Tomas A. Lipinski

Rethinking the ownership of information in the21st century: Ethical implications

This paper discusses basic concepts and recentdevelopments in intellectual property ownership in theUnited States. Various philosophical arguments havepreviously been put forward to support the creation andmaintenance of intellectual property systems. However, in an age of information, access toinformation is a critical need and should beguaranteed for every citizen. Any right of controlover the information, adopted as an incentive toencourage creation and distribution of intellectualproperty, should be subservient to an overriding needto ensure access to the information. The principlesunderlying intellectual property regimes in the UnitedStates recognize and embody this. In addition, thephilosophical/ethical dimensions of this debate couldalso be structured to support this attitude as well. Intellectual property is fast becoming digitalproperty. New technologies allow owners to extendtheir control of both legitimate uses and misuses ofthe intellectual property. Recent trends demonstratethat the access principle has not always beenparamount in judicial or legislative applications. Thetrend rather is to allow a proprietarianism factor todominate the analysis. Finally, several principles areforwarded which would assist adjudicators and policymakers in reaffirming the basic purpose of theintellectual property law, which is to benefit thepublic at large.

Indigenous knowledge: A moral reflection on current legal concepts of intellectual property

Indigenous knowledge of underdeveloped countries or of underdeveloped peoples within developed or developing nations is a sought after commodity in todays marketplace. These commercialisation pressures will increase in the globalised climate of the new-world economic order. Since knowledge is intangible, legal protection of intangible knowledge is minimal. However, when the knowledge is expressed in a tangible form, societies have seen fit to offer protection under the rubric of intellectual property laws. In addition, these developments have emerged from a ‘Western’ or ‘developed’ legal tradition and are often inadequate to deal with the scenarios in which indigenous knowledge often resides. Several examples from patent, trademark, and copyright present these shortcomings. In addition, the cultural differences between concepts of developed versus indigenous property further highlight the problem of achieving a harmonised and universal set of legal protections. The result is a disparity of access to existing intellectual property of others by indigenous and developing peoples. More critical for the purpose of the present discussion is a second disparity in the inadequacy of existing intellectual property regimes to protect indigenous culture and knowledge from development, and often exploitation. In response to this, a discussion of ethical implications of the disparity is undertaken in an attempt to provide a moral basis upon which past practices and future protection mechanisms can be evaluated. In conclusion, a list of principles are forwarded identifying the moral-legal rights indigenous peoples have in their own knowledge and in their right to access the intellectual knowledge of others.

The Commodification of Information and the Extension of Proprietary Rights into the Public Domain: Recent Legal (Case and Other) Developments in the United States

As the National Information Infra- structure develops new avenues for information products and services will open. Creating, identifying and protecting the information market space is a critical component to the success of information product and service developments. As a result, the producers of those products and service seek to protect their proprietary interest in the underlying information. However, these actions have broader consequences: Attempts to extend legal protection to basic facts and other public domain information demonstrate that the public information space is slowly being reduced. Reviewing several information controversies as case studies is fruitful. Not only for assessing current trends in information disputes (warfare) but can form the basis for establishing several predictors useful in determining when future information ownership controversies may develop and result in the loss of public information space. One set of predictors helps define the information controversy and is descriptive. The second set of predictors characterizes the marketplace environment. It provides further nuance to the economic factors that force information owners to seek legal remedy. Identifying instances where both models suggest a change in information rights or ownership is most likely to result in the critical loss of access to public information space.

The myth of technological neutrality in copyright and the rights of institutional users: recent legal challenges to the information organization as mediator and the impact of the DMCA, WIPO, and TEACH

This article discusses the accelerating trend of ownership rights in digital property, copyright, in specific. This trend is in contrast to the stated legislative purpose of copyright law to be neutral as to the technology that either owners employ to embody the copyrighted work or that others employ to facilitate access and use of the work. Recent legislative initiatives as well as interpretive court decisions have undermined this important concept. There is an ascendancy of digital ownership rights that threatens to undermine the concept of technological neutrality, which in essence guarantees that ownership and well as use rights apply equally to analog and digital environments. The result of this skewing is two-fold: an unstable environment with respect to the access and use rights of individuals, institutions, and other users of copyrighted material, and the incentive of copyright owners to present works to the public in digital formats alone, where ownership rights are strongest. This article attempts to plot that digital ascendancy and demonstrate the undermining of neutrality principles.

Sticks and stones and words that harm: Liability vs. responsibility, section 230 anddefamatory speech in cyberspace

This article explores recent developments inthe regulation of Internet speech, inparticular, injurious or defamatory speech andthe impact the attempts at regulation arehaving on the `body in the sense of theindividual person who speaks through the mediumof the Internet and upon those harmed by thatspeech. The article proceeds in threesections. First, a brief history of the legalattempts to regulate defamatory Internet speechin the United States is presented; a shortcomparative discussion of defamation law in theUK and Australia is included. As discussedbelow, this regulation has altered thetraditional legal paradigm of responsibilityand, as a result, creates potential problems forthe future of unrestricted and even anonymousspeech on the Internet. Second, an ethicalassessment is made of the defamatory speechenvironment in order to determine which actorshave moral responsibility for the harm causedby defamatory speech. This moral assessment iscompared to the developing and anticipatedlegal paradigm to identify possible conformityof moral and legal tenants or to recognize theconflict between morality and law in assigningresponsibility to defamatory actors. Thisassessment then concludes with possiblesuggestions for changes in the legal climategoverning the regulation of defamatory speechon the Internet, as well as prediction of theresult should the legal climate continue todevelop on its present course. This is not tosuggest that all law, or even the law ofdefamation, be structured to reflect thesubjectivity of a moral construct, but since itis the authors position that the legalassignment of liability in online settings ismisaligned, this reflection can serve asbeginning reassessment of that assignment.

To Speak or Not to Speak: Developing Legal Standards for Anonymous Speech on the Internet

This paper explores recent developments in the regulation of Internet speech, in specific, injurious or defamatory speech and the impact such speech has on the rights of anonymous speakers to remain anonymous as opposed to having their identity revealed to plaintiffs or other third parties. The paper proceeds in four sections. First, a brief history of the legal attempts to regulate defamatory Internet speech in the United States is presented. As discussed below this regulation has altered the traditional legal paradigm of responsibility and as a result creates potential problems for the future of anonymous speech on the Internet. As a result plaintiffs are no longer pursuing litigation against service providers but taking their dispute directly to the anonymous speaker. Second, several cases have arisen in the United States where plaintiffs have requested the identity of the anonymous Internet speaker be revealed. These cases are surveyed. Third, the cases are analyzed in order to determine the factors that courts require to be present before the identity of an anonymous speaker will be revealed. The release is typically accomplished by the enforcement of a discovery subpoena issued by the moving party. The factors courts have used are as follows: jurisdiction, good faith (both internal and external), necessity (basic and sometimes absolute), and at times proprietary interest. Finally, these factors are applied in three scenarios—e-commerce, education, and employment—to guide institutions when adopting policies that regulate when the identity of an anonymous speaker—a customer, a student or an employee—would be released as part of an internal initiative, but would nonetheless be consistent with developing legal standards.

The "girl next door" in virtual play space: victim, or vixen, or invisible?

This paper begins a comprehensive analysis of gender and virtual gaming, and the ethics and legality surrounding this dyad. The first part of the paper introduces the ideas of gaming as an act of representational politics - what is taking place with female images, girls and women as characters and as players, and consequently, how can we assess the ethical significance of these in a broad social realm? While various sociologists, psychologists, educators and others debate the direct and causal impact of video and computer gaming on children and young adults in terms of violence, this paper avoids that hotly contested link (especially within the current climate of school shootings and children-on-children violence). Instead, the legalistic concept of dangerous information is invoked and explored. We argue that such forms of expression as music, games, film, television, etc., do not in and of themselves incite or promote violence, bias, bigotry or sexism. A large amount of case law is presented and discussed to support this premise. Instead, these forms of entertainment contribute to forms of social discourse and maintain a rigid politics of gender in which women and girls are relegated to the unethical social realm where they exist only as victims or vixens, or do not exist at all.

Prudent policy?: reassessing the digital millennium copyright act

The United States recognized intellectual property rights from its earliest days and included, in its constitution, a clause which expresses this, To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. These few words found in Article 1, Section 8, Clause 8 have grown into a massive body of laws that govern works that were unimaginable to Thomas Jefferson and his contemporaries. Our question today is very simple: is the latest metamorphosis of copyright law, the Digital Millennial Copyright Act of 1998 (DMCA), prudent policy? Specifically, we are concerned with three issues which critics have raised regarding this act: chilling effects on fair use, suppression of innovation, and overreach. We will also touch on the criticism which stresses that the DMCA further expands a system which increasingly and unfairly favors the content industries. This will be limited to illustrating extant tensions between copyright owners and society and also the difficulties law faces in keeping pace with the current, rapid and overwhelming technological and cultural change. We rely primarily on leading cases to establish the impact on fair use and innovation or to demonstrate over reach.

An argument for the application of copyright law to distance education

Abstract This article presents a legal analysis of the application of copyright law to distance education environments, particularly as it applies to Web‐based instruction and the construction of electronic reserves, or so‐called virtual libraries. The author argues that revision of copyright law to allow for the reproduction, display, and performance of works in these settings is consistent with national policy and existing and developing copyright law. The dangers of moving toward a schema of universal or compulsory licensing of information products and services are also explored. Finally, the author suggests several possible components that new legislation or “fair use” guidelines might include.