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Murdoch University Electronic Journal of Law |
| Author: | Debora Halbert |
| Issue: | Volume 1, Number 2 (May 1994) |
As computers and computer technology become increasingly important to the United
States and global economies, hacking has become recognized as a serious
threat to national security and private property. The legal community has
defined hacking as a crime, where even "browsing" is criminal
behavior. Laws regulating "theft by browsing" were in place in nearly
every state by the mid 1980's (Mungo and Clough, 1992, p. 68). The result
is court battles and prison terms for computer crimes. As corporations put larger amounts of
money on the line, as technology is produced, created and improved ever
faster, as more and more people learn to move within cyberspace, those
with an invested economic interest find it essential to protect their
"property." To guarantee protection they involve the legal
system which, while a powerful force, is unequipped to deal with many of
the technological issues confronting it.
Computer related law is developed as a hybrid of patent and copyright law thus
establishing the confusion and arbitrary nature of the boundaries these
bodies of law enforce. As expected, presumption lies with the status quo
-- that there is a "right" to "own" information. Because I think
this general assumption and the boundaries used to enforce it need to be
challenged, I find it necessary to begin to understand the contours of
these issues as they become increasingly relevant in the area of computer
technology. Owning information assumes entirely new implications in the
information age where information is power and the building blocks of the
modern economy. Given the importance of information and the technology
making its flow possible, I believe we should seriously evaluate computer
technology in order to provide alternative perspectives to private
property and ownership.
Outside of the legal discourse there are distinctively different approaches
to information being asserted. Many hackers, academics, and those
concerned with freedom in the information age speak of a collective approach
to information. They speak of freedom of information without any constraints.
As Gareth Branwyn quotes in Mondo 2000, "As every reality hacker
knows: "Information wants to be free" and "Plagiarism Saves
Time" (Branwyn, 1992, p. 30). As information passes via the internet
with little or no respect for copyright protection, many have come to
wonder if the entire concept of copyright is dead (Rose, November 1993, p. 112-113).
Along with the potential death of copyright is the possible death of the
proprietary author. The "net," as it is often referred to, makes
it difficult to track authorship if an author is ever given. A legal
discourse is used to limit and confine technology within legally created
frameworks defined by private property rights. As the stakes grow, the
power of law is brought to bear upon this new type of criminal. By the
early 1990s people found guilty of computer related crimes (usually credit
card fraud and unlawful access to computer systems) were treated much more
harshly (Mungo and Clough, p. 68). The hacker discourse threatens the
premises of an information economy (where information is bought and sold).
Furthermore, the hacker discourse threatens something with a long history
of legal protection, and which the advent of computers makes much easier
to challenge -- the ownership of an idea or information, the concept of
intellectual property and authorship. Technology makes it possible to
challenge these concepts. After all, the hegemonic discourse of
intellectual property has been ingrained into our system for centuries.
However, because computers quicken the pace of copying, transmitting, and
disseminating information, and because it is difficult to own something so
easily transferrable, computers can be used to challenge the very building
blocks of knowledge construction.
To bypass critical analysis of how computer technology is defined as a legal
issue, and one controlled by corporate owners who traditionally benefit
from battles over property, would be to let the trend towards information
rich versus information poor continue unabated. This paper is an
introductory look at how this gap is perpetuated through a legal discourse
and how intellectual property and authorship play significant roles.
Initially, I am interested in such questions as: How does our perspective
of computer technology differ when seen through a legal discourse and a
hacker discourse? What is obscured or made natural by each discourse? How
do people use a discourse about computers to create ownership and
authorship and how do others challenge this discourse? Finally, what are
the alternatives?
First, I wish to trace the 18th century debates on copyright and the emerging
notion of the proprietary author to demonstrate how transformative this
debate has been. The similarities and differences of print media to
electronic media will hopefully be made apparent and in the process the
desirability of new ways of thinking will made clear. Second, I wish to
look at the emerging legal discourse on computer technology and how it
affects the technology's development and use, pointing out the interesting
parallels between the 18th century debates and our own. Finally, I will
examine what is obscured by this discourse and the possibilities for
redrawing the line between property and authorship on the one side and the
collective good on the other.
THEORETICAL FRAMEWORK
Despite my critical perspective of the narrative paradigm, I do see it as
having validity as a theoretical framework able to clarify previously opaque
issues. First, the narrative paradigm aids in uncovering hegemonic processes.
As Sara Cobb and Janet Rifkin state, "The storytelling metaphor
allows the hegemonic processes in discourse to come into focus" (Cobb
and Rifkin, 1991, p. 81). Second, the notion of neutrality is questioned.
Third, the strategic aspect of storytelling becomes clear, as does the
need to create alternative stories to the hegemonic ones. Again, Cobb and
Rifkin are enlightening: "Unless alternative stories are elaborated,
persons are coopted into identities they did not author and cannot
transform" (Ibid, p. 74). Finally, given the hegemonic power of the
dominant discourse alternative narratives can be used to make visible assumptions
within the dominant discourse. In essence, multiple stories provide for
multiple perspectives, the necessary ingredient for critical analysis.
Aside from these advantages, there appears to be close connections between
storytelling and the theoretical framework of discourse analysis. Sally
Merry points out that, The same event,
person, action, and so forth can be named and interpreted in very
different ways. The naming of an action or event within a particular
discourse, thus, interpreting the event's meaning and assessing the
motives behind it, is therefore an act of power. Each naming points to a
solution ( Merry, 1990, p. 111). This discourse
perspective, while being similar to the storytelling paradigm is not
identical. Discourses are like paradigms, they are the tools used to name
an event, person or action. Storytelling is what happens within discourses. Using this theoretical framework (discourse)
I want to evaluate intellectual property as it relates to computer
technology.
For the most part, people writing books about computers and intellectual property
are interested in protecting this property from theft and cementing
current power relations through the legal system. Following the emergence
of concepts such as intellectual property and authorship and their claims
to truth can help us better understand contemporary debates on the
subject. I will turn to a brief genealogy of intellectual property to
illustrate how this discourse became legalized.
A GENEALOGY OF INTELLECTUAL PROPERTY
The distinction between writing and print is important. The impact of writing
on the accumulation of knowledge has been profound, but equally profound
is the impact of printing and the printing press. Writing made localized
access to knowledge possible, but the difficulties and inaccuracies of
copying prevented widespread use of written work. Authors wrote to
contribute to posterity and enhance their own fame, not for economic gain.
Consequently, while writing increased information storage space, it wasn't
until the printing press that writing had universal applications made
possible by a market economy and a more accurate copying process. [fnt
1]
The printing press made several innovations possible. First, duplication became
easier and more accurate. Second, mass distribution became viable. The
printing press revolutionized information storage, retrieval and usage. Printing, unlike writing, allowed a society
to build on the past with a confidence that each step was being made on a
firm foundation. Printing generated confidence that new information was an
improvement over the old. The revolution in the ability to accurately
reproduce works fostered an understanding that progress can occur through
a process of revision and improvement (Katsh, p. 34). Thus, printing made the modern book,
concepts of progress, and scholarship possible. Written texts tended to
evolve based upon who was doing the copying and which parts were of
interest to them. Before, with writing, the oldest copies were considered
the most valuable and correct because inaccuracies developed with each
hand copied work. The increased accuracy and rapidity of new editions made
possible by the printing press made the most recent editions more valued
than the older. Additionally, access was now available to the literate public.
Printing provided a mechanism through which a larger reading public
developed thus constituting the emerging public sphere. Printing allowed for ideas to be more easily
disseminated for economic gain.
The patron system was also an economic relationship, but as the book industry
developed, authors were given more freedom through the new economic
relationships available in a market economy. Who owns information and
profits from printed work become crucial questions when economic
considerations are made salient. In order for an intellectual property
system to be realized Mark Rose argues several criteria needed to be met.
First, "a sufficient market for books to sustain a commercial system
of cultural production" had to exist (Rose, 1988, p. 56). Second, "the
concept of the author as the originator of a literary text rather than as
the reproducer of traditional truths also had to be more fully realized"
(Ibid,p. 56) Third, "there had to be an adequate theory of property,
or, more precisely, an adequate mode of discourse about property, a
language in which the idea of the proprietary author could [be]
elaborated," a discourse realized with John Locke's theories about property
(Ibid, p. 58).
The printing press and the corresponding expansion in literacy and writing
created the market necessary for Rose's first criteria. The second and
third criteria are what I wish to discuss in this section. Because I will
argue, along with Rose, that the concept of the proprietary author developed
out of debates over intellectual property and copyright, I will first
examine the development of a discourse on property and then move into the
emergence of the proprietary author.
THE DEBATE OVER INTELLECTUAL PROPERTY
Justin Hughes writes: ...Ideas about property have played a central role in
shaping the American legal order. For every Pilgrim who came to the New
World in search of religious freedom, there was at least one colonist who
came on the promise of a royal land grant or one slave compelled to come
as someone else's property (Hughes,1988, p. 288). Tangible property, meaning land, businesses, and even
people, typically describes our understanding of property rights. Tangible
property rights are based upon ownership and possession of a thing.
Private property is central the central unit of analysis, though communal
property does exist. However, the growing trend in property rights
discourse is towards intangible forms of property. A less frequently
discussed trend is that historically recognized but nonetheless atypical
forms of property, such as intellectual property, are becoming
increasingly important relative to the old paradigms of property, such as
farms, factories, and furnishings (Ibid, p. 288). This atypical form of property is the
subject of this section.
Pamela O. Long argues that what could be considered "intellectual property"
springs from medieval craft guilds that "fostered proprietary attitudes
towards (intangible) Craft knowledge, but that intellectual property
developed separately from the notion of individual authorship (Long, 1991,
p. 870) [ftn 2]. Craft guilds used intellectual property rights to protect
trade secrets from competitors. Intrinsic to intellectual property are two
concepts: a distinction between tangible and intangible works; and
intangible products are commercial property (Long, p. 858). Important to
Long's analysis is the claim that authorship develops separately from
intellectual property. A concept of authorship was well established as
early as the 1st century B.C. (Long, p. 853) However, this ancient notion
of authorship, while concerned with theft of words and ideas, was not tied
to an economic system. Instead, "immortal fame" and a
"precious legacy" were at stake (LOng, p. 856). While authors
and scholars worried about theft of works, there was a "complete lack
of a concept of intellectual property" (Long, p. 858). During the
Middle Ages the link between authorship and intellectual property remained
unimportant. In part, the importance of alchemy and the corresponding
focus on esoteric writing created the framework through which authorship
was viewed. From this perspective one did not possess or own knowledge,
but was possessed and transformed by knowledge (Long, p. 865). To the
alchemist knowledge possesses, the individual is merely a vessel for
knowledge. Thus, proprietary ownership of knowledge is inconsistent with
the beliefs of the alchemist.
A concept of intellectual property did develop within the market economies
of Italian medieval cities by the mid-13th century (Long, p. 870). Crucial
to any craft were the processes used to create the goods. These processes
were intangible and thus difficult to protect. Considering them as
intangible property and thus subject to property rules ensured some
measure of protection. The economic importance of guild
"secrets" made it necessary to conceptualize these processes in a manner
worthy of protection. Within the guild/community context the principles of
intellectual property developed. Individuals leaving guilds took more than
trade secrets with them, they took a notion of intellectual property. In
order to justify leaving the guild with that specific guild's
"secrets," an individual emphasized their individual ingenuity
and the importance of authorship. Thus, intellectual property rights
developed through a strange mixture of guild secrets and individuals
attempting to justify their walking away from the guild with those secrets
(Long, p. 881). Thus, the first legal standards were drawn from what would
best protect the "rights" of guilds, the rights of enterprising
individuals, and the collective good.
From 13th century Italian cities we move to 18th century England. The Stationers'
Company, the body established to censor printed material by the Crown,
held a virtual monopoly on all printing. This group was a descendant of
craft guilds. Before anything could be published it had to be registered
with the Company and became the "copies" of the Stationers' Company
(Earle, 1991, p. 269-290). The emergence of the "copy-right" then,
is the Stationers' Company right to copy rather than an individual author's
right to publish. However, at this point, control of copyright was
unimportant because the remains of guild practices kept the printing monopoly
intact (Prescott, 1989, p. 453-455).
It wasn't until Scotland, not bound by English guild rules, began to infringe
on the London monopoly that copyright issues became salient resulting in the
important decision of Donaldson v. Beckett and setting the stage for the
development of the proprietary author (Prescott, p. 453-455). Within the cultural framework of 18th
century England the battle over copyright raged (Rose, p. 56). The concept
of the "modern proprietary author" was used as a weapon in the
struggle between the London booksellers and the booksellers of the
provinces" (Rose, p. 56) What is unique here, and distinguishes it
from Long's viewpoint, is that authorship became proprietary instead of
for posterity.
This move is also what tied intellectual property and the legal dimensions
of that concept to the concept of an author. What is unique about the
Donaldson decision is the "development of 'intellectual property' as
a creation of the author's intellect..." (Earle, p. 278). Interestingly,
the proprietary author was the London publisher's tool to maintain strict
control over copyrights. However, the arguments, once made, took on new
meaning with unexpected consequences. The creation of the author has had a
much more profound impact. This new social relationship transformed the
way society perceives the ownership of knowledge. In preliterate societies ownership of
knowledge is nonsensical. As Doug Brent puts it, "There simply is no
"text" apart from each individual incarnation of each tale"
(Brent, 1993) In such a society knowledge is not "owned" it is
"performed."
The story changes over time, but the change is not recognized as such because
there is no older text to return to. Knowledge cannot be individualized
because it is a collective process. Knowledge was held in common,
entrusted to the tellers of tales who were maintained by the tribe, not
for their individual contributions to the growth of ideas, but for their
ongoing duty to keep knowledge alive by performing it (Brent, p. 3). Copyright, the printing press, and literacy
radically changes ownership of knowledge. Writing allows for one to
separate the text from the author. Knowledge is no longer within the
performance, but separate. "A manuscript, however, can be handled,
stored, retrieved from a vault and re-performed a millennium after all
previous readers have died. Therefore, with writing, knowledge comes to be
seen as something reified, as existing outside the self" (Brent, p.
3) Once separated from the group, knowledge is easily partitioned off into
the individual "creators" "property." This notion is
assisted by the enlightenment notion of authorship. The development of the
author as originator of ideas is a romantic notion with no intrinsic tie
to intellectual property.
The French case differs substantially from the English case and is worth mentioning
because of these differences. [fnt3] Using natural rights philosophy
French law "is said to enshrine the author: exclusive rights flow
from one's (preferred) status as a creator" (Hesse, p. 110). Like England,
the argument that ideas were the property of the individual author was
first advanced by the Paris Publishers' Guild in order to defend their
monopoly over texts from long dead authors (Hesse, p. 112). Essentially,
Hesse agrees with Rose that the "modern author was first conceived as
individual property owner" (Hesse, p. 115). However, she also argues
that a second position was also prevalent in 18th century France, one
important to today's debate as well. Unlike a piece of land, an idea can
be discovered, inhabited, and used by an infinite number of people at the
same time. Ideas are not the creation of individual minds, be it through
revelation, appropriation, or cognition. Rather, they inhere in nature,
and hence are equally and simultaneously accessible through the senses to
all. They therefore can belong to no single individual (Hesse, p.
116).
This position, put forward by Condorcet in the 18th century is equally important
to evaluate today. It provides an argument derived from a different
perspective than the individual property rights analysis defined by Rose
and entrenched for centuries. But while it is clear that the development
of the proprietary author did not go uncontested the alternative, romantic
author found in the French example still does not escape the notion of
knowledge as individually possessed. What is missing is a collective concept
of knowledge. Certainly, knowledge should be available for the public
good, but within both these perspectives it is still individually
"owned." Roses' argument about the emergence of the proprietary
author is extremely important for understanding today's debates over
intellectual property. However, there is a dialectical nature to the
debates apparent when one looks at the French example. Ultimately, then,
authorship did not emerge uncontested as proprietary. Instead,
Eighteenth-century France witnessed the emergence not of one modern
position on the nature of the author and his relation to the text (i.e.,
the property-bearing individual) but rather of a modern tension between
Diderot's conception of the author as the original creator and hence
inviolable proprietor of his works and Condorcet's depiction of the ideal
author as the passive midwife to the disclosure of objective knowledge
(Hesse, p. 117).
This tension, while not diminishing Rose's argument, provides the dialectic
existing between proprietary authorship and the romantic, but more
communal approach to knowledge. However, history tells us that the notion
of proprietary authorship has won. The French debate does little to
disprove this conclusion, it simply provides the second side. Ultimately,
copyright protects the expression of an idea while recognizing the idea
itself exists outside the person thinking it, reifying knowledge. Both
sides of the debate outlined above do this. When applied to the
individual, proprietary author a clear link is made between property and
ideas. "Implicit in our thinking about the author's claim on his
"intellectual property" is an assumption that he is somehow morally
entitled to that which he has produced through mental labour"[emphasis
in original](Earle, p. 270). The printing press ensured private ownership
of knowledge was firmly cemented into culture by separating knowledge from
the producer and placing the rights to that knowledge in private
hands.
One cannot ignore the economic reasons for this new concept of authorship and
intellectual property. Arguments were made defending the author and the
individuality of ideas, but the primary benefactors from this new system
of knowledge ownership were publishers who owned the copyrights. Economic
power remained in the hands of those who owned the technology of printing,
not the "originators" of the ideas. The modern proprietary author
simply created a useful euphemism for protecting company rights to copy.
The decline of the patron system because of new economic conditions gave
the author a larger degree of autonomy and further cemented the notion of
the proprietary author, thus legitimizing the trade (Earle, p. 287). What is lost through this view of
intellectual property? First, the canonization of this form of authorship
naturalizes a certain process of knowledge production. A communally based
knowledge firmly situated within a local group is overshadowed by
proprietary authorship. Emphasis on individual contribution denigrates the
concept of community knowledge and helps promulgate the notion of
individual as owner. Knowledge could have become community property
without the notion of individual authorship being attached to printed
knowledge.
Each person would be perceived as contributing to the larger body of knowledge
to which they were all a part. The debate for this viewpoint is
significantly impoverished and unable to defend itself against the powerful
logic of the economic marketplace. Thus, a second naturalization is the
privatization of knowledge as private property instead of socially beneficial
ideas. The debate over authorship and
property rages today in a new setting - that of electronic space.
The 18th century debate has significant bearing present events. First, these
debates established a specific type of knowledge production. Second, the
emergence of printing and the emergence of electronic writing mark places
differing from their predecessors. In looking at the legal discourse over
intellectual property and computer technology I first wish to visit an
interesting parallel debate to the London booksellers debate in a 1993
edition of the Electronic Journal.
AUTHORSHIP VERSUS COLLECTIVE GOOD REVISITED
EJournal is an electronically published journal with the following command:
* This electronic publication and its contents are (c) copyright 1992 by
_EJournal_. Permission is hereby granted to give away the journal and its
contents, but no one may "own" it. Any and all financial interest is
hereby assigned to the acknowledged authors of individual texts. This notification
must accompany all distribution of _EJournal_ (EJournal, 1992).
The debate is between John Levine and John Dilworth over claims of authorship
and copyright protection. John Dilworth argues that by increasing the
space in which ideas are exchanged (electronically,) publishers lose
control of information (held through copyright) and more authors are free
to express ideas in a scholarly and academic setting. Levine's primary
argument against Dilworth is that "real authors," those who made
their living writing, would never accept such a system because they could
not be paid for their jobs. Furthermore, absent the discriminating eye of
publishing houses, there would be lower quality material available. True,
publishers have hugh slush piles of unpublished stuff, however, most of
this is worthless and not suitable for publication, John Levine argues.
Dilworth's position weakens published material by infusing it with
"junk." I, of course, side with Dilworth and find Levine's views
fascinating, especially in light of the preceding historical narrative. By
cementing the notion of the proprietary author into intellectual property
law the role publishers play (as primary benefactors) is obscured and
authors are divided into "real" ones, ones doing if for money,
and the "fake?" ones -- those who publish for other reasons. Of
course, when pushed, Levine is unable to support the claim of
"real" authorship as proprietary. Not when faced with the
multiplicity of evidence (poets and academics, for example) who publish
for reasons not directly related to profit. There is something more at
stake here than bad debating skills.
A legal system of intellectual property with the proprietary author as its
gemstone obscures who benefits and what copyright is about. Computer technology
challenges this because publisher control is no longer essential.
Electronic journals have no copyrights as traditionally understood. The
concept of the author as "real" only if paid is insupportable in
this new atmosphere. More often than not who wrote a specific piece is
lost along the way. Information and thoughts pass from person to person
accumulating an electronic trail of sorts, but very often the originating
author is not part of this trail. It must be kept in mind that the
proprietary author is a historically specific system benefitting specific
groups of people. In a real way there
is a parallel with the more ancient belief in contributing to posterity.
Electronic authors often ask only that their names remain attached to
their electronic piece or software. It is possible to escape the commodification
of knowledge, replacing it with more collective forms of debate/writing/knowledge.
Electronic journals and discussion groups still have filters for
"junk," however, the proprietary author as "natural" is debunked
and those who have traditionally benefitted (primarily publishers) are
displaced. Copyright, from this perspective, becomes irrelevant because
computers can help us transform the way we think about knowledge. [fnt 4]
Essentially, computers offer a space from which Condorcet's understanding of
knowledge can be played out, and thus provide a more substantial opponent
for the proprietary notion of authorship. Of course, we must recognize
that even as authorship breaks free of legal and commercial restraints,
new powerful elites are springing up to replace the old. These elites own
the new information technology making new forms of knowledge transmission
possible. Copyrights and intellectual property laws still serve to protect
the powerful -- this time in the technological realm. Protection is
granted through a legal discourse that continues to naturalize ownership
of ideas and the commodification of creation. In naturalizing individual
ownership of knowledge these new conglomerates use authorship and the
proprietary nature of ideas to conceal who benefits and who is
disadvantaged. It is to the legal discourse dealing with computer
technology I now turn. It is my argument that the legal discourse
influences the way technology is developed is critical ways.
The legal debate spreads from the traditional arena of copyright law to the
fringes of the computer world -- the world of the hacker. The debate where
authorship as ownership is at stake begins with copyrights and competitive
market arrangements, it takes place in courtrooms and law offices. In
these debates, corporations are afraid of other companies and individuals
stealing their ideas or making cheap imitations. They are also afraid of
the illegal transfer of software from computer to computer without
compensation to the company. Much like the guilds or the London booksellers,
modern corporations are interested in maintaining an economic monopoly on
the industry by structuring computer technology as intellectual property
and owning all uses of this technology. They are being challenged by other
companies and "provinces" (in this case countries such as China
who are not yet bound by American intellectual property standards, though
recent trade agreements work to do so.) The contest is not about
authorship, but about who owns the technology used to produce this new
mode of communication.
The debate continues and expands beyond the courthouse walls to include hackers
and discourse on the internet, generally. Hackers become the easy to use
symbol for a body of thought. Their actions threaten the definitions created
by the first level of this debate. They challenge the hidden assumption of
private ownership. When talking the story of hackers, one talks about
freedom of information and equal access to knowledge. Essentially, this
side of the debate is interested in a conceptually different understanding
of knowledge and its relationship to individuals and the community.
Hackers are cast as the "evil other" in the computer world. They
are portrayed as criminals who illegally break and enter, as spreaders of
viruses, cheaters of the phone company, and what every American fears --
nerds. Additionally, while hackers are relegated to the fringe of computer
and legal discourses, they represent a radical fringe that must be kept in
check. Even as the legal system eats away at freedom of information over
computers and applies traditional copyright to computer technology, the
Dilworth/Levine debate indicate some are seeing computer discourse as an
escape from the notion of the proprietary author.
The unintended consequence is that new dimensions of authorship are spawned
(or ancient ones rekindled,) new understandings of how ownership relates
to communication are tested and, even though the legal system trudges on
in hopes of clearly defining the issues, the meaning of private property
in relation to information is questioned. What is at stake is the way
knowledge is constructed. When journals become electronic, authors lose
control of their writing. In fact, many give up control to make their
information free to any who want it.[fnt 5] It is as changeable by the
receiver as it was by the originator.
Another example is freeware. Freeware is free software available at no cost
directly from the internet. Knowledge can be shared across geographical
boundaries between "virtual communities." [fnt 6] The implications
are at times mindboggling and endless.
The legal discourse on computer technology is familiar -- one of
rights and private property. The more radical discourse advocating freedom
of information challenges the legal one. What is at stake is not only
ownership and money, but the metaphors used to talk about technology and
computer "crimes." In the process, a narrative is created
obscuring inequities of power existing in the area of information
technology. It is a conflict over rights and images, both of which become
visible within the legal narrative, to which I now turn.
LEGAL DISCOURSE ON INTELLECTUAL PROPERTY AND COMPUTER TECHNOLOGY
Types of intellectual property include property recognized through existing
copyright, patent, trademark, and trade secret law. It also includes
"gathered information" as in phone books and directories. [fnt 7]
Computer technology is being staked out through traditional intellectual
property rights claims. Legal debates are having a profound influence on
the development of computer technology. In fact, it is the central thesis
of one author that legal battles will determine how the software industry
will grow (Clapes, 1993). Thus, computer technology potentially offers a
challenge to our understanding of intellectual property, but
simultaneously, the legal system is defining how technology develops and
keeping that development under control (Clapes, 1993).
The discourse used is both a legal one and of paramount concern. A legal discourse
creates a certain construction of the world. Through this legalistic
framework the future of computer technology is shaped. Often times
computer technology is treated as traditional intellectual property.
However, because it is significantly different, substantial questions
arise about its fit within traditional bodies of law. As Edwin Mansfield
notes, "A variety of new technologies have come into being that fit
awkwardly, if at all, into traditional concepts of intellectual property"
(Mansfield, 1990, p. 28). In fact, the interactions of hardware and
software, tangible and intangible items of property, make legal distinctions
meaningless (IPLR, 1991, p. 174). Generally, even though the fit is not
perfect, and legal distinctions are exposed as arbitrary boundaries,
copyright has become the primary method for protecting computer technology
and the corresponding intellectual property rights.
Into this framework I would like to briefly discuss the landmark 1983 court
case over the copyrightability of computer software and the intellectual
property concepts used to justify the claims. Intellectual property law
has generally been divided into two categories -- industrial property law
and copyright law (Stern, 1987, p. 539). Computer technology, while
seemingly better fitted for the first, has in recent years been protected
under copyright law (Stern, p. 539). Apple Computer Inc, v. Franklin
Computer Corp. dealt with this issue -- is computer software
copyrightable?
In Apple, Franklin, a small computer company that manufactured "macintosh compatible"
computers, was charged with violating copyright on 14 different programs
written by Apple programmers. These computers, Apple argued, used exact
copies of their own software, with only minor changes like the elimination
of the copyright warnings and author's names. Apple claimed, and Franklin
never denied, their software was copied. Apple claimed they could prove
authorship because Franklin had not removed the author's names which had
been embedded in the programs.
Franklin's argument was that the programs were not protectable
under copyright law and thus copies could be made (Apple Computer Inc., v.
Frankline Computer Corporation, 714 F.2d 1240 (3rd Cir. 1983). The court
reversed the lower court's decision in favor of Franklin and extended
"copyright protection to all forms of software" (Rodau, 1986, p.
414). In this decision the court reaffirmed the definition of
"literary" as indirectly including computer programs as
"works of authorship" (Apple Computer v Franklin, p. 1247).
Just as in the London bookseller case, authorship granted to computer programs
works to maintain monopolistic control by the already advantaged. [fnt
8] Again, like the London Booksellers,
the underlying tension is between a large company with a virtual monopoly
over a certain expression of an idea and a smaller company wishing to
produce a similar product. Furthermore, in both cases (Donaldson v.
Beckett and Apple) the author is suspiciously invisible. [fnt 9] Interesting enough, while authors are
invisible in the copyright battles, their presence in the justificatory
arguments made by those who wish to establish the copyrightablity of computer
software is more than apparent. Anthony Lawrence Clapes, assistant general
council for IBM and author of Softwars understands the importance of
establishing the creative and artistic role of the software author in
order to perpetuate current methods of copyright protection.
The first chapter of his book is dedicated to establishing the beauty and artistic
value of well produced software. Software writing is compared with poetry,
music and painting in its ability to capture imagination and make dreams
reality (Clapes, p. 10-16). I do not wish to argue that writing software
is uncreative or unartistic. Rather, my point is that the creative genius
of the individual author is developed in order to make arguments of
copyright fit, then creativity and authorship is undermined and obscured
by the large industries that actually own this property. In essence, the
romantic myth of authorship may have validity, but within the vast complex
of industrial production it is merely a ploy used to perpetuate a certain
economic situation. Going back to the
Apple case for a moment, another interesting development appears. There is evidence
to indicate that in many computer programs ideas and expression merge. The
court decided it lacked sufficient evidence on the idea/expression issue
to make a ruling. The claim that there are a limited number of ways to
arrange computer operating systems was not considered because Franklin
admitted it could have rewritten several of the programs thus indicating there
existed more than one expression (714 F.2d at 1253). In part because the court rejected
Franklin's argument on this point, the argument that computer software is
uncopyrightable was found unpersuasive. However, at least one author
believes that when it comes to computer languages, the idea/expression
analysis is inappropriate. ...when
the courts understand precisely what a computer language is, and then
apply idea/expression analysis, they must conclude that a computer
language is almost always an uncopyrightable idea (Posner, 1993, p.
493).
The Apple case illuminates the false nature of an idea/expression dichotomy.
It is a subjective distinction dependant on how the expression is defined.
The narrower the more likely it is to have only one expression (and thus
be uncopyrightable). Ultimately, the arbitrary nature of such a dichotomy
becomes visible, opening the entire discourse to further critique. Computers have the potential of challenging
our notions about knowledge. The commercial aspect of knowledge makes it important
to construct boundaries between ideas and expressions in order to protect
one's work, but one should begin to question how that boundary is
perpetuated. Within a legal discourse of copyright, narrative competition
is between those who have monopolistic control over the technology and
those who use similar products, or create products similar. The general
trend in copyright law is towards increasing protection of user interfaces
and software.
The trend is away from anything resembling "copying" of a product (Clapes,
1993). In making this step the courts use standards of "structure,
sequence and organization" and "look and feel" (Posner, p. 504-512)
to substantiate their decisions. However, these types of rulings further
privatize innovation and, in my opinion, make innovation more difficult to
accomplish. What is obscured in this discourse? Obscured are other ways of
viewing knowledge besides that of private property. Ownership and property
rights are usually not challenged within a legal discourse, though hackers
challenge it consistently. In fact, anyone who offers an alternative
opinion within the legal framework is labeled "so extreme as to be
inconsistent with existing law" with minds that have "closed
like an oyster shell around the brittle pearl of a personal ideology"
(Clapes, p. 198-199). Interestingly missing from this accusatory note is
the ideological nature of existing copyright practices and the limited
nature of the legal discourse. In this case, legal discourse is used to
avoid dealing with alternative viewpoints that are instead labeled as
brittle ideology. However, as we will see, there are alternative ways of
thinking about knowledge.
Within the private property/legal nexus the assumption that protection and
proprietary rewards are needed to encourage individuals to create is used
to perpetuate intellectual property regimes (Mansfield, p. 30). The proprietary
author is naturalized and the fact that many individuals are not motivated
by profit is obscured. Furthermore, virtually all disadvantages cited are
in terms of dollars lost. No mention is made to the growing gap between
the rich and poor along information lines, a gap that is both a global as
well as a national problem. No mention is made of the social significance
of this new technology both philosophically and politically. The larger
picture is virtually ignored, and instead the specific ownership is
focused on resulting in a tightly made argument difficult to escape. The debate is between those who finance technological
development and those who want information to be common property shared by
all (Mansfield, p. 48). Where this boundary will be drawn is yet to be
determined. It is also between those who hold virtual monopolies over
technology and those who want a piece of the economic pie. Again, like the
booksellers of old, those who own the means of dissemination benefit from
the process.
Each new level of restriction makes the possibility of freedom of information
dimmer. The thrill of "seeing if it can be done" is made illegal.
While companies attempt to count the money they lose to "bad" hackers,
no one is assessing the loss of creativity and flexibility due to harsher
penalties. The stakes are high and scientists and computer hackers
"are frustrated to discover that their electronic playgrounds have
been invaded by avaricious and enterprising entrepreneurs who prefer dollars
to the joy of the "great hack" or the reward of the Nobel prize" (Branscomb,
1990, p. 48). Presently, some feel legal restrictions on computer
technology unnecessarily stifles advances in the field (Branscomb, p.
154-156).
The implications outside of the economic/legal debate are even more interesting.
First, computers exemplify the communal nature of knowledge. Much
innovation occurs because of other, already existing technologies. New
ideas do not spring from the ether preformed, but are usually built on
ideas/products/creations from other projects. Putting limitations on new
technologies limits the ability of others to be innovative (Stern, 1992).
Second, unlike the past, computer technologies improve so rapidly that
waiting for a patent or a copyright to expire would make innovation impossible.
Unlike books or art, the creation of new technology is dependent on
already existing technology. Consequently, restraints stifle creation.
Furthermore, law moves significantly slower than technological innovations.
The legal system cannot keep up, or catch up, with technological
advances. A second layer of legal
discourse is also at work. So far, I have discussed a certain type of
case. In these cases, individuals make few appearances, what is at stake
is corporate dollars usually "stolen" by competing companies
wishing to compete in a competitive market. This discourse is primarily
involved in establishing computer technology as private property and
legitimizing the owners of the technology. Another legal discourse is
involved in identity creation of "the enemy." In the case of
computer technology, the enemy is the computer hacker.
I would like to deal with one significant event -- Operation Sundevil. On
May 9, 1990 the United States secret service obtained 27 search warrants
in order to carry out searches and seizures of computer property thought
to have been used in illegal activities. The press reported the existence
of a nationwide computer conspiracy with hackers working in tandem to
commit computer credit card fraud, "computer tampering," and "computer
trespass" (Chicago Tribune, 1990). One teenager was arrested and had
his home raided because the phone company had lists of times he had called
a target of the raid, Acid Phreak. Ultimately, while some crimes had been
committed, the amount of money lost and damage done was grossly
exaggerated by the secret service and the media. Several hackers who pled
guilty received 14 months each and were also fined $233,000 for the value
of "access devices" they had stolen from BellSouth. These access
devices were computer codes and telephone card numbers. "As the foundation
(Electronic Frontier Foundation) asked, how can a value be assessed when
no loss can be demonstrated?" (Mungo and Clough, p. 220). The
economic power of the phone company, however, is not to be reckoned with.
The most important aspect of the Sundevil operation was the resulting
demonization of computer hackers. In a obvious identity move Garry M.
Jenkins depicted hackers as: "no longer misguided teenagers, now "high
tech computer operators using computers to engage in unlawful conduct"
(Aldrich, 1990). The identity of misguided teenagers is not sufficiently
evil (nor is computer nerd) for the grand scale operation the secret
service undertook. Thus, a bigger enemy needed to be created. Despite the
fact that your typical hacker is a teenager, the image created is of an
older, more sophisticated manipulator with only illegal activities on the
brain. It seemed to have worked too. As one neighbor said about 18 year
old Frank Fazzio Jr., "I've never thought him capable of that sort of
thing" (Aldrich, reprinted from the San Francisco Chronicle, 1990).
Somehow the dastardly nature of the deeds is emphasized instead of the
playful depictions in many books written about hackers.
This is possible because the secret service claimed that "unlawful computer
hacking imperils the health and welfare of individuals, corporations, and
government agencies in the United States who rely on computers and
telephones to communicate" (Ibid). When such claims are made one
should begin to be afraid for personal liberties. Ultimately, the harm done was insignificant and the general
threat to health and welfare never materialized. What was obscured,
however -- and what the Electronic Frontier Foundation was created in
response to -- was the trampling of civil liberties in the pursuit of a
largely imaginary enemy.
Hackers were demonized, private property was further solidified through court
decisions. Business as usual continues without thought to the implications.
Following the discourse created within a legal framework it becomes
obvious that many aspects of computer technology are left unturned. It
becomes virtually impossible to talk about issues of inequality in information
access because court cases over who owns intellectual property start from
the premise that knowledge can be individually owned. Within this
framework, to suggest that knowledge should be shared instead of owned and
parceled out is to ask the unthinkable. Hackers, while also beginning to
retreat into a legal world in order to protect themselves from government
abuse, think the unthinkable because they situate themselves in a
different discourse. They start from the premise that information should
be free and shared by all. It is more likely to see how gaps in
information are serious when you look at it from the more
"radical" discourse. A legal discourse will only begin to ask
that question if there is a fear of monopoly control of the industry.
Further obscured is the fact that most people don't have computers and the
vast majority in the world still struggle for basic survival. It is easy
to loose sight of the problems of the vast majority by reducing debate to
the small circle of private property and freedom of information. Research
into the international implications of the information age must be done.
Indeed, how the computer develops will be crucial to how the world
develops. My argument is that by using the legal language (which we are
prone to do) we obscure the larger picture and naturalize the ownership of
intangible property when a different perspective might be more
appropriate.
People use computers and the resulting discourses to further entrench the notion
of private property. In the case of computer technology language is used
to create a spatial relationship. By doing this, space is created where
space doesn't exist. Language constructs computer space. Consequently, it
is easier to use metaphors of "trespass" and "theft" because
spatial thinking renders intangible objects at least conceptually tangible. When looking closely, the metaphors used
become visible for what they are -- ways of obscuring modes of thinking in
favor of others. [fnt 10] The metaphor of "property" is ill
fitted to computer technology which is difficult to own. It is easy to
"steal" technology without ever taking something tangible from a
specific geographic space (Branscomb, 1991, p. 154-157). Theft of property
takes on new dimensions. "Trespassing" becomes visible as a
meaningless metaphor within the computer context, but is still used.
Computers challenge notions of what is "published" material.
"Copyright" becomes meaningless in a world where information is
transferred too quickly to control. "Authorship" is also often
lost because ideas can sometimes be difficult to trace. All these concepts
are problematized because of their new context. This is the positive
nature of computer technology and communication. These arguments point to a flexible law at worst, and making
this knowledge public at best. Indeed, this is what the debate must
decide. As Anne Wells Branscomb argues, "Therefore, the real
challenge is to determine the appropriate boundaries between the public domain
and proprietary interests" (Branscomb, p. 58). In order to appropriately test the boundaries
between the public domain and private economic interest, it is necessary
to move to a different, challenging discourse. Inequities in access to
information are not part of the legal discourse over intellectual property
rights, nor does it become an issue in the criminal realm of the computer
hacker. Corporations and courts assume corporations "rightfully"
own computer technology regardless of the political or social
implications. To pose alternative questions requires a different perspective.
That discourse is provided by the self-named subculture of hackers --
individuals whom have created new identities for themselves based upon the
computer systems they inhabit.
As I argue above, and Operation Sundevil painfully illustrates, without alternative
narratives and stories individuals "are coopted into identities they
did not author and cannot transform" (Cobb and Rifkin, p. 74). Those
disadvantaged by the legal discourse on intellectual property rights are
involved in a struggle to transform the discourse, and to create their own
identities.
ALTERNATIVE IDENTITIES AND DISCOURSES ON COMPUTER TECHNOLOGY
The word hack was first used at MIT to refer to a feat "imbued with innovation,
style, and technical virtuosity" (Levy, 1984, p. 10). As early as
1958, computers were influencing the minds of young kids, who engaged in
behavior at times stretching the boundaries of legality, were fascinated
with what computers could do. To this day, individuals are still
fascinated with pushing themselves and computers to their limits. The
hours of time and energy invested by a hacker in learning a new system, or
trying to write a complex program, is an argument against copyright
protection. Only after knowledge becomes a commodity do people ask for
protection. This constitutes a distinctly different attitude towards
knowledge from the "pure hack."
The 80's marked the decade when computer technology became
available to virtually anyone.
With mass availability of computer technology many young adults realized that: "For the first time in recent history
you could reach out and change reality, you could do stuff that affected
everything and everyone, and you were suddenly living this life that was
like something out of a comic book or adventure story..." (Kroupa,
1993, p. 59). While one should
not glorify this lifestyle uncritically, the identity construction occurring
is important. The basic ethic involves
several tenants. It was a discourse based upon freedom of information,
anything that would enhance creativity, suspicion of government and
bureaucracies (and thus advocates of decentralization), and equal
treatment based upon ability to hack instead of age, race, or sex. (Levy,
p. 27). All of these criteria pose a distinctly different discourse to
law. The orientation of freedom of information makes certain behaviors
conceivable where they would not be if one comes from the privatizing
discourse of the law. As Emmanuel Goldstein, editor and publisher of 2600,
a hacker journal states, If I want
to access a credit[tracking] company like TRW and access my credit file,
is that an invasion of TRW's privacy? What about my privacy -- all that
information they've gathered on me? (Kiely, 1992 p. 70). The general hacker discourse centers equal
access and suspicion of centralization to such a great degree that issues
of private property are pushed to the side. Much as in the legal discourse,
certain ideas are obscured by what becomes the focus. The identity constructed is that of a
creative innovator whom "takes on" the institutions controlling information
in order to engage in a knowledge expanding and creative process. Hackers are
usually labeled misfits and rebels, or embrace these labels for
themselves. They are characterized as having "unimposing exteriors,"
(Levy, p. vx) as being either characteristically sloppy dressers or
uncharacteristically neat and tidy. Hackers work weird hours, usually at
night, taking chemicals to stay awake. Hackers hack systems under
pseudonyms like "Triludan the Warrior" or "Captain Crunch"
with the objective of capturing sysman status (which means system
manager). They see hacking as a game. [fnt 11] "There is an unwritten
ethic for hackers. Hackers aren't getting into personal files; they're
exploring systems" (Levy, p. 68).
However, this exploration of systems is threatening. Freedom of information
is even more threatening because it exposes the power relationships built
into information systems and perpetuated through a legal discourse
empowered to construct these exploring individuals as criminals. Those involved in illegal activities, or
destructive activities do exist (and usually gain media attention.) The
image of a "bad" hacker, while having basis in reality, serves
the practices of the legal system. "Hacker" takes on
connotations of wrongdoing and criminality. In the process the identity of
"hackers" is contested and usurped by the legal system. Many
succumb to market pressures and the law (who can blame them?) and build
businesses designed to "bust" other hackers. However, there are
still countless others who take the identity of hacker or cyberpunk to
heart and the corresponding ethic. A hacker ethic in conjunction with a
focus on the growing gap between information rich and information poor can
be used to question the legal discourse on computer technology. So far I have tried to delineate how the
discourses of both law and its opponents construct specific ways of
talking about information technology -- either as a right of the people,
or as intellectual property rights. These two modes of talking at times
seem unrelated. There is the debate occurring in the courtroom over rights
and ownership, and there is the debate occurring on the internet and in academic
circles. In this latter debate people are envisioning a system where
information is free, where communal ownership takes the place of individual
ownership, and where there is a lowering of the information gap. Both
converge within a rights discourse to argue for either intellectual
property rights or the right to access to information and technology.
The hacker discourse begins to talk about "rights" to information as
they are faced with the powerful legal discourse of intellectual property rights
and barriers to access to information. Ultimately, given current trends,
the power of the state will be used to continue to repress movements towards
equal access to information. Those considered "subversive" will
continue to be arrested, their property will be confiscated and they will
be tried and sent to jail. Secrecy and ownership will continue to dominate
our governmental relations to information even as challenges are made to
these concepts. Change will probably
only occur from the bottom up only when individuals recognize that
information and knowledge are power that they should have access to. This
is beginning to occur as grass roots organizations and people involved
with computer mediated communication begin to talk about rights to
information and communication.
Obviously, computer technology is here to stay. However, we must ensure that
the metaphors we use do not obscure from view the inequities that exist on
both a national and international level. Using a legal discourse and
telling our stories as ones about property only conceal inequalities. At
the same time, computer mediated communication can hopefully begin to transcend
traditional notions of property ownership as it relates to information.
There are many exciting and novel issues within this field. Hopefully,
creativity can continue to prosper as the boundaries between intellectual
property and freedom of information begin to blur.
NOTES
1. For a good assessment of the transitions from oral to writing to print
see: M. Ethan Katsh, The Electronic Media and the Transformation of Law
(Oxford: Oxford University Press, 1989), p. 17-48.
2. Long and Rose have different
perspectives on this point. In Long's opinion (which I agree with)
intellectual property existed before the 18th century. It seems consistent
that intellectual property developed prior to the 18th century, but was
still innovatively applied to printed matter thus transforming authorship
into its more modern form. It also makes sense that intellectual propety
would be associated with the publisher and not the author, much like the
initial claims to property came from guilds and not individuals.
3. For a detailed account of the
differences between the French and English development of authorship see:
Carla Hesse, "Enlightenment Epistemology and the Laws of Authorship
in Revolutionary France, 1777-1793,"
4. On a more mundane level the Feist
decision illustrates this point. Compilations of data in the form of phone
books used to be considered copyrightable because of the "sweat of
the brow" standard. However, in the computer age, this standard no
longer seems relevant and thus what is viewed as copyrightable material is transformed.
See Robert Gorman, "The Feist Case: Reflections on a Pathbreaking
Copyright Decision," IPLR, (25:1993), p. 355- 396.
5. The Doug-Brent exchange is an
electronically conducted "debate" on just this issue. See:
Electronic Journal for Humanists, _EJournal_ Volume 1 Number 3-1
(Supplement to V1N3)
6. This is a term I a drawing from the
title of Howard Reighnhold's new book by the same name. I do not know what
he means by this term, but I thought it was appropriate here.
7. This later category's
protection has been successfully challenged in Rural Tel. Serv. Co. v.
Feist Publications, Inc., 663 F. Supp. 214 (D. Kan. 1987), aff'd, 916 F.2d
718 (10th Cir. 1990) as cited in Gorman, p. 355-398. The Supreme Court
decided that "Rural's exhaustive listing of telephone numbers,
organized alphabetically... lacked creative authorship with respect to
both selection and arrangement, and was thus found not to be
copyrightable." (p. 356).
8. "Putting it baldly and
exaggerating for the sake of clarity, it might be said that the London
booksellers invented the modern proprietary author, constructing him as a
weapon in their struggle with the booksellers of the provinces."
Rose, p. 56.
9. In Apple the author testified
that he had written the software Franklin had stolen. However, his right
to original authorship was not centered in this case, Apple's right to
legal ownership of his expression was at stake.
10. This is not to say that metaphors
should be avoided, this is impossible. However, one should be aware of how
metaphors are obscure certain relationships.
11. These descriptions pervade the
literature I have read. The books I rely most heavily on are: Levi's
Hackers and Paul Mungo and Bryan Clough, Approaching Zero
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