Permission Headers and Contract Law
by Henry H. Perritt, Jr.
ABSTRACT
Law and technology must work together to minimize free riding on the
intellectual contributions of authors and publishers. Contract-law and
evidence-law doctrines can protect contributors in well-designed digital
library systems, but unduly relying on encryption and other sophisticated
technologies to protect intellectual property frustrates the vision of an open
architecture for electronic publishing because they impose transaction costs
disproportionate to the risk.
INTRODUCTION
One of the ways to protect intellectual property on the NREN is through a
digital library concept. Under this concept, a work would have attached to it a
"permissions header," defining the terms under which the copyright owner makes
the work available. The digital library infrastructure, implemented on the
NREN, would match request messages from users with the permissions headers. If
the request message and the permissions header match, the user would obtain
access to the work. This concept encompasses major aspects of electronic
contracting, which is already in wide use employing electronic data interchange
(EDI) standards developed by ANSI Committee X12.[1]
This paper explains the relationship between the digital library concept and
EDI practice, synthesizing appropriate solutions for contract law, evidence,
and agency issues that arise in electronic contracting. The question of how
electronic signatures should work to be legally effective is an important part
of this inquiry. The paper also defines particular types of service
identifiers, header descriptors, and other forms of labeling and tagging
appropriate to allow copyright owners to give different levels of permission,
including outright transfer of the copyright interest, use permission, copying
permission, distribution permission, display permission, and permission to
prepare derivative works. The paper considers how payment authorization
procedures should work in conjunction with a permissions header and digital
library concept in order to integrate the proposed copyright licensing
procedures with existing and anticipated electronic payment authorization
systems. The paper necessarily considers whether existing standards approaches
related to SGML (Standard Graphics Markup Language) and X12 are sufficient or
whether some new standards development efforts will be necessary for
implementation of the concepts. The paper considers the relationship between
technology and law in enforcing intellectual property, and emphasizes that the
traditional adaptation of legal requirements to levels of risk is appropriate
as the law is applied to new technologies.
There are certain common issues between the intellectual property question and
other applications of wide area digital network technology. The question of
signatures and writings to reflect the establishment of duties and permissions
and the transfer of rights is common to the intellectual property inquiry and
to electronic commerce using EDI techniques. There also are common questions
involving rights to use certain information channels: First Amendment
privileges, and tort liability. These are common not only to technological
means of protecting intellectual property but to all forms of wide area
networking.
THE PROBLEM
The law recognizes intellectual property because information technology permits
one person to get a free ride on another person's investment in creating
information value. Creative activity involving information usually is addressed
by copyright, although patent has a role to play in protecting innovative means
of processing information.[2] The concept of intellectual
property arose in the context of letterpress printing technology. Newer
technologies like xerography and more recently small computer technology and
associated word processing and networking have increased the potential for free
rides and accordingly increased the pressure on intellectual property.
The concern about free ride potential is especially great when people envision
putting creative works on electronic publishing servers connected to wide area
networks intending to permit consumers of information products to access these
objects, frequently combining them and generally facilitating "publishing on
demand" rather than the well known publishing just in case, typified by
guessing how many copies of a work will sell, printing those in advance, and
then putting them in inventory until someone wants them.
The concern is that it will be too easy to copy an entire work without
detection and without paying for it. Worse, it will be easy to copy an entire
work and resell it either by itself or as a part of a new derivative work or
collection.
But technology is capable of protecting investment in new ways as well as
offering the potential for a free ride. Computer networks make it possible to
restrict access and to determine when access occurs. Depending on how new
networks are designed, they may actually reduce the potential for a free ride.
The digital library is one way of realizing that potential. Professor Pamela
Samuelson has observed that the digital library model replaces intellectual
property with a system of technological controls.[3]
DIGITAL LIBRARY CONCEPTS
Basic Concepts
A digital library is a set of information resources ("information objects")
distributed throughout an electronic network. The objects reside on servers
(computers with associated disk drives connected to the network). They can be
retrieved remotely by users using "client" workstations.
Origin of Concepts
The phrase "digital library" and the basic concept were first articulated in a
1989 report growing out of a workshop sponsored by the Corporation for National
Research Initiatives.[4] From its inception, the digital
library concept envisioned retrieval of complete information resources and not
merely bibliographic information.[5]
The technologies for remote retrieval of complete information objects using
electronic technologies are in wide use through the WESTLAW, Dialog, LEXIS,
NEXIS, and National Library of Medicine databases. These remotely accessible
databases, however, unlike the digital library, involve a single host on which
most of the data resides. The digital library concept envisions a multiplicity
of hosts (servers).
Recent Developments
The remotely accessible database host concept is converging with the digital
library concept as more of the electronic database vendors provide gateways to
information objects actually residing on other computers. This now is
commonplace with WESTLAW access to Dialog, and Dialog's gateways to other
information providers.
The most explicit implementation of the digital library concept is the Wide
Area Information Service (WAIS), which implements ANSI standard Z.39.50.[6] WAIS permits a remote user to formulate a query that is
applied to a multiplicity of WAIS servers, each of which may contain
information responsive to the query. The WAIS architecture permits search
engines of varying degrees of sophistication, resident on WAIS information
servers, to apply the query against their own information objects, reporting
matches back to the user.[7] Future implementations of WAIS
will permit automatic refinement of searches according to statistical matching
techniques.
The Corporation for National Research Initiatives (CNRI) has proposed a test
bed for an electronic copyright management system.[8] The
proposed system would include four major elements: automated copyright
recording and registration, automated on-line clearance of rights, private
electronic mail, and digital signatures to provide security. It would include
three subsystems: a registration and recording system (RRS), a digital library
system (DLS), and a rights management system (RMS). The RRS would provide the
functions enumerated above and would be operated by the Library of Congress. It
would provide "change of title" information.[9] The RMS
would be an interactive distributed system capable of granting rights on line
and permitting the use of copyrighted material in the digital library system.
The test bed architecture would involve computers connected to the Internet
performing the RRS and RMS functions.
Digital signatures would link an electronic bibliographic record (EBR) with the
contents of the work, ensuring against alteration after deposit.[10] Multiple RMS servers would be attached to the Internet. A
user wishing to obtain rights to an electronically published work would
interact electronically with the appropriate RMS. When copyright ownership is
transferred, a message could be sent from the RMS to the RRS,[11] creating an electronic marketplace for copyrighted
material.
The EBR submitted with a new work would "identify the rights holder and any
terms and conditions on the use of the document or a pointer to a designated
contact for rights and permissions."[12] The EBR, thus, is
apparently equivalent to the permissions header discussed in this paper.
Security in the transfer of rights would be provided by digital signatures
using public key encryption, discussed further, infra in the section on
encryption.
Basic Architectural Concepts
The digital library concept in general contemplates three basic architectural
elements: a query, also called a "knowbot" in some descriptions; a permissions
header attached to each information object; and a procedure for matching the
query with the permissions header.
Two kinds of information are involved in all three architectural elements:
information about the content of information objects desired and existing, and
information about the economic terms on which an information object is made
available. For example, a query desiring court opinions involving the
enforcement of foreign judgments, evidencing a desire to download the full text
of such judicial opinions and to pay up to $1.00 per minute of search and
downloading time, would require that the knowbot appropriately represent the
subject matter "enforcement of foreign judgments." It also requires that the
knowbot appropriately represent the terms on which the user is willing to deal:
downloading and the maximum price. The permissions header similarly must
express the same two kinds of information. If the information object to which
the permissions header is attached is a short story rather than a judicial
opinion, the permissions header must so indicate. Or, if the information object
is a judicial opinion and it is about enforcement of foreign judgments, the
permission header may indicate that only a summary is available for downloading
at a price of $10.00 per minute. The searching, matching, and retrieval
procedure in the digital library system must be capable of determining whether
there is a match on both subject matter and economic terms, also copying and
transmitting the information object if there is a match.
Comparison to EDI
Electronic Data Interchange (EDI) is a practice involving computer-to-computer
commercial dealing without human intervention. In the most widespread
implementations, computers are programmed to issue purchase orders to trading
partners, and the receiving computer is programmed to evaluate the terms of the
purchase order and to take appropriate action, either accepting it and causing
goods to be manufactured or shipped, or rejecting it and sending an appropriate
message. EDI is in wide use in American and foreign commerce, using
industry-specific standards for discrete commercial documents like purchase
orders, invoices, and payment orders, developed through the American National
Standards Institute.
There obviously are similarities between the three architectural elements of
the digital library concept and EDI. There is a structured way of expressing an
offer or instruction, and a process for determining whether there is a match
between what the recipient is willing to do and what the sender requests.
There is also, however, an important difference. In the digital library
concept, a match results in actual delivery of the desired goods and services
in electronic form. In EDI practice, the performance of the contractual
arrangement usually involves physical goods or performance of nonelectronic
services.
Nevertheless, the digital library and EDI architectures are sufficiently
similar and, it turns out, the legal issues associated with both are
sufficiently similar to make analogies appropriate.
Elements of Data Structure
For purposes of this paper, the interesting parts of the data structure are
those elements that pertain to permission, more than those elements that
pertain to content of the information object to which the header is attached.
Accordingly, this section will focus only on permissions-related elements,
after noting in passing that the content part of the header well might be a
pointer to an inverted file to permit full text searching and matching.
The starting point conceptually for identifying the elements of the permissions
header are the rights exclusively reserved to the copyright owner by
[[section]] 106 of the copyright statute. But these exclusive rights need not
be tracked directly because the owner of an information object is free to
impose contractual restrictions as well as to enjoy rights granted by the
Copyright Act. Accordingly, it seems that the following kinds of privileges in
the requester should be addressed in the permissions header:
- outright transfer of all rights
- use privilege, either unrestricted or subject to restrictions
- copying, either unlimited or subject to restrictions like quantitative
limits
- distribution, either unlimited or subject to restrictions, like geographic
ones or limits on the markets to which distribution can occur
- preparation of derivative works.
Display and presentation rights, separately identified in [[section]] 106,
would be subsumed into the use element, because they are particular uses.
The simplest implementation would allow only binary values for each of these
elements. But a binary approach does not permit the permissions header to
express restrictions, like those suggested in the enumerated list. Elements
could be defined to accept the most common kinds of restrictions on use, and
quantitative limits on copying, but it would be much more difficult to define
in advance the kinds of geographic or market-definition restrictions that an
owner might wish to impose with respect to distribution.
In addition to these discrete privileges, the permissions header must express
pricing information. The most sensible way of doing this is to have a price
associated with each type of privilege. In the event that different levels of
use, copying, or distribution privilege are identified, the data structure
should allow a price to be associated with each level.
A complicating factor in defining elements for price is the likelihood that
different suppliers would want to price differently. For example, some would
prefer to impose a flat fee for the grant of a particular privilege. Others
might wish to impose a volume-based fee, and still others might wish to impose
a usage or connect-time based fee. The data structure for pricing terms must be
flexible enough to accommodate at least these three different approaches to
pricing.
Finally, the data structure must allow for a specification of acceptable
payment terms and have some kind of trigger for a payment approval procedure.
For example, the permissions header might require presentation of a credit card
number and then trigger a process that would communicate with the appropriate
credit card database to obtain authorization. Only if the authorization was
obtained would the knowbot and the permissions header "match."
There is a relationship between the data structures and legal concepts. The
knowbot is a solicitation of offers. The permissions header is an offer. The
matching of the two constitutes an acceptance. The "envelope" discussed
elsewhere in these proceedings could be the "contract."
There are certain aspects of the data structure design that are not obvious.
One is how to link price with specific levels of permission. Another is how to
describe particular levels of permission. This representation problem may
benefit from the use of some deontic logic, possibly in the form of a grammar
developed for intellectual property permissions. Finally, it is not clear what
the acceptance should look like. Conceptually, the acceptance occurs when the
knowbot matches with a permissions header, but it is unclear how this legally
significant event should be represented.
THE ROLE OF ENCRYPTION
The CNRI test bed proposal envisions the use of public key encryption to ensure
the integrity of digital signatures and to ensure the authenticity of
information objects. Public key encryption permits a person to encrypt a
message - like a signature - using a secret key, one known only to the sender,
while permitting anyone with access to a public key to decrypt it. Use of
public key cryptography in this fashion permits any user to authenticate a
message, ensuring that it came from the purported sender.[13] A related technology called "hashing" permits an encrypted
digital signature to be linked to the content of a message. The message can be
sent in plain text (unencrypted) form, but if any part of it is changed, it
will not match the digital signature. The digital signature and hashing
technologies thus permit not only the origin but also the content integrity of
a message of arbitrary length to be authenticated without necessitating
encryption of the content of the message. This technology has the advantage,
among others, that it is usable by someone lacking technological access to
public key encryption. An unsophisticated user not wishing to incur the costs
of signature verification nevertheless can use the content of the signed
information object.
It is well recognized that encryption provides higher levels of security than
other approaches. But security through encryption comes at a price. Private key
encryption systems require preestablished relationships and exchange of private
keys in advance of any encrypted communication. The burdens of this approach
have led most proponents of electronic commerce to explore public key
encryption instead. But public key systems require the establishment and
policing of a new set of institutions. An important infrastructure requirement
for practicable public key cryptography is the establishment and maintenance of
certifying entities that maintain the public keys and ensure that they are
genuine ones rather than bogus ones inserted by forgers. A rough analogy can be
drawn between the public key certifying entities and notaries public. Both
kinds of institutions verify the authenticity of signatures. Both kinds require
some level of licensing by governmental entities. Otherwise the word of the
"electronic notary" (certifying entity) is no better than an uncertified,
unencrypted signature. In a political and legal environment in which the
limitations of regulatory programs have been recognized and have led to
deregulation of major industries, it is not clear that a major new regulatory
arrangement for public key encryption is practicable. Nevertheless,
experimentation with the concept in support of digital library demonstration
programs can help generate more empirical data as to the cost and benefits of
public key encryption to reinforce electronic signatures.
On the other hand, it is not desirable to pursue approaches requiring
encryption of content. No need to encrypt the contents is apparent in a network
environment. Database access controls are sufficient to prevent access to the
content if the permissions header terms are not matched by the knowbot. On the
other hand, if the electronic publishing is effected through CD-ROMs or other
physical media possessed by a user, then encryption might be appropriate to
prevent the user from avoiding the permissions header and going directly to the
content.
Encrypted content affords greater security to the owner of copyrighted
material, because someone who has not paid the price to the copyright owner
must incur a much higher cost to steal the material. But the problem is
everyone must pay a higher price to use the material. One of the dramatic
lessons of the desktop computer revolution was the clear rejection of copyright
protection in personal computer software. The reasons that copy protection did
not survive in the marketplace militate against embracing encryption for
content. Encryption interferes with the realization of electronic markets,
because producer and consumer must have the same encryption and description
protocols. Encryption burdens the processing of electronic information objects
because it adds another layer. Some specific implementations of encryption
require additional hardware at appreciable costs.
Digital libraries cannot become a reality until consumers perceive that the
benefits of electronic formats outweigh the costs, compared to paper formats.
Encryption interferes with electronic formats' traditional advantages of
density, reusability, editability, and computer search ability; also, by
impairing open architectures, they may perpetuate some of paper's advantages
with respect to browsability.[14]
The need for encryption of any kind depends upon whether security is available
without it. That depends, in turn, on the kinds of free rides that may be
obtainable and the legal status of various kinds of electronics transactions in
the digital library system.
LEGAL ISSUES
Copyright: What legal effect is intended?
The design of the permissions header and the values in the elements of the
header must be unambiguous as to whether an outright transfer of a copyright
interest is intended or whether only a license is intended. If an outright
transfer[15] is intended, then the present copyright statute
requires a writing signed by the owner of the rights conveyed.[16] Recordation of the transfer with the copyright office is
not required, but provides advantages in enforcing transferee rights.[17] On the other hand, non-exclusive licenses need not be in
writing nor registered. If the electronic transaction transfers the copyright
in its entirety, then the rights of the transferor are extinguished, and the
rights of the transferee are determined by the copyright statute. The only
significant legal question is whether the conveyance was effective.
On the other hand, when the copyright is not transferred outright but only
certain permissions are granted or certain rights conveyed, the legal questions
become more varied. Then, the rights of the transferor and the obligations of
the transferee are matters of contract law. It is important to understand the
degree to which the contract is enforceable and how it is to be interpreted in
the event of subsequent disputes. The following sections consider briefly the
first sale doctrine as a potential public policy obstacle to enforcing
contractual restrictions different from those imposed by the copyright statute
and then explore in greater depth whether electronic techniques satisfy the
formalities traditionally required for making a contract, whether they
adequately ensure against repudiation, and whether they provide sufficient
information to permit predictable interpretation of contractual obligations and
privileges.
First Sale Doctrine
The first sale doctrine may invalidate restrictions on use. It is impermissible
for the holder of a patent to impose restrictions on the use of a patented
product after the product has been sold. Restrictions may be imposed, however,
on persons who merely license the product.[18] The rationale
for this limit on the power of the owner of the intellectual property interest
is that to allow limitations on use of the product would interfere with
competition beyond what the Congress - and arguably the drafters of the
Constitution - intended in setting up the patent system.
The first sale doctrine applies to copyright owners.[19]
Indeed, because of the First Amendment's protection of informational activity,
the argument against restrictions after the first sale may be even stronger in
the copyright arena than in the patent arena.
The first sale doctrine is potentially important because it may invalidate
restrictions imposed on the use of information beyond what is authorized by the
Copyright Act and by common law on trade secrets. Thus, there may be serious
questions about the legal efficacy of use restrictions, although such
restrictions are common in remote database service agreements. The vendors
could argue that the limitations pertain to the contractual terms for delivery
of a service rather than use of information as such. The characterization
avoids the overlap with copyright and thus may also avoid the conflict between
federal policy and contract enforcement.[20]
Contract Formation Issues
The law does not enforce every promise. Instead, it focuses its power only on
promises surrounded with certain formalities to make it likely that the person
making the promise (the "promisor") and the person receiving the promise (the
"promisee") understood that their communication had legal consequences. A
threshold question for the digital library system is whether the traditional
formalities for making a contract are present when the contract is made through
electronic means. The digital library system considered in this paper clearly
contemplates that a contract is formed when the knowbot and the permissions
header achieve a match. In this respect, the digital library concept converges
with EDI, where trading parties contemplate that a contract to perform services
or deliver goods is formed when a match occurs either upon the receipt of a
purchase order or upon the transmission of a purchase order acknowledgment.
It is not altogether clear, however, whether the match between values and
computer data structures meets contract formation requirements, particularly
those expressed in various statutes of frauds. Statutes of frauds require
"writings" and "signatures" for certain kinds of contracts - basically those
contemplating performance extending beyond a period of one year.[21]
In many instances, the digital library contract will be fully performed almost
instantaneously upon delivery of the information object after the knowbot and
the permissions header match. In such a case, the statute of frauds is not a
problem and its requirements need not be satisfied. In other cases, however, as
when the intent of the owner of the information object is to grant a license to
do things that will extend beyond one year, the statute of frauds writing and
signature requirements must be met.
Historical application of statutes of frauds by the courts clearly indicates
that there is flexibility in the meaning of "writing" and "signature." A
signature is any mark made with the intent that it be a signature.[22] Thus an illiterate person signs by making an "X," and the
signature is legally effective. Another person may sign a document by using a
signature stamp. Someone else may authorize an agent to sign his name or to use
the signature stamp. In all three cases the signature is legally effective.
There may of course be arguments about who made the X, or whether the person
applying the signature stamp was the signer or his authorized agent, but these
are evidentiary and agency questions, not arguments about hard and fast
contract-law requirements.
Under the generally accepted legal definition of a signature, there is no legal
reason why the "mark" may not be made by a computer printer, or for that matter
by the write head on a computer disk drive or the data bus in a computer random
access memory. The authorization to the computer agent to make the mark may be
given by entering a PIN (personal identification number) on a keyboard. To
extend the logic, there is no conceptual reason to doubt the legal efficacy of
authority to make a mark if the signer writes a computer program authorizing
the application of a PIN upon the existence of certain conditions that can be
tested by the program. The resulting authority is analogous to a signature pen
that can be operated only with a mechanical key attached to somebody's key
ring, coupled with instructions to the possessor of the key.
Which of these various methods should be selected for particular types of
transactions must not depend on what the law requires, because the law permits
any of these methods. Rather, it must depend on the underlying purposes of the
legal requirement and which method best serves those purposes.
The real issue is how to prove that a particular party made the mark. In other
words, the contingency to be concerned about is repudiation, not absence of
formalities. Repudiation should be dealt with through the usual evidentiary and
fact finding processes rather than artificial distinctions between signed and
unsigned documents.
Authority is skimpier on how flexible the "writing" requirement is. The best
approach is to borrow the fixation idea from the copyright statute and conclude
that a writing is "embodiment in a copy . . . sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration."[23]
The most important thing conceptually is to understand the purpose of the
writing and signature requirements. They have two purposes: awareness or
formality, and reliability of evidence. Signature requirements, like
requirements for writings and for original documents, have an essentially
evidentiary purpose. If there is a dispute later, they specify what kind of
evidence is probative of certain disputed issues, like "who made this statement
and for what purpose?" The legal requirements set a threshold of probativeness.
Surely the values in a knowbot as well as the values in a permissions header
constitute a "mark," and someone who knowingly sets up potential transactions
in a digital library scheme can have the intent that the mark be a signature.
When a contract is made through a signed writing, it is more likely that the
parties to the contract understand what they are doing. They are aware of the
legal effect of their conduct because the writing in the signature involves a
greater degree of formality than a simple conversation.
The awareness/formality purpose can be served by computerized contracting
systems. This is so not so much because the computers are "aware" of the affect
of their "conduct." Rather, it is true because the computers are agents of
human principals. The programming of the computer to accept certain contract
terms is the granting of authority to the computer agent to enter into a
contract. The fact that a principal acts through an agent engaging in conduct
at a later point in time never has been thought to defeat contract formation in
the traditional evolution of agency and contract law. Nor should it when the
agent is a computer.
Fulfillment of the evidentiary purpose depends on the reliability of the
information retained by the computer systems making up the digital library.
Such systems must be designed to permit the proponent of contract formation to
establish the following propositions if the other party to the purported
contract attempts to repudiate it.
1. It came from computer X.
2. It accurately represents what is in computer X
[24] now.[25]
3. What is in computer X now is what was in computer
X at the time of the transaction.
4. What was in computer X at the time of the transaction
is what was received from the telecommunications
channel.[26]
5. What was received from the telecommunications channel
is what was (a) sent, (b) by computer Y.
Two other questions relate to matters other than the authenticity of the
message:
6. Computer Y was the agent of B.
7. The message content expresses the content of the
contract (or more narrowly, the offer or the
acceptance).[27]
Factual propositions 1-4 can be established by testimony as to how information
is written to and from telecommunications channel processors, primary storage,
and secondary storage. Factual proposition 5 requires testimony as to the
accuracy of the telecommunications channel and characteristics of the message
that associate it with computer Y. Only the last proposition (number 5) relates
to signatures, because signature requirements associate the message with its
source.[28] The other propositions necessitate testimony as
to how the basic message and database management system works. It is
instructive to compare these propositions with the kinds of propositions that
must be established under the business records exception to the hearsay rule
when it is applied to computer information.
Those propositions may be supported with non-technical evidence, presented by
non-programmers. A witness can lay a foundation for admission of computer
records simply by testifying that the records are generated automatically and
routinely in the ordinary course of business. The more inflexible the routine,
and the less human intervention in the details of the computer's management of
the database, the better the evidence.[29]
The ultimate question is trustworthiness, and if the computer methods are
apparently reliable, the information should be admitted unless the opponent of
admissibility can raise some reasonable factual question undercutting
trustworthiness.[30]
CONTRACT INTERPRETATION ISSUES
Assuming that the permissions header and knowbot constitute sufficient writings
to permit a contract to be formed and that the signature requirement also is
met, through digital signature technology or otherwise, there still are
difficult contract interpretation questions. Contract interpretation questions
arise not only after contractual relationships are formed, but also in
connection with deciding whether there has been offer and acceptance, the
prerequisites to contract formation.[31] Contract
interpretation always seeks to draw inferences about what the parties intended.
When contract interpretation issues arise at the contract formation stage, the
questions are what the offeror intended the content of the offer to be and what
the offeree intended the content of the purported acceptance to be. The
proposed digital library system envisions extremely cryptic expressions of
offer and acceptance -- by means of codes. The codes have no intrinsic meaning.
Rather, extrinsic reference must be made to some kind of table, standard, or
convention associating particular codes with the concepts they represent.
Extrinsic evidence is available to resolve contract interpretation questions
when the language of the contract itself is ambiguous, and perhaps at other
times as well.[32] The codes in the permissions header and
knowbots certainly are ambiguous and become unambiguous only when extrinsic
evidence is considered. So there is no problem in getting a standard or cable
into evidence. The problem is whether the parties meant to assent to this
standard.
In current EDI practice, this question is resolved by having parties who expect
to have EDI transactions with each other sign a paper trading partner
agreement, in which the meaning of values or codes in the transaction sets is
established.[33] But requiring each pair of suppliers and
users of information in a digital library to have written contracts with each
other in advance would defeat much of the utility of the digital library. Thus
the challenge is to establish some ground rules for the meaning of permissions
header and knowbot values to which all participants are bound. There are
analogous situations. One is a standard credit card agreement that establishes
contractual terms among credit card issuer, credit card subscriber, and
merchant who accepts the credit card. The intermediary -- the credit card
company -- unilaterally establishes contract terms to which the trading
partners assent by using and accepting the credit card.[34]
Also, it is widely recognized that members of a private association can,
through their constitution and bylaws, establish contractual relationships that
bind all of the members in dealing with each other.[35] In
the digital library system, similar legal arrangements can establish the
standards by which electronic transactions between permissions header and
knowbots will bind the transferor and the transferee of information.
Third Party Liability
It is not enough merely to ensure that the licensee is contractually bound.
Trading partners also must ensure that the participants in funds transfers have
enforceable obligations. For example, if the digital library system envisions
that the information object would not be released to the purchaser without
simultaneous release of a payment order, the supplier may be interested in
enforcing the obligations of financial intermediaries who handle the payment
order. This implicates the federal Electronic Funds Transfer Act, and Article
4A of the Uniform Commercial Code, regulating wire transfers.
SOLUTIONS
Satisfy the Business Records Exception to the Hearsay Rule
The discussion of contract formalities earlier in this paper concluded that
legally enforceable contracts can be formed through electronic means and that
the significant legal questions relate to reliability of proof and intent of
the parties to be bound by using the electronic techniques. This section
considers the reliability of proof further. Traditional evidence law permits
computer records to be introduced in evidence when they satisfy the
requirements of the business records exception: basically that they are made in
the ordinary course of business, that they are relied on for the performance of
regular business activities, and that there is no independent reason for
questioning their reliability.[36]
The business records exception shares with the authentication concept, the
statute of frauds, and the parol evidence rule a common concern with
reliability.[37] The same procedural guarantees and
established practices that ensure reliability for hearsay purposes also ensure
reliability for the other purposes. Under the business records exception, the
proponent must identify the source of a record, through testimony by one
familiar with a signature on the record, or circumstantially.[38] The steps in qualifying a business record under the common
law, which since have been relaxed,[39] were:
- proving that the record is an original entry made in the routine course of
business
- proving that the entries were made upon the personal knowledge of the
proponent/witness or someone reporting to him
- proving that the entries were made at or near the time of the transaction
- proving that the recorder and his informant are unavailable.[40]
These specific requirements are easier to understand and to adapt to electronic
permissions and obligations formed in a digital library system by understanding
the rationale for the business records exception. The hearsay rule excludes
out-of-court statements because they are inherently unreliable, primarily
because the maker of the statement's demeanor cannot be observed by the jury
and because the maker of the statement is not subject to cross examination. On
the other hand, there are some out-of-court statements that have other
guarantees of reliability. Business records are one example. If a continuing
enterprise finds the records sufficiently reliable to use them in the ordinary
course of business, they should be reliable enough for a court. The criteria
for the business records exception all aim at ensuring that the records really
are relied upon by the business to conduct its ordinary affairs.
The Manual for Multidistrict Litigation suggests steps for qualifying computer
information under the business records exception:
- The document is a business record.
- The document has probative value.
- The computer equipment used is reliable.
- Reliable data processing techniques were used.[41]
Key to adapting the business records exception to electronic permissions in a
digital library system are points 3 and 4. Establishing these propositions and
the evidentiary propositions set forth elsewhere in this paper requires expert
testimony. Any designer of a digital library system must consult with counsel
and understand what testimony an expert would give to establish these
propositions. Going through that exercise will influence system design.
Reinforce the Evidentiary Reliability by Using
Trusted Third Parties
The evidentiary purpose of contract formation requirements can be satisfied by
using a trusted third party as an intermediary, when the third party maintains
archival records of the transactions. The third party lacks any incentive for
tampering with the records and when the third party's archiving system is
properly designed, it can provide evidence sufficient to establish all of the
propositions.
This third party intermediary concept is somewhat different from the concept of
a certifying agent in digital signature systems. To be sure, the custodian of
transaction records envisioned by this section could be the same as the
certifying entity for public and key encryption, but the custodian role can be
played in the absence of any encryption. Indeed, the digital library itself is
a good candidate for the custodian role. The library has no incentive to
manipulate its records in favor of either the producers of information value or
the consumers. In order to carry out its affairs, it must use these
transactional records in the ordinary course of business, thereby making it
likely that digital library records would qualify under the business records
exception.
Standardization
Obviously, the digital library concept depends upon the possibility of an
automated comparison between the knowbot and the permissions header. This means
that potential requesters of information and suppliers of information must know
in advance the data structures for representing the elements of the permissions
header and the knowbot. This requires compatibility. Compatibility requires
standardization. Standardization does not, however, necessarily require
"Standards" in the sense that they are developed by some bureaucratic body like
ANSI. It may simply imply market acceptance of a particular vendor's approach.
Indeed, each digital library might use different data structures. All that is
necessary is that the structure of the knowbot and the structure of the
permissions header be compatible within any one digital library system. Also,
as demands emerge for separate digital libraries to communicate with each
other, there can be proprietary translation to assure compatibility between
systems much as common word processing programs translate to and from other
common formats and much as printers and word processing software communicate
with each other through appropriate printer drivers. In neither of these cases
has any independent standards organization developed a standard that is at all
relevant in the marketplace.
Standardizing the elements of knowbot and permissions headers involves content
standardization, which generally is more challenging than format
standardization.[42] A permissions header/knowbot standard
is a system for representing legal concepts and for defining legal relations.
As such, the standard is basically a grammar for a rule-based substantive
system in a very narrow domain.[43] The data elements must
correspond to legally meaningful relational attributes. The allowable values
must correspond to legally allowable rights, obligations, privileges and
powers. In other words, the standard setter must meet many of the challenges
that a legal expert system designer working with Hohfeldian frameworks must
meet.[44] This adds a constraint to the standards setting
process. Unlike setting format standards, where the participants are free to
agree on an arbitrary way of expressing format attributes, participants in
setting a content standard must remain within the universe of permissible
content. The set of permissible values is determined by the law rather than
being determined only by the imagination of format creators.
ENFORCEMENT AND BOTTLENECKS
One of the many profound observations by Ithiel de Sola Pool[45] was that copyright always has depended upon technological
bottlenecks for its enforceability. The printing press was the original
enforcement bottleneck. Now, a combination of the printing press and the
practical need to inventory physical artifacts representing the work constitute
the enforcement bottlenecks. As technologies change, old bottlenecks disappear
and enforceability requires a search for new bottlenecks. When there are single
hosts, like WESTLAW, Dialog, LEXIS, and CompuServe, access to that host is the
bottleneck. The problem with distributed publishing on an open architecture
internet is that there is no bottleneck in the middle of the distribution chain
corresponding to the printer, the warehouse or the single host.
If new bottlenecks are to be found, they almost surely will be found at the
origin and at the point of consumption. Encryption and decryption techniques
discussed elsewhere in this volume concentrate on those bottlenecks as points
of control. It also is possible that rendering software could become the new
bottleneck.
Even with those approaches, however, a serious problem remains in that the new
technologies make it difficult or impossible to distinguish between mere use
and copying. Thus the seller cannot distinguish between an end user[46] and a potential competitor. On the other hand, the new
technologies permit a much better audit trail, potentially producing better
evidence for enforcement adjudication.
If network architectures for electronic publishing evolve in the way that Ted
Nelson suggests with his Xanadu concept[47], the real value
will be in the network and the pointers, not in the raw content. Thus, the
creative and productive effort that the law should reward is the creation and
production and delivery of pointers, presentation, distribution, and
duplication value. If this is so, then technological means will be particularly
important, foreclosing access by those lacking passwords and other keys and
limiting through contract what a consumer may do with the information.
In such an architecture, the law either will be relatively unimportant because
technology can be counted on to prevent free riding, or the law will need to
focus not on prohibiting copying or use without permission, but on preventing
circumvention of the technological protections. Thus, legal approaches like
that used to prevent the sale of decryption devices for television broadcasts
and legal issues associated with contract enforcement may be more important
than traditional intellectual property categories.
WEIGHING RISKS AND COSTS
The law generally imposes sensible levels of transaction costs. Usually,
transaction costs are proportional to the risk. Figure 1 shows a continuum of
risk and transaction cost in traditional and new technologies. A real estate
closing involves significant risks if there is some dispute later about the
transaction. Therefore, the law affords much protection, including a
constitutional officer called a registrar of deeds who is the custodian of
records associated with the transaction. The risk level analogous to this in
electronic publishing might be access to an entire library including access
software as well as contents. Next on the continuum is a transaction involving
a will or power of attorney. There, the risk is substantial because the maker
of the instrument is not around to help interpret it. The law requires
relatively high levels of assurance here, though not as great as those for real
estate transactions. The law requires witnesses and attestation by a
commissioned minor official called a notary public. The electronic publishing
analogy of this level of risk might be the contents of an entire CD-ROM.
![]()
Next in level of risk is the purchase of a large consumer durable like an
automobile. The law requires somewhat less, but still significant, protections
for this kind of transaction: providing for the filing and enforcement of
financing statements under the Uniform Commercial Code. The electronic
publishing analogy might be the transfer of copyright to a complete work. Next
along the risk continuum is the purchase of a smaller consumer durable like a
television set. Here, the law typically is reflected in written agreements of
sale, but no special third party custodial mechanisms. The electronic
publishing analogy might be use permission for a complete work.
At the other end of the continuum is the purchase of a relatively small
consumer item, say a box of diskettes. Neither the law nor commercial practice
involves much more than the exchange of the product for payment, with no
written agreement or anything else to perform channeling, cautionary,
evidentiary, or protective functions. The electronic publishing analogy might
be use permission for part of a work.
Realizing the potential of electronic publishing in distributed information
networks requires sensitivity to the transaction costs of too much security.
Requiring $10 boxes of diskettes to be sold like real property would impose
unacceptable transaction costs. Similarly, an encrypted object combined with
rendering software is probably inconsistent with an open architecture. Because
of the difficulty of setting standards for such technologies, this approach to
intellectual property protection probably would be effectuated by proprietary
approaches, thus frustrating the vision of an open market for electronic
publishing.
CONCLUSION
Realization of the digital library vision requires a method for collecting
money and granting permission to use works protected by intellectual property.
The concept of a knowbot and a permissions header attached to the work is the
right way to think about such a billing and collection system. Standards for
the data structures involved must be agreed to, and systems must be designed to
satisfy legal formalities aimed at ensuring awareness of the legal significance
of transactions and reliable proof of the terms of the transactions.
In the long run, not only must these technological issues be resolved, with
appropriate attention to levels of risk and protections available under
traditional legal doctrines, but also further conceptual development must be
undertaken. Proponents of electronic publishing over wide area networks need to
think about the appropriate metaphors: whether it is a library or a bookstore,
if a library whether with or without Xerox machines, if a bookstore whether it
is a retail bookstore or a mail order operation. Then, thought must be given to
how standards will be set. Finally, and most important, much more needs to be
understood about the need for third party institutions. There is a good deal of
enthusiasm for public key encryption. Yet the vulnerability of public key
encryption systems is in the integrity of the key authority. In traditional
legal protections, the third party custodians or authenticating agents like
notaries public and registrars of deeds receive state sanction and approval,
and in the case of registrars of deeds, public funding. We must be clearer as
to whether a similar infrastructure must be developed to protect against
substantial risks and the use of EDI and electronic publishing technologies.
Finally, and perhaps most importantly, we must be thoughtful about what legal
obligations, imposed on whom, are appropriate. The suggested paragraphs 102(e)
and (f) in the High Performance Computing Act look very much like King James
I's licensing of printing presses. They also look like the FBI's proposal to
prohibit the introduction of new technologies until certain conformity with
past legal concepts is assured. Such approaches make the law a hurdle to new
technology - an uncomfortable position for both law and technology.
NOTES
1. The use of EDI techniques to meter usage and determine charges for use of
intellectual property is an example of billing and collection value in a
typology of different types of value that can be produced in electronic
marketplaces for information. See Henry H. Perritt, Jr., Market Structures
for Electronic Publishing and Electronic Contracting in Brian Kahin, ed.,
BUILDING INFORMATION INFRASTRUCTURE: ISSUES IN THE DEVELOPMENT OF THE NATIONAL
RESEARCH AND EDUCATION NETWORK (Harvard University and McGraw-Hill 1992)
(developing typology for different types of value and explaining how market
structures differ for the different types); Henry H. Perritt, Jr., Tort
Liability, the First Amendment, and Equal Access to Electronic Networks, 5
Harv.J.Law & Tech. 65 (1992) (using typology of ten types of value to
analyze access by competing producers of value).
2. See, e.g., U.S.Pat. No. 5,016,009, Data compression apparatus and method
(May 14, 1991); U.S. Pat. No. 4,996,690, Write operator with gating capability
(Feb. 26, 1991); U.S. Pat. No. 4,701,745, Data compression system (Oct. 20,
1987); Multi Tech Systems, Inc. v. Hayes Microcomputer Products, Inc., 800 F.
Supp. 825 (D. Minn. 1992) (denying summary judgment on claim that patent for
modem escape sequence is invalid).
3. Comments on the 8/21 draft of "Knowbots in the Real
World" from the intellectual property workshop participants, page 6 (author
unknown, source unknown). Professor Samuelson also observed that the workshop,
despite its title, actually did not focus much on intellectual property issues.
See fn. 4, below.
4. Corporation for National Research Initiatives, Workshop on the Protection
of Intellectual Property Rights in a Digital Library System: Knowbots in the
Real World-May 18-19, 1989 (describing digital library system).
5. See generally Clifford A. Lynch, Visions of
Electronic Libraries (libraries of future can follow acquisition-on-demand
model rather than acquiring in advance of use; Z39.50 protocol will facilitate
realization of that possibility, citing Robert E. Kahn & Vinton G. Serf,
An Open Architecture for a Digital Library System and a Plan for Its
Development. The Digital Library Project, volume 1: The World of Knowbots
(draft) (Washington D.C.: Corporation for National Research Initiatives;
1988)).
6. Clifford A. Lynch, The Z39.50 Information Retrieval Protocol: An Overview
and Status Report, ACM Sigcomm Computer Communication Review at 58
(describing Z39.50 as an OSI application layer protocol that relieves clients
from having to know the structure of data objects to be queried, and specifies
a framework for transmitting and managing queries and results and syntax for
formulating queries).
7. Brewster Kahle, Wide Area Information Server Concepts (Nov. 3, 1989 working
copy; updates available from Brewster @THINK.com. (describing WAIS as "open
protocol for connecting user interfaces on workstations and server computers")
(describing information servers as including bulletin board services, shared
databases, text searching and automatic indexing and computers containing
current newspapers and periodicals, movie and television schedules with
reviews, bulletin boards and chat lines, library catalogues, Usenet
articles).
8. Robert E. Kahn, Deposit, Registration, Recordation in an Electronic
Copyright Management System (August 1992) (Corporation for National
Research Initiatives, Reston, Virginia). CNRI claims a trademark in "knowbot"
and "digital library".
9. Kahn 1992 at 4.
10. Kahn 1992 at 6.
11. Kahn 1992 at 10.
12. Kahn 1992 at 12.
13. Kahn 1992 at 15.
14. Browsability through techniques like the collapsible outliner function in
Microsoft Word for Windows and competing products requires more chunking and
tagging value in the form of style and text element codes. Handling this
additional formatting information through encryption and description processes
is problematic.
15. "A `transfer of copyright ownership' is an assignment,
mortgage, exclusive license, or any other conveyance, alienation, or
hypothecation of a copyright or of any of the exclusive rights comprised in a
copyright, whether or not it is limited in time or place of effect, but not
including a non-exclusive license " 17 U.S.C. [[section]] 101 (1988).
16. 17 U.S.C. [[section]] 204(a) (1988); Valente-Kritzer
Video v. Pinckney, 881 F.2d 772, 774 (9th Cir. 1989) (affirming summary
judgment for author; oral agreement unenforceable under Copyright Act); Library
Publications, Inc. v. Medical Economics Co., 548 F. Supp. 1231, 1233 (E.D. Pa.
1982) (granting summary judgment against trade book publisher who sought
enforcement of oral exclusive distribution agreement; transfer of exclusive
rights, no matter how narrow, must be in writing), aff'd mem., 714 F.2d 123 (3d
Cir. 1983).
17. 17 U.S.C. [[section]] 205 (1988) provides constructive notice of the
contents of the recorded document, determining priority as between conflicting
transfers, and determines priority as between recorded transfer and
non-exclusive license. The former requirement for transfers to be recorded in
order for the transferee to maintain an infringement, 17 U.S.C. [[section]]
205(d), was repealed by the Berne Act Amendments [[section]] 5.
18. Under Adams v. Burke, 84 U.S. (17 Wall.) 453 (1873), a patentee must not
attempt to exert control past the first sale. In general, use restrictions may
be placed only on licensees, consistent with General Talking Pictures v.
Western Elec., 304 U.S. 175 (1938). See generally Baldwin-Lima-Hamilton Corp.
v. Tatnall, 169 F. Supp. 1 (E.D. Pa.1958) (applying no control after purchase
rule).
19. See Red-Baron-Franklin Park, Inc. v. Taito Corp., 883
F.2d 275, 278 (4th Cir. 1989) (purchase of video game circuit boards did not
create privilege to perform video game under first sale doctrine); United
States v. Moore, 604 F.2d 1228, 1232 (9th Cir. 1979) (pirated sound recording
not within first sale doctrine in criminal copyright infringement prosecution).
But see Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344
(9th Cir. 1988) (first sale doctrine did not create privilege to prepare
derivative work by transferring art in book to ceramic tiles).
20. The way in which the first sale doctrine would impact
the electronically imposed use restrictions is by frustrating a
breach-of-contract lawsuit by the licensor against a licensee who exceeds the
use restrictions. The licensee exceeding the use restrictions would argue that
it violates public policy to enforce the restrictions and therefore that state
contract law may not impose liability for their violation. See generally
Restatement (second) of Contracts [[section]] 178 (1981) (stating general rule
for determining when contract term is unenforceable on grounds of public
policy).
21. In addition, the Copyright Act itself requires signed
writings for transfers of copyright interests. 17 U.S.C. [[section]] 204(a).
(1988).
22. Michael S. Baum & Henry H. Perritt, Jr.,
ELECTRONIC CONTRACTING, PUBLISHING AND EDI LAW ch. 6 (1991) (contract, evidence
and agency issues) [hereinafter "Baum & Perritt"]. Accord, Signature
Requirements Under EDGAR, Memorandum from D. Goelzer, Office of the General
Counsel, SEC to Kenneth A. Fogash, Deputy Executive Director, SEC (Jan. 13,
1986) (statutory and non-statutory requirements for "signatures" may be
satisfied by means other than manual writing on paper in the hand of the
signatory . . . " In fact, the electronic transmission of an individual's name
may legally serve as that person's signature, providing it is transmitted with
the present intention to authenticate.").
23. 17 U.S.C. [[section]] 101 (1988). For copyright
purposes, a work is created, and therefore capable of protection, when it is
fixed for the first time. 17 U.S.C. [[section]] 101 (1988). "[I]t makes no
difference what the form, manner, or medium of fixation may be--whether it is
in words, numbers, notes, sounds, pictures, or any other graphic or symbolic
indicia, whether embodied in a physical object in written, printed,
photographic, sculptural, punched, magnetic, or any other stable form, and
whether it is capable of perception directly or by means of any machine or
device `now known or later developed.'" 1976 U.S. Code Cong. & Admin. News
5659, 5665. The legislative history further says that, "the definition of
`fixation' would exclude from the concept [representations] purely of an
evanescent or transitory nature--reproductions such as those projected briefly
on a screen shown electronically on a television or other video display, or
captured momentarily in the `memory' of a computer." 17 U.S.C. [[section]] 102
note (excerpting from House Report 94-1476).
24. Or, more likely, what is on the computer medium read
by computer X, such as a magnetic cartridge used for archival records. Further
references in the textual discussion to "what is in computer X now" should be
understood to include such computer-readable media.
25. Cf .R. Peritz, Computer Data and Reliability: A
Call for Authentication of Business Records Under the Federal Rules of
Evidence, 80 Nw.U.L.Rev. 956, 980 (1986) (proof that a printout accurately
reflects what is in the computer is too limited a basis for authentication of
computer records).
26. In some cases, the electronic transaction will be
accomplished by means of a physical transfer of computer readable media. In
such a case, this step in the proof would involve proving what was received
physically.
27. See generally Peritz, 80 Nw.U.L.Rev. at 979 (citing as examples of
authentication Ford Motor Credit Co. v. Swarens, 447 S.W.2d 53 (Ky. 1969)
(authentication by establishing relationship between computer-generated monthly
summary of account activity and the customer reported on); Ed Guth Realty, Inc.
v. Gingold, 34 N.Y.2d 440, 315 N.E.2d 441, 358 N.Y.S.2d 367 (1974)
(authentication of summary of taxpayer liability and the taxpayer)).
28. Of course, a paper document signed at the end also is
probative of the fact that no alterations have been made. In this sense, a
signature requirement telescopes several steps in the inquiry outlined in the
text.
29. United States v. Linn, 880 F.2d 209, 216 (9th Cir.
1989) (computer printout showing time of hotel room telephone call admissible
in narcotics prosecution). See also United States v. Miller, 771 F.2d 1219,
1237 (9th Cir. 1985) (computer-generated toll and billing records in
price-fixing prosecution based on testimony by billing supervisor although he
had no technical knowledge of system which operated from another office; no
need for programmer to testify; sufficient because witness testified that he
was familiar with the methods by which the computer system records
information).
30. See United States v. Hutson, 821 F.2d 1015, 1020 (5th
Cir. 1987) (remanding embezzlement conviction, although computer records were
admissible under business records exception, despite trustworthiness challenged
based on fact that defendant embezzled by altering computer files; access to
files offered in evidence was restricted by special code).
31. Restatement (Second) of Contracts
[[section]][[section]] 17, 24, 35 (1981).
32. John E. Murray, Jr., Murray on Contracts [[section]]
89, 3rd ed. (Charlottesville, VA: Michie, 1990).
33. See Baum & Perritt [[section]] 2.6; The Electronic
Messaging Services Task Force, The Commercial Use of Electronic Data
Interchange--A Report and Model Trading Partner Agreement, 45 Bus.Law. 1645
(1990); Jeffrey B. Ritter, Scope of the Uniform Commercial Code: Computer
Contracting Cases and Electronic Commercial Practices, 45 Bus.Law. 2533
(1990); Note, Legal Responses to Commercial Transactions Employing Novel
Communications Media, 90 Mich.L.Rev. 1145 (1992).
34. Garber v. Harris Trust & Savings Bank, 432 N.E.2d
1309, 1311-1312 (Ill. App. 1982) ("each use of the credit card constitutes a
separate contract between the parties;" citing cases). It is not quite this
simple, because both merchant and credit card customer have separate written
contracts with the credit card issuer. But there is no reason that a supplier
of information to a Digital Library System and all customers of that system
might not have their own contracts with the Digital Library System in the same
fashion.
35. Rowland v. Union Hills Country Club, 757 P.2d 105
(Ariz. 1988) (reversing summary judgment for country club officers because of
factual question whether club followed bylaws in expelling members); Straub v.
American Bowling Congress, 353 N.W.2d 11 (Neb. 1984) (rule of judicial
deference to private associations, and compliance with association
requirements, counseled affirmance of summary judgment against member of
bowling league who complained his achievements were not recognized). But see
Wells v. Mobile County Board of Realtors, Inc., 387 So.2d 140 (Ala. 1980)
(claim of expulsion of realtor from private association was justifiable and
bylaws, rules and regulations requiring arbitration were void as against public
policy; reversing declaratory judgment for defendant association).
36. F.R.E. 803(6) (excluding business records from
inadmissibility as hearsay); 28 U.S.C. [[section]] 1732 ("Business Records Act"
permitting destruction of paper copies of government information reliably
recorded by any means and allowing admission of remaining reliable record).
37. See Peritz, 80 Nw.U.L.Rev at 978-80, 984-85 (noting
body of commentator opinion saying that business records exception and
authentication are parallel ways of establishing reliability).
38. See F.R.E. 901(b)(4) (appearance, contents, substance,
internal patterns, as examples of allowable authentication techniques).
39. Peritz, 80 Nw.U.L.Rev. at 963-64 (identifying steps
and trend resulting in F.R.E.).
40. Peritz, 80 Nw.U.L.Rev. at 963.
41. Peritz, 80 Nw.U.L.Rev. at 974 (reporting four
requirements of Manual, and endorsing their use generally).
42. See Henry H. Perritt, Jr., Format and Content
Standards for the Electronic Exchange of Legal Information, 33 Jurimetrics
265 (1993) (distinguishing between format and content standardization).
43. Marc Lauritsen, Senior Research Associate at Harvard
Law School, has written about the relationship between substantive legal
systems and the field of artificial intelligence.
44. Anne Gardner, An Artificial Intelligence to Legal
Reasoning (Cambridge, MA: MIT Press, 1987); Kevin Ashley, Modeling Legal
Argument (Cambridge, MA: MIT Press, 1990).
45. Ithiel de Sola Pool, Technologies of Freedom
(Cambridge, MA: Harvard University Press, 1983), p. 16-17, 249.
46. It may not be particularly important to limit competition by consumers,
because the consumers will never have the pointers and the rest of the network
infrastructure.
47. This concept was discussed at the conference.
BIOGRAPHY
Henry H. Perritt, Jr., Professor of Law at Villanova University School of Law,
was Deputy Undersecretary of Labor in the Ford Administration, and worked on
telecommunications on President Clinton's Transition Team. He holds a B.S. and
S. M. from M.I.T. and a J.D. from Georgetown, and has written ten books and 30
articles.
Henry H. Perritt, Jr.
Villanova University School of Law
Villanova, PA 19085
(215) 645-7078
FAX (215) 896-1723
Internet: perritt@ucis.vill.edu
