Political Narratives of Copyright: The Rush to Control Technology
In 1976 the National Commission on New Technological Uses (CONTU) recommendedthat computer programs be included as "literary" works under the Copyright Act,making them subject to copyright law. With no legislative debate, Congressamended Section 102 of the Copyright Act to include computer programs as"literary" works.[1] While the courts wereleft to determine the applicable degree of protection, the CONTU report set thestage for the absorption of new technology under copyright law. Much hashappened since the CONTU report, including the development of the internet.The internet supplies the most significant challenge to property rights in thiscentury and the CONTU report helps provide a framework for deciding how tointerpret this challenge.
Bill Clinton and Al Gore made the construction of a National InformationInfrastructure (NII) a priority for their administration. Important issuesinclude privacy, who should regulate and own the NII, obscenity, and theapplicability of the First Amendment. Congress is entranced by the issue ofchildren's access to pornography via the internet, and public attention hasbeen turned towards issues of censorship.[2] The debate over censorship and pornography is commonknowledge, however an equally important aspect of the NII, which has notgarnered much public interest, is also being negotiated. This other debateconcerns the recommendations of the working group on intellectual propertypresented in July of 1994. These recommendations are vitally important anddefine the extent to which we can exchange information via the internet. Theyhave recently been finalized and introduced as legislation in the form of theNational Information Infrastructure Copyright Protection Act of 1995.
As discussed in Chapter Two, intellectual property in the United States wasdesigned to protect copyright owners. Granting a temporary monopoly wasconsidered a necessary evil in order to promote learning in the arts andsciences. This monopoly right was not always as extensive as it is today. Atone point, a person could display a book, read from it publicly, or write otherbooks based upon it without violating copyright. Copyright was interpretedquite strictly to mean only the direct plagiarism of a work and most creativeactivity surrounding a given work was considered legitimate. As protectionbecame the central focus of copyright law, the ability to use texts in avariety of ways was slowly strangled.[3]
Through a gradual process of inclusion, intangible private property hasexpanded over the years. The expansion of intellectual property rightsdesigned to protect the owner of the property right from unauthorized use whichcontinues today. This is the sovereignty impulse in action. The control anddominion of new conceptual territories is a significant aspect of a sovereigntysystem. With the rapid growth of the internet the sovereignty systemestablished by copyright is jeopardized. It is difficult to slow the flow ofinformation because it is not easily contained. Beginning in the 70's, thegovernment began the process of producing rules and regulations to govern theflow of information and harness it to the copyright law. The 90's mark thebeginnings of a period when copyright is legally brought into the context ofdigital information and the internet.
The internet is threatening because it provides a method for authors tobypass publishers, for readers to bypass both authors and publishers, and forcopyrighted information to roam freely in an atmosphere where property rightsare difficult to protect. On electronic networks, it is easier to make copiesof copyrighted work, to appropriate portions of text without crediting theauthor, and, because electronic text is easily changed by each reader, it ismore difficult to validate a text as belonging to a particular author. Thesethreats are outlined by the National Writers Guild as issues which much bedealt with before the internet is "safe" for intellectual property. The old sovereignty system where authors were paid by publishers who thenowned the copyrights is under attack by this new form of circulation. Thesovereignty system of copyright is under attack by a form of circulation whichdefies traditional control. While the language of public policy and publishersindicates that authors are injured by the possibilities of the internet,thousands of "authors" daily communicate via these electronic channels. AsShapiro notes, "polities whose sovereign surfaces appear smooth and untroubledcontain dormant resistances below the surface, which can be awakened whenvarious unleashed forces disturb the inscription process that is responsiblefor smoothing the surface."[5] In effect,the internet is producing resistance to an unquestioned version of copyrightand authorial integrity. These disturbances in turn are met with decisionswhich will better regulate the notion of authorship on the internet. The recently concluded National Information Infrastructure Task Force whichworked on redefining copyright for the internet, and the National InformationInfrastructure Copyright Protection Act of 1995, which incorporates the taskforce's recommendation into the Copyright Act, are sovereignty maintenancetactics used to thwart the rapid circulation of ideas made possible by theinternet. These documents, and several others I will discuss, are sovereigntynarratives, they are interpretive events designed to provide a common narrativeof how copyright should be used in the information age. In structuring these sovereignty narratives, the exchange between authors,publishers, and audiences remains legitimate, as long as it follows the rulesof copyright. The uncontrolled exchange of ideas and documents, as practicedon the internet, is labeled "illegal." The new exchange system made possibleby the internet is not without its sovereignty function. People here areconcerned with authentication and ensuring they are appropriately quoted.However, the exchange and discussion of information appears to be moreimportant. Circulation on the internet takes precedence over ownership. Ioften receive or download papers stating they may be freely distributed, solong as they are not used commercially. Non-commodified authorship on theinternet, while a positive phenomenon, is disruptive of traditional forms ofownership and commercial authorship. There are two important issues: first, how will property rights in newtechnology be defined in an information age, and second, how will exchange ofalready existing forms of intellectual property such as books and musicalrecordings be regulated via a media which circumvents control. A strongnarrative has developed which assumes strict protection is desirable for bothissues. Looking more closely at this narrative and the public policyrecommendations is the subject of this chapter. The working group onintellectual property is preceded by a 1985 Office of Technology (OTA) Reporton technology and intellectual property. These two reports have manysimilarities, but a significant difference. Between 1985 and 1994 a desire toincrease control over intellectual property developed. THE OTA REPORT The Office of Technology Assessment wrote an extensive report in 1985detailing the impact of technology on intellectual property. This reportbegins by describing intellectual property law as the outgrowth of eighteenthcentury technology. It also defines intellectual property rights as "dynamic"in nature, which means they shift in response to social, cultural, andpolitical circumstances.[6] Thisperspective, unlike the CONTU perspective which solidly places new technologyunder the laws of intellectual property, found that: At a basic level, the very definitions on which intellectual property rightsare based take on new meanings, or become strained and even irrelevant, whenapplied to the context created by new technologies. They raise questions, forexample, about what constitutes a "derivative work" when works are madeavailable through intangible electronic waves or digital bits; about whatconstitutes a "work"; and about who owns the rights to it when it isinteractive, and when creators have combined their efforts to produce it. These new circumstances mean technology creates opportunities which previouslyhad not existed. Technology produces new economic opportunities, new politicalopportunities, and new cultural opportunities in the form of more informationand better access to cultural goods.[8]Despite the opportunities provided by new technologies, conflict emerges as anincreased emphasis on profit and ownership clashes with the increased abilityto exchange information.[9] Theseopportunities, and the potential for clashing interests, led the OTA group toclaim that economic incentives may not have the desired affect, or create anenvironment for creative activity, because they will pit one interest againstanother. Given the assumption that copyright inspires creative work byproviding an economic benefit, the OTA claim that economic incentives mayactually hinder creative work is quite radical. When evaluating authorship,the OTA report highlights some of the new possible relationships. Unlike theCONTU report which clearly designated computers as objects and rejected theclaim that they could have a stake in authorship, the OTA report willinglylooked at the ability of technology to produce new forms of authorship. Forthe OTA group, the possibility of interactive computing constitutes a new formof authorship. In many cases, as with word processing programs, the machine contributes littleto the creation of a work; it is "transparent" to the writers creativity. Butwith some programs, such as those that summarize (abstract) written articles,the processing done by the computer could constitute "an original work ofauthorship" if it were done by a human being. Indeed, the machine itself is atonce a series of processes, concepts and syntheses of human intelligence -- somixed that it is difficult, if not impossible, to separate its parts from thewhole.[10] The OTA report leaves room for the claim that authors/creators may not be asdistinct from the user as originally thought. In the case of interactivecomputer technology, the user becomes an author because the program isestablished to blend the author's ideas and the user's ideas. The OTA reporttook into consideration the fluidity of the boundary between authors and users.The computer helps blend these distinctions into new possibilities. Given the acknowledgment of the potential for new technology, therecommendations of the OTA group were rather mundane. Instead of embracing thepossibilities they concluded that Congress should either expand the existingagencies or create a new central agency to deal with intellectual propertyissues: Such an agency's mission might include monitoring technological change andassessing how the law might deal with it, providing the necessary expertise todeal with complex technological issues, and collecting and analyzing data aboutinformation markets and use. Such an agency might also assume additionalregulatory functions, such as distributing rewards or adjudicating disputes.Finally, it might coordinate intellectual property policy with policy inrelated areas.[11] These concluding remarks tend to obscure the potentially radical nature of newtechnology and illustrate that the OTA is willing to embrace the traditionalstory and its form of protection before it endorses the exploration ofalternatives to intellectual property rights. Like the 1994 report, the OTA recognized that enforcement of any newlegislation is impossible without the willing participation of the public. Thereport states, "As technology makes the enforcement of intellectual propertyrights more difficult, public support for these rights becomes all the morecritical."[12] Crucial to this form ofenforcement is strong public relations, or "education," on the part ofintellectual property industries and the government. This public relationsblitz should focus on persuading citizens to participate in the propertyboundaries that the industries wish to impose. In contrast, the generalpublic, while acknowledging that piracy should not be condoned (i.e. profitingfrom copyrighted work), sees nothing wrong with personal use and appropriationof copyrighted work.[13] Convincing people they have no right to use the products they buy is adifficult task. This task, as illustrated in future chapters is in partaccomplished by establishing who is a "criminal" and what type of activitythese criminals engage in. The strategy is twofold. First, a positive body oflaw is created which details the type of property which is to be protected.Second, criminals are sought out as "examples" in order to illustrate to thegeneral public what type of behavior should not be considered. The success ofthis strategy depends upon the cooperation of law enforcement in the definitionof private property and helps us understand why the intellectual propertynarrative is written on so many different levels. The need to convince citizens that they cannot use copyrighted works howeverthey please emerges because of a shift in the intent of copyright protection.There is a transformation of intellectual property law towards tighter controlwhich coincides with new technologies. This transformation comes from thegranting of the "right to copy" in the 1909 act.[14] The "right to copy" changed the intent of thecopyright act from: "the right to control the use of copyright forcommercial profit (vis a vis competing publishers) to the right tocontrol the copyrighted work itself (vis a vis the user of the copyrightedwork). [italics in original]"[15] Thisexpansion of copyright power means a copyright owner controls the commercialuse of their property, as well as how people use this property personally. Itbecomes legitimate to control the private use of copyrighted materials,assuming this can be enforced. While the OTA recognizes and writes that intellectual property concerns arenow linked to all areas of policy making, its recommendations do little butoffer an extension of the system. The OTA is careful to say it is too early tomake strong regulations. The OTA report was delivered to Congress and it is inthis presentation that their more radical tint becomes prominent. OTA REPORT TO CONGRESS The Subcommittee on Patents, Copyrights and Trademarks of the Senate Committeeon the Judiciary joined with the Subcommittee on Courts, Civil Liberties, andthe Administration of Justice in April of 1986 to hear the final report of theOffice of Technology Assessment on Intellectual Property Rights in an age ofElectronics and Information.[16] TheSubcommittee's were aware of the transformative affects of new technologies onthe way information is communicated, science is done, and ideas are exchanged.They were also aware of the economic advantage intellectual property brings theUnited States. It was with these important facts in mind that theSubcommittee's heard the final report. D. Linda Garcia's presentation to Congress was more political that the reportitself would have us believe. She comments that any new system will have totake into account that its structure will "determine not only which individualsand groups benefit from these new opportunities, but also in what ways and towhat extent we, as a society, might exploit these technologies." OTA found, first of all, that the changes being wrought by the new informationand communications technologies are as far reaching as those brought about bythe printing press. Like the printing press, the new technologies are changingthe way people work and conduct their business; how they interact and relate toone another; the way they learn, create, and process information; and the needsand expectations that they have.[18] The OTA presentation to Congress argues we must take into account who willbenefit from the elaboration of an intellectual property system designed aroundnew technologies. The report suggests that new technology problematizes, amongother things, authorship, private use, intangible works, educational use, andthe ethical dimensions of intellectual property use.[19] Perhaps the greatest difference between the 1985report and the 1994 report is that in 1985 the new dimensions of authorshipwere not billed as threats to property and ownership, but seen as challengesand opportunities. Some legal scholars disagreed with the conclusions of the report, arguing thatthe intellectual property system is flexible enough to adapt to newtechnologies (the conclusion of CONTU). One such view came from a member ofthe OTA advisory board, Paul Goldstein, who had some misgivings about thereport. The OTA report argues new technologies are substantially differentfrom previous ones. By contrast, Goldstein believes, "that the challengespresented differ little -- certainly not in kind, and only slightly in degree--from the challenges that such technologies as radio, television, motionpictures, semiconductor chips -- and, indeed, the printing press -- have posedin the past."[20] His statement underminesthe OTA project by claiming current law is adequate to the task. In effect,fitting new technology under old laws is a process of "domestication" throughwhich we stifle the radical potential of a new technology in favor of moremundane uses. As Jane M. Gaines puts it, "... new technologies may "surprise"old categories, but only to be reformed according to existing conceptions ofthe world."[21] Authorship is at the heart of Goldstein's disagreement with the report. Thereport states, "Copyright law, based on originality of works and individualauthorship, may become too unwieldy to administer when works involve manyauthors, worldwide collaboration, and dynamically-changing materials." Our report is a product of the times; it is a jointly authored work, which hasbenefited from the collaboration, comments, and review of over three hundredpeople. These contributors have come from all over the country, and theyrepresent a wide variety of perspectives. Included among them wererepresentatives from affected industries, lawyers, educators, artists,musicians, writers, computer programmers and other creators, scientist andengineers, marketing experts, economists, young people, and academics from manydisciplines.[23] Garcia does not mention proprietary ownership of the report (it is a governmentreport), nor does she mention the importance of the individual creator.Instead, she embraces the possibility of collaborative work on a grand scale.In such a scheme, identifying the input of any individual is impossible -- thesum is greater than the parts. Allocating property rights would be difficult.As she says, this is a sign of the times and an excellent example of thecollaborative nature of authorship, a value embraced through exchange of ideasinstead of strict control over them. Goldstein, in his testimony, shows his inability to let go of the concept ofthe autonomous, individual author. He states, "Second, in speaking of"authorship," the Report's concern seems to be that interactive uses ofcomputers, and networking of computer uses, will make it increasingly difficultto identify who the author of a particular work is."[24] While this is certainly one interpretation, the reportseems to be celebrating the potential of multiple authorship while Goldsteintranslates it into a problem. Goldstein's words act as a sovereignty impulse.He speaks from his position within a strong copyright narrative where theinability to assign an individual author is problematic and undesired.Goldstein proposes to domesticate this new technology to old systems bycreating programs to "trace sources and allocate royalties,"[25] a method which ensures the possibilities of theinternet will not be realized. The OTA report remains inconclusive on many points. They ultimatelyrecommended that a reserved attitude towards technology be adopted because toomuch would change over the next decade to make rules so early. As D. LindaGarcia told another group, the final recommendation was that, as a society we are only at the beginning of a technological revolution and sothe problems for the intellectual property system are long term. We told themthat, while they might adopt some piecemeal measure now to deal with thesituation, they would probably have to revise these mechanisms or completelychange them over the next decade.[26] The OTA report was unpopular in both legal and business circles because it isambiguous about how to protect intellectual products.[27] Transformative possibilities are quickly traded for a smoothly workingintellectual property law which fits the new technology to the law instead ofthe law to the technology. With the expansion of an information economy,information once shared as a common resource is now treated as a consumer item.The further we move into an information economy the less chance we have forinformation to be free. The governmental recommendation for the new NationalInformation Infrastructure and intellectual property further proves that we areheading towards stronger protection. THE NATIONAL INFORMATION INFRASTRUCTURE (NII) AND INTELLECTUAL PROPERTY The progress of groups constructing the National Information Infrastructurecan be found on the World Wide Web.[28]Here, the working group papers on the National Information Infrastructure areavailable for public perusal. While the NII deliberations span a range oftopics, one is of specific interest -- the "Preliminary Draft of the Report ofthe Working Group on Intellectual Property Rights" chaired by Bruce A. Lehman,Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (thegreen paper). In September of 1995 this working group produced their finalreport (the white paper). The white paper articulates the vision of the NIIheld by those creating law and excellently illustrates the sovereigntyfunction. While the specific recommendations are important because they willmost immediately affect us, the analysis and supporting evidence used by theworking group to support its recommendations is more helpful when trying tounderstand the new dimensions of property being created and the wayintellectual property for the NII is being interpreted. Thus, after outliningthe recommendations and pending legislation, I will spend the remainder of thissection discussing how the working group perceives the NII and intellectualproperty. The green paper was criticized for practically eliminating fair use in theelectronic environment and for over regulating the use of copyrightedinformation on the internet.[29] After thepreliminary recommendations, the working group held public hearings in threecities and received over 1500 pages of written comments by over 150 individualsand organizations.[30] These hearings weresaid to reflect the input of "a broad spectrum of interested parties; includingvarious electronic industries, telecommunications and information serviceproviders, the academic, research, library and legal communities, andindividual creators, copyright owners and users, as well as the computersoftware, motion picture, music, broadcasting, publishing and other informationand entertainment industries."[31] Theseproceedings are an excellent cite to evaluate how property rights are beingdefined, who is defining them, and who is benefiting from them. THE CHANGES INTRODUCED The white paper backed away from some of the working group's morecontroversial claims, but generally restates the findings in the green paper.Most of the white paper recommendations are defined as alterations in a coatthat is getting too tight.[32] The taskof the white paper is to better adapt copyright law to the internet and ensurethat electronic documents are protected by the resulting legislation. One keychange is in the definition of what constitutes an unauthorized transmission ofa text. The white paper defines "transmission" as a form of distribution because ofthe ease with which copyrighted work can move through the internet. But rather than explicitly recommending that copyright law be amended to makeall browsing, reading, and uses of copyrighted works in digital form into actsof infringement--a recommendation likely to be highly controversial--the Reporttakes advantage of an incidental property of digital works (that they need tobe copied in order to be browsed or otherwise used) to assert that existing lawalready allows publishers to control all uses of works in digital form. Thislucky happenstance makes it unnecessary for the drafters of the Report tomention that they are advocating a vast expansion of copyright scope. This strict interpretation of copyright and infringement continues to bepresent in the language of the final report. The white paper retreats from its position regarding the first sale doctrine.The first sale right would be explicitly forbidden for transmissions accordingto the green paper. It seems clear that the first sale model -- in which the copyright owner partscompany with a tangible copy -- should not apply with respect to distributionby transmission, because under current applications of technology, atransmission involves both the reproduction of the work and the distribution ofthe reproduction. In the case of transmissions, the owner of a particular copyof a work does not "dispose of the possession of that copy or phonorecord." Acopy of the work remains with the first owner and the recipient of thetransmission receives a reproduction of the work. Therefore, to make clearthat the first sale doctrine does not apply to transmissions, the Working Grouprecommends that Section 109 of the Copyright Act be amended .... The white paper has decided that current law will meet the needs of a digitalworld because the doctrine of first sale applies only to scenarios in which theseller loses possession of the copyrighted work to the buyer. If, via theinternet, a buyer continues to hold a copy in their possession, then they haveinfringed the copyright anyway and no new law is required to decide the matter.The manner in which concerns about first sale were addressed (by interpretingthe already existing statute more broadly) is indicative of the intent of thisreport to limit the uses of copyrighted materials via the NII. The provisions on fair use specified in the green paper are missing in thewhite. The fair use doctrine protects users of copyrighted works by allowingfor some types of exchange which do not violate copyright. Fair use letsindividuals quote from copyrighted materials, or use the material in itsentirety as long as the use is for non-commercial or educational purposes. The Copyright Act exists for the benefit of the public. To fulfill itsconstitutional purpose, the law should strive to make the information containedin protected works of authorship freely available to the public. "Freelyavailable," of course, does not necessarily mean "available free." The WorkingGroup does not believe that authors should be required to donate access time totheir works on-line, but some reasonable approach must be adopted to ensurethat the economically disadvantaged in this country are not furtherdisadvantaged or disenfranchised by the information revolution.[40] Pamela Samuelson provides an analysis of the green papers words: It would be inaccurate to say that the NII Report recommends abolishing fairuse law. And yet, it takes such a narrow view of existing fair use law andpredicts such a dim future for fair use law when works are distributed via theNII that the Report might as well recommend its abolition. Since the fair usedoctrine has been one of the historically important ways in which the law haspromoted public access to copyrighted works, the virtual abolition of fair uselaw for which the Report argues would represent another vast expansion ofcopyright law in favor of publishers.[41] This expansion of fair use is one area where public testimony had an effect.Instead of continuing to uphold this language the white paper convened aConference on Fair Use responsible for drafting fair use guidelines for theinternet.[42] Of course, the working groupcontinues to adhere to its belief of strong protections against over-broad fairuse guidelines.[43] Liability for on-line service providers is an issue appearing in the whitepaper which did not take up significant space in the green paper. However,with recent litigation regarding the liability of on-line service provider'sthis issue has become more controversial. The white paper refuses to limit theliability of these service providers and instead indicates they are in a betterposition to police traffic on their networks than copyright owners. "TheWorking Group believes it is -- at best -- premature to reduce the liability ofany type of service provider in the NII environment."[44] This opinion was immediately used by the Church ofScientology in lawsuits they have pending against critics of their church. Ultimately, the white paper provides the groundwork for bringing copyrightonto the internet in force. Its recommendations will have a significant affecton how the internet is shaped in the future and what types of cases will makeit into the court system. There was no time wasted in turning theserecommendations into legislation. In November of 1995 a Joint Hearing of theCourts and Intellectual Property Subcommittee of the House Judiciary Committeeand Senate Judiciary Committee met to discuss the copyright bills introducedsimultaneously in the House (by Representative Carlos Moorhead) and in theSenate (by Senator Orrin Hatch.)[46] Thelegislation is the National Information Infrastructure Copyright Protection Actof 1995. These committees, Orrin Hatch comments, "are embarking upon ahistoric undertaking, establishing the "rules of the road" for the informationsuperhighway."[47] The legislation closely follows the recommendations of the white paper andamends the Copyright Act in several key ways. First, it redefines publicdistribution as including transmission of copyrighted work.[48] It expands the numbers of electronic copies librariescan make for archival purposes.[49] Itprovides improved access to copyrighted works in Braille. Additionally, it:makes it illegal to use, create, or exchange devices which could bypasstechnological protections for copyright owners, provides remedies against thosewho "knowingly alter or disseminate false copyright-management information;"and increases criminal penalties for copyright violations.[50] The recommendations and legislation highlight the importance of strongcopyright protection to policy makers and copyright owners. The regulatoryrhetoric, infused with jargon and technical language, helps hide thecontroversy they should inspire. It is in the language justifying newlegislation and the language of the working group when outlining the problemsposed for copyright owners that the sovereignty discourse is most illuminated.This language helps reveal the vision of copyright and the NII which isactively being implemented. This vision is heavily reliant upon sovereigntypractices which ensure the technology of the internet is used only within theboundaries of copyright. THE NII SOVEREIGNTY NARRATIVE The White paper begins by enumerating the benefits of the National InformationInfrastructure. These benefits, however, will not be certain unless there aremechanisms for protecting copyrighted works in the "electronic marketplace." Thus, the full potential of the NII will not be realized if the education,information and entertainment products protected by intellectual property lawsare not protected effectively when disseminated via the NII. Creators andother owners of intellectual property rights will not be willing to put theirinterests at risk if appropriate systems -- both in the U.S. andinternationally -- are not in place to permit them to set and enforce the termsand conditions under which their works are made available in the NIIenvironment.[51] The rhetoric of an "electronic marketplace" is prevalent throughout therecommendations and current legislation. Their language illustrates theconcerns of copyright owners of an "unprotected" NII. The task force could notbe more clear about its vision: The Internet, for instance, could continue to serve as a communications tooland resource for Government, public domain and works of willing authors.However, unless the framework for legitimate commerce is preserved and adequateprotection for copyrighted works is ensured, the vast communications networkwill not reach its full potential as a true, global marketplace. The intent of producing a global marketplace where "content" is provided by"legitimate commerce" is the explicit goal of the NII task force. Thejustification for the marketplace rhetoric is that it will provide bettercontent to NII users and that ultimately these strong protections are in thepublic interest. While, at first blush, it may appear to be in the public interest to reduce theprotection granted works and to allow unfettered use by the public, such ananalysis is incomplete. Protection of works of authorship provides thestimulus for creativity, thus leading to the availability of works ofliterature, culture, art and entertainment that the public desires and thatform the backbone of our economy and political discourse. If these works arenot protected, then the marketplace will not support their creation anddissemination, and the public will not receive the benefit of their existenceor be able to have unrestricted use of the ideas and information they convey. The report argues, "just one unauthorized uploading could have devastatingeffects on the market for the work."[54]This heavy reliance on the assertions of the traditional copyright story isindicative of the analysis provided by the task force on why copyrightprotection is needed. Nowhere is it questioned that authors may have deepermotives than making money via copyright or that poets may write their poemsbecause of a creative drive rather than an economic drive. The NII task forceretells the traditional legal story in order to reaffirm the legitimacy of thestory for copyright adherents. This traditional story is also importantbecause it provides the legal framework within which to understand the NII.The task force never challenged the applicability of copyright law to the NII.The applicability of copyright was assumed and its extension to the NII wasalso assumed. What the task force only partially obscures is that it is writing these wordsfor the specific benefit of the many "intellectual property" industries whichprovide Americans with jobs. In fact, the task force specifically linksintellectual property rights with the national interest because of theemployment it provides to American citizens. In addition, people of all ages should recognize that millions of U.S. workersare employed by industries that rely heavily on intellectual propertyprotection, and that intellectual property rights are truly a matter ofnational interest.[55] These industries, driven only by the profit motive, have a significant amountof interest in strict copyright laws, while the authors who work for them willbenefit only indirectly at best from such provisions. The problem before thisworking group is not one of balancing the rights of copyright owners with thepublic interest, but is one of how to render the on-line world a market inwhich owners of information can enjoy exclusive and total rights to theirproperty. This working group is about transforming the internet into ashopping network where users are valued as "customers" and strict control overinformation is maintained. The political concern of protecting the copyrightowner, dominates the discussion. This point is well argued by Pamela Samuelsonin her critique of the report: It [the report] downplays the extent to which the changes it recommends would,in fact, bring about a radical realignment in the historical balance betweenpublisher interests and the public interest in access to information products,pushing the law in a direction that would favor publisher interests to thedetriment of the public interest. It would abolish long-standing rights thatthe public has enjoyed to make use of copyrighted works, rights that have beenconsistently upheld in courts and in the copyright statute...To put the pointplainly, let me say that not since the King of England in the 16th century gavea group of printers exclusive rights to print books in exchange for theprinters' agreement not to print heretical or seditious material has agovernment copyright policy been so skewed in favor of publisher interests andso detrimental to the public interest.[56] The rhetoric of copyright often refers to the balance between the producers'rights and the public interest. It is one of the mainstays of the traditionalcopyright story that the public interest is served by our system of copyright.However, the new definition of public interest appears to be the provision ofjobs by intellectual property industries and not the promotion of the arts andsciences. Because the NII is meant to provide the traditional printing, music, andtelecommunications industries with a mechanism for getting their goods toconsumers, it neglects the already existing community on the internet which isengaged in creative discussions, scientific research, and projects of allsorts. As Pamela Samuelson points out, the internet is providing the type ofprogress in the arts and sciences copyright was designed to protect. People have flocked to the net by the hundreds of thousands not because theirfavorite movies or books may be available there in another five to ten years,but because a wide variety of resources are available there already. Since itsinception, the Internet has greatly facilitated and enhanced communication andlearning of the very sort that copyright law is supposed to promote. It hasenabled researchers to gather and share data more easily, to engage incollaborative work at remote locations, to criticize and refine one another'swork, and to make research results and the like available at ftp sites, therebyenabling those interested in these results access to them. A large number ofnewsletters, journals, and listservs have sprung up and serve as forums fordiscussion of public policy and research issues in a wide variety of fields.Debate on the Internet could hardly be more robust.[57] Today, there is a source for substantive discourse and research available thatbypasses geographical and territorial constraints. If the internet becomes aplace dominated by the commercial interests of the telecommunications andentertainment industries, a vibrant source of exchange will be lost. The internet as a vast network of exchange defies the commercializingassumptions held by the task force. People do create, discuss, and exchangeinformation, ideas, and literary texts absent monetary incentive and strongcopyright protection. This perspective, however, is ignored. By transformingthe internet into a market, not only are citizens transformed into informationconsumers, but the language of supply and demand replaces the language ofdiscourse networks and democratic communication. Shapiro points out that, "it is necessary to raise the question of value, forvalue is always at least implicitly implicated in the sovereignty-exchangenexus."[58] Value is important becausethe manner in which the internet is regulated means millions of dollars forpublishers and other industries, not to mention the vast advertising power madeavailable if security can be guaranteed. The problem rests in the fact thatthe internet is hard to regulate, and that circulation occurs withoutdifficulty. For information owners this is problematic because as Shapironotes, "value emerges precisely at the point at which flows areinhibited [emphasis in original]."[59] Ifthe ground-rules created favor the major industries, then the free flow ofinformation can be significantly curtailed and value sustained. As the whitepaper illustrates, the task force is willing to establish ground-rules whichprivilege traditional copyright owners. It is yet to be seen how successfulsuch sovereignty practices will be when put to the test. In attempting to cement the sovereignty practices of the market economy thetask force must also deal with the spatial representations through which theinternet is addressed. The market economy sovereignty system is jeopardized inways not before possible via the speed and the multilocality of internetcommunication. In a world based more on time than on territory, distance, in the old sense, isdisplaced by speed and acceleration. As a result, the inhibition of flows mustinvolve modifying pace and trajectory rather than simply containing things.Sovereignty maintenance tactics must therefore change.[60] The task force provides insights into how this problematic is being grappledwith. The task force is an excellent source of answers to how sovereigntymaintenance tactics are being employed. First, the rhetoric of cyberspace asbeing its own "sovereign" space must be rejected and denounced. The task forcedoes this early in its report: Finally, there are those who argue that intellectual property laws of anycountry are inapplicable to works on the NII or GII because all activity usingthese infrastructures takes place in "Cyberspace," a sovereignty unto itselfthat should be self-governed by its inhabitants, individuals who, it issuggested, will rely on their own ethics -- or "netiquette" -- to determinewhat uses of works, if any, are improper. First, this argument relies on thefantasy that users of the Internet, for instance, are somehow transported to"chat rooms" and other locations, such as virtual libraries. While suchconceptualization helps to put in material terms what is considered ratherabstract, activity on the Internet takes place neither in outer space nor inparallel, virtual locations. ... Computer network transmissions have nodistinguishing characteristics warranting such other-world treatment. The tone of this statement indicates the disregard the task force holds forthis alternative interpretation of space. Such new spatial practices must notbe allowed. In part, the recommendations of this task force and the pendinglegislation are designed to stabilize the flow of information spatially. Byextending copyright law to the internet it is hoped that the sovereigntymaintenance tactics already in use will do the trick. If they do not,technology it appears, will aid in bringing the internet under copyrightcontrol. The task force recommends that numerous technological strategies be used toensure authentication and safe delivery of information via the NII. Suchtechnological practices would attach copyright identification to everycopyrighted work available. While many of these technologies are not availableyet, the task force foresees that technology should provide a helping hand inmaking the internet safe for commercial travel.[62] The working group poses nothing visibly radical. They advocate minorclarification and amendment to the Copyright Act which ought to be supplementedwith education of the relatively ignorant public. Copyright owners aredisturbed that the public does not respect their property. Because the realmof the intellect has not been thoroughly commodified yet, it follows that thepublic will not immediately think of information and creative work as privateproperty. After all, to get the majority of Europeans to adopt a privateproperty system in its tangible form it was necessary to enforce harsh criminalpenalties and engage in state sponsored violence over several decades. It is unlikely that people used to sharing a favorite book with a friend, orpassing on a used news magazine, or even photocopying a document, will acceptassertions that this property deserves such strict protection. Even though acopyright owner owns the conceptual "right," the buyer owns the tangible object-- a book, a poem, or a tape recording. It is counterintuitive that suchitems, which were bought and paid for, are under the exclusive control of thecopyright owner. It is easier to transfer habits of information sharing andexchange to an electronic realm (which is even less tangible) than to grasp anintellectually constructed justification for ownership of ideas. The taskforce understands this problem: The average citizen has only the most general understanding that there arepatents, copyrights and trademarks, let alone an understanding of the legal,economic and trade issues involved... Most people do not have a very clear ideaabout the role of intellectual property law in encouraging creativity and theimportance of intellectual property to our economic well-being.[64] The public tendency to engage in discourse and exchange directly contradictsthe capitalist tendency to own and control. Considering the ease with whichinformation is transferred, it is no wonder citizens not trained inintellectual property law "disrespect" the "rights of copyright owners." Thepublic tends to adhere to an exchange discourse which facilitates their use andsharing of cultural products. This discourse has a more lenient vision ofownership and control. Value from this perspective comes from uninhibitedflows instead of inhibited ones. The owners of information and culturalproducts are far more interested in ownership than exchange. To them, valueresides in their ability to inhibit the flow of objects in order to exact aprice from their exchange. The working group realizes that the only way their recommendations will beworkable is if most Americans (and global citizens) will agree on thedefinitions of property outlined in the Copyright Act. Thus, education is acritical element for success. Users must learn enough about this topic to appreciate just what respect forintellectual property laws can do for them, and why a seemingly harmlesstransaction on a computer network may have a great effect on the benefits theyget from the intellectual property system.[65] The task force argues that users will ultimately benefit from the intellectualproperty system because "users are likely creators, too."[66] Interestingly, these creator/users which are also thegeneral public are ignorant of copyright laws and yet continue to becreator/users. How can this be since creation, according to the task force,needs the incentive of monopoly protection to be realized? The copyrightnarrative, so thinly asserted, begins to tear apart if examined in too muchdetail. In order to better educate the public, the task force initiated a CopyrightAwareness Campaign in March of 1995. Participants in this campaign developedguidelines for educating the public about intellectual property. The goal isto make intellectual property a "household word."[67] Because it is never early enough to begin to learn,the task force recommends that this education begin at the elementary schoollevel where "certain core concepts should be introduced."[68] These core concepts relate to the "underlying notionsof property -- what is "mine" versus what is "not mine."[69] Note the lack of a category for things that are "ours"in this educational message. These concepts of property can then be extendedto the internet and copyright. Therefore, they should learn what one participant refers to as 'electroniccitizenship,' including how to determine the owner of a work, and how to goabout asking for permission to use it. Similarly, they should learn that thetaking of someone else's property, including copyrighted works, without theirpermission is not right. Additionally, as noted previously, users will also becreators of copyrighted works, and therefore should know what their rights areand that they may expect those rights to be respected by others. At the expense of reducing this to the absurd, I am sure introducing copyrightat the elementary level will do interesting things to art class. The point isserious, though, instead of teaching children how to share, how to createtogether and exchange ideas, the task force recommends we teach children tocarefully guard their "copyrighted" work and establish economic relationshipsnot only to work they might use but with each other regarding creative work.Robert Fulgram will have to rewrite his book! The goal of the task force is a positive one, they assert. They want toeducation people on the advantages of using the copyright system and theprotection it brings. They want a "just say yes" message to be heard througheducational practices, one that shows "that works may be accessed and used, andthat seeking permission is not an insurmountable barrier."[71] Of course, the task force has not read David Stowe'sarticle in Lingua Franca where he describes the insurmountable barriersto seeking permission for the use of copyrighted works. In some casespermission was refused because it would make the company "look bad." Inothers, the costs were so large (up to $3,000 for a few lines of poetry) thatit was a deterrent to use and/or authorized use.[72] Even using the on-line system through the librarywhich offers to fax you a full text version of the article for a fee plus acopyright charge is prohibitively expensive unless you are very rich.Educating people that they can overcome the barriers of authorization does notmake it any more possible, especially as more and more copyright owners attemptto exact as much as the market will bear for their rights. The educational agenda outlined by the working group illustrates anunderstanding of the importance of garnering public support for intellectualproperty. Through a narrative of intellectual property, brought to allchildren from Kindergarten to college, the fences of intellectual property willbe firmly established, perhaps without resort to violence or punishment.Getting the public to accept property rights in intellectual property is thegoal of the variety of narratives analyzed in this dissertation and alsoillustrates why education is important in convincing people to follow the newsets of rules. We are watching as new conceptual territory is staked out byproperty owners and those of us used to understanding knowledge as communalwill have to accept the new system or be transformed into criminals. The changes to the copyright law recommended by the task force are designed tocurtail private use of copyrightable materials which do not comply withcopyright rules. As later chapters will illustrate, the government andindustries have taken to task commercial pirates and computer hackers viastrong-arm tactics. These tactics help create an atmosphere in which theaverage citizen has a better understanding of what intellectual property is.The working group on intellectual property creates laws which will directlyaffect the everyday person as they borrow books, listen and record music, anduse computer programs. The transformation of the copyright law as described bythe working group will affect the everyday legality of our actions in relationto intellectual property. By couching issues in terms of property, the assumptions of the traditionalcopyright story are perpetuated. The NII narrative is a complex interpretiveact of the present engaged in designing sovereign boundaries for the future.The recent recommendations by the U.S. government task force on the NII andintellectual property make clear how the traditional story of copyright leadsus into deeper control of ideas, expressions, and information and further awayfrom sharing and exchange. CONCLUSION The software industry is engaged in a fight to control the ownership ofsoftware. Publishers, record labels, and the movie industry are engaged in afight to control ownership of creative texts and information. Authors, too,are fighting to protect their interests in the emerging National InformationInfrastructure. The prevailing tendency is towards increasing emphasis ofcontrol of information. This control goes so far as to assert ownership in theideas a person carries in their head. Increasingly, if you work for a company,any ideas you have remain the property of the company. [73] Next, I guess, is the question who owns you? I have discussed the extension of the traditional copyright story as amechanism to control intellectual property in the technological age through thegovernment task forces. This discourse establishes authors and publishers asvictims and intellectual work as the "crown jewels." The National InformationInfrastructure provides a mechanism for circumventing the traditionalcontrolling structures of the culture industry. Additionally, new technologiesprovide the technical support to "liberate" texts from their bounded form. Theimpact of new technologies are multiple and the possibility of new myths veryreal. We truly are standing at a gateway to the future which is why it is soimportant to be aware of how that future is interpretively constructed.