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|There needs to be enough intellectual-property
protection to give people incentive to engage in creative efforts and to
be willing to make the fruits available to a broader public.
But if the protection gets too strong, it can impede innovation rather than foster it.
The balancing principle is a very longstanding tradition, and that balancing principle is under challenge right now.
Professor Samuelson (as sited in WSJ.com)
I actually come across the first paper of Professor Samuelson accidentally either in IEEE software or Communications of the ACM in late 1993. I was really impressed by the fact that unlike many copyright law commentators these days, Samuelson's underlying social conscience puts her on the side of the little guy.
I think that the most important part of her works is the advocacy of the fair use principle as well as the necessity of periodic tuning, rebalancing between interests of software authors, uses, contributors and copyright holders. For that contribution I would call her Ms. Fair Use ;-). Here is how Peter Jaszi, a copyright professor at American University's Washington College of Law who has worked closely with Ms. Samuelson characterized her contribution to the field:
Pam was the leading academic commentator on that issue and the person who, through her writings, most clearly and fully articulated the reasons to be concerned about the risk of overprotection of software -- risks to the process of innovation itself. This would not have come out the way it did if not for Pam's early, consistent, creative efforts in both sounding the alarm and proposing a solution."
Since 1996 she is a professor of law and information management at the University of California at Berkeley and co-director of the Berkeley Center for Law and Technology.
In 2000 she and her husband
See image at pam-samuelson -- declan mccullagh photos; For additional information about her in the press I can recommend two articles:
Her place in the computer world was ensured by a column on technology and legal issues she began in 1989 for The Communications of the Association for Computing Machinery, a venerable publication
She says we mustn't be fooled into thinking that the way copyright functions today is how it must work in the future. As she wrote in a recent paper on the history of copyright, the choices we make now ''will have profound consequences for the kind of information society in which we will be living in the 21st century.''
Though it's impossible to know the extent of Ms. Samuelson and her fellow scholars' influence on the courts in this matter, colleagues say her work had an impact. "Pam was the leading academic commentator on that issue and the person who, through her writings, most clearly and fully articulated the reasons to be concerned about the risk of overprotection of software -- risks to the process of innovation itself," says Peter Jaszi, a copyright professor at American University's Washington College of Law who has worked closely with Ms. Samuelson. "This would not have come out the way it did if not for Pam's early, consistent, creative efforts in both sounding the alarm and proposing a solution."
Ms. Samuelson's work at the time also provided a theoretical guidepost for Susan Braden, a lawyer at Baker & McKenzie in Washington, D.C. Ms. Braden served as a defense lawyer in a copyright-infringement lawsuit unfolding at the same time as the Borland suit, Computer Associates International Inc. vs. Altai Inc. Computer Associates alleged that Altai had used elements of Computer Associates software in designing a program.
At the time, there was nothing in the case law for Ms. Braden to hang her defense on, so Ms. Samuelson's work helped her form her ideas; she even appended one of Ms. Samuelson's briefs from the Borland case to her court filing. Ultimately, the court found that Altai didn't infringe on copyright.
"I think the main thing Samuelson did was a lot of pioneering work on concepts that at the time were close to heresy," Ms. Braden says. "Samuelson challenged copyright creep -- people thinking they had an automatic entitlement to copyright protection."
Dr. Nikolai Bezroukov
[Dec 29, 2005] Law & Contemporary Problems [66 Law & Contemp. Probs. 147]MAPPING THE DIGITAL PUBLIC DOMAIN: THREATS AND OPPORTUNITIES by PAMELA SAMUELSON*Cited: 66 Law & Contemp. Probs. 147 (Winter/Spring 2003)[*pg 147]
[May 13, 2002] WSJ.com - Article
In addition, she has made her mark on the next generation of copyright activists: With her husband, Robert Glushko, she helped launch two law-school clinics that specialize in the intersection of law and technology, and she serves as a board member of the Electronic Frontier Foundation, a San Francisco-based group that advocates for free speech and civil liberties on the Internet.
Now she is taking on one of her biggest challenges so far -- attacking the 1998 Digital Millennium Copyright Act, or DMCA, an anti-piracy law backed by the entertainment industry. Ms. Samuelson thinks the law protects intellectual-property rights at the expense of technological research and innovation, as well as the broader public interest.
Ms. Samuelson "understands the technology, and she can understand where the law is going to get in trouble," says Randall Davis, a computer-science professor at the Massachusetts Institute of Technology who has collaborated with Ms. Samuelson on an academic paper. "She can read something like the [DMCA] and understand where the law and technology are going to collide, and perhaps where the law is going to have unintended and undesirable effects."
... ... ...
To her critics, Ms. Samuelson's emphasis on protecting the public domain undermines the essence of copyright -- the financial incentives that help inspire the creation of new works.
"Her writing has an agenda, and the agenda is quite visible: It's to narrow the scope of copyright and make it essentially irrelevant and to put everything in the public domain," says Charles Sims, an attorney and former Yale Law School classmate of Ms. Samuelson's who is representing the movie studios in a closely watched DMCA lawsuit. "She has this vision that information wants to be free and copyrighted works should all be free. She has failed to recognize the consequences that would have for creativity as we have known it."
Still, he admits, "she and a few of her allies reset the discussion to include subjects no one would have thought seriously worth talking about."
Mr. Sims's criticism, Ms. Samuelson counters, doesn't fairly reflect her views as a great proponent of copyright laws "when properly construed." At times, she says, her concerns about balance have led her to advocate for new legal regimes that offer greater protections.
... ... ...
Finally, in a 1990 lawsuit between software makers Lotus Development Corp. and Borland International Inc., a federal appeals court ruled that Borland didn't infringe on Lotus's copyright even though the programs shared similar features -- such as the names of commands the user clicks on, like "print" and "quit," and macro commands. The ruling directly contradicted the Whelan decision.
Under the copyright statute, the court ruled, a computer program's "method of operation" was not copyrightable. The decision gave programmers more freedom to, among other things, copy what computer scientists call the "look and feel" of programs, such as the user interfaces. The Borland ruling was later affirmed by the U.S. Supreme Court.
"Whelan totally died, but it took years," says Ms. Samuelson.
[Dec 30, 2001]
The Law & Economics of Reverse Engineering by Prof.
Pamela Samuelson. -- one of the best legal paper on the subject.
UC Berkeley School of Law (Boalt Hall)
1. The "USA Patriot Act" obviously had many dimensions, but it included some very important new rules about the government's access to information about individual users on the Internet. For example, in authorizing the government to gather information about electronic mail sent or received by individuals, Congress said that investigators don't need to prove probable cause that the targeted person has committed or is about to commit a crime. The law also lowered the standards for surveillance of foreign nationals and made some computer crimes into terrorism offenses. These rules are not only important in themselves, but they have implications for other government efforts to extend regulation to the Internet.
2. The Microsoft decision was a very important ruling in 2001, not so much (as it turned out) because of its effect on Microsoft (which is trying to settle the litigation on terms very favorable to it), but because of its affirmation of the continued viability of antitrust law in the Internet and high technology environment. It was a very well-reasoned decision.
3. Less noticed by the press and the public were the two DeCSS cases, one a California trade secrecy case [DVD-CCA v. Bunner], and the other the first federal appellate court ruling on the Digital Millennium Copyright Act's anti-circumvention rules [Universal City v. Reimerdes].
The California appellate court overturned on First Amendment grounds a lower court ruling that someone who posted DeCSS (a program that bypasses the content scrambling system software used on DVD movie disks) had misappropriated CSS as a trade secret. I would have been more skeptical than the court was about the viability of a trade secrecy claim even against the author of DeCSS, let alone against subsequent posters of the information. But I agree that there are serious First Amendment problems with saying that someone who did not misappropriate a trade secret can be enjoined from posting the information on the Internet once the information has been made available.
The Universal City Studios case was the first suit to pose a constitutional challenge to the DMCA anti-circumvention rules. Eric Corley, a journalist, posted DeCSS on his magazine's Web site as part of his coverage of the controversy about the program and later linked to sites where the code was posted. The trial and appellate courts both ruled that posting and linking to DeCSS were illegal under the DMCA. The motion picture industry won this round of the constitutional fight over the DMCA, but there will be other rounds, and I believe courts will come to appreciate the constitutional deficiencies of the DMCA, even if they didn't in the Corley case.
Professor Samuelson co-authored a friend-of-the-court brief attacking the DMCA in the Corley case. She also is a member of the Board of Directors of the Electronic Frontier Foundation, which represented Corley on his appeal.
Softpanorama hot topic of the month
Pamela Samuelson home page at Berkeley
Samuelson Law, Technology, and Public Policy Clinic Home
Law & Contemporary Problems
Paying attention to the infrastructure necessary to support economic development in information industry sectors is important because it avoids over-simplistic thinking. Adopting intellectual property laws and making certain commitments about enforcement will not inevitably induce growth of local information industries nor will it automatically attract foreign investment into a developing country.17 Other infrastructure elements must be present to support investments in information industries. For some developing countries, the lack of other infrastructure elements may make the social costs of strengthened intellectual property protection higher than the benefits to be reaped.18
Does this mean that the ideas and methods in non-software works of authorship can be protected under Chinese copyright law? The answer to this question is surely no, as Chinese sources clearly reveal. A review of Chinese caselaw reveals that courts have denied copyright claims in some instances because the second author had only taken facts or ideas from the first author's work, not his expression.38 Commentary by Chinese authorities also states that China's copyright law only protects the expression of authors, not their ideas.39 Moreover, China participated in the deliberations leading up to the adoption of the World Intellectual Property Organization (WIPO) Copyright Treaty in Geneva in 1996 that included a provision endorsing the principle that "[c]opyright protection extends to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such."40 The Berne Convention, which has long been the most significant international treaty on copyright protection, may have previously been silent about the idea-expression distinction, but this distinction has long been a part of the mature copyright systems governed by that Convention.41
Unfortunately, the idea-expression distinction is sometimes easier to articulate than to apply. When the most valuable aspects of a copyrighted work are its ideas, facts, or processes,42 copyright owners will sometimes assert that an aspect of a work is expressive in order to get protection for it. Adopting this stratagem may be tempting partly because the distinction between ideas and expressions, while clear in the abstract, does not always shimmer with clarity in the context of any particular dispute.
Among the other limitations or exceptions to copyright that can promote innovation are the fair quotation and fair use doctrines of Chinese and other national copyright laws.52 New ideas emerge as subsequent authors make transformative uses of portions of pre-existing works in the course of commenting on earlier works.53 Recent Chinese interpretations of its fair quotation rule are consistent with international standards. For example, the author of a book about the last emperor of China successfully invoked China's fair quotation rule in defending against a copyright claim in an unpublished diary because it satisfied the three criteria used in judging fair quotations under Chinese law.54 Those criteria were not, however, satisfied in another case in which a playwright reproduced the menu of a famous Peking duck recipe in a dramatic play.55
Although China does not presently have a general fair use provision akin to that in U.S. copyright law, it might want to consider adopting such a rule. In times of rapid technological change, a general fair use doctrine gives the courts some flexibility in applying copyright law to respond to situations not foreseen by lawmakers in a balanced way.56 In the United States, for example, the fair use doctrine helped the U.S. Supreme Court decide how to deal with a new technology issue that the U.S. Congress had not considered in enacting copyright law, namely, whether home videotaping of movies from broadcast television was fair use. After weighing various factors and balancing the competing interests, the U.S. Supreme Court in Sony Corp. of America v. Universal City Studios decided that such taping was fair use.57 Even though the motion picture industry initially tried to stop the sale of videotape machines, the widespread availability of these machines opened up vast new markets for videocassettes. This brought substantial benefits to the motion picture industry whose fears of this new technology turned out to be unfounded.
While the private use exception in Article 22 of China's copyright law might allow the kind of home taping involved in the Sony case, it is less clear whether this or other exceptions in Article 22 would have sufficient flexibility to deal with other challenging new technology issues. How, for example, would Chinese courts to deal with the new technology question posed in the Lewis Galoob Toys v. Nintendo of America case?58 Galoob's "Game Genie" was a device that enabled consumers to temporarily change the audiovisual display of Nintendo games, for example, by increasing the number of lives of a fictional videogame character.59 Nintendo alleged that use of the Game Genie infringed the derivative work rights in its games. Congress had never contemplated this issue nor was there any close precedent, so the U.S. courts used fair use to balance the interests of the videogame copyright owner, the maker of the Game Genie, and the public. The courts decided that no infringement had occurred.
Fair use has also proved useful in dealing with another controversial interoperability issue: whether developers of computer programs can lawfully "decompile" programs of their competitors for the purpose of discerning details of the other program's interface in order to develop a new noninfringing program that will interoperate with the other program. (Decompilation inevitably requires making some copies of the text of a computer program.) A number of decisions in the U.S. have invoked fair use to allow decompilation for purposes of achieving interoperability.60 The European Union, whose member states do not have U.S.-style fair use rules, reached the same result, although it did so by a different route, that is, by adopting a special exception to legalize decompilation for interoperability purposes.61 In early 1997, Hong Kong considered adopting an EU-style special exception for decompilation, but was persuaded by U.S. industry groups and officials that a fair use rule was a preferable way to balance the interests at stake when decompilation occurs.62 This suggests that China could adopt a general fair use provision to achieve the same goals of promoting innovation and competition in a balanced way.
Underlying current initiatives for extending authors' rights in cyberspace
is a well-publicized perception that rightsholders currently feel so insecure
about copyright protection in cyberspace that they are unwilling to make their
works available in digital networked environments. The U.S. Working Group on
Intellectual Property Rights of the National Information Infrastructure (NII)
Task Force report entitled "Intellectual Property and the National Information
Infrastructure" (Sept. 1995) (commonly known as "the White Paper") is probably
the most widely read document expressing this view. The U.S. White Paper argues
for additional legal protection at both national and international levels to
overcome this insecurity and provide needed inducements to publish works in
There are several reasons to question the White Paper's assertions.
First, it is simply not true that there is no content available in digital networked
environments. The World Wide Web and the Internet are replete with sites containing
many megabytes of information which sitemasters wish to share with other people.
While much of the information available on the Internet today is free, creative
people are managing to find ways to make money even from free distributions
of information on the Web. The Hotwired site, for example, makes considerable
revenues from advertising. And some electronic publications on the Web are charging
fees to users, often by subscription charges. The notion that the existing information
infrastructure for digital information is all empty pipeline awaiting content
is simply a myth.
Second, even if some content owners may be holding back from
distributing content in cyberspace, there may be other reasons than insufficiencies
in copyright law to explain this. Print publishers are, for instance, finding
it more difficult than they expected to retool both their technological bases
and their production processes so they can become effective electronic publishers.
New business models for publishing in cyberspace only just beginning to emerge.
Everyone is expecting some new models to be wildly
successful, but most publishers are content to wait until a more enterprising firm has discerned the best way to make money in cyberspace before they enter this new market.
Also yet to be developed are "microtransaction" systems that
will enable transactions for digital content for small amounts of money (i.e.,
under $15) without undue transactions costs. Moreover, until publishers, bankers,
and the general public have confidence that a truly secure means of payment
for delivery of or access to digital objects has been developed, there may be
a limited amount of commerce on the net, whether in digital objects (i.e., content)
or in physical goods. Further complicating the development
of digital commerce are uncertainties that currently exist about some contract rules for digital objects (e.g., when one orders digital content through cyberspace, is that a "sale" of "goods" or a "licensing" of "intangibles," questions that are significant because different consequences currently flow from these different characterizations).
Third, notwithstanding the earnest efforts of content owners
and policymakers to adapt existing legal regimes so that they will protect authors'
rights in cyberspace, a growing number of commentators suggest that copyright
law may not be able to protect authors' rights in cyberspace, or at least may
not be able to do so in the same manner as it has in the physical world. In
his book Being Digital, Nicholas Negroponte, head of the Media Lab at the Massachusetts
Institute of Technology, has put the point
succinctly: shipping bits (that is, works in digital form) is fundamentally different than shipping atoms (that is, tangible embodiments of works, such as books and CD's). Negroponte is one of a number of technologists who predict a dim future for copyright law. He may, of course, be wrong in asserting that copyright cannot work in cyberspace, but even the U.S. Copyright Office has begun to realize that copyright law may, in time, need to be substantially reconfigured to regulate the digital environment in an appropriate way.
Fourth, even assuming that there is some inadequacy in copyright
protection in cyberspace, the problem may not be the law as such, but rather
difficulties in enforcing legal rights already on the books. At least three
factors contribute to difficult enforcement of authors' rights in cyberspace:
(1) the ubiquitous availability of technologies that facilitate rapid inexpensive
copying and distribution of digital content; (2) the global character of existing
digital networks which renders the copyright laws of each nation no more enforceable
than its ability to control the availability of its nationals' content on servers
outside its borders; and (3) the widespread public perception that private noncommercial
copying of protected works is not and should not be illegal. None of these factors
will be affected by any legislative expansions of the rights of authors. New legislation, therefore, may have some symbolic value to authors and publishers, but as a substantive matter, it may accomplish next to nothing.
Fifth, any insufficiency in the law or in enforcement of authors'
rights in cyberspace may be more than made up for by emerging technological
means of protecting digital works. Adoption of technological means to protect
works against unauthorized use or to track down infringements may, in fact,
mean that authors' rights will become better protected in cyberspace than they
have ever been in the physical world. Among the relevant emergent technologies
are digital envelopes, encypted signal streams, software
metering schemes, digital watermarks, and copyright management information attached to digital copies of works.
To safeguard technological protection for copyrighted works,
the White Paper recommended that Congress make it illegal to make and sell devices,
or to offer services, whose primary purpose or effect is to aid in the circumvention
of technological protection for works of authorship. The U.S. submission to
the WIPO experts proposes a very similar provision for the Berne Protocol. Although
the idea behind this proposal may have some merit, the anti-circumvention provision
proposed in the White Paper has met with
considerable opposition in Congress. Among the concerns of industry opponents is the potential for such a provision to be used to challenge the sale of technologies whose developers had no knowledge or intent that they would be widely used for illicit purposes, even though consumers might choose to use them so. Several organizations have proferred alternative, more narrowly tailored provisions to regulate anti-circumvention technologies, but consensus has not yet emerged about which is the best approach.
[Dec 30, 2001] The Law & Economics of Reverse Engineering by Prof. Pamela Samuelson.
Anti-Circumvention Rules Threaten Science 293 Science 2028 (Sep 14, 2001)
Towards More Sensible Anti-Circumvention Regulations Proceedings of Financial Cryptography 2000 Conference (forthcoming 2000).
Self-Plagiarism or Fair Use?, Communications of the ACM (vol. 37, no.
8, Aug. 1994)
[Samuelson1994] Samuelson, P. "Copyright, Digital Data, and Fair Use in Digital Networked Environments," Online Paper, S.D. 08/03/94.
[Samuelson1991] Samuelson, P. "Is information property? (Legally Speaking),"
34 Communications of the ACM, (March 1991).
[Samuelson1996] Samuelson, P. "On Authors' Rights in Cyberspace: Questioning
the Need for New International Rules on Authors Rights in Cyberspace," 4 First Monday,
(October 7, 1996).
[Samuelson1996a] Samuelson, P. "The Copyright Grab," Wired, Archive | 4.01 - Jan 1996.
[Samuelson1999] Samuelson, Pamela "Does Information Really Want to Be Licensed?" 4 The J. of Elect. Pub., (March, 1999), ISSN 1080-2711.
[Samuelson1999a] Samuelson, P. "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised," Online Article, (1999). This paper is an outgrowth of work initially done for an Emory Law School conference on the law of cyberspace held in February 1996. The draft article produced for that conference entitled Technical Protection for Copyrighted Works discussed a 1995 legislative proposal for regulating the circumvention of technical protection systems.
[Samuelson_Glushko1993] Samuelson, P. and R. J. Glushko "Intellectual Property Rights for Digital Library and Hypertext Publishing Systems, 6 Harvard J. of Law & Tech., (1993). URL: http://www.sims.berkeley.edu/~pam/papers/ipdiglib.html –
WSJ.com - Article
Linux Today - USA Today Pamela Samuelson Cyber-rights guardian; Copyright Antichrist ).
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