciary, 100th Cong. (1995) (statement of Professor Peter Jaszi, Washington
College of Law, American University). For an analysis of the constitutional
deficiencies of the CTEA by one of the counsel for Eldred, see Lawrence Lessig,
Copyright's First Amendment,
48 UCLA L. Rev. 1057, 1065 (2001). See also Jane C. Ginsburg, et al., Symposia: The Constitutionality of
Copyright Term Extension: How Long Is Too Long?,
18 Cardozo Arts & Ent. L.J. 651 (2000) (expressing various views on CTEA).
n28. Unif. Computer Info. Transactions Act (UCITA) (2001), available at
n29. See H.R. 354, 106th Cong. (1999) (to be codified as
17 U.S.C. 1401-1408).
n30. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered
17 U.S.C. including 1201-1204).
n31. See Declan McCullagh , New
Copyright Bill Heading to DC, Wired News, Sept. 7, 2001, (describing bill to mandate
technical measures in digital devices), at
n32. See, e.g.,
DVD-CCA v. McLaughlin, 2000 WL 48512, 1 (Cal. Super. Ct. 2000) (describing DVD-CCA); SDMI challenge FAQ, (discussing the Secure Digital Music
Initiative), at http://www.cs.princeton.edu/sip/sdmi/faq.html (last visited
Nov. 13, 2002).
86 F.3d 1447 (7th Cir. 1996).
n34. See, e.g., Niva Elkin-Koren,
Copyright Policy and the Limits of Freedom of Contract,
12 Berkeley Tech. L.J. 93, 93-98 (1997); David Nimmer et al., The Metamorphosis of Contract into Expand,
87 Calif. L. Rev. 17, 42-76 (1999); Maureen O'Rourke,
Copyright Preemption After the ProCD Case: A Market-Based Approach,
12 Berkeley Tech. L.J. 53, 55-57 (1997).
Feist Publ'ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362-63 (1991).
ProCD Inc. v. Zeidenberg, 908 F. Supp. 640, 658 (W.D. Wis. 1996); Elkin-Koren, supra note 34, at 63-71.
ProCD, 86 F.3d at 1454.
n38. Id. Commentators have pointed out that preemption analysis can and should
consider whether enforcing the state law would interfere with federal
intellectual property policy. See, e.g., Nimmer et al., supra note 34, at
n39. See, e.g., Margaret Jane Radin, Humans, Computers, and Binding Commitment,
75 Ind. L.J. 1125, 1132-33 (2000) (discussing viral contracts).
n40. See, e.g., Rochelle Cooper Dreyfuss, Do You Want To Know a Trade Secret? How
Article 2B Will Make Licensing Trade Secrets Easier (But Innovation More
87 Calif. L. Rev. 193, 198, 241 (1999). See also David A. Rice, License With Contract and Precedent:
Publisher-Licensor Protection Consequences and the Rationale Offered for the
Nontransferrability of Licenses Under Article 2B,
13 Berkeley Tech. L.J. 1239, 1248-51 (1998).
n41. See, e.g., Robert W. Golmulkiewicz, The License Is the Product: Comments on
the Promise of Article 2B for Software and Information Licensing,
13 Berkeley Tech. L.J. 891, 892-902 (1998).
17 U.S.C. 117. Licensing has especially important implications for libraries to the extent
that the rightsholder has adopted a
"single user license" policy. See, e.g., National Research Council, The Digital Dilemma:
Intellectual Property in the Information Age 100-04 (2000) (discussing
implications for libraries of licensing) [hereinafter Digital Dilemma].
Similarly, to the extent that existing consumer protection laws apply to sales
of goods, arguably UCITA relieves its licensors from consumer protection
responsibilities. See, e.g., Jean Braucher, The Uniform Computer Information
Transactions Act (UCITA): Objectings From the Consumer Perspective (Aug. 15,
2000) (on file with the author).
n43. See Unif. Computer Info. Transactions Act (UCITA) 105 (2001).
n44. See, e.g., David McGowan, Free Contracting, Fair Competition, and Article 2B:
Some Reflections on Federal Competition Policy, Information Transactions, and
13 Berkeley Tech. L.J. 1173, 1195-96 (1998). For more general expressions of concern about UCITA licenses and fair uses,
see, for example, Charles R. McManis, The Privatization (or Shrinkwrapping) of
87 Calif. L. Rev. 173 (1999); Nimmer et al., supra note 34. But see Joel Rothstein Wolfson, Contract and
Copyright Are Not at War: A Reply to
"The Metamorphosis of Contract into Expand,"
87 Calif. L. Rev. 79 (1999) (arguing that Nimmer and McManis overstate the potential conflict between
n45. See, e.g., Mark A. Lemley, Beyond Preemption: The Law and Policy of
Intellectual Property Licensing,
87 Calif. L. Rev. 111, 128-29 (1999).
n46. UCITA 105(a), (b). UCITA 105(c) defers to consumer protection laws to the
extent they apply to computer information. There is, however, a question as to
whether consumer protection laws, which were drafted to protect consumers in
transactions involving sales of goods, apply to licensed information.
n47. See, e.g., Lemley, supra note 45, at 151-67.
n48. See Jane C. Ginsburg,
Copyright Without Walls: Speculations on Literary Property in the Library of the Future,
42 Representations 53, 63 (1993).
n49. See, e.g., Gomulkiewicz, supra note 41, at 901.
n50. See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy
97 Mich. L. Rev. 462, 464-67 (1997).
n51. See UCITA 105(b).
n52. See Robert Menta, Read an E-book to Your Child, Go to Jail?, MP3.newswire.net,
Dec. 26, 2002, at http://www.mp3newswire.net/stories/2000/ebook.html.
n53. Drafters of this model legislation once intended it to regulate all
transactions in information. See, e.g., Pamela Samuelson
& Kurt Opsahl, Licensing Information in the Global Information Market: Freedom
of Contract Meets Public Policy, 21 Eur. Intell. Prop. Rev. 386, 386 (1999)
(discussing the evolution of the scope of UCITA's subject matter).
n54. See, e.g., J.H. Reichman
& Pamela Samuelson, Intellectual Property Rights in Data?,
50 Vand. L. Rev. 51, 64-76 (1997) (discussing the rationale for sui generis database legislation).
n55. See, e.g.,
Feist Publ'ns Inc. v. Rural Tel. Serv., Inc., 499 U.S. 340, 344-45 (1991).
n56. See, e.g. J.H. Reichman
& Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and
Their Impact on Science and Technology,
14 Berkeley Tech. L.J. 793, 799-812 (1999) (discussing the DMCA and CIAA); Reichman
& Samuelson, supra note 54, at 102-09 (discussing database bill).
n57. EU Database Directive, art. 7, 10.
n58. Id. art. 10.
n59. H.R. 354, 106th Cong. (1999) (to be codified as
17 U.S.C. 1401-1408); see also supra note 29 and accompanying text.
n60. See, e.g., H.R. Rep. No. 106-349 (1999).
n61. Professor Benkler considers the CIAA to be an intellectual property law rather
than an unfair competition law. See, e.g., Yochai Benkler, Constitutional
Bounds of Database Protection: The Role of Judicial Review in the Creation and
Definition of Private Rights in Information,
15 Berkeley Tech. L.J. 535, 575-86 (2000). Benkler concludes that the CIAA is unconstitutional.
Id. at 586-87; see also Malla Pollack, The Right to Know? Delimiting Database Protection at
the Juncture of the Commerce Clause, the Intellectual Property Clause, and the
17 Cardozo Arts & Ent. L.J. 47, 49-50 (1999) (arguing that database legislation is unconstitutional). But see Jane C.
Copyright and Other Protection of Works of Information After Feist v. Rural
92 Colum. L. Rev. 338, 367-87 (1992) (arguing that database protection legislation would be constitutional).
Whether EU-style legislation is a good idea as a matter of policy is a matter
of heated debate. Compare Reichman
& Samuelson, supra note 54, at 55-57 (critical of EU-style legislation) and
& Uhlir, supra note 56, at 799-812 (critical of EU-style legislation) with
Ginsburg, supra, at 341 (supportive of EU-style legislation).
n62. H.R. 354 1402.
n63. Id. 1403.
n65. Id. 1402.
n66. Id. 1401. The CIAA defines
"facts, data, works of authorship, or any other intangible material capable of
being collected and organized in a systematic way." Id.
n67. See, e.g., Reichman
& Uhlir, supra note 56, at 821.
n68. H.R. 1858, 106th Cong. (1999).
n69. Id. 102.
n70. In previous work, I have expressed support for narrowly drawn database
protection. See Reichman
& Samuelson, supra note 54, at 55-57; see also Benkler, supra note 61, at 602-03
(concluding that unfair competition legislation to protect data compilations
would be constitutional); Reichman
& Uhlir, supra note 56, at 836-37 (endorsing an unfair competition approach to
database protection). In addition, I have endorsed a short term of anti-cloning
protection for industrial compilations of applied industrial know-how. Pamela
Samuelson et al., A Manifesto Concerning the Legal Protection of Computer
94 Colum. L. Rev. 2308, 2413-18 (1994). James Boyle, one of the strongest advocates of the public domain, has also
endorsed intellectual property protection for shamanic knowledge (which U.S.
law would likely consider to be in the public domain) to prevent unjust
enrichment. See Boyle, supra note 1, at 128-30.
248 U.S. 215 (1918). The Court's decision is persuasive as a matter of unfair competition, but has
been widely criticized insofar as it relied on the existence of a
"quasi-property" right in AP to stop INS's misappropriation. See, e.g., Wendy J. Gordon, On
Owning Information: Intellectual Property and the Restitutionary Impulse,
78 Va. L. Rev. 149, 179-80 (1992); Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal
a Changing Direction in Intellectual Property Law?,
38 Cath. U. L. Rev. 365, 388-95 (1989).
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991).
Id. at 353-54.
n74. See supra note 30 and accompanying text.
n75. See, e.g., Cohen, supra note 50, at 464-67; see also Tom W. Bell, Fair Use vs.
Fared Use: The Impact of Automated Rights Management on
Copyright's Fair Use Doctrine,
76 N.C. L. Rev. 557, 559-60 (1998).
n76. See Lawrence Lessig, Code and Other Laws of Cyberspace 6 (2000) (discussing
computer program code as a regulatory regime).
17 U.S.C. 1201.
n78. The implications of the DMCA rules for the public domain have been recognized
by many commentators. See, e.g., Benkler, supra note 3, at 421; David Nimmer, A
Riff on Fair Use in the Digital Millennium
148 U. Pa. L. Rev. 673, 738-40 (2000); Hannibal Travis, Pirates of the Information Infrastructure: Blackstonian
Copyright and the First Amendment,
15 Berkeley Tech. L.J. 777, 861 (2000).
17 U.S.C. 1201(a)(1)(A).
n80. 1201(a)(2). See also 1201(b)(2) (outlawing making or distributing other
anti-circumvention tools). The vendor of technically protected public domain
works might not have standing to complain about such a tool unless it used the
same technical measure to protect works in which it did own
n81. Judge Kaplan stated:
Moreover, the combination of such a work with a new preface or introduction
might result in a claim to
copyright in the entire combination. If the combination then were released on DVD and
encrypted, the encryption would preclude access not only to the copyrighted new
material, but also to the public domain work. As the DMCA is not yet two years
old, this does not yet appear to be a problem, although it may emerge as one in
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 338 n.245 (S.D.N.Y. 2000), aff'd sub nom.
Universal Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001).
n82. See, e.g., Julie E. Cohen, WIPO Treaty Implementation in the United States:
Will Fair Use Survive?, 21 Eur. Intell. Prop. Rev. 236, 237-39 (1999); Pamela
Samuelson, Intellectual Property and the Digital Economy: Why the
Anti-Circumvention Regulations Need To Be Revised,
14 Berkeley Tech. L.J. 519, 557 (1999).
n83. An exception is technically protected digital audio tapes which permit first
generation digital copies. See infra notes 89-90 and accompanying text.
n84. Compare Samuelson, supra note 82, at 537-41 (fair use preserved to some
degree) and Jane C. Ginsburg, From Owning Copies to Experiencing Works, in
United States Intellectual Property Law (Hugh Hansen ed., forthcoming 2002)
(fair use preserved to some degree; DMCA might be unconstitutional without some
fair use limitations) with Raymond T. Nimmer, Breaking Barriers: The Relation
Between Contract and Intellectual Property Law,
13 Berkeley Tech. L.J. 827, 880-88 (1998) (fair use not preserved).
n85. See, e.g., Ginsburg, supra note 48; Glynn S. Lunney, The Death of
Copyright: Digital Technology, Private Copying and the Digital Millennium
87 Va. L. Rev. 813, 846-49 (2001); Neil Netanel, Locating
Copyright Within the First Amendment Skein,
54 Stan. L. Rev. 1, 37-42 (2001).
n86. S. 2048, 107th Cong. (2002).
n87. See, e.g., Digital Dilemma, supra note 42, at 154-64.
n88. Senate Bill 2048 would require the Federal Communications Commission to hold
hearings about standard technical measures that might be installed in digital
media devices and to mandate that future digital media devices install such
technical measures. See S. 2048 3.
17 U.S.C. 1002.
n90. Sellers of DAT machines and tapes must, however, make regular payments of two
percent of their sales to the U.S.
Copyright Office to fund a royalty pool for compensating
copyright owners for personal use copying. See
17 U.S.C. 1003-04.
n91. See, e.g., Mark Stefik, Shifting the Possible: How Trusted Systems and Digital
Property Rights Challenge Us to Rethink Digital Publishing,
12 Berkeley Tech. L.J. 137, 144-53 (1997).
n92. See, e.g., News Release, Computer
& Communications Industry Association, Hollywood's Copy-Control Proposal Will
Harm Industry and Betray Consumers (June 4, 2002), available at
n93. See supra note 32.
n94. See sources cited supra notes 34, 44; J. H. Reichman
& Jonathan A. Franklin, Privately Legislated Intellectual Property Rights:
Reconciling Freedom of Contract with Public Good Uses of Information,
147 U. Pa. L. Rev. 875 (1999).
n95. See, e.g., Dan L. Burk
& Julie E. Cohen, Fair Use Infrastructure for
Copyright Management Systems,
15 Harv. J.L. & Tech. 41, 54-65 (2001); Julie E. Cohen,
Copyright and the Jurisprudence of Self-Help,
13 Berkeley Tech. L.J. 1089, 1137-42 (1998).
n96. Lessig, supra note 76, at 6-7.
n97. Id. at 54-60. Governments may want more control over the Internet in order to
stop gambling or to protect children from patently offensive materials;
commercial firms may want more controls over the Internet in order to protect
n98. See, e.g., Benkler, supra note 61, at 583-84; Reichman
& Uhlir, supra note 56, at 811-12.
n99. If, for example, an historian of the Vietnam War extracted and used a
substantial quantum of data from a compilation of data about weaponry of that
war, a court might consider the First Amendment as a limiting principle on CIAA
n100. See, e.g., Reichman
& Uhlir, supra note 56, at 823-28 (regarding Senator Hatch's discussion draft of
n101. See, e.g.,
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000), aff'd sub nom.
Universal Studios, Inc. v. Corley, 273 F.3d 249 (2d Cir. 2001);
Real Networks, Inc. v. Steambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000).
n102. The states that have enacted UCITA are Virginia, Va. Code Ann. tit. 59.1
501.1-509.2, and Maryland, Md. Code. Ann., tit. 22 101-816.
n103. The House version of the legislation that became the DMCA included the CIAA.
However, because the Senate had not given due consideration to the CIAA or
similar legislation at that point and because of non-consensus about such
legislation, the Senate would not agree to the inclusion of the CIAA in the
DMCA. See Reichman
& Uhlir, supra note 56, at 829-30.
n104. See, e.g., Digital Dilemma, supra note 42, at 76-94 (analyzing digital music
"intellectual property's canary in the digital coal mine").
n105. See Bruce Schneier, The Futility of Digital Copy Protection, The Cryptogram
Newsletter, May 15, 2001, at http://www.counterpane.com/crypto-gram-0105.html.
n106. THOMAS: US Legislative Database, at http://thomas.loc.gov (last visited Nov.
n107. See, e.g., Social Security Agency, at http://www.ssa.gov (last modified Nov.
n108. See Library of Congress State and Local Government Resources, at
http://www.loc.gov/global/state/stategov.html (last modified Mar. 3, 2000); New
York State Assembly, at http://www.assembly. state.ny.us (last visited Nov. 13,
n109. See, e.g., Project Gutenberg, at http://promo.net/pg (last modified Nov. 13,
n110. See, e.g., Scientific Applications on Linux, at http://sal.kachinatech.com
(last visited Nov. 13, 2002).
n111. Library of Congress Prints and Photographs Online Catalog, at
http://lcweb.loc.gov/rr/print/catalog.html (last modified Nov. 4, 2002).
n112. Library of Congress Metadata Encoding and Transmission Standard, at
http://www.loc.gov/standards/mets (last visited Nov. 13, 2002).
n113. See, e.g., Professor Alessandro Duranti, at
http://www.sscnet.ucla.edu/anthro/faculty/duranti/publish.htm (last visited
Nov. 13, 2002).
n114. See Los Alamos Physics Preprint Server, at http://www.arxiv.org (last visited
Nov. 13, 2002).
n115. See, e.g., First Monday, at http://www.firstmonday.dk (last visited Nov. 13,
n116. See, e.g., Slashdot, at http://slashdot.org (last visited Nov. 13, 2002).
n117. See, e.g., Archinect: Architectural and Urban Planning Sites, at
http://www.archinect.com (last visited Nov. 13, 2002).
n118. See, e.g., Epitonic Music, at http://www.epitonic.com (last visited Nov. 13,
n119. See, e.g., The Internet Archive, at http://www.archive.org (last visited Nov.
n120. See, e.g., Chris DiBona et al., Introduction, in Open Sources: Voices from the
Open Source Revolution (Chris DiBona, et al. eds., 1999), available at
http://www.oreilly.com/catalog/opensources/book/intro.html (last visited Nov.
n121. See, e.g., Eben Moglen, Anarchism Triumphant:
Free Software and the Death of
Copyright, 4 First Monday 8 (Aug. 2, 1999) (discussing the General Public License used by
Free Software Foundation), at http://firstmonday.dk/issues/issue4<uscore>8/moglen/index.html. The open source community has mixed feelings about UCITA.
On the one hand, members want mass-market licenses to be enforceable and want
warranties to be disclaimable. On the other hand, open source developers depend
on the ability to reverse engineer and make other unauthorized uses of other
firms' software - which software licenses generally forbid. Hence, open source
developers are generally opposed to enactment of UCITA.
n122. Carol Rose suggests that limited common property rights may be appropriate for
some types of digital information. See Carol M. Rose, The Several Futures of
Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems,
83 Minn. L. Rev. 129, 181 (1998). This, in essence, is what open source licenses assert.
n123. See, e.g., Oscar S. Cisneros, Expanding the Universe of Ideas, Wired News,
June 17, 1999 (discussing the open publication license), at
http://www.wired.com/news/news/politics/story/20276.html; Campaign for
Audiovisual Free Expression (CAFE project), at http://www.eff.org/cafe (last
visited Nov. 13, 2002).
n124. See, e.g., Esther Dyson, Intellectual Value, Wired, July 1995, at
n125. See, e.g., Carl Shapiro
& Hal Varian, Information Rules: A Strategic Guide to the Network Economy 53-55
(1999); Digital Dilemma, supra note 42, at 176-86 (discussing various business
models for digital content).
n126. Digital Dilemma, supra note 42, at 183-84 ("One approach to IP rights in a world where digital content is difficult to
control entails selecting a business model that does not require strict control.").
n127. Cary Sherman, General Counsel to the Recording Industry Association of
America, once offered this explanation when I asked him why the content
industry was so intent on getting control over all temporary, as well as
permanent, copies of digital content.
n128. See, e.g.,
Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001) (citing case-law holding that
copyrights are categorically immune from challenges under the First Amendment); but see
Mark A. Lemley
& Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property
48 Duke L.J. 147, 150 (1999) (criticizing the frequency with which injunctions issue in intellectual
property cases on First Amendment grounds).
Eldred, 239 F.3d at 378.
n130. The D.C. Circuit, for example, recently held that the preamble to Art. I, 8,
cl. 8 ("to promote the progress of science and useful arts") did not constitute a substantive limitation on Congress.
Id. at 376-77.
n131. See, e.g., Paul J. Heald, Payment Demands for Spurious
Copyrights: Four Causes of Action,
1 J. Intell. Prop. L. 259, 261-62 (1994) (discussing legal claims that might be used to challenge spurious claims of
copyright in public domain material).
n132. James Boyle was the first to call for a new politics of intellectual property.
See, e.g., James Boyle, A Politics of Intellectual Property: Environmentalism
for the Net?,
47 Duke L.J. 87, 87 (1997). For my endorsement of this concept, see Pamela Samuelson, Toward a New
Politics of Intellectual Property, 44 Comm. ACM 98 (2001). Public Knowledge is
a nonprofit organization recently established to build a public-regarding
politics of intellectual property. See Public Knowledge, at
http://www.publicknowledge.org (last visited Nov. 13, 2002).
Prepared: July 3, 2003 - 5:02:29 PM
Edited and Updated, July 4, 2003
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