Saturday, May 06, 2006

Interview: Hal Abelson, "Intellectual Property, Copyrights, and Universities"

Hal Abelson,

Electrical Engineering and Computer Science


(Portrait by Phillip Greenspun)

Technology has a way of exposing our social and political institutions. It often provides us new capabilities that clash or conflict with these timeworn, comfortable agreements. What we once took for granted is now cast in an entirely new light. The Internet is a good example. It has created unprecedented freedom and ease for accessing information. At the same time, it has challenged the customary commerce between the producers and consumers of that information. Colleges and universities have found themselves right in the middle of this upheaval. From apprehending undergrads on RIAA's Most Wanted List to dealing with the spiraling prices for scholarly print and electronic publishing, our universities have become involuntary players in this conflict.

Dr. Hal Abelson, national Phi Beta Kappa Visiting Scholar for 2003-4, is concerned about these and related issues. In a recent visit to Furman University, he spoke on "Universities, the Internet, and the Intellectual Commons."

Dr. Harold (Hal) Abelson is Class of 1922 Professor of Electrical Engineering and Computer Science at the Massachusetts Institute of Technology (MIT) and a Fellow of the IEEE. He earned his A.B. degree from Princeton University and the doctorate degree in mathematics from MIT. Dr. Abelson joined the MIT faculty in 1973. Throughout his career, Professor Abelson has been dedicated to the improvement of undergraduate computer science education. In 1981, he pioneered the use of Logo for teaching formal concepts of programming and exploring mathematical concepts. In 1982, with Andrea diSessa, he published the extremely popular text, Turtle Geometry . In 1985, he published the influential Structure and Interpretation of Computer Programs , with co-authors Gerald and Julie Sussman. This spawned a generation of students who cut their programming teeth using Scheme.

In 1992, Professor Abelson was designated as one of MIT's six inaugural MacVicar Faculty Fellows in recognition of his significant contributions to teaching and undergraduate education. Also in 1992, he was the recipient of the Bose Award (MIT's School of Engineering teaching award) and winner of the 1995 Taylor L. Booth Education Award given by the IEEE Computer Society. For the latter, he was cited for his "continued contributions to the pedagogy and teaching of introductory computer science."

Currently, Professor Abelson is co-director of the MIT Project on Mathematics and Computation, whose goal is to create better computational tools for scientists and engineers.

Dr. Abelson is a founding board member of the Free Software Foundation, and a founding co-director of the Creative Commons. He is also co-head of the MIT Council on Educational Technology.

In his lecture at Furman, Dr. Abelson spoke of the responsibility that universities have to create, preserve and disseminate knowledge in the face of challenges from technology and increasingly stringent intellectual property laws. He explored the prospect of a middle ground between the commercial interests that attempt to force strict regulation (thereby thwarting creativity and the free exchange of ideas) and those who claim that everything should be free and no one has rights to the products of their intellectual work.

Between his public lectures and classroom presentations, we had an opportunity to discuss these issues with him.

Editor ( ED ): Our laws establishing copyrights are based on the concept of intellectual property. How would you explain this important concept?

Hal Abelson ( HA ): Intellectual property is actually a social construct. In the United States at least, it is derived from a theory of balance. The goal is to balance the opportunities of writers, artists and creators to get benefit from their works against the opportunities of society to make use of these works. It goes back to the Constitution, Article 1, Section B. The theory is that an individual is granted a time-limited monopoly on various uses of his work. Since that time--nearly three hundred years of copyright law--we have fought to find exactly what this balance is. Over this history, the pendulum has swung one way or the other.

ED : So the idea of property in intellectual property doesn't really fit the same way that we understand material property, for example?

HA : Property is a little bit of an uncomfortable fit. If we wanted to be radical about it, we could say that all property is a social construct. A good example, in the nineteenth century, is water rights. Water rights was the "intellectual property" fight for that century. Do I automatically own the water rights for a stream running through my farm? Can I sell these rights to a city? Water, of course, was an important commodity; and the last half of the century was spent fighting about what it meant to have something called "water rights." Nowadays we are talking about "intellectual property" rights, and the same kind of fighting is going on. There are all sorts of competing interests and these interests need to be balanced. But, it is not property in the sense that you might be able to make exclusive use of it. Copyright, instead, is a very specifically defined set of monopoly rights that the government grants to the creator.

ED : The copyright laws support what is termed "fair use." Isn't this intended to contribute to a sense of balance?

HA : Fair use is one of the balancing principles, but there are others. One is that copyright is time limited. But, more importantly, copyright does not guarantee the owner exclusive use of the work. Instead, copyright is a very specific set of rights. The owner has the right to reproduce his work, the right to perform that work in public, the right to make derivative works. So, it is a very precisely enumerated set of rights and privileges.

There is another element called the "first sale" doctrine, for example. If you bought a book from a publisher, for instance, you can resell that book without the permission of the publisher. There are various other limitations. But, it is a very complicated law; and the reason why it is so complicated is because these are all details that have been worked out over time. Here is another example. If you go before an audience and start reading from the script of a play, then you are infringing on the author's copyright--the exclusive rights for the public performance of that play. On the other hand, if you read a passage from a novel to that same audience, you are not infringing anyone's copyright. And that is just a reflection of how these issues were negotiated. The playwrights happened to be at the table speaking up for their interests and the novelists were not.

ED : Part of the reasoning behind our copyright laws was that it promoted commerce in the sense that it helped to develop ideas.

HA : Right. But, again, the balance goes both ways. Part of promoting commerce is guaranteeing that the creators are rewarded. Another part is ensuring that the "raw materials" from which one creates are likewise made available. So, it cuts both ways. Again, the balance must always be negotiated.

ED : New technologies that affect how we produce and exchange information always seem have an impact on these practices. This is certainly true for digital information technology. What effects has it had on how we handle copyrights?

HA : That is a very complicated question, which deserves unfortunately a very long answer. One aspect is that this is merely another case of copyright confronting another new technology. In general, copyright law has gone through

this kind of transformation before. For example, music publishers were very upset when piano rolls were introduced [for player pianos]. At that time there were no laws that affected mechanical devices playing music. Then the publishers of sheet music banded together. They said that no one is allowed to make piano rolls of their music without their permission, because it infringes on their copyright. This, of course, is exactly what music producers are saying today about music on the Internet. Eventually, this earlier controversy got sorted out. They introduced various types of licenses for piano rolls. And, this was the origin of what we call "recording rights" versus musical composition rights. So, this is an example of a new technology arriving without being well defined with respect to copyrights. But, at the end of the day, a deal is cut to rectify matters. Before the deal, though, there are a lot of accusations being thrown about. Everyone accuses everyone else of being pirates. Eventually, all this gets worked out.

But, digital information has had a much deeper effect on copyright law. Before 1970, it didn't matter much what copyright law stated. Copyright laws often were based on complicated, negotiated deals between interested parties--the publishers. And it didn't matter that the law was very complicated because it was written for copyright lawyers who worked for the competing industries. The point is that this is a law for the professionals. In 1960, someone would have to go to a lot of effort to get into trouble with copyright laws. Suppose that you took a book and made ten photocopies to give away to your friends. No one would care. For the average person, it didn't matter much what copyright laws said. But what is happening now is that normal people making even casual use of the Internet are suddenly infringing copyrights in a big way. So, as a result, copyright law now becomes an issue for the public. The problem is that copyright law is not intended for the public. It is a law that is unintelligible for anyone other than copyright lawyers. It has these draconian notions that anyone copying something is a pirate. This is just a lot of nonsense. What the Internet has done is put a fundamental strain on copyright law. Copyright has always been a negotiation between interested parties. Because of the Internet, the public now is an interested party. The problem, though, is there are no mechanisms for representing the public interest. In principle, the Congress is supposed to represent the public's interest. But, for the past fifty years at least, Congress has been legislating copyright law by allowing the various industries to work out a deal, which they then would pass into law. This is how copyright law has been made for a very long time.

ED : So the public's interest has never really been represented?

HA : There never really was a public interest. What would you care if the translation of a work to another language were protected by copyright, if a photograph were covered by copyright? Look at some of the big copyright cases. The book Ben-Hur was made into a movie [i.e., the original 1907 version] and the author sued the movie studio for copyright infringement. The studio argued that there were no restrictions on using characters from the book. This was the beginning of another cycle in the law that eventually decided whether films were subject to copyright. But, this was never an issue about the public. Now, however, it is about the public. But, it is outrageous to think that the public should understand copyright law.

ED : What kind of impact has all this had on colleges and universities?

HA : I think that it is potentially very dangerous for them. Remember earlier I talked about balancing the competing interests of those who want to be rewarded for what they create versus those who need raw materials in order to create. Universities are very much on the raw material side of the equation. Maybe there are some colleges where a few professors actually make some money from what they produce, but what most of us really need is a large source of stuff from which we make new stuff. Colleges and universities are crucial in this dynamic that goes back and forth between the public and private sectors: using public information for creating new things, transferring them to the private sector, and getting them back to generate newer ones. This is a wonderful cycle that happens in the United States. But, if we lock up the source of raw materials, then we start to destroy that cycle.

Faculty members, for example, write books. Some amount of the material in these books is original--and that is good--but often a great deal of the book is the author reformulating what other people have said. But, if you were not allowed to build on other people's work without obtaining a license from them, then writing new books would become almost impossible. The same holds true when we lecture in our classes. Imagine that you couldn't say anything in class that wasn't completely original without buying a license for it first. But, yet we do precisely that with software today. Somehow we have gotten to the state that we give students licenses to software that they can't experiment with or modify. We say that is okay, but it is not okay.

ED : What has MIT been doing to meet these challenges?

HA : MIT like many others is a complicated place with many competing interests. We have been doing things under the rubric of what we call "strengthening the Intellectual Commons." The "Intellectual Commons" is a term coined by Jamie Boyle , who teaches at Duke Law School. It refers to a common wellspring of information and ideas. At MIT, we have been doing a couple of things. One is the OpenCourseWare project in which we are taking--ultimately, and with a lot of luck--materials from all of our courses and publishing them on the Web for free use. Part of the reasoning for this is to defuse the idea that these materials have tremendous monetary value. This is not content that we should be fighting over; this is what we should be distributing for free. And, from MIT's point of view, it would be great if a lot of other colleges and universities gave this stuff away freely too. As faculty members, then, there would be a great wealth of material that we could use to help in educating our students.

Another project at MIT is a publication archive [ DSpace ]. You may know about the original Lawrence Livermore National Laboratory prepublication archive for physics. We are creating a similar archive for all of MIT that is managed by the libraries. The notion is that a faculty member who writes a paper, rather than posting it on a personal Web server under his desk, would send it to the library. The library would guarantee a permanent URL for the source so that the author or anyone else could access it. The archive also permits authors to determine who gets access to these works. Not everything will be completely open. It will be up to the individual faculty member to decide. But, it gives the University a place to archive papers, articles, books, and lots of other resources.

ED : What types of licenses or access would be available?

HA : Our plan is to have a range of Creative Commons licenses to choose from. The archive is called "DSpace," and DSpace is organized into collections. A collection might be the working papers of some laboratory, for example, or the Business School reports, or a department's technical reports. Each collection has its established policies that include which licenses are in effect. Most of these will be Creative Commons licenses, but there will be different kinds. Some licenses might be for noncommercial use only; some might allow commercial use. Some might be restricted so that no one outside of MIT could access the material. There will not be a single policy, but a lot of different choices available to the people who contribute to these collections.

ED : What advantages do you see for this distributed access organization?

HA : A University is a complicated place, and there are lots of different kinds of interests there. So, you can't apply one single uniform policy for everyone's research production. Also, the libraries have no business prescribing such policies; they should be subservient to the faculty's interests.

In contrast, OpenCourseWare is a different matter. It is, in some sense, a publication of the University and has one distribution policy, which is free for noncommercial use.

ED : Anyone contributing to OpenCourseWare understands this at the outset?

HA : Effectively, a faculty member does not give his or her work to MIT. Instead, if you took materials from your research or notes and published them in OpenCourseWare, the materials would still belong to you. There is no transfer of copyright [as in the case of commercial publication]. What you are doing is giving MIT a restricted license to distribute those materials under the guidelines of the OpenCourseWare project.

ED : But, the faculty member still retains the copyrights for
these materials?

HA : Yes. This points to a real problem that a number of colleges and universities have gotten themselves into. And, it shows how complicated copyright laws are. Some people say, for example, that the right thing to do is for faculty to transfer copyright ownership to the university. But, adopting that policy produces the ridiculous situation that you could not make a derivative work of your own original work. It would be unlawful, for example, to revise your own lectures without getting permission from the university first. What this really shows is what a bad fit current copyright laws are for what colleges and universities do.


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