Notes from the Technology Trenches – The Big Picture: Limiting Information Access

Cindy Carlson is the Electronic Resources Librarian at Fried Frank Harris Shriver & Jacobson in Washington, D.C., a web committee member for the Law Librarian’s Society of Washington, D.C. , and organizer of its Legal Research Training Focus Group.

Is it mid-October already? I’m back from some time off and have been feeling a little out of the loop. To go from checking my mail 10 times a day on two systems to checking it maybe once every day or so is only one of the many culture shocks I’ve had in the past three months. Now that I’m beginning to be able to peek out of my shell into the wider world a little more frequently, I find that while the seasons have changed, the landscape is still pretty familiar. I’ve been trying to catch up on my reading, and it looks like the big issues are still the same problems with information access we were following before the tragedies of September 11 as well as the additional federal information limits that have arisen since.

Maybe I’m still recovering from the changed world view of becoming a parent, but I’m stuck on the big issues this month. Everything I’ve been reading makes me realize that while our technological capabilities have kept on expanding, and more people are taking advantage of the technologies available, frustrations about access to information aren’t likely to go away as long as there’s money or power in the act of keeping information confined.

Librarians are taught that there are mainly two approaches to working with information in whatever form. The first, and most popular, approach is that of the enabler. That’s not an enabler in the negative co-dependency sense, but in the positive, help-people-find-what-they-need sense. The ALA, for example, is all about open access to information. Another, much less talked about roll that librarians play is in limiting access, called gate keeping. The second approach is more custodial. Archivists, for instance, often limit access to rare materials in order to keep them in good condition. Another, more controversial example would be a library which limited access based on content, i.e.; keeping a book which used “objectionable” language or explicit photos behind the reference counter where a person would have to ask for it before being able to see it. The most extreme gate keeping is limiting access to information because, for your own reasons, you simply don’t want users to have it. It’s yours, you care for it, they have to prove they are worthy before they can get to what they need.

Extreme gate keeping is generally viewed as a negative approach and not one most librarians would condone, though of course there are as many stingy librarians out there as there are stingy people in any other profession. Non-librarians, sadly, are apt to find gate keeping as convenient as librarians find it unappealing, and there seems to be an awful lot of it going around at the moment.

Eldred v. Ashcroft

Take Eldred v. Ashcroft, for instance. The case was argued in the Supreme Court on October 9 and regards the extension of the term of copyright privileges. Eric Eldred runs an Internet site called Eldritch Press which publishes online versions of popular literary works from the public domain. He and other plaintiffs interested in public domain materials brought suit recently when Congress extended the term of existing copyrights by another twenty years. They argue that while the constitution grants Congress the right to determine the term of copyright protection, it also requires that the term of copyright be limited. By extending copyright (11 times now), Congress essentially defies that constitutional requirement. The idea behind term limitation, so the argument goes, is that it gives a fair term of benefit to a work’s creator but allows future creators an opportunity to use the original work as part of their own or as an inspiration for their own. Eldred argues that the copyright extension mainly serves to benefit a few powerful entities, like movie studios, while it denies the vastly larger creative world access to most works created in the last century, even unimportant or obscure materials. The opposing argument goes something like this: First, the constitution requires that the term of copyright be limited, but it doesn’t give a specific length of time. The life of the creator plus 70 years is limited, just not as limited as life plus 50 years. Also, if copyright isn’t protected, great works will be lost because there will be no financial incentive for anyone to dredge them up and redistribute them.

Conceptually, it seems to me that Eldred and the other plaintiffs have a solid point, but technically, the defense has an edge. No question, the copyright term as delineated by Congress is limited. The second half of the defense argument, though, seems weak. Big movie studios appear to have lobbied hard for this copyright extension in order to maintain control of some of the characters which will otherwise enter the public domain in the next few years, most notably, Mickey Mouse. We’ve already seen that annotations to works in the public domain can be protected by copyright. If not, West’s syllabi, headnotes and key numbers in case materials would be available on every legal research service. While case text is in the public domain, significant creative enhancements are not. Though Steamboat Willie would enter the public domain, that would not prevent Disney from making enhancements to it and marketing it in the future. It would, however, allow for the the use of images from the film in new works, some of which might not fit with the Disney image. To me, Disney’s arguments are especially interesting considering the irony that many of its most successful films are based on works, like fairy tales, in the public domain. Free speech, as always, means having the right to say what the majority doesn’t want to hear, or in this case see.

At any rate, the arguments on the ninth were interesting and it remains unclear what the court will decide. Neither side seemed favored and both faced tough questions from the justices.

If you’d like to read more about the case and the recent oral argument, see the Supreme Court docket from October 9 and other related materials at Argument transcripts will be available in a few days, but until then you may be interested in a some articles on the topic and first hand blog reports on the same:

  •  Articles 
 Lane, Charles; Justices Hear Challenge to Copyright Law, Washington Post, October 10, 2002 
 McCullagh, Declan; High Court Weighs Copyright Law, CNET, October 9, 2002 
 Murray, Frank J.; Justices Weigh Copyright, Washington Times, October 10, 2002 
 Parkes, Christopher; Intellectual Freedom Fighters Take on Disney, Financial Times, October 12, 2002 
 Totenberg, Nina; Supreme Court - Copyright Law, All Things Considered, October 9, 2002 (Audio) 
  •  Blogs 

Eldred V. Ashcroft Oral Arguments

Lawrence Lessig Makes His Debut before the Supreme Court

Lawrence Lessig’s Blog and his site’s main page under “Recent Lessig News”

Then there is the recent ruling on reverse engineering software, a new FOIA issue for the Department of Homeland Security above and beyond the restrictions urged by Secretary Ashcroft immediately after September 11, the removal of potentially dangerous information from federal Web sites, and a trend against deep linking on the Web – all worrisome to those of us whose livelihoods depend on access to information.

The difficulty with limiting access to information is that while some access may legitimately need to be controlled, it seems nearly inevitable that other information gets scooped up in the process. Online researchers quickly learn to use the “and not” or exclusion command very sparingly. Limiting results by excluding a term may not only remove unwanted items from your results, but may also be remove wanted results the searcher is unable to anticipate. The copyright extension not only limits access to the well known works of Gershwin and Disney, but also to thousands of works by creators who won’t benefit from it and whose works may be needed for research. The federal restrictions on access do the same – in the name of safety, limits are imposed which not only remove obviously dangerous information, but also practical, useful items on the chance that they might some day be used in a dangerous context.

The trick is to find some kind of happier medium, and that seems to be what’s troubling the Supreme Court. As Justice O’Connor put it,

“I can find a lot of fault with what Congress did here,” … “it’s very difficult to find the basis in the Constitution for saying” that Congress has no right to set copyright terms “longer than one might think desirable.”

Should cultural icons like Mickey Mouse be separately protected? Is there some better way to strike a balance between the need for access to information and the need for societal and individual protections? What’s the power of the Internet if the collective populace communicating there can’t come up with an answer to such an essential issue? If you have any ideas, let us know. Meanwhile, I’ll be pondering the other troubling issues of privacy protections. Until November, when I hope to go back to covering more practical solutions to technological troubles, good luck in your own Technology Trenches.

Posted in: Copyright, Free Speech, Notes from the Technology Trenches