Mediating between law and technology requires vigilance and education, not a technical solution Librarians face a dilemma when it comes to copyright. On the one hand, if content providers disappeared, libraries and our patrons would suffer. By doing our part to eliminate copyright violations, we help keep publishers in business. On the other hand, we understand that “information wants to be free.” We resent license agreements that prevent us from sharing information. Who hasn't bent the rules or seen others do so? We became librarians in order to help people find information; we don't want to be gatekeepers or copyright cops. Our competing allegiances are reflected in the newly updated American Library Association Code of Ethics, which was changed at last month's Midwinter Meeting from “We recognize and respect intellectual property rights” to “We recognize and advocate balance between the rights of intellectual property owners and the rights of information users.” The change is welcome, though it seems inevitable that each individual will interpret “balance” differently. Vendors sometimes try to create that balance for us, introducing technologies that prevent users from committing copyright infringements. However, these technologies can create additional issues and highlight the difficulties librarians face in mediating between law and technology. This challenge requires vigilance and education rather than a reliance on an automated solution.

The problem with XCP

In spring 2005, Sony/BMG began distributing music CDs with “Extended Copy Protection,” or XCP (see graphic, p. 29). In an effort to limit the number of times a customer could copy a disc's contents, XCP had to control the computer against the user's will—and because there is no way software can recognize whether the purpose of a copy is legitimate, XCP erred on the side of caution, limiting the number of copies to one generation, regardless of purpose. Similarly, XCP's code for defending itself against antivirus software could not distinguish between the company's software and other software that might also install itself against the user's wishes. Thus, computer viruses emerged to exploit XCP and, undetected, infect computers that had played such CDs. Eventually, the company was forced to recall as many as 25 million CDs, many purchased by libraries. Patrons borrowing those CDs made their personal machines less secure. A librarian at Michigan's Ann Arbor District Library likened a CD with XCP software to a book with spikes sticking out of it. Beyond the public relations faux pas, a fundamental error was to expect software to do things it cannot do. To be secure, the XCP software was called upon to distinguish between its own “friendly” code and external, viral code; software cannot always make that distinction. Sony/BMG was also asking the software to enforce the law, and, as mentioned, software generally cannot distinguish between legal and illegal activities. Sony/BMG's motivation was understandable: intellectual property law is vast and nuanced, so it would be helpful if software engineers could automate aspects of its enforcement. But these technologists have had a difficult time assisting publishers, and librarians, with copyright enforcement.

What Color are your bits?

Property has traditionally been defined in terms of artifacts. Someone stealing a book from a library had to take the physical object without checking it out properly. In the law, intellectual property questions invite analogies to physical property. A set of abstract concepts in property law, for instance, might be referred to as a “bundle of sticks.” If each “stick” represents one right of the copyright holder, a library could license one stick—for example, the right to distribute or reproduce a work—without obtaining the whole bundle, which could include the right to alter that work, among other “sticks.” However, as more and more information is digitized, the relevance of the artifact is vanishing. From a technologist's point of view, the important content of a book is a series of bits: ones and zeros representing its words and illustrations. “Theft” of content may not resemble—legally or factually—removing an artifact from a building. For technologists, intellectual property law can be understood as a set of rules regarding intangible attributes of bits. Those attributes reveal who created the bits, where the bits come from and where they are they going, and if they are copies of other bits. These intangible attributes can be called “Color,” after the metaphor coined by Matthew Skala in a 2004 Canadian web posting, “What Colour Are Your Bits?” In Skala's metaphor, Color embodies concepts like provenance or intended use: it is any sort of intangible attribute that someone might use to describe or control a collection of bits. Just as acting under “Color of law” implies legality in a specific context, so Color illuminates the appearance and context of a piece of intellectual property. In this way, it behaves much like metadata. However, while metadata can be edited or spoofed, Color refers to intrinsic, immutable attributes.

An example of Color

Here's a hypothetical example of Color: a library archivist, a participant in a major scanning effort, has a certain famous author's notebooks. The archivist wishes to capture each of them perfectly, even a blank commonplace book. Naturally, the file will be a string of zeros where characters would have been detected if any had been written. The archivist knows this. But pages must be preserved to the best of our ability. The metadata for the commonplace book could be attached to a file with any old string of zeros, but only one string of zeros, according to the archivist, is the correct string of zeros. The archivist sees Color in those zeros, even if they are indistinguishable, to a technologist, from an identically sized string of zeros generated programmatically. This idea seems silly to technologists or anyone with a mathematical background. Numbers are numbers. Given two bit-for-bit identical PDF files, there is no meaningful way to say that one is a scan of an antique commonplace book and the other is not. Bits lack Color, and computers are Color-blind, so technologists work hard to attain Color blindness to do their jobs more effectively. However, it may be necessary for technologists to see Color. Sometimes, Color matters. Suppose you publish an article that happens to contain a sentence identical to the one above: “Sometimes, Color matters.” It has just three words, all of them common, and the combination might well occur concerning any number of subjects; however, if you wrote your article by cutting and pasting from this one, the words have the Color that obligates you to follow citation procedures and worry about “derivative work” and “fair use” status under copyright law. Exactly the same words, represented in a computer by the same bits, can vary in Color. When you use those words without quotation marks, you are either an author or a plagiarist: your status depends on their Color.

The law sees Color

A useful illustration of the Colored nature of bits in law is the disclaimer (see Link List) on the U.S. Naval Observatory web site. Its information, such as data on when the sun rises and sets, is issued with the explicit understanding that it is not suitable for use in court. If you seek to prove a disputed fact about the time the sun rose or set in a court case, then you need bits representing information that is admissible for that purpose under evidentiary rules. You don't just need bits that indicate when the sun rose, you need them to be authenticated, and that requires Color. Lawyers understand that the source of information is important. Just as technologists have worked hard to become Color-blind, lawyers have worked hard to recognize Color. This poses a challenge for communication between technologists and those who work in law. The Color metaphor attracted much discussion, and the original articles continue to be cited in the ongoing debate on technological copyright protection. Some were dismayed. To lawyers, Color is so obviously present that it seemed Skala was attacking technologists for not seeing it. Technologists found the opposite argument: bits are so obviously Colorless that technologists thought he was parodying lawyers. An anonymous commentator in the discussion at Yale Law School's Lawmeme site pointed out a more significant issue: the law is not really about files of bits at all but about social beings and their interactions. The ultimate question in a piracy case is not really about whether a file was copied but about whether a person copied it and why. Properties of the bits, including Color, can answer such questions.

Cultural assumptions

Both lawyers and technologists frequently lose sight of the underlying agency of social beings, instead getting bogged down in details of the properties of the bits. They reach an impasse because of their differing cultural assumptions about Color, its existence, and nature. This stalemate has real-world ramifications, well beyond what happened with the Sony/BMG incident. The range of material that is entitled to intellectual property protection is vast and growing, and the number of potential uses for this information, both legal and illegal, is increasing, especially as more information is available digitally. The ubiquity of computers and the Internet has given billions of people the means for obtaining and manipulating this material. Publishing has never been more widespread, nor spread across more formats. Librarians see this diversity on a microcosmic level. We collect material in many different formats, with varying copyright protections applied to the same essential content. To enforce copyright, and to assist users who wish to remain within the boundaries of the law, lawyers and their publisher clients have asked technologists for assistance. So technologists recognize they must try to determine the Color of bits. For instance, they associate metadata with files to indicate what Color they are. In the copyright realm, metadata includes watermarking for online music, region coding for DVDs, Macrovision for VHS, and Serial Copy Management System (SCMS) for CDs. The trouble is, these procedures can't really work. Much of the time these technologies fail to protect the material: patrons borrow the media, make an illegal copy, and return it. When they do prevent copying, the technologies do such a good job of protecting the material that we cannot make archival copies, even when it is within our right to do so. If the technology prevents all illegal copying, then it also prevents all legal copying because it prevents all use or copying of any kind. These strategies do not work as we would like because metadata is made of bits. You can write a metadata tag that says, “This is an orange tag,” but it will be made out of bits, and so it can't really have a Color because Color does not exist. It will just be a Colorless tag that reads, “This is an orange tag.” This approach simulates Color in a technical way. Those entrusted with making and enforcing laws and those who make their living by marketing copyrighted material see that simulation as proof that Color really exists. For them, the existence of Color is so fundamental that it can't be challenged. But it's not that simple. If you have a CD with the SCMS bits saying, “This is the original copy,” that's all well and good. What if someone uses a CD burner to create a bit-for-bit identical copy? The bits would still say “original copy.” Any metadata can misinform (the CD whose SCMS bits say “original copy” when it isn't), contain a mistake (the ripped audio file tagged “copyright-protected” by default, though the original recording is in the public domain), or be superseded by higher-level metadata (the metadata standards document that says, “Here is what a valid metadata tag looks like”: followed by an example of one). Color is arguably information that could be described in metadata, but it's not the same thing as metadata. If you try to make it the same thing as metadata, for instance, with a law against attaching false metadata to things, then you're right back where you started, because now you're worrying about the Color of the metadata.

New problems, old technology

As librarians, we must understand law and technology. We need to educate ourselves about intellectual property law, and we need to educate our patrons as well. We also must advocate for our patrons and help them advocate for themselves. We need presentations of our own that echo Lawrence Lessig's 2007 TED Conference presentation, “How Creativity Is Being Strangled by the Law,” which describes the limitations of existing intellectual property laws and suggests that bad laws lead to bad code. Armed with an understanding of Color, we are in an ideal position to mediate between lawyers and publishers, technologists, and patrons. We can see things from each constituency's perspective. And we can encourage solutions that are both fair and tenable. Our education and advocacy efforts must be grounded in our appreciation that technology cannot yet reliably provide complete answers to questions about Color and social beings and that it may never be able to do so. When we depend on technology alone to enforce copyright, we are demanding it do something it is incapable of doing accurately, and we open ourselves up to other problems, such as the XCP fiasco. As humans—social beings—we can resolve the questions of interaction among social beings that technological systems cannot correctly answer. Of course, software programs that depend on sophisticated simulations of Color can be helpful. For instance, spam filters can help to save our inboxes from offers we are better off refusing. Antivirus software can create approximate profiles for bits with the “possibly a virus” Color. However, despite the innovative efforts of thousands of technologists working in computer security, the only way to keep our computers truly virus free is to start with a virus-free machine and isolate it from interactions with other computers. By the same token, the only way to avoid any possibility of copyright violation is to prevent all of our patrons from using any of our material, or to abstain fully from providing access to any material with any copyright protections. Neither of these situations is likely to occur any time soon. More pragmatic approaches are found within the movements toward simpler copyright protections and alternative publishing models. Open access, as advocated for by Peter Suber, is one such model, as is Creative Commons. It is not yet certain that either will strike the right balance, one in which content producers have strong incentives to produce good, original work and information consumers have access to the broadest possible range of material. However, these models are generally far simpler than our present copyright model, perhaps because they are less adversarial and therefore appear less compelled to make allowances for enforcement. Whether they represent the future or not, their goal—a more cooperative approach to intellectual property—is admirable, because our present copyright situation can't last. To move forward, we need to let go of any remaining wish that technology alone can solve Colorful problems. Our old standbys—education and advocacy—are not going to be replaced by robots any time soon.

---

Matthew Skala (mskala@ansuz.sooke.bc.ca) holds an MSc in computer science and is a Ph.D. candidate in computer science at the University of Waterloo, ON. Brett Bonfield (Brett@DisappearingMoment.com) earned his MS(LIS) from Drexel University in September 2007. He is currently dividing his work time between libraries at Temple University and Saint Joseph's University in Philadelphia. Mary Fran Torpey (mftorpey@eden.rutgers.edu) will earn her MLIS from Rutgers University, NJ, in August 2008. She holds a JD and works as a lawyer in Philadelphia and a reference assistant at the University of Pennsylvania's Biddle Law Library