In 2003, a hacker broke into the computer system of electronic voting machine manufacturer Diebold Systems, Inc., and discovered thousands of internal e-mails expressing concern about the machines' frequent breakdowns and vulnerability to attack. The hacker's ill-gotten treasure quickly spread throughout cyberspace, and Diebold sent dozens of cease-and-desist notices to Web site publishers and Internet service providers (ISPs), demanding that they remove any content of or links to the stolen Diebold messages. The company claimed the messages were protected by copyright.
Tomas Lipinski
In response, two Swarthmore (Pennsylvania) College students who had posted an archive of the messages and nonprofit ISP Online Policy Group sued Diebold for abuse of copyright law. Just days after the suit attracted media and House Judiciary Committee attention, Diebold abandoned its cease-and-desist orders, and in October 2004, the students and the ISP won their court case.
But this triumph offers little comfort to Tomas Lipinski, one of a number of UWM professors concerned about the "chilling effect" of using intellectual property laws to control information.
"It is an insidious trend," the associate professor of information studies says. "The company knew about the problems with its machines, yet they tried to silence public debate about voting, a debate that is at the heart of our democratic process."
Much of Lipinski's recent work on Internet information law and policy has addressed intellectual property rights in cyberspace. The dilemma, he says, is balancing citizens' access to information with the control of intellectual property.
"The information age has put enormous stress on the legal mechanisms for protecting intellectual property," says Lipinski, who is also co-director of the Center for Information Policy Research in the School of Information Studies. The problems have arisen, he says, over conflicting viewpoints about how to best characterize space on the Internet, specifically the World Wide Web. "Some argue that traditional ownership rights should apply, or perhaps a model of limited property rights," he says. "This assumes an implied license to 'trespass' or move within that space, such as visiting or linking to another Web site. Others believe that private ordering systems, such as contract law, should dominate the negotiation of information boundaries. Still others see the Internet as the 'last open frontier,' or at least, as the 'last green space' or 'commons.' "
Whichever system may ultimately prevail, Lipinski says it should support an essential principle: in an age of information, access to information is a critical need and should be guaranteed for every citizen. Thus, any right of control over information-typically granted as an incentive to encourage the creation and distribution of intellectual property-must still ensure access to the information.
In the U.S., the tenets underlying intellectual property regimes (patent, trademark, trade secret, and copyright) recognize and embody this principle. "However, intellectual property is fast becoming digital property," says Lipinski, who holds a PhD in Library and Information Science from the University of Illinois at Urbana-Champaign and a JD from Marquette University Law School. "New technologies allow owners to extend their control of both legitimate uses and misuses of the intellectual property." Recent trends in judicial or legislative applications have not always upheld the access principle, he says. " 'Proprietarianism' tends to dominate."
For example, Internet "content owners" have been using intellectual property laws to invade information space. These include licensing agreements that require licensees to report infringements by their users and court cases that have forced institutions to strengthen their risk management programs.
Lipinski says he is following closely the aftermath of MGM vs. Grokster, a unanimous June 2005 Supreme Court decision. In overturning a lower court ruling, the Court allowed entertainment industry lawsuits against Internet service providers that allow users to swap songs and movies for free, known as file sharing or "peer-to-peer" sharing. The decision was a big setback for technology companies. "It's rare to get all nine justices to agree," Lipinski says. "It sent a serious message that the Court will not tolerate copyright infringement on the Internet." He believes that Congress and the courts are at the breaking point on this issue, and stronger legislation, prompted primarily by the heavy hitters in the entertainment industry, will emerge. "Even in a bad economy, the U.S. exports entertainment, which affects GNP," Lipinski says. "Congress listens to the industry."
Lipinski says that Grokster and similar decisions will have a trickledown impact on users. "This decision affects all people who fileshare, especially illegally," he says. "It will affect our daily lives through the threat of indirect infringement, or secondary liability." Colleges and universities, for example, may soon have to put in place mechanisms to shut down computer systems if there is excessive downloading by users. "Before the guilty student or faculty member can get back on the server, he or she will have to take a 'Copyright 101' course." Lipinski also envisions stronger risk management efforts at institutions of higher learning, such as posted warnings, newsletters, and instruction of faculty and staff on risk management and infringement issues.
"Congress and the courts are putting entities in a defensive posture," he says. "Schools will have to implement increasingly active compliance programs. But since universities have traditionally been centers of the free expression of ideas, we will need to carefully monitor the effects on free speech and debate."
