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Property Rights in Information
Pages 81-120

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From page 81...
... the right to collect information—the investigative function 3. the right to acquire information—archived by others 4.
From page 82...
... However, if we are to transform our economy into one that relies primarily upon the economic value of gathering, storing, processing, and distributing information, we must develop principles from which we can derive economic value for such activities. Therefore, it is not very helpful to the public debate to insist that information must by its nature be shared or that it is naturally leaky or uncontainable.
From page 83...
... History of Information Protection The conflict between public and private information is as deeply rooted in our historical documents as is the protection of both private and public real estate. New England villages were built around a
From page 84...
... Other cultures have their own concepts of propriety with respect to intellectual output. There is nothing universal about copyright, patents, or trade secrets.
From page 85...
... These are legal concepts designed to encourage a positive attitude toward innovation and social change. These concepts began to develop in the late Middle Ages; they have no logical counterpart in early civilizations where the products of intellectual expertise belonged to the community and not to their creators.8 All societies have developed an information policy, the most stringent of which is exemplified by the burning of books in China in 213 B.C.
From page 86...
... As the piracy and copying of English information products were far cheaper than acquiring the original works of American authors, a flourishing publishing industry developed primarily for textbooks copied from English sources. Thus the Copyright Act of 1790, a high priority on the calendar of the First Congress, was a cornerstone in the philosophy of the new nation to encourage literacy and widespread dissemination of useful knowledge an early development of technology transfer.
From page 87...
... ] 7 "Anatomy of a Libel Suit," an excellent two-hour program produced for public television by the Columbia School of Journalism, dramatized the dilemma between the public's right to know and the private right to control personal information.
From page 88...
... The primary federal privacy legislation now in effect controls access of the public to government data banks in which information is collected and aggregated.22 However, the right of the government to collect information is fundamental to the survival of the nation. Its economic health as well as its physical and political health is at stake.
From page 89...
... James Madison observed that "a popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both." Based upon that verity, the United States has built its information policy upon a broad base of public education, public libraries, public subsidies for newspapers and other printed materials, and a government printing office that publishes the information gathered and processed by the federal government. Strictly speaking, public access may be difficult to conceive of as a property right.
From page 90...
... Public libraries agonize over the high costs of distributing information on-line, as charges are not imposed on the the use of books unless they are overdue.30 There is, of course, no natural rationale that requires public libraries to permit readers to read books in their collections without charge. Indeed, in former times libraries were very carefully guarded assets, access to which was strictly regulated.
From page 91...
... As the press has become more and more diligent in its role and the means of surveillance and investigation have become more sophisticated, it is not surprising that public agitation with respect to the advent of new information technologies has sparked an interest in privacy laws. The most basic property right is the protection and integrity of one's own person" the right to withhold information about oneself that one considers to be Knees own, the right to disclose information about oneself at such time and place and under such conditions as one chooses, and the complementary right to know of and to correct information about oneself that is inaccurate and damaging to one's pride or reputation.
From page 92...
... Investigative reporters claim that they will be unable to obtain information from those with knowledge, especially where their source's future may be jeopardized (e.g., by discharge from employment for "whistle-blowing" or by retribution at the hands of criminals for "squealing". This area of the law is still very much in a state of flux.32 The Supreme Court, when reviewing a journalist's plea for a special privilege,33 noted that Congress might elect to legislate a special privilege for those who inform the public, but it failed to restrict the category to journalists.
From page 93...
... K Merton concluded that a scientist's claim to intellectual property rights was limited to such recognition and esteem.39 However, with the changing economic environment in which academic research is being conducted and with large profits to be
From page 94...
... Such simultaneous and sequential exchanges in a dynamic electronic environment often make it difficult to determine paternity with any kind of legal validity,4~ and the bits and bytes flowing freely via satellite from laboratory to laboratory may make it difficult to trace what librarians call an "intellectual audit trail." Thus, the dilemma arises for scientists that the economic environment in which they now work impedes the optimum use of a technology that has the greatest promise for sharing their intellectual output with the rest of the world. An additional problem has arisen with the public outcry to be able to see the information upon which the scientists judgment is based rather than to rely upon the expert opinion of the research scientist as reviewed and validated by a peer group.
From page 95...
... In most jurisdictions there is at present no legal right to require entities to which you disclose your name and address to protect that information. However, there seems to be a groundswell of increasing concern about such use.42 A few states have acted to prohibit the use of motor vehicle registration lists for direct marketing without the consent of the registrant,43 and a number of others have enacted legislation restricting the distribution of cable television subcription lists.44 Most companies are able to acquire such infonnation quite easily.
From page 96...
... law that inflation obtained by illegal search and seizure is not permitted to be used to convict.46 However, recent Supreme Court cases suggests that this rule may be weakened.47 In the case of publication of illegally obtained information, the law is not so protective of the source, and the government was unable to obtain an injunction against the New York Times to prevent publication of the Pentagon papers.48 However, the former the case of material obtained illegally rests upon a basic principle offairness to defendants and the latter that of publication of illegally obtained informationupon the overriding right of the public to know. Consequently, in each case there is a balancing of public against private interests in release of information.
From page 97...
... copyright law, but are established by contract.53 THE RIGHT TO PROFIT FROM INFORMATION There are many mechanisms for supporting the creation of intellectual products, such as the maintenance of monasteries, public universities, and venture-capital firms or the patronage of wealthy families, for example, in Italy during the Renaissance. Yet copyright and patent laws have been the mainstay of public policy in market economies since the Statute of Anne was enacted in 1709.54 Basically, this first copyright law protected the right of authors to dispose of their works in return for financial remuneration rather than for public acclaim.55 As this system was designed for the print media and primarily for the protection of the financial interests of publishers rather than of authors, it has been the subject of much controversy in the electronic age.
From page 98...
... Franklin The arguments over legal protection for computer software have been extensive and have only temporarily been resolved with the enactment of a special amendment in 1980 to the Copyright Act of 1976. The amendment was specifically intended to authorize copyright law to cover computer programs,59 although the Copyright Office had been accepting computer software for copyright registration since 1964.6° The Copyright Office had, in fact, registered more than 2,000 such programs prior to the investigative hearings of CONTU, primarily offered by IBM and Burroughs, two of the largest developers of computer software.
From page 99...
... The Supreme Court agreed, or at least refused to enter the argument.63 However, the debate about the appropriate protection for software continues.64 Some software firms, such as Freeware, offer their programs for a contribution on the theory that wide dissemination is desirable and, at least in their judgment, profitable. Other software houses, while attempting to protect their intellectual efforts through licensing agreements to control unauthorized copying, nonetheless admit that staying ahead of the competition in innovative programs is what protects their financial investment.
From page 100...
... The Supreme Court disagreed, admonishing the appellate court for enlarging the scope of "an article of commerce" that is not the subject of copyright protection and beyond the power authorized by Congress. In addition, the Court found that the widespread primary use of VCRs was for "time-shifting" or otherwise viewing a program that could not be seen at the time it was first televised.
From page 101...
... The Securities and Exchange Commission (SEC) regulates the buying and trading of stock by the executives and owners of businesses who have available to them information that could affect the stock market priced Historically, financial information has carried monetary value second only to that of military information.
From page 102...
... However, the legal situation is not so clear. While the theory of a legally enforceable fiduciary duty has appeal to those concerned with fairness in the marketplace, it may not technically lie within the Supreme Court's restrictive definition of insider trading.
From page 103...
... However, public servants may argue that their "stock in trade" is their intellectual output during their incumbencies much as Elizabeth Taylor claimed a commercial interest in her professional persona and the right to exploit her name, image, and reputation. The difference, of course, is that public officials receive their financial support from public coffers, whereas performers are dependent upon commercial exploitation of their performances as the economic basis of their livelihood.
From page 104...
... They are the "property of all"....84 Inroads are also being made into the quite disreputable practice of some criminals committing their crimes for the purpose of gaining notonety. Given the enthusiasm with which publishers pursue the right to publish such stories, it is not surprising that we have begun to think twice about the consequences of promoting financial gain from antisocial acts as we become more dependent upon information products for our economic health.
From page 105...
... Such participation necessarily requires widespread dissemination of information upon which public decisions are predicated. Strategic Information However, sunshine laws and freedom of information laws also present new obstacles to security agencies.
From page 106...
... However, this is the price of maintaining national sovereignty over critical information in the absence of any international protocols for such protection outside their own geographical boundaries, within which they are presumed to have absolute junsdiction. Export Control of Technical Data The current argument over new legislation to replace the old Export Administration Act,89 which has now expired, highlights the problems that ensue when technical data are treated as a controlled commodity.
From page 107...
... government over the Soviet pipeline had led to considerable "political and commercial damage."9~ Transborder Television- Protection of Cultural Identity Another example of protective policies has been initiated in Canada, which is concerned more about cultural identity and its own economic independence than about strategic security, since the main threat it seers from the United States is to its cultural and economic integrity. In certain respects Canada has been ahead of the United States in entering the Information Age.
From page 108...
... This Canadian border spillover problem is a good example of a nation-state's determination to protect information that it considers proprietary and to exclude information that it finds objectionable. However, it is also evident that the two countries have widely divergent philosophies underpinning their information policies the United States is dedicated to a free marketplace for information as protected by the First Amendment and best achieved through an unregulated economy, whereas the Canadians look upon information policy as a means to an end the promotion and protection of their own cultural identity and economic viability.
From page 109...
... In addition, with so many coauthors and coinventors, it may be difficult to determine who has the right to expunge or delete. THE RIGHT TO CORRECT OR ALTER INFORMATION Public Records As important as the right to acquire public information is the right of individual access to personal information.
From page 110...
... The effort of the Flonda legislature to enact a right of reply for newspapers was struck down by the Supreme Court as intrusive upon the editorial judgment of the news media.~03 Consequently, the new technologies of both broadcast and computer have come under more stringent rules than the old media. However, it must be remembered that the abuses to be corrected at the time of the First Amendment were strong government intrusions into news content, whereas today the greater fear is the danger of private corporate control over the means of distributing information.
From page 111...
... The law has had great difficulty, however, in coping with the broadcasting industry because content decisions and carriage media are both under the control of a regulated broadcaster. Nonetheless, there is a limited public forum responsibility in the fairness doctrine which requires that broadcasters devote time to opposing viewpoints when issues of public importance are aired.~04 Numerous efforts have
From page 112...
... In renouncing the Federal Communications Commission's (FCC's) aborted attempt to establish public-access channels on cable television, the Supreme Court concluded that the FCC was attempting, without legislative authorization, to create a public right that did not exist, and it commented that the right to speak does not include a right to an audience in a nonpublic forum such as newspapers, magazines, or on the Senate floor.~°8 However, the power of the press, as a surrogate of the people, is a powerful too} for redo.
From page 113...
... This may be a common-carrier channel (for telephone, telegraph, or electronic mail) , a public-access channel for cable television, an op-ed page in newspapers, or a public bulletin board such as the Democracy Wall in the People's Republic of China.
From page 114...
... What is needed is a commitment to preserve the principles we hold dear in a digital environment no less than in a voice circuit or on a printed page. The late Ithiel de Sola Pool, who devoted his last intellectual effort to the preservation of First Amendment principles in the Information Age, wrote: The mystery is how the clear intent of the Constitution, so well and strictly enforced in the domain of pent, has been so neglected in the electronic revolution.
From page 115...
... 17. Dow Jones News Service documents 120827~219, August 24, 1984; 120822-0348, August 21, 1984; 120821-0312, August 20, 1984.
From page 116...
... 32. The leading Supreme Court case in this area is Branzburg v.
From page 117...
... Op. cit., supra note 21.
From page 118...
... 74. Dow Jones News Service, Doc.
From page 119...
... 91. Dow Jones News Service, Doc.
From page 120...
... Rhinehart, 82-1721, is on the Supreme Court docket to determine whether the Washington State Supreme Court was correct in upholding an injunction for defamation and invasion of privacy by the leader of a religious group who sought to suppress publication of information obtained during preparation for teal, National Law Journal, October 17, 1983, p.


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