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eBook: The Digital Dilemma
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- Subject: eBook: The Digital Dilemma
- From: "Ralf Stephan" <ralf@ark.in-berlin.de>
- Date: Wed, 6 Sep 2000 18:36:59 +0200
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http://books.nap.edu/html/digital_dilemma/
Committee on Intellectual Property Rights and the Emerging Information
Infrastructure
Computer Science and Telecommunications Board
Commission on Physical Sciences, Mathematics, and Applications
National Research Council-[comm4.gif]
Contents
Title Page and Notice i
National Academies Statement iii
Committee v
Preface ix
Acknowledgment of Reviewers xv
EXECUTIVE SUMMARY 1
1 THE EMERGENCE OF THE DIGITAL DILEMMA 23
An Enduring Balance Upset? 24
Scope of the Report 27
Origins of the Issues 28
Technology Has Changed: Digital Information, Networks, and the Web
28
Why Digital Information Matters 28
Why Computer Networks Matter: Economics and Speed of
Distribution 38
Why the Web Matters 39
The Programmable Computer Makes a Difference 43
Technology Has Emerged into Everyday Life, Running Headlong into
Intellectual Property 45
Intellectual Property Law Is Complex 47
Cyberspace Is an Odd New World 49
What Makes Progress Difficult? 51
Stakeholders' Interests Are Diverse 51
There Is a Variety of Forces at Work 52
Many Threads Are Intertwined: Technology, Law, Economics,
Psychology and Sociology, and Public Policy 53
The Problems Are Global, with Differing Views, Laws, and
Enforcement Around the World 54
Potential Solutions Have to Be Evaluated from a Variety of
Perspectives 58
Road Map for the Report 60
ADDENDUM:
The Concerns of Stakeholders 61
Creators of Intellectual Property 61
Distributors 65
Schools and Libraries 68
The Research Community 70
The General Public 71
Other Consumers and Producers of Intellectual Property 73
Governmental Organizations 73
Private Sector Organizations 74
Journalists 75
Standards Organizations 75
2 MUSIC: INTELLECTUAL PROPERTY'S CANARY IN THE DIGITAL COAL MINE 76
Why Music? 77
W(h)ither the Market? 78
What Can Be Done? 79
The Business Model Response 79
Make the Content Easier and Cheaper to Buy Than to Steal 80
Use Digital Content to Promote the Traditional Product 81
Give Away (Some) Digital Content and Focus on Auxiliary Markets
82
The Technical Protection Response 83
Mark the Bits 83
Reattach the Bits 84
A Scenario 86
Constraints on Technological Solutions 87
Industry Consequences of the New Technology 89
The Broader Lessons 94
3 PUBLIC ACCESS TO THE INTELLECTUAL, CULTURAL, AND SOCIAL RECORD 96
Public Access Is an Important Goal of Copyright 97
Access: Licensing Offers Both Promise and Peril 100
Access and Technical Protection Services 104
The New Information Environment Challenges Some Access Rules 106
The New Information Environment Blurs the Distinction Between
Public and Private 107
Noncopyrightable Databases Present Access Challenges 109
The Information Infrastructure Is Changing the Distribution of and
Access to Federal Government Information 111
Archiving of Digital Information Presents Difficulties 113
Fundamental Intellectual and Technical Problems in Archiving 116
Intellectual Property and Archiving of Digital Materials 119
Technical Protection Services and Archiving 121
4 INDIVIDUAL BEHAVIOR, PRIVATE USE AND FAIR USE, AND THE SYSTEM FOR
COPYRIGHT 123
Understanding Copyright in the Digital Environment 123
The General Public 124
Rights Holders 128
The Challenge of Private Use and Fair Use with Digital Information
129
The Wide Range of Private Use Copying 130
Arguments That Private Use Copying Is Not Fair Use 132
Arguments That Private Use Copying Is Fair Use 133
Private Use Copying: The Committee's Conclusions 135
The Future of Fair Use and Other Copyright Exceptions 136
Is "Copy" Still an Appropriate Fundamental Concept? 140
Control of Copying 140
Is Control of Copying the Right Mechanism in the Digital Age? 141
What Can Be Done? 144
ADDENDUM:
Sections 106, 107, and 109 of the U.S. Copyright Law 145
5 PROTECTING DIGITAL INTELLECTUAL PROPERTY: MEANS AND MEASUREMENTS
152
Technical Protection 153
Encryption: An Underpinning Technology for Technical Protection
Service Components 156
Access Control in Bounded Communities 158
Enforcement of Access and Use Control in Open Communities 159
Copy Detection in Open Communities: Marking and Monitoring 164
Trusted Systems 167
Protection Technologies for Niches and Special-Purpose Devices 171
Technical Protection Services, Testing, and the Digital Millennium
Copyright Act of 1998 171
What Makes a Technical Protection Service Successful? 173
The Role of Business Models in the Protection of Intellectual
Property 176
The Impact of the Digital Environment on Business Models 177
Business Models for Handling Information 179
Traditional Business Models 179
Intellectual Property Implications of Traditional Business
Models 180
Less Traditional Business Models 181
Intellectual Property Implications of Less Traditional Business
Models 182
Business Models as a Means of Dealing with Intellectual Property
183
Illegal Commercial Copying 186
The Impact of Granting Patents for Information Innovations 192
6 CONCLUSIONS AND RECOMMENDATIONS 199
The Digital Dilemma: Implications for Public Access 201
The Value of Public Access 201
Consequences of the Changing Nature of Publication and the Use of
Licensing and Technical Protection Services 202
Publication and Private Distribution 205
Mass Market Licenses 205
Archiving and Preservation of Digital Information 206
Digital Archives 206
Preservation 209
Access to Federal Government Information 211
The Digital Dilemma: Implications for Individual Behavior 212
Perceptions and Behavior of Individuals 212
Fair Use and Private Use Copying 213
Copyright Education 216
Moving Beyond the Digital Dilemma: Additional Mechanisms for Making
Progress 217
Technical Protection Services 217
The Digital Millennium Copyright Act of 1998 221
Business Models 224
The Interaction of Technical Protection Services, Business Models,
Law, and Public Policy 225
Moving Beyond the Dilemma: A Call for Research and Improved Data 225
Illegal Commercial Copying 226
Research on the Economics of Copyright, Use of Patents, and Cyber
Law 227
Is "Copy" Still the Appropriate Foundational Concept? 230
Content Creators and the Digital Environment 232
The Process of Formulating Law and Public Policy 233
Principles for the Formulation of Law and Public Policy 235
Concluding Remarks 239
BIBLIOGRAPHY 240
APPENDIXES
A Study Committee Biographies 253
B Briefers to the Committee 261
C Networks: How the Internet Works 263
D Information Economics: A Primer 271
E Technologies for Intellectual Property Protection 282
F Copyright Education 304
G The Digital Millennium Copyright Act of 1998 and Circumvention of
Technological Protection Measures 311
INDEX 331
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Ausgewählte Zitate:
The Digital Millennium Copyright Act of 1998
Conclusion: More legitimate reasons to circumvent access control
systems exist than are currently recognized in the Digital
Millennium Copyright Act. For example, a copyright owner might need
to circumvent an access control system to investigate whether
someone else is hiding infringement by encrypting a copy of that
owner's works, or a firm might need to circumvent an access control
system to determine whether a computer virus was about to infect
its computer system.25
Point of Discussion: Many members of the committee believe in the
need to add to the DMCA an exception that would permit
circumvention of access controls for "other legitimate purposes."
This change would enable judicial discretion in interpreting
exceptions to anticircumvention provisions, and would provide
needed flexibility in the statute for dealing with legitimate
circumvention activities not anticipated by Congress.
Recommendation: In addition to the currently required Librar-ian of
Congress study of some of the impacts of the Digital Millennium
Copyright Act's anticircumvention provisions, broader assessments
should be conducted of the impacts of the anticircumvention
provisions of the DMCA as a whole. This broader review of the
regulations is justified because of their unprecedented character;
their breadth; and widespread concerns about their potential for
negative impacts on public access to information, on the ability of
legitimate users to make noninfringing uses of copyrighted works,
on research and development in security technology, and on
competition and innovation in the high-technology sector. This
review should occur periodically and should include a study of
impacts of the antidevice provisions of the DMCA.
Business Models
Conclusion: Both technology and business models can serve as
effective means for deriving value from digital intellectual
property. Technical protection mechanisms can reduce the rate of
unauthorized use of IP, but impose their own costs (in production,
service, and sometimes customer effort). An appropriate business
model can sometimes sharply reduce the need for technical
protection, yet provide a way to derive substantial value from IP.
Models that can accomplish this objective range from a traditional
sales model (low-priced, mass market distribution with convenient
purchasing, where the low price and ease of purchase make buying
more attractive than copying), to the more radical step of giving
away IP and selling a complementary product or service.
Recommendation: Rights holders should give careful consideration to
the power that business models offer for dealing with distribution
of digital information. The judicious selection of a business model
may significantly reduce the need for technical protection or legal
protection, thereby lowering development and enforcement costs. But
the model must be carefully matched to the product: While the
appropriate business model can for some products obviate the need
for technical protection, for others (e.g., first-run movies)
substantial protection may be necessary (and even the strongest
protection mechanisms likely to be available soon may be
inadequate).
Is "Copy" Still the Appropriate Foundational Concept?
The committee suggests above that the notion of copy may not be
an appropriate foundation for copyright law in the digital age. Where
digital information is concerned, legitimate copies are made so
routinely that the act of copying has lost much of its predictive
power: So many noninfringing copies are made in using a computer that
noting that a copy has been made tells us little about the legitimacy
of the behavior. In the digital world, copying is also an essential
action, so bound up with the way computers work that control of
copying provides unexpectedly broad powers, considerably beyond those
intended by the copyright law.
Recommendation: The committee suggests exploring whether or not the
notion of copy is an appropriate foundation for copyright law, and
whether a new foundation can be constructed for copyright, based on
the goal set forth in the Constitution ("promote the progress of
science and the useful arts") and a tactic by which it is achieved,
namely, providing incentive to authors and publishers. In this
framework, the question would not be whether a copy had been made,
but whether a use of a work was consistent with the goal and tactic
(i.e., did it contribute to the desired "progress" and was it
destructive, when taken alone or aggregated with other similar
copies, of an author's incentive?). This concept is similar to fair
use but broader in scope, as it requires considering the range of
factors by which to measure the impact of the activity on authors,
publishers, and others.
The committee recognizes that this undertaking will be both
difficult and controversial but suggests, nevertheless, that such an
investigation is likely to prove both theoretically revealing and
pragmatically useful.
ralf
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