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Computer underground Digest Mon Nov 25, 1996 Volume 8 : Issue 83
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.83 (Mon, Nov 25, 1996)
File 1--WIPO Database Treaty -- Sign-on letter
File 2--CYBERLAW: No. 1, November 7, 1996
File 3--Cu Digest Header Info (unchanged since 17 Nov, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Tue, 12 Nov 1996 12:25:08 -0800 (PST)
From: Declan McCullagh <declan@well.com>
Subject: File 1--WIPO Database Treaty -- Sign-on letter
Source - fight-censorship@vorlon.mit.edu
---------- Forwarded message ----------
From--"Craig A. Johnson" <caj@tdrs.com>
Date-- Tue, 12 Nov 1996 10:51:02 +0000
Declan,
Your readers may be interested in this serious threat to "fair use"
and the transmission of "facts" online.
Craig
=====================================================
Interested organizations/companies are invited to sign onto the
following letter, which addresses concerns that have been raised
regarding a proposed new Treaty concerning access to electronic
databases. The Treaty is expected to be discussed at the diplomatic
conference in Geneva this December on behalf of the World Intellectual
Property Organization. The proposed Treaty grants a new property
right to database owners, which does not incorporate a public "fair
use" doctrine, or other traditional copyright conventions.
Recent analyses of the Treaty by Jamie Love of the Consumer Project on
Technology indicates that the Treaty will create a new property right
in facts and other data now in the public domain. It would, for
example, significantly change the way sports statistics are controlled
and disseminated, and also impact the way that stock prices, weather
data, train schedules, data from AIDS research and other facts are
used and controlled.
Jamie writes:
The treaty seeks, for the first time, to permit firms to "own"
facts they gather, and to restrict and control the redissemination
of those facts. The new property right would lie outside (and on
top) of the copyright laws, and create an entirely new and
untested form of regulation that would radically change the
public's current rights to use and disseminate facts and
statistics. American University Law Professor Peter Jaszi
recently said the treaty represents "the end of the public
domain."
Copies of the proposed treaty, a federal register notice
asking for public comment, and independent commentary can be
found at: http://www.public-domain.org/database/database.html
Details and analyses on the Treaty can be found on the Web at:
http://www.public-domain.org, and CPT's "primer" on the treay and
analysis of the impact on sports statistics is available at:
http://www.essential.org/cpt/ip/wipo-sports.html
Copyright experts J.H. Reichman and Pamela Samuelson say it is the
"least balanced and most potentially anti-competitive intellectual
property rights ever created."
[http://ksgwww.harvard.edu/iip/reisamda.html]
Organizations that wish to sign onto this letter should contact Susan
Evoy at CPSR, evoy@cpsr.org. Comments on the Treaty are due by Nov.
22, so signatures are requested as soon as possible.
Craig
------------------------------------
Commissioner Bruce Lehman
Patent and Trademark Office
U.S. Department of Commerce
Dear Commisioner Lehman:
We, the undersigned organizations, are writing to express our concern
over the "Draft Treaty in Respect to Databases" to be discussed at the
diplomatic conference in Geneva this December on behalf of the World
Intellectual Property Organization (the "Treaty"). The proposed
Treaty grants a new sui generis property right, which does not
incorporate a public "fair use" doctrine, or other traditional
copyright conventions.
If enacted as proposed, the Treaty will do violence to the
long-established practice in the academic and scientific communities
of sharing information for educational and research purposes and will
commercialize certain information that is and has always been freely
available.
Section 1.03 of the proposed Treaty claims that current technology
allows databases to be reproduced at "practically no cost." This is
not true. An online database is a complex system with much underlying
structure that the user never sees. Accessing or copying large
portions of the database at minimal or no cost is simply not feasible.
But, the proposed Treaty would make the use of databases by the public
or scientific and research communities even more prohibitive by
permitting database owners or vendors to arbitrarily determine what
portion of a database can be extracted, used, or reused.
Section 1.04 of the proposed Treaty argues that the originality
requirement of U.S. Copyright law does not provide sufficient
protection for database producers. This statement is curious in light
of a long U.S. legal tradition protecting free speech and authorship
on the grounds that facts cannot be copyrighted or otherwise removed
from the public domain. By creating a new property right for facts,
the Treaty will impose regulations on the use of facts -- an idea that
flies in the face of American history and values. The twin dangers
are that we will now have to pay to buy collections of "facts" in the
public domain, which we did not have to pay for before and that
monopolies will be sanctioned and created by the Treaty. In other
words, the Treaty strikes down "fair use" and extends sui generis
protections to public and private collections.
Section 1.04 becomes increasingly incomprehensible in light of the
Section 10.05 proposal that "Contracting Parties may design the exact
field of application of the provisions envisaged in this Article
taking into consideration the need to avoid legislation that would
impede lawful practices and the lawful use of subject matter that is
in the public domain." In order to implement the spirit of Section
10.05, Section 1.04 and its progeny must be discarded.
Consider the numerous categories of public information for which only
one practical and/or cost effective information source exists. The
practical result of the Treaty will be to create commercial monopolies
on these public information sources. Examples include telephone
directory information, weather data, "official" sports statistics,
government data administered under private contracts (such as the
Official Airline Guide data) and other similar public information.
It is shocking that the United States Government is seriously
considering supporting a proposal that will operate to maximize
profits to a small number of database vendors at the expense of the
public at large without first undertaking a careful domestic review of
these concerns. We urge you to examine this issue through
Congressional hearings and other meaningful public discussion.
Sincerely,
Marcy J. Gordon, Esq.
66 Pearl Street #307
New York, NY 10004-2443660 (212)514-9514 mgordon@pipeline.com
On behalf of the Computer Professionals for Social Responsibility
Audrie Krause
Executive Director
NetAction
601 Van Ness Avenue, No. 631
San Francisco, CA 94102 (415) 775-8674 akrause@igc.org
------------------------------
Date: Thu, 7 Nov 1996 12:14:12 -0600
From: Larry Lessig <Lawrence_Lessig@SSRN.Com>
Subject: File 2--CYBERLAW: No. 1, November 7, 1996
-----------------------------------------------------------
CYBERSPACE LAW ABSTRACTS
Number 1
November 7, 1996
------------------------------------------------------------
Editor:
Lawrence Lessig
Published by the Legal Scholarship Network (LSN)
a division of
Social Science Research Network (SSRN)
Copyright by
Social Science Electronic Publishing, Inc. (SSEP) 1996
All rights reserved.
Special Notice
--------------
This issue is being sent to you either on a trial basis or
because you have subscribed to Cyberspace Law Abstracts
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||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
||||||||||||||| TABLE OF CONTENTS |||||||||||||||
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------------------------------------------------------------
ACCEPTED PAPERS
(see abstracts below)
------------------------------------------------------------
"The Ancient Doctrine of Trespass to Web Sites" (Journal of
Online Law, Forthcoming)
TROTTER HARDY William & Mary School of Law
"Law And Borders--The Rise of Law in Cyberspace" (Stanford
Law Review, Forthcoming May 1996)
DAVID R. JOHNSON Counsel Connect
DAVID G. POST Georgetown University Law Center
"The Essential Role of Trusted Third Parties in Electronic
Commerce" (75 Oregon Law Review 49, 1996)
A. MICHAEL FROOMKIN University of Miami School
of Law
------------------------------------------------------------
WORKING PAPERS
(see abstracts below)
------------------------------------------------------------
"Eggs In Baskets: Distributing The Risks Of Electronic
Signatures"
BENJAMIN WRIGHT Attorney at Law
------------------------------------------------------------
CYBERLAW INFORMATION
------------------------------------------------------------
* Editor
* Advisory Board
* About CYBERLAW
* Submitting Abstracts, Professional
Announcements, and Job Openings
* Missing Issues and Change of Address
* Subscription Form
Obtaining Papers
----------------
Unless otherwise noted, papers are available *electronically
only.* You can download them from
http://www.ssrn.com/CyberLaw/lawpaper.html
Papers are *not* available in hard copy. An address is
included only for the purpose of corresponding with the
author.
Clickable E-Mail and Web Addresses
----------------------------------
All e-mail and web references below are in a form that
enables compliant e-mail programs and web browsers
(including Eudora 3.0 and NetScape 2.0 or higher) to
recognize them. A reader can then click on an e-mail
address to obtain a pre-addressed e-mail form or click
on a web address to go directly to the web page. PLEASE
IGNORE the "MAILTO:" command preceding each e-mail address
when copying addresses directly into your mailer.
You can obtain e-mail and web browsers with this new
feature at:
http://www.eudora.com/ Eudora
http://home.netscape.com/ Netscape
------------------------------------------------------------
ACCEPTED PAPER ABSTRACTS
(published with permission)
------------------------------------------------------------
"The Ancient Doctrine of Trespass to Web Sites"
Journal of Online Law, Forthcoming
BY: TROTTER HARDY
William & Mary School of Law
CONTACT: Trotter Hardy
E-MAIL: MAILTO:thardy@facstaff.wm.edu
POSTAL: Marshall-Wythe School of Law, College of
William & Mary, Williamsburg VA 23187
PHONE: (804) 221-3826
FAX: (757) 221-3261
LSN-REF: CYBERLAW:APS96-001
PAPER REQUESTS: Copies of this paper are obtainable
from http://www.ssrn.com/CyberLaw/lawpaper.html
The common law action of trespass to real property served to
establish and preserve the very notion of "property" in
land. Many of the words used to describe Web sites have a
basis in real property: the word "site" itself is one, as
are such expressions as "home" pages, "visiting" Web sites,
"traveling" to a site and the like. This usage suggests that
the trespass action might appropriately be applied to Web
sites as well. The question is not merely academic, for the
"obvious" protections-technology and copyright law-may not
work. That analogies to real property trespass *can* be made
does not suggest, however, that they *should* be made. The
fundamental issue is whether the treatment of Web sites as
property makes sense in light of the justifications for the
institution of property generally. Four strands of property
theory-Locke's natural rights, Bentham's utilitarianism,
Hardin's "tragedy of the commons," and Radin's "property as
personhood"-turn out to yield strong justifications for
treating Web sites as property and hence for the application
to them of the common law of trespass.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
"Law And Borders--The Rise of Law in Cyberspace"
Stanford Law Review, forthcoming 1996
BY: DAVID R. JOHNSON
Counsel Connect
DAVID G. POST
Georgetown University Law Center
CONTACT: David R. Johnson
E-MAIL: MAILTO:david.johnson@counsel.com
POSTAL: Counsel Connect, 600 New Jersey Ave, NW
Washington, DC 20001
PHONE: (202) 662-9000
FAX: (202) 662-9444
CO AUTH: MAILTO:postd@erols.com
LSN-REF: CYBERLAW:APS96-002
PAPER REQUESTS: Copies of this paper are obtainable
from http://www.ssrn.com/CyberLaw/lawpaper.html
Global computer-based communications cut across territorial
borders, creating a new realm of human activity and
undermining the feasibility--and legitimacy--of applying
laws based on geographic boundaries. While these electronic
communications play havoc with geographic boundaries, a new
boundary, made up of the screens and passwords that separate
the virtual world from the "real world" of atoms, emerges.
This new boundary defines a distinct Cyberspace that needs
and can create new law and legal institutions of its own.
Territorially-based law-making and law-enforcing authorities
find this new environment deeply threatening. But
established territorial authorities may yet learn to defer
to the self-regulatory efforts of Cyberspace participants
who care most deeply about this new digital trade in ideas,
information, and services. Separated from doctrine tied to
territorial jurisdictions, new rules will emerge, in a
variety of on-line spaces, to govern a wide range of new
phenomena that have no clear parallel in the nonvirtual
world. These new rules will play the role of law by
defining legal personhood and property, resolving disputes,
and crystallizing a collective conversation about core
values.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
"The Essential Role of Trusted Third Parties in Electronic
Commerce"
75 Oregon Law Review 49 (1996)
BY: A. MICHAEL FROOMKIN
University of Miami School of Law
CONTACT: Michael Froomkin
E-MAIL: MAILTO:froomkin@law.miami.edu
POSTAL: University of Miami School of Law, 1311
Miller Drive, PO Box 248087, Coral Gables,
FL 33124
PHONE: (305) 284-4285
FAX: (305) 284-2349
LSN-REF: CYBERLAW:APS96-003
PAPER REQUESTS: Copies of this paper are obtainable
from http://www.ssrn.com/CyberLaw/lawpaper.html
The article describes the role of "Certification
Authorities" (CAs) in the emerging field of electronic
commerce. CAs issue certificates to participants in
electronic commerce that provide indicia of identity or
authority, or supply a transactional timestamp. Several
states, including California, Utah, Washington, Florida,
Georgia, and New Mexico, have passed ,or are considering,
legislation to regulate CAs; the article seeks to inform
this process by examining the law applicable to the issuance
of digital certificates absent specific legislation. As
part of an effort to identify legal problems CAs are likely
to engender, the article examines a CA's potential liability
if a customer tricks a CA into issuing a false identity
credential. Among the issues discussed are the size of the
class of foreseeable relying parties and whether the CA
produces a "good" or a "service" or a hybrid of the two
under Article 2 of the U.C.C. The article concludes with a
survey of the major arguments for and against regulation of
CAs, and cautions against over-hasty grants of blanket
immunity of CAs against liability for their own negligence.
------------------------------------------------------------
WORKING PAPER ABSTRACT
------------------------------------------------------------
"Eggs In Baskets: Distributing The Risks Of Electronic
Signatures"
BY: BENJAMIN WRIGHT
Attorney at Law
CONTACT: Benjamin Wright
E-MAIL: MAILTO:73457.2362@compuserve.com
POSTAL: 3431-1/2 Granada Avenue, Dallas, TX
75205-2233
PHONE: (214) 526-5254
FAX: (214) 526-0026
LSN-REF: CYBERLAW:WPS96-001
PAPER REQUESTS: Copies of this paper are obtainable
from http://www.ssrn.com/CyberLaw/lawpaper.html
Electronic commerce brings questions about how to sign, or
evidence legal approval of, electronic documents. Evidence
that a person approved a particular electronic document
might be gathered many different ways. The article
evaluates two ways, one using public-key cryptography and
the other using pen biometrics. It compares the philosophy
for mananaging risk in the Utah Digital Signature Act with
that behind a signature technology known as PenOp.
-----------------------------------------------------------
CYBERLAW INFORMATION
-----------------------------------------------------------
CYBERLAW EDITOR
---------------
LAWRENCE LESSIG
Professor of Law, University of Chicago.
CYBERLAW ADVISORY BOARD
----------------------
A. MICHAEL FROOMKIN
Associate Professor of Law, University Miami School of Law
Fellow, Cyberspace Law Institute; Member of Editorial
Board of Journal of Online Law; Foreign Associate, the
Royal Institute of International Affairs
I. TROTTER HARDY
Professor of Law, William and Mary School of Law; Editor,
the Journal of Online Law
DAVID R. JOHNSON
Chairman, Counsel Connect; Co-Director, Cyberspace Law
Institute
ETHAN KATSH
Professor of Legal Studies, University of Massachusetts at
Amherst; Co-Director, Online Ombuds Office; Fellow,
Cyberspace Law Institute; Member of Editorial Board of
Journal of Online Law, Cyberlaw, Technolaw, and West Legal
Network
MARK A. LEMLEY
Assistant Professor, University of Texas School of Law;
Of Counsel, Fish & Richardson, P.C.; Member, Board of
Editors, American Intellectual Property Law Association
Quarterly Journal; Advisory Editor, Texas Intellectual
Property Law Journal
JESSICA LITMAN
Professor of Law, Wayne State University Law School
DAVID POST
Visiting Associate Professor of Law, Georgetown University
Law Center; Co-Director, Cyberspace Law Institute;
Editorial Board, Lexis Electronic Authors Press
MARGARET JANE RADIN
William Benjamin Scott and Luna M. Scott Professor of Law,
Stanford Law School; Founding board of editors, Legal
Theory; Co-Director, Cyberspace Law Institute.
PAMELA SAMUELSON
Professor of Law and of Information Management, University
of California at Berkeley; Contributing Editor,
Communications of the ACM; Fellow of the Electronic
Frontier Foundation
EUGENE VOLOKH
Acting Professor of Law, UCLA Law School
ABOUT CYBERLAW
--------------
This Journal publishes abstracts of papers dealing with
all aspects of the regulation of cyberspace, whether that
regulation is through law, social norms, or the
architecture of the network. The approach of the Journal
is inter-disciplinary: We will abstract papers in law and
in other related social science disciplines that raise
issues related to the regulation of cyberspace.
Comments and suggestions about CYBERLAW are welcome.
Please send them to the editor at:
MAILTO:Larry_Lessig@SSRN.Com
CYBERLAW is the seventh internet-based journal of abstracts
published by the Legal Scholarship Network (LSN), a division
of Social Science Electronic Publishing, Inc. (SSEP). LSN
also publishes Law and Economics Abstracts (LEA), Corporate,
Securities, and Finance Law Abstracts (CSFLA), Bankruptcy,
Reorganization, and Creditors' Rights Abstracts (BRCRA), Tax
Law and Policy Abstracts (TLPA), Criminal Law and Procedure
(CLPA) and Constitutional Law (CONLAW). LSN plans
additional journals in other major fields of law, including
environmental law and policy, intellectual property law, and
civil procedure.
LSN is co-directed by Ronald J. Gilson and A. Mitchell
Polinsky. Gilson is the Charles J. Meyers Professor of
Law and Business at Stanford Law School, and the Marc
and Eva Stern Professor of Law and Business at Columbia
University School of Law. Polinsky is the Josephine
Scott Crocker Professor of Law and Economics and Director
of the John M. Olin Program in Law and Economics at
Stanford Law School. Professors Gilson and Polinsky also
are the editors of LEA.
SUBMITTING ABSTRACTS, PROFESSIONAL
ANNOUNCEMENTS, AND JOB OPENINGS
----------------------------------
Authors interested in having abstracts included in CYBERLAW
should send an abstract (approximately 150-200 words) *by
email* and a copy of their article to:
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Harvard/ Taubman 210
79 JFK St
Cambridge, MA 02138
MAILTO:Larry_Lessig@ssrn.com
Please include the professional affiliation and e-mail
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Abstracts and articles may be submitted by e-mail (preferred
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------------------------------------
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____________________________________________________________
Copyright by SSEP, Inc. 1996
All rights reserved.
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
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Subject: File 3--Cu Digest Header Info (unchanged since 17 Nov, 1996)
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End of Computer Underground Digest #8.83