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If you have comments, questions or just want more information about the books published by the National Academies Press, you may contact our customer service department toll- free at 888-624-8373, visit us online, or send an email to The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html The Digital Dilemma Intellectual Property IN THE INFORMATION AGE Committee on Intellectual Property Rights and the Emerging Information Infrastructure Computer Science and Telecommunications Board Commission on Physical Sciences, Mathematics, and Applications National Research Council NATIONAL ACADEMY PRESS Washington, D.C. Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html NATIONAL ACADEMY PRESS • 2101 Constitution Avenue, N.W. • Washington, D.C. 20418 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. Support for this project was provided by the National Science Foundation. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the au- thors and do not necessarily reflect the views of the sponsors. Library of Congress Catalog Card Number 99-69855 International Standard Book Number 0-309-06499-6 Additional copies of this report are available from: National Academy Press 2101 Constitution Ave., NW Box 285 Washington, DC 20055 800-624-6242 202-334-3313 (in the Washington Metropolitan Area) http://www.nap.edu Copyright 2000 by the National Academy of Sciences. All rights reserved. Printed in the United States of America Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html National Academy of Sciences National Academy of Engineering Institute of Medicine National Research Council The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal govern- ment on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. William A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal gov- ernment. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in pro- viding services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. William A. Wulf are chairman and vice chairman, respectively, of the National Research Council. Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html COMMITTEE ON INTELLECTUAL PROPERTY RIGHTS AND THE EMERGING INFORMATION INFRASTRUCTURE RANDALL DAVIS, Massachusetts Institute of Technology, Chair SHELTON ALEXANDER, Pennsylvania State University JOEY ANUFF, Wired Ventures HOWARD BESSER, University of California, Los Angeles SCOTT BRADNER, Harvard University JOAN FEIGENBAUM, AT&T Labs-Research HENRY GLADNEY, IBM Almaden Research Center KAREN HUNTER, Elsevier Science Inc. CLIFFORD LYNCH, Coalition for Networked Information CHRISTOPHER MURRAY, O’Melveny & Myers LLP ROGER NOLL, Stanford University DAVID REED, Cable Television Laboratories Inc. JAMES N. ROSSE, Freedom Communications Inc. (Ret.) PAMELA SAMUELSON, University of California, Berkeley STUART SHIEBER, Harvard University BERNARD SORKIN, Time Warner Inc. GARY E. STRONG, Queens Borough Public Library JONATHAN TASINI, National Writers Union/UAW Local 1981 Staff ALAN S. INOUYE, Program Officer JERRY R. SHEEHAN, Senior Program Officer MARJORY S. BLUMENTHAL, Executive Director MARGARET MARSH, Project Assistant NICCI T. DOWD, Project Assistant MICKELLE RODGERS, Senior Project Assistant v Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html COMPUTER SCIENCE AND TELECOMMUNICATIONS BOARD DAVID D. CLARK, Massachusetts Institute of Technology, Chair FRANCES E. ALLEN, IBM T.J. Watson Research Center JAMES CHIDDIX, Time Warner Cable JOHN M. CIOFFI, Stanford University W. BRUCE CROFT, University of Massachusetts, Amherst A.G. FRASER, AT&T SUSAN L. GRAHAM, University of California, Berkeley JAMES GRAY, Microsoft Corporation PATRICK M. HANRAHAN, Stanford University JUDITH HEMPEL, University of California, San Francisco BUTLER W. LAMPSON, Microsoft Corporation EDWARD D. LAZOWSKA, University of Washington DAVID LIDDLE, Interval Research JOHN MAJOR, WirelessKnowledge TOM M. MITCHELL, Carnegie Mellon University DONALD NORMAN, Unext.com RAYMOND OZZIE, Groove Networks DAVID A. PATTERSON, University of California, Berkeley LEE SPROULL, New York University LESLIE L. VADASZ, Intel Corporation Staff MARJORY S. BLUMENTHAL, Executive Director JANE BORTNICK GRIFFITH, Interim Director (1998) HERBERT S. LIN, Senior Scientist JERRY R. SHEEHAN, Senior Program Officer ALAN S. INOUYE, Program Officer JON EISENBERG, Program Officer GAIL PRITCHARD, Program Officer JANET BRISCOE, Office Manager MARGARET MARSH, Project Assistant MICKELLE RODGERS, Research Assistant SUZANNE OSSA, Senior Project Assistant DAVID (D.C.) DRAKE, Project Assistant DANIEL LLATA, Senior Project Assistant BRANDYE WILLIAMS, Office Assistant vi Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html COMMISSION ON PHYSICAL SCIENCES, MATHEMATICS, AND APPLICATIONS PETER M. BANKS, Veridian ERIM International Inc., Co-chair W. CARL LINEBERGER, University of Colorado, Co-chair WILLIAM F. BALLHAUS, JR., Lockheed Martin Corp. SHIRLEY CHIANG, University of California, Davis MARSHALL H. COHEN, California Institute of Technology RONALD G. DOUGLAS, Texas A&M University SAMUEL H. FULLER, Analog Devices Inc. JERRY P. GOLLUB, Haverford College MICHAEL F. GOODCHILD, University of California, Santa Barbara MARTHA P. HAYNES, Cornell University WESLEY T. HUNTRESS, JR., Carnegie Institution CAROL M. JANTZEN, Westinghouse Savannah River Company PAUL G. KAMINSKI, Technovation Inc. KENNETH H. KELLER, University of Minnesota JOHN R. KREICK, Sanders, a Lockheed Martin Co. (Ret.) MARSHA I. LESTER, University of Pennsylvania DUSA McDUFF, State University of New York, Stony Brook JANET NORWOOD, Bureau of Labor Statistics (Ret.) M. ELISABETH PATÉ-CORNELL, Stanford University NICHOLAS P. SAMIOS, Brookhaven National Laboratory ROBERT J. SPINRAD, Xerox PARC (Ret.) NORMAN METZGER, Executive Director (through July 1999) MYRON F. UMAN, Acting Executive Director vii Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html Copyright © National Academy of Sciences. All rights reserved. The Digital Dilemma: Intellectual Property in the Information Age� http://www.nap.edu/catalog/9601.html Preface The revolution in information technology is changing access to infor- mation in fundamental ways. Increasing amounts of information are available in digital form; networks interconnect computers around the globe; and the World Wide Web provides a framework for access to a vast array of information, from favorite family recipes and newspaper articles to scholarly treatises and music, all available at the click of a mouse. Yet the same technologies that provide vastly enhanced access also raise difficult fundamental issues concerning intellectual property, because the technology that makes access so easy also greatly aids copying—both legal and illegal. As a result, many of the intellectual property rules and practices that evolved in the world of physical artifacts do not work well in the digital environment. The issues associated with computerization are also amplified by the rise of the Internet and broader and more perva- sive networking. These are the issues that inspired The Digital Dilemma. This project grew out of a long history of Computer Science and Telecommunications Board (CSTB) interest in the legal issues related to computer technology in general and to intellectual property in particular. In 1991, CSTB published Intellectual Property Issues in Software, the report of a strategic forum in which I participated, and in 1994, it published the report of its second strategic forum, addressing intellectual property and other issues, entitled Rights and Responsibilities of Participants in Networked Communities. Recognizing the growing questions about intellectual property in the networked environment, CSTB hosted a project-planning meeting in December 1994 chaired by Pamela Samuelson (now at the ix Copyright © National Academy of Sciences. All rights reserved.