Let's give a big round of applause to Michael Esposito, Mark Lemley, and all the other wonderful folks who have made this eighth annual gathering such a pleasure.

It was an honor to be asked to address this exciting organization at your third annual conference five years ago and, of course, an even greater honor to be invited back.
 

I lived in three locations around Red River and 20th, not that far from the law school. In addition to working at the University Co-op, managing an apartment house, and as a student assistant, I helped work my way through school selling ladies' hose and refrigerator defrosters door-to-door in the neighborhood.  My customer list turned out to have political uses as well, and I soon found myself a Democratic Party precinct chair.

Lyndon Johnson and I did not know each other then.  His political career took him well beyond the precinct level as you may know.  Mine did not.  In fact, the first time I ever met President Johnson was in the oval office at the White House when he was trying to persuade me to take a job as U.S. Maritime Administrator -- and what was to be my first experience with computers nearly 35 years ago.

When I came back to Austin to visit my old neighborhood I was at first distressed to see that the homes I had lived in were gone.  I was reminded of the line from Joni Mitchell's song, "they paved paradise and put up a parking lot."  [Joni Mitchell, "Big Yellow Taxi." See http://www.gnt.net/~pompano/songs/taxi.htm]  But then I realized the parking lot was for the Lyndon Johnson Library that included among its millions of documents at least some related to my service for the President.  It seemed a kind of fitting full circle to have the Library in my old precinct.

Besides, I guess I'd have to agree that the old neighborhood wasn't exactly paradise anyway.  Nothing like this hermetically sealed Hyatt; that's for sure.

So it's great to be invited back to Austin.

Copyright notice: Copyright © 1998 by Nicholas Johnson. All rights are reserved regarding the reproduction of this work in any media that exists now or in the future, subject to the following conditions. It is available for your non-commercial personal use only. (Of course, brief, attributed, excerpts may be quoted for purposes of reviews or news.) You may read it on screen, or make one printed copy for yourself -- so long as it contains this copyright notice and you do not modify the text. You may not run off additional hard copies regardless of the purpose. And obviously no one has the right to reissue the text in hard copy, or otherwise sell or profit from the material. It is provided here as a courtesy. Enjoy. Tell others who might be interested. Link to this page. But as a matter of law, and of common courtesy, please do not abuse this opportunity. If you have questions about these terms, e-mail me, Nicholas Johnson, at 1035393@mcimail.com. Thank you.

Those concerns are still with us; not only in China, Saudi Arabia, Singapore and Viet Nam, but in Europe and, yes, in our own country as well.  Ann Beeson reminded us of the law suits that have been filed to challenge public libraries' use of filtering software in Loudoun County, Virginia, and Kern County, California, and Senator John McCain's legislation that would restrict funds for K-12 schools' Internet access to those that use such filters.

It was appropriate eight years ago that we should have put freedom ahead of privacy in our name, "computers, freedom and privacy."  When Internet users were asked about the most important challenge confronting the Internet, "freedom" was what they responded.

Today, as you may have noted from the most recent Georgia Institute of Technology poll, users believe that the number one challenge is privacy.  Over 70% of the 10,000 users polled are asking for new laws protecting privacy.  Censorship is still a concern, but privacy is number one.

I don't mean to make light of users' privacy concerns.  There are real problems out there, and we've been talking about them at this conference.

But it has always seemed to me that computers create more privacy than they destroy.  In fact, there is an almost direct relationship between the amount of time one spends with computers and the amount of privacy one has.

Moreover, if, on the rare occasions one is required to have a brief face-to-face interaction with a humanoid, one limits the topic of conversation to computers you can create even more privacy.  Friends and co-workers will no longer call or drop by to visit.  Interruptions by significant others and children will gradually diminish until they disappear altogether.

It is obvious that this phenomenon requires far more investigation than that provided so far by the privacy protection crowd.

In fact, the LifeStream Behavior Center, and others, have identified individuals whom they believe to have a computer dependency, a compulsion to withdraw from reality into a virtual cyberworld.  They call it "Internet addiction."  I call it privacy.

And, hey, what about the far greater numbers of people who have a reality dependency, a compulsion to withdraw from cyberspace?  How about helping them get over their reality addiction?

You want privacy?  Get a computer, that's what I say.

• All kidding aside, there are many serious threats to personal privacy on the Internet, and many are getting worse -- including the surreptitious gathering of information from children by 86% of the sites.  The issues are being discussed at this conference.

• There is also much consideration being given here to the somewhat related issues surrounding encryption.

• Online gambling is coming, and the issues it raises are further complicated when it is offered from Native American settlements.

• Spamming is creating counter measures, law suits and proposed federal and state legislation.

• The Federal Trade Commission is concerned about both conventional, and newly innovative, fraudulent scams over the Internet.

• The Internet is being blamed by mainstream journalists for the increasing pressure to rush to judgment -- to publish on the newspaper's Web site, or a cable news channel -- the drek and Drudge of the evening news.  "Framing" remains a problem.

• Antitrust and unfair business practice issues abound.  Microsoft's pushing of its Internet Explorer is well known.  Intel is alleged to have encouraged Webmasters to reprogram their sites to further slow access for everyone who is not using a computer with their latest chip.  AOL is going to make it harder for the smaller content providers to get their material out to subscribers.

• There are the administrative, and even trademark, controversies involving domain names.

• Lawyers are now salivating over a Lloyd's of London's estimate of a potential one trillion-dollar Year 2000 liability.

• Holiday sales over the Internet were almost one billion dollars this year -- nearly triple the total from a year ago -- with all the implications for sales tax issues and credit card security.  Online sales of alcohol to youth are another potential problem.

• When 11% of online subscribers are engaged in stock trading the Securities and Exchange Commission has to take an interest.

He has discussed, here and elsewhere, the Digital Era Copyright Enhancement Act (H.R. 3048), the opposition of 60 law professors to Representative Coble's H.R. 2281, the On-Line Copyright Liability Limitation Act (H.R. 2181), Senator Ashcroft's Digital Copyright Clarification and Technology Education Act of 1997 (S. 1146), and the No Electronic Theft Act (H.R. 2265 -- now 17 U.S.C. Sec. 506(a)(2)).

Such subjects are best addressed, if at all, only at early morning sessions following the consumption of large quantities of coffee.  It is not the stuff of after-dinner talks.

But so long as we leave the legal technicalities to David, and others similarly intellectually blessed, perhaps you will permit some simplistic public policy suggestions on this occasion.

In brief, what I would like to propose is a substantial relaxation of the present copyright prohibitions regarding the uploading of textual material to the Internet.

It is not as radical an idea as may first appear.  It is similar, in some ways, to what the Copyright Act now provides under the concept of "fair use" (17 U.S.C. Sec. 107).[1]  It has even more precedent in the provisions authorizing libraries to copy works in some circumstances (17 U.S.C. Sec. 108).[2]

My proposal is really relatively simple, narrow and precise.  It is also more in the nature of an invitation to dialogue than a carefully crafted final draft of legislation.  It needs more research, and additions and revisions to the drafting.

A.  But first, here is how the copyright issues on the Internet have affected me -- the background experience from which this proposal comes.

1.  Since the last time we met, I have been making samples of my writing available on the Internet.  With the coming of the Web it has made the task easier, and I have greatly expanded the resource.
 
a.  During the past couple of years I have made virtually every article and speech of mine available in full text.

 b.  I have also picked a few things from the past, including the full text of two of my books, How to Talk Back to Your Television Set and Test Pattern for Living.

2.  Among the Web pages I create and maintain as a favor for others is a memorial Web page I created for my father, Wendell Johnson, whom many regard as the world's first speech pathologist.  He died in 1965 at the age of 59.  As a boy, Dad was himself a stutterer at a time when the only therapies were sugar pills and cutting out tongues.  He went on to create at the University of Iowa one of the first centers for research in stuttering and other speech problems.

 a.  But as a young college student at Iowa he had the distinction of having his master's thesis published by a commercial book publisher.  It was his account of growing up a stutterer. The book was titled Because I Stutter.

 b.  Not only is it one of the first books ever published about stuttering, it also happens to be authored by the person who went on to become one of -- if not the -- pioneers in this field.
 
B.  So what do each of these books have to do with digital copyright?

1.  Each is "out of print."  What out of print means is that someone who wants the book cannot buy it at their local bookstore, order it from a publisher, or get it online from amazon.com or Barnes and Noble.  Sometimes one can find out of print books through a used bookstore (including those online).  More often they can be found in libraries, or through inter-library loan.  In the case of Because I Stutter, the last copy has long since been stolen out of the university and local libraries in Iowa City -- the city where the "Wendell Johnson Speech and Hearing Center" is named for him.

I happen to have copies of the books -- the first two because I wrote them and kept a copy for myself, the latter because my father wrote it, kept copies, and gave me one.

2.  There are now nearly 100,000 people in America working as speech pathologists.  A few thousand more are speech path majors in college.  They may not have an overwhelming demand for Because I Stutter, but there are a significant number who like to have their students read some or all of it -- or have a copy themselves.

3.  It would be possible to have the book reprinted.  But it did not seem to me that a publisher could be easily interested in such a project, nor that the economic return would be worthwhile for me or anyone else.

4.  Why not simply scan the book, put it into HTML format, upload it to a Web page, and make it available, for free, for anyone who wants it?  Why not?  Because that is a clear violation of the copyright laws, that's why not.  And even though I would probably be the one to control whatever author's rights had passed to Dad's estate, there were two problems.

 a.  The copyright was held by the publisher.  And,

 b.  given the rash of publishing mergers since the 1930s, it was not clear who the successor in rights was in 1997.

 c.  Even though my books were published in the 1970s, their publishers, and the relevant files and contracts, were almost equally hard to track down.

 d.  As I concession to the shortness of our evening, I will not detail all that I went through to resolve these matters.  The fact is, they were ultimately resolved, the three books were scanned, proof read, formatted in HTML, posted to my Web page, and continue to get hundreds of hits today.
 
C.  But the experience got me to thinking about the opportunities offered by our global Web, the legitimate needs of copyright holders, and some modest proposals for digital copyright revision.

1.  There are at least two reasons why it is in our national interest to share the information we have.

a.  In the first place, information leaks.  National security classifications have often turned out to be much more successful in keeping significant information from the American people than from our enemies.  Unclassified documents are much less likely to attract the attention of professional spies.

b.  In the second place, it is in our national interest to raise the living standards of all the world's peoples -- and as quickly as possible. Concerned about American corporations moving plants, and jobs, overseas?  Well, the quickest route to a liveable wage for American workers is a liveable wage for today's Third World workers.

As Jesse Jackson says, "A rising tide lifts all boats."  Improving the educational and informational opportunities of all the world's people -- including our own -- fuels a light with enough power to cause that tide to rise.  The Internet is that light.

2.  But while we're sailing on an ocean of analogies, let me also make clear that, had I just invested $200 million in the making of a movie about a rising iceberg that sunk a boat, I would be disinclined to distribute it over the Internet for free.

 a.  It is wrong -- constitutionally, legally, morally, and as a matter of common sense -- to act on the assumption that, merely because trade in intellectual property has made some one, or some corporation, very rich that it is, therefore, appropriate to steal from them just to give to the poor.

 b.  Even less is it appropriate to steal from anyone, rich or poor, and then profit from trading in those stolen goods -- such as the sale of pirated video tapes of movies before they have even been released to theaters.

3.  But it is equally wrong, in my view, to give greed full reign.

 a.  When I was a young boy, parents read their children the Aesop's fable of the dog in the manger.  It goes like this:

 A dog, looking out for its afternoon nap, jumped into the manger of an ox and lay there cosily upon the straw.  But soon the ox, returning from its afternoon work, came up to the manger and wanted to eat some of the straw.  The dog, in a rage, being awakened from its slumber, stood up and barked at the ox, and whenever it came near attempted to bite it.  At last the ox had to give up the hope of getting at the straw, and went away muttering:  "Ah, people often grudge others what they cannot enjoy themselves."  [See http://www.rvib.org.au/rviblis/aesops.txt]

That the ox obviously had both a rather remarkable verbal facility and insight for an ox was seldom remarked upon.  The dog was the center of the story, and the basis for the moral.  For he came to symbolize irrational greed:  the refusal to share that which would benefit others if shared, and fails to benefit the owner when hoarded.  It's the classic illustration of what might be called a "lose-lose" strategy.

 b.  So it is with some copyright owners and legislators in my view.

What is the point of prohibiting the free availability of textual material over the Internet if the prohibition serves only to make the world much poorer while making the owner no richer?  Is this not the modern day equivalent of the dog in the manger?

D.  I began by saying my proposal was very limited, and it is.

1.  For starters, I am not talking about feature film or other video material, music or other audio material, computer software, trademarks and trade secrets, information raising possible privacy issues, pornography, limited circulation proprietary information, national security secrets, previously unpublished material, or other categories raising separate issues.  I am willing to talk about them, but please allow me a semester rather than an after-dinner talk.

2.  Nor am I talking about any material that is clearly "commercial" -- however that may come to be defined -- such as books for which substantial, sometimes multi-million-dollar, advances have been paid by publishers, fiction and non-fiction best sellers, a database of the entirety of a newspaper's back issues, and so forth.

3.  Nor am I talking about someone who seeks to profit from another's work (whether through sales, access fees, or advertising), who posts material without attributing the author and source, or who actually tries to pass it off as their own -- who plagiarizes.

4.  All I am talking about is the posting to the Web, with full attribution and copyright notice, and without personal profit, of books, articles, reports and other textual material as to which the only potential reasons for prohibition involve technical copyright interests, whether under old laws or new.

E.  Public domain.  First, there is an enormous amount of textual material in the public domain; material as to which any copyright protection has long since expired -- or, as with most government publications, to which it never applied (17 U.S.C. Sec. 105).

1.  Special editions, annotations, concordances, or translations might still be protected, but the original work would not.

2.  An example would be the Aesop's fable I just told you, which is, incidentally, available off the Web at http://www.rvib.org.au/rviblis/aesops.txt.

3.  Clearly, all these works should be, and are, available to anyone who wants to take the time and trouble to scan, edit, format in HTML, and upload them to a Web page.

4.  The Guttenberg Project was one of the first to undertake this task in an organized way.  There are now many more.

5.  If everyone in this room would make the effort to scan and upload just one such book the contribution could be significant.
 
F.  Out-of-print.  Second, there is the category in which Because I Stutter falls.

1.  These are books and articles that are still covered by copyright, but are long since out-of-print, scarce to unavailable in used book stores and libraries, and for which there are no plans for a reprinting and reissue.

2.  For such material, I would propose the following standard.  Anyone who wants to contribute the time and effort to upload such material to the Internet, without profit to themselves or others, should be able to do so subject to the following conditions.

 a.  The identity of the original copyright owner should be revealed, for example, by including the information on the copyright notice page.

 b.  The work should be uploaded in its entirety.

 c.  The copy of the scanned and uploaded work should be carefully edited for accuracy.  (Although I sometimes include page number breaks, headers and footers from the original for the convenience of any who would like to cite to the work in footnotes, that should not be a requirement.)

 d.  The person doing the uploading should not be required to find out who is the successor to the copyright, notify them, or obtain their prior permission.

 e.  In the event the copyright owner wishes to reissue the publication, or otherwise profit from it in some way that is inconsistent with its availability on the Internet, the owner should have the right, as against the person who first posted it, to have that person remove it from whatever Web sites they have personally posted it.[3]

(1)  The person posting the material should make a good faith effort to inform the copyright owner of other sites to which it may have been copied by others, but

(2)  the burden of removing it from other sites should be on the copyright owner.

G.  Third, there is what we might call time-sensitive material.  Today's newspapers are available in the shop off the lobby of this hotel -- the New York Times, Wall Street Journal, USA Today, Austin American-Statesman, and other papers from around Texas.  They are valuable articles of commerce -- for their owners and publishers, editors and journalists, distributors and dealers.  The same can be said for Time, Newsweek, and numerous other time-sensitive publications.

1.  There are two senses in which they are valuable.

a.  Today's publications -- and issues from the last week, or month, containing background information on today's news -- are valuable because of their currency.

b.  A database containing all of the prior issues for the life of the publication -- or even a year, or month -- may be valuable as a research reference.

2.  There are other senses in which they are of lesser, or even marginal value.
 
a.  To calm those who are concerned about an unflattering story in the day's newspaper we sometimes remind them that, "Yesterday's newspapers are used to wrap fish" -- that is, "Forget about it.  Your neighbors soon will."
(1)  The newspaper business is the business of buying newsprint by the ton and selling it by the pound.  Once the currency is gone, so is the currency necessary to buy the paper.  In fact, it's worth so little that we give it away for free to anyone who will recycle it.

(2)  It would seldom be the case that anyone would want to scan an entire issue of a newspaper, or magazine, and upload it to the Web.  Normally it would only be a single article.  But even if it were an entire issue, the adverse economic impact on the owner/publisher would be somewhere between minuscule and none at all.
 

b.  With rare exception, individual articles in old issues of time-sensitive publications are of even less value to the publisher/owner.
 
3.  Thus, I would propose that anyone should be free to scan and upload to a Web page any copyrighted, time-sensitive, single, individual article under the following conditions, similar to those for out-of-print materials.
 
a.  Sufficient time must have passed -- say, for example, a year -- such that the article no longer has conventional, commercial value as time-sensitive material.  (Obviously, the amount of time could vary from publication to publication, and article to article, but that would create obvious administrative complexity.)
 
b.  The person posting the article must indicate that it is copyright, the name and address (and possibly subscription price) of the publication.
 
c.  It must be copied accurately, and in full, and carry the copyright notice.
 
d.  No one posting the article to the Web, or using it thereafter, should be able to profit, directly or indirectly, from doing so without first obtaining the permission of the copyright owner.
 
e.  In the event the copyright owner wishes to republish the article -- in, say, a hardcover anthology of articles from its publication -- or otherwise use it in a way inconsistent with its free availability on the Web, the relative rights and responsibilities would be the same as for out-of-print materials.
 
f.  Nothing in this proposal would authorize the Web posting of all, or a sufficient quantity, of the once-time-sensitive articles in one place (or linked in such a fashion) as to create the equivalent of a database research source.
 
H.  Academic and other non-profit material.  Finally, there is a great deal of textual material created by writers for whom copyright compensation is somewhere between incidental and totally irrelevant.
 
1.  There are legitimate economic interests of university and other academic presses, and of commercially published academic journals.  I do not mean to dismiss them out of hand.  Although it is fair to note that their domain is rapidly changing with the increasing number of new publications that exist only in Internet-distributed form.
 
2.  The fact remains that many, if not most academics and research scientists do not publish scholarly articles for the copyright payments.  They are paid salaries to do research and writing, and they live in a "publish or perish" world in which tenure and promotion turn on publication.
 
3.  Indeed, increasingly academics need to pay the publisher, rather than the other way around, to have their articles published in the first place.  Having done so, they may then pay yet more money for the reprints of those articles, and postage, in order to circulate them to colleagues around the world -- thereby enhancing their professional reputations and possibly generating job offers at more prestigeous institutions.  It is hard to imagine how such an author could complain that someone had "violated the copyright" on his or her article by making the piece globally available -- thereby enhancing the author's reputation further -- and all at no cost to the author!
 
4.  Under these circumstances, it would seem reasonable to apply standards similar to those I have proposed for out-of-print and dated time-sensitive material to textual material of an academic or scientific nature that involves
 
a.  only a single article (as distinguished from an entire issue, or database of articles, that might cut into the publisher's revenues for hard copy sales)
 
b.  no profit to the person posting the article
 
c.  which is of no apparent additional commercial value
 
d.  and with a right in the author or publisher to have it removed from the Internet on reasonable request
 
I.  Other categories.  The categories listed are not intended to be either fixed or exhaustive.
 
1.  Upon further inquiry it may turn out that some are unworkable.
 
2.  It may well be that you can think of other categories of material as to which these principles are equally applicable.
 
3.  But hopefully this discussion is enough to raise the issue.
 
J.  Beneficiaries
 
1.  If I were the only one to benefit from this kind of reconsideration of digital copyright I would also be the first to concede the subject is probably not worth our limited time together.

2.  How many people are there who are willing to give of their time and money to scan, edit, format and upload texts to the Web?  More than we might think.
 

a.  K-12, college and graduate level teachers -- who already have some copyright latitude when it comes to copying for educational purposes -- may want to, but do not, now, have the legal right to post such materials to a Web site potentially available to others.

b.  As students, as well as their teachers, post their papers to the Web, with links to documents already there, they might be quite willing to undertake the occasional uploading of a significant document not otherwise available online.

c.  There are an increasing number of academics and writers -- including many in this audience -- who routinely upload their own writing to a Web page, as I do.

d.  The idea of a memorial Web page is coming to be more popular, and what could be more natural than providing links to texts of the decedent's writing.

e.  Some might be motivated out of genuine altruism, or take it on as a hobby.

f.  Finally, there are libraries, research centers, corporations, commercial publications, and others who might find it useful for their own patrons, employees, or customers to upload useful reference material not otherwise available.  The Library of Congress is undertaking to upload literally millions of documents -- although admitedly documents in the public domain.  (I am assuming this can be done without advertising, sale of the material, or otherwise directly profiting from it.)

We now have the ability to put the equivalent of libraries on the Internet, freely available to the world's people for their economic, intellectual and cultural growth.  With advances in computer translation, even more individuals can have access to English-language texts.

In posting textual materials we must, of course, recognize the legitimate property interests of those who have made huge investments in the creation of commercial intellectual property.

At the same time, we can fairly insist that their greed be balanced against our growth and that of all the world's peoples.

There is no more reason to tolerate a virtual dog in an electronic manager today than there was in Aesop's time.

"[T]he fair use of a copyrighted work, including such use . . . for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research, is not an infringement of copyright. . . . [T]he factors to be considered shall include --

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

. . .

(4) the effect of the use upon the potential market for or value of the copyrighted work . . .."

2.  Relevant language in Section 108 provides:

(a) [I]t is not an infringement of copyright for a library . . . to reproduce . . . a work . . . if --

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public . . .; and
(3) the reproduction or distribution of the work includes a notice of copyright.

(b) The rights . . . apply to a copy . . . for purposes of preservation . . ..

(c) The right . . . applies to a copy . . . solely for the purposes of replacement of a copy . . . that is . . . lost . . ..

3.  During the question and answer session following the presentation of this paper a proposal was made from the floor which seems very sensible.  (If the person suggesting it will let me know who they were I will, of course, acknowledge the contribution in any future draft of this piece.)  It is that there be something in the nature of a public notice, like a registry of deeds, presumably a Web page plus search engine plus links, where anyone who intended to upload a copyrighted work would first post a notice to that effect.  Thus, rather than uploading the work first, and then having to remove it, there would be a period of, say, 90 days, or six months, during which the copyright owner could object -- and, following which, anyone would be free to upload the work.