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The Public-Access Computer Systems Review 2, no. 1 (1991):
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164-170.
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Recursive Reviews
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Copyright, Digital Media, and Libraries
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by Martin Halbert
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Running a branch library devoted to computational materials, I am
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frequently amazed at patrons' lack of understanding of copyright
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issues. One patron, an otherwise very intelligent research
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scientist, was baffled concerning the restrictions inherent in
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checking software out of the library. The magnitude of his
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misunderstanding came home to me when he asked if our
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restrictions meant that he didn't need to bring his own disks to
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copy the software onto. He thought, in all honesty, I finally
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realized, that copying the software was what checking out
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software was all about. After a very long discussion with him
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about copyright and why it is illegal to copy software, he went
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away somewhat shocked, but at least informed.
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While most librarians have a better understanding of the concept
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of copyright than my patron, how many of us have really thought
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about all the ramifications of copyright and new digital media
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technologies? Librarians are ostensibly supposed to be experts
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on the proper use of the collections of information they
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administer. This month's column is devoted to a brief
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bibliography on the subject of copyright and digital media. I
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know that I had never considered many of the issues raised in the
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sources reviewed below, so I think they will be of interest to
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all librarians who have added any kind of digital media (e.g.,
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software and CD-ROM databases) to their collections.
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+ Page 165 +
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U.S. Congress, Office of Technology Assessment. Intellectual
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Property Rights in an Age of Electronics and Information.
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Washington, D.C.: U.S. Government Printing Office, April 1986.
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OTA-CIT-302.
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This 1986 report by the Office of Technology Assessment is the
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best existing review and discussion of how new technological
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developments have impacted the concept of intellectual property
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in the United States. Many discussions of the topic begin with a
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review of this source (see below), which is justifiable
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considering its quality. The 300-page report concisely covers
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the conceptual framework and goals of intellectual property
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rights, how current laws have tried to accommodate technological
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change, enforcement issues, and the role of the federal
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government as a regulator. The conclusion of the report is that
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the new technologies, especially functional works like software,
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have rendered the existing concepts and implementations of
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domestic intellectual property law obsolete. An entirely new
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approach to the issue of what constitutes intellectual property
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and how to regulate it will have to be developed by congress.
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The OTA report raises profoundly troubling issues for librarians
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and the entire information industry.
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U.S. Congress, Office of Technology Assessment. Computer
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Software and Intellectual Property--Background Paper.
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Washington, D.C.: U.S. Government Printing Office, March 1990.
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OTA-BP-CIT-61
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Drawing on the 1986 OTA report and others, this OTA background
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paper further analyzes software issues. It goes into greater
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detail concerning questions peculiar to software, such as
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addressing the following questions. Can an interface be
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copyrighted? Can the concept of an algorithm be unambiguously
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defined? Patented? Is a neural net to be considered a software
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system or a hardware system? The paper includes a few
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developments which happened after the 1986 OTA report, but
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fundamentally the paper only raises questions and provides a
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context for discussing the problem. Real answers may be a long
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way off.
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+ Page 166 +
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Duggan, Mary Kay. "Copyright of Electronic Information: Issues
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and Questions." Online 15, no. 3 (May 1991): 20-26. (ISSN
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0146-5422)
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Because developments in the law have lagged so far behind
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technological developments, many issues of copyright and digital
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media are being resolved in practice, if not in legal fact.
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Duggan discusses emerging views about what constitutes "fair use"
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of electronic information sources. She concludes that while some
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consensus is developing about use of search results from CD-ROM
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and dial-up databases, little agreement has yet been reached
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about LAN and WAN access to databases and other network
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information sources.
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Garret, John R. "Text to Screen Revisited: Copyright in the
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Electronic Age." Online 15, no. 2 (March 1991): 22-24. (ISSN
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0146-5422)
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John Garret is the director of market development at the
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Copyright Clearance Center. Taking a very different view from
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most of the other sources reviewed in this column, he maintains
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that current copyright laws are perfectly capable of dealing with
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the new electronic environment. He calls into question many of
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the assumptions about computer systems and monetary funding that
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(he claims) underlie the move to overhaul the copyright system.
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He describes a variety of small-scale pilot projects that the
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Copyright Clearance Center has undertaken in conjunction with
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publishers and researchers "to provide owner-authorized,
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text-based information electronically for internal use to various
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sets of users, and to determine what they use, when they use it,
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why, how often, and to what end." He further claims: "For these
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pilots, and for other, larger-scale programs that will be
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developed in the future, existing copyright law provides a
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perfectly adequate context for the development and elaboration of
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systems to manage computer-based text."
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+ Page 167 +
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While one has to wonder whether Mr. Garret is unbiased in this
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matter given his position, he does make a convincing argument for
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the limited case of electronic access to text-only databases.
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However, his points do not address the larger issues raised in
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the OTA intellectual property studies.
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Alexander, Adrian W., and Julie S. Alexander. "Intellectual
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Property Rights and the 'Sacred Engine': Scholarly Publishing in
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the Electronic Age." In Advances in Library Resource Sharing,
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ed. Jennifer Cargill and Diane J. Graves, 176-192. Westport,
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Conn.: Meckler, 1990.
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Adrian and Julie Alexander give a fine overview of the 1986 OTA
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report, as well as a conference on intellectual property rights
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held in 1987 by the Network Advisory Committee of the Library of
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Congress. They conclude with a broad discussion of the potential
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for electronic publishing for the scholarly research and
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publication process, which echoes many of the themes discussed at
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recent meetings of the Coalition for Networked Information.
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They maintain, as some CNI speakers have, that electronic
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publishing represents an opportunity for universities to
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recapture their intellectual property from the expensive and
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fruitless cycle of sale back and forth to publishers. They also
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point out that publishers want to capture this potential
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publication medium as well.
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+ Page 168 +
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Shuman, Bruce A., and Joseph J. Mika. "Copyrighted Software and
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Infringement by Libraries." Library and Archival Security 9, no.
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1 (1989): 29-36. (ISSN 0196-0075)
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Shuman and Mika provide a good overview of the current state of
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software piracy and copyright infringement, with a few additional
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comments that describe the situation of libraries which circulate
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software. They are quite critical of the practice of
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"shrink-wrap" licensing which many vendors have taken up. This
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is the familiar tactic of pasting a license agreement with many
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restrictions on the outside of a shrink-wrapped software package,
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with a statement to the effect of "if you open this package, you
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thereby agree to this license." They describe the many problems
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involved in trying to police the use of software by library
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patrons, and state that: "Librarians will continue to find
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themselves between copyright holders and license-vendors, eager
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to recover the money they feel entitled to, and patrons (and
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sometimes library employees) who wish to 'liberate' programs,
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whether out of simple greed, a love of the challenge, altruism,
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or a 'Robin Hood' complex."
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Denning, Dorothy E. "The United States vs. Craig Neidorf."
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Communications of the ACM 34, no. 3 (March 1991): 24-32. (ISSN
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0001-0782)
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Finally, I would like to conclude this column with an example of
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the kinds of troubling legal actions that are surely brewing on
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the horizon.
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The March 1991 Communications of the ACM was partly devoted to a
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debate concerning electronic publishing, constitutional rights,
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and hackers. The article by Dorothy Denning was a description of
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the trial of Craig Neidorf, a pre-law student at the University
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of Missouri. Neidorf was charged by a federal grand jury with
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wire fraud, computer fraud, and interstate transportation of
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stolen property.
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+ Page 169 +
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All this because he published a document (containing what turned
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out to be public domain information) in an electronic journal he
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edited. The electronic journal was called "Phrack," a
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contraction of the terms "Phreak" (the act of breaking into
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telecommunications systems) and "Hack" (the act of breaking into
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computer systems). The document in question concerned the E911
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system of Southwestern Bell, and it contained only information
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that was already in the public domain. The charges against
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Neidorf were dropped when this was brought up during the trial,
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but Neidorf was left with all his court costs, amounting to
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$100,000.
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Now, regardless of what one thinks of Neidorf or the ethics of
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hacking, the fact that the U.S. government can bankrupt an
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individual (or institution!) by making groundless accusations of
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publishing "secret" electronic documents bears attention!
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Neidorf's case may potentially mark the beginning of entirely new
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types of censorship revolving around electronic media. Denning's
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article points out that currently the government can seize all
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computer equipment and files of an individual or organization,
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and hold them for months. This kind of search and seizure (again
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on mistaken grounds) devastated one small company called Steve
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Jackson Games. Denning discusses this incident as well, and it
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is chilling to imagine happening by accident to one's own
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organization.
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Problems of copyright and the new digital media are only now
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beginning to surface, but they have been inherent in the new
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technologies since at least the sixties. Libraries and society
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as a whole will increasingly have to face these issues, either in
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legislation by a forward-looking congress, or more likely in
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painful court trials like the United States vs. Neidorf.
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+ Page 170 +
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About the Author
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Martin Halbert
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Automation and Reference Librarian
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Fondren Library
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Rice University
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Houston, TX 77251-1892
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HALBERT@RICEVM1.RICE.EDU
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The Public-Access Computer Systems Review is an electronic
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journal. It is sent free of charge to participants of the
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Public-Access Computer Systems Forum (PACS-L), a computer
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conference on BITNET. To join PACS-L, send an electronic mail
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message to LISTSERV@UHUPVM1 that says: SUBSCRIBE PACS-L First
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Name Last Name.
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This article is Copyright (C) 1991 by Martin Halbert. All Rights
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Reserved.
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The Public-Access Computer Systems Review is Copyright (C) 1991
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by the University Libraries, University of Houston, University
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Park. All Rights Reserved.
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Copying is permitted for noncommercial use by computer
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conferences, individual scholars, and libraries. Libraries are
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authorized to add the journal to their collection, in electronic
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or printed form, at no charge. This message must appear on all
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copied material. All commercial use requires permission.
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