A sad day for the public domain; what next?

by Simon St. Laurent

Related link: http://www.sims.berkeley.edu/%7Epam/papers/xml2002.ppt

For those of us frustrated by the Supreme Court's disdain for the public domain, today is a pretty sad day. That doesn't mean that it has to be the end, however. Pam Samuelson gave a keynote (PowerPoint slides) last month at XML 2002 that suggests other approaches to moderating the "property" in "intellectual property".

Samuelson started by examining the historical circumstances around copyright, the classic problem that "Copyright legislation most directly affects a small group of highly organized, well-financed firms", and the general trend toward the "best laws $$$ can buy", largely the same problems addressed by the Eldred case.

Then her project did something different. The Samuelson Clinic joined the OASIS Rights Language Technical Committee. Instead of leaving these projects to vendors, who are generally expected to pursue their own interests rather than a public interest, the Samuelson Clinic (and the Society of Biblical Literature) joined the project, broadening the nature of the "rights" being described.

In the initial proposal, the "rights" were much more on the order of "permissions" - it's always tough to argue against metaphors based on rights, even when it's not clear whose rights they were. Samuelson pointed out a whole range of questions about first sale and fair use that still have to be addressed, as well as possible patent issues on the whole scheme.

Samuelson explored how "Digital Rights Management" and its claim to only be licensing content rather than selling it marks a drastic change in the publishing universe, giving the owners of intellectual property far more control over its use than was ever previously the case. Building those assumptions into a generic rights language may lock the public interest out as effectively as a Supreme Court decision - and in a potentially widely-distributed way that's much harder to overturn.

(If you haven't read her other presentations, there's lots to learn.)

At present, and despite the best efforts of people like Pam Samuelson and Lawrence Lessig, the interests of "intellectual property owners" seem to be triumphant. They control the material, they control the dollars, and with terms like "Digital Rights Management" they control the terms of the discussion. It seems like the the discussion, technical and otherwise, might be the right place for interested members of the public to start fighting back. Call it what it is - "Digital Restriction Management" - and work to ensure that such mechanisms don't erode the existing rights of the public.

Know of other technical projects that may be endangering the public domain?


2003-01-17 08:45:32
Constitution Vs Democracy
As a subject of the British Empire* I'm afraid I have a slightly more detached view. Having has a quick look at the relevent section in your constitution (I make no claims to be an expert) it seems to me that the Supreme Court did exactly the right thing.

No matter how much we might lament the consequences, and I do lament them I assure you, the court was merely upholding the law. The real culprites are your elected representative.

Rather that complaining that the Supreme Court upheld your constitution, an aparently not as common occurence as it might be, I would suggest your american readers contact their representatives and press for change that way.

Best regards,

Simon Hibbs

* ;)

2003-01-17 08:54:57
Perhaps the word "limited" has a different meaning in the UK?

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Part of the reason for having a Constitution was to limit the ability of our Congressional representives to sell us out, I'm afraid. If I happen upon a trove of cash and can buy off legislators as the media industries do, I'll be happy to do so, but don't expect that to happen any time soon.