----------- MdU Library Gopher Header Information-----------
Title             : Computer Technology and Legal Discourse:
                  : The Potential For Modern Communication Technology
                  : To Challenge Legal Discourses Of Authorship and
                  : Property 
Author (s)        : Debora Halbert
Keywords          : Computers, internet, authorship, intellectual property
Abstract          : Many individuals hold the view that authorship is 
                  : lost on the net. With the rapid transfer of 
                  : information and the chaotic nature of internet
                  : communication, it becomes difficult to track an 
                  : author if indeed the name of one ever appears. This
                  : authorless move challenges notions of intellectual
                  : property and authorship that have long been
                  : cornerstones of our legal system. In this paper I 
                  : wish to argue that modern communications technology
                  : gives us an opportunity to again confront the
                  : debate over authorship and intellectual property 
                  : that has its roots in the 18th century. I argue that
                  : while this debate is certainly not new, the infusion
                  : of the hyper-reality of internet and virtual
                  : communication bring us to a point in which a more
                  : radical challenge to intellectual property 
                  : monopolies and the corresponding concept of the
                  : proprietary authorship can be examined. First, I
                  : wish to trace the 18th century debates on copyright
                  : and the emerging notion of the proprietary author
                  : to indicate how transformative this debate has been.
                  : Second, I wish to look at the emerging legal 
                  : discourse on computer technology and how it
                  : affects the technology's development and use, 
                  : pointing out the interesting parallels between the 
                  : 18th century debates and our own.
                  : Finally, I will examine what is obscured by this
                  : discourse and the possibilities for redrawing the 
                  : line between property and authorship on
                  : the one side and the collective good on the other. 
                  : I will attempt to answer the following questions:
                  : How does our perspective of computer technology 
                  : differ when seen through a legal as opposed to a       

                  : "hacker" discourse? What is obscured or made natural
                  : by each discourse? How do people use a discourse 
                  : about computers to create ownership and authorship 
                  : and how do others challenge this discourse? Finally,
                  : what are the alternatives? 
Contact name      : The Editors, E Law
Contact Address   : Murdoch University Law School, PO Box 1014, Canning  
                  : Vale, Western Australia 6155
Contact phone     : +61 09 360 2976
Contact e-mail    : elaw-editors@csuvax1.murdoch.edu.au
Last Verified     : 25 April 1994
Last Updated      : 25 April 1994
Creation Date     : 25 April 1994 1994
File size         : 
File type         : Document
File format       : ASCII
ISBN/ISSN         : 1321-8247
Publication Status: Final
Copyright Policy  : Material appearing in E Law is accepted on
                  : the basis that the material is the original, 
                  : uncopied work of the author or authors.  
                  : Authors agree to indemnify E Law for all damages,
                  : fines and costs associated with a finding of
                  : copyright infringement by the author or by E Law in
                  : disseminating the author's material.  In almost all
                  : cases material appearing in E Law will attract
                  : copyright protection under the Australian _Copyright
                  : Act 1968_ and the laws of countries which are member
                  : states of the _Berne Convention_, 
                  : _Universal Copyright Convention_ or have bi-lateral
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                  : the authors.  
URL: gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/
elaw/comment/halbert.txt
------------------------------------------------------------------------

COMPUTER TECHNOLOGY AND LEGAL DISCOURSE: THE POTENTIAL FOR MODERN
COMMUNICATION TECHNOLOGY TO CHALLENGE LEGAL DISCOURSES OF AUTHORSHIP AND
PROPERTY  
by Debora Halbert <halbert@uhunix.uhcc.hawaii.edu> 


As computers and computer technology become increasingly important to the
United States and global economies, hacking has become recognized as a
serious threat to national security and private property. The legal
community has defined hacking as a crime, where even "browsing" is
criminal behavior. Laws regulating "theft by browsing" were in place in
nearly every state by the mid 1980's (Mungo and Clough, 1992, p. 68). The
result is court battles and prison terms for computer crimes.  As
corporations put larger amounts of money on the line, as technology is
produced, created and improved ever faster, as more and more people learn
to move within cyberspace, those with an invested economic interest find
it essential to protect their "property." To guarantee protection they
involve the legal system which, while a powerful force, is unequipped to
deal with many of the technological issues confronting it. 

Computer related law is developed as a hybrid of patent and copyright law
thus establishing the confusion and arbitrary nature of the boundaries
these bodies of law enforce. As expected, presumption lies with the
status quo -- that there is a "right" to "own" information. Because I
think this general assumption and the boundaries used to enforce it need
to be challenged, I find it necessary to begin to understand the contours
of these issues as they become increasingly relevant in the area of
computer technology. Owning information assumes entirely new implications
in the information age where information is power and the building blocks
of the modern economy. Given the importance of information and the
technology making its flow possible, I believe we should seriously
evaluate computer technology in order to provide alternative perspectives
to private property and ownership.  

Outside of the legal discourse there are distinctively different
approaches to information being asserted. Many hackers, academics, and
those concerned with freedom in the information age speak of a collective
approach to information. They speak of freedom of information without any
constraints. As Gareth Branwyn quotes in Mondo 2000, "As every reality
hacker knows: "Information wants to be free" and "Plagiarism Saves Time"
(Branwyn, 1992, p. 30). As information passes via the internet with
little or no respect for copyright protection, many have come to wonder
if the entire concept of copyright is dead (Rose, November 1993, p.
112-113). Along with the potential death of copyright is the possible
death of the proprietary author. The "net," as it is often referred to,
makes it difficult to track authorship if an author is ever given. A
legal discourse is used to limit and confine technology within legally
created frameworks defined by private property rights. As the stakes
grow, the power of law is brought to bear upon this new type of criminal.
By the early 1990s people found guilty of computer related crimes
(usually credit card fraud and unlawful access to computer systems) were
treated much more harshly (Mungo and Clough, p. 68). The hacker discourse
threatens the premises of an information economy (where information is
bought and sold). Furthermore, the hacker discourse threatens something
with a long history of legal protection, and which the advent of
computers makes much easier to challenge -- the ownership of an idea or
information, the concept of intellectual property and authorship.
Technology makes it possible to challenge these concepts. After all, the
hegemonic discourse of intellectual property has been ingrained into our
system for centuries. However, because computers quicken the pace of
copying, transmitting, and disseminating information, and because it is
difficult to own something so easily transferrable, computers can be used
to challenge the very building blocks of knowledge construction.  

To bypass critical analysis of how computer technology is defined as a
legal issue, and one controlled by corporate owners who traditionally
benefit from battles over property, would be to let the trend towards
information rich versus information poor continue unabated. This paper
is an introductory look at how this gap is perpetuated through a legal
discourse and how intellectual property and authorship play significant
roles. Initially, I am interested in such questions as: How does our
perspective of computer technology differ when seen through a legal
discourse and a hacker discourse? What is obscured or made natural by
each discourse? How do people use a discourse about computers to create
ownership and authorship and how do others challenge this discourse?
Finally, what are the alternatives?  

First, I wish to trace the 18th century debates on copyright and the
emerging notion of the proprietary author to demonstrate how
transformative this debate has been. The similarities and differences of
print media to electronic media will hopefully be made apparent and in
the process the desirability of new ways of thinking will made clear.
Second, I wish to look at the emerging legal discourse on computer
technology and how it affects the technology's development and use,
pointing out the interesting parallels between the 18th century debates
and our own. Finally, I will examine what is obscured by this discourse
and the possibilities for redrawing the line between property and
authorship on the one side and the collective good on the other. 

THEORETICAL FRAMEWORK 

Despite my critical perspective of the narrative paradigm, I do see it
as having validity as a theoretical framework able to clarify previously
opaque issues. First, the narrative paradigm aids in uncovering hegemonic
processes. As Sara Cobb and Janet Rifkin state, "The storytelling
metaphor allows the hegemonic processes in discourse to come into focus"
(Cobb and Rifkin, 1991, p. 81). Second, the notion of neutrality is
questioned. Third, the strategic aspect of storytelling becomes clear,
as does the need to create alternative stories to the hegemonic ones.
Again, Cobb and Rifkin are enlightening: "Unless alternative stories are
elaborated, persons are coopted into identities they did not author and
cannot transform" (Ibid, p. 74). Finally, given the hegemonic power of
the dominant discourse alternative narratives can be used to make visible
assumptions within the dominant discourse. In essence, multiple stories
provide for multiple perspectives, the necessary ingredient for critical
analysis. 

Aside from these advantages, there appears to be close connections
between storytelling and the theoretical framework of discourse analysis.
Sally Merry points out that,  The same event, person, action, and so
forth can be named and interpreted in very different ways. The naming of
an action or event within a particular discourse, thus, interpreting the
event's meaning and assessing the motives behind it, is therefore an act
of power. Each naming points to a solution ( Merry, 1990, p. 111).  This
discourse perspective, while being similar to the storytelling paradigm
is not identical. Discourses are like paradigms, they are the tools used
to name an event, person or action. Storytelling is what happens within
discourses.  Using this theoretical framework (discourse) I want to
evaluate intellectual property as it relates to computer technology. 

For the most part, people writing books about computers and intellectual
property are interested in protecting this property from theft and
cementing current power relations through the legal system. Following the
emergence of concepts such as intellectual property and authorship and
their claims to truth can help us better understand contemporary debates
on the subject. I will turn to a brief genealogy of intellectual property
to illustrate how this discourse became legalized. 

A GENEALOGY OF INTELLECTUAL PROPERTY 

The distinction between writing and print is important. The impact of
writing on the accumulation of knowledge has been profound, but equally
profound is the impact of printing and the printing press. Writing made
localized access to knowledge possible, but the difficulties and
inaccuracies of copying prevented widespread use of written work. Authors
wrote to contribute to posterity and enhance their own fame, not for
economic gain. Consequently, while writing increased information storage
space, it wasn't until the printing press that writing had universal
applications made possible by a market economy and a more accurate
copying process. [fnt 1]  

The printing press made several innovations possible. First, duplication
became easier and more accurate. Second, mass distribution became viable.
The printing press revolutionized information storage, retrieval and
usage.  Printing, unlike writing, allowed a society to build on the past
with a confidence that each step was being made on a firm foundation.
Printing generated confidence that new information was an improvement
over the old. The revolution in the ability to accurately reproduce works
fostered an understanding that progress can occur through a process of
revision and improvement (Katsh, p. 34).   Thus, printing made the modern
book, concepts of progress, and scholarship possible. Written texts
tended to evolve based upon who was doing the copying and which parts
were of interest to them. Before, with writing, the oldest copies were
considered the most valuable and correct because inaccuracies developed
with each hand copied work. The increased accuracy and rapidity of new
editions made possible by the printing press made the most recent
editions more valued than the older. Additionally, access was now
available to the literate public. Printing provided a mechanism through
which a larger reading public developed thus constituting the emerging
public sphere.  Printing allowed for ideas to be more easily disseminated
for economic gain. 

The patron system was also an economic relationship, but as the book
industry developed, authors were given more freedom through the new
economic relationships available in a market economy. Who owns
information and profits from printed work become crucial questions when
economic considerations are made salient. In order for an intellectual
property system to be realized Mark Rose argues several criteria needed
to be met. First, "a sufficient market for books to sustain a commercial
system of cultural production" had to exist (Rose, 1988, p. 56). Second,
"the concept of the author as the originator of a literary text rather
than as the reproducer of traditional truths also had to be more fully
realized" (Ibid,p. 56) Third, "there had to be an adequate theory of
property, or, more precisely, an adequate mode of discourse about
property, a language in which the idea of the proprietary author could
[be] elaborated," a discourse realized with John Locke's theories about
property (Ibid, p. 58). 

The printing press and the corresponding expansion in literacy and
writing created the market necessary for Rose's first criteria. The
second and third criteria are what I wish to discuss in this section.
Because I will argue, along with Rose, that the concept of the
proprietary author developed out of debates over intellectual property
and copyright, I will first examine the development of a discourse on
property and then move into the emergence of the proprietary author. 

THE DEBATE OVER INTELLECTUAL PROPERTY 

Justin Hughes writes: ...Ideas about property have played a central role
in shaping the American legal order. For every Pilgrim who came to the
New World in search of religious freedom, there was at least one colonist
who came on the promise of a royal land grant or one slave compelled to
come as someone else's property (Hughes,1988, p. 288).  Tangible
property, meaning land, businesses, and even people, typically describes
our understanding of property rights. Tangible property rights are based
upon ownership and possession of a thing. Private property is central the
central unit of analysis, though communal property does exist. However,
the growing trend in property rights discourse is towards intangible
forms of property. A less frequently discussed trend is that historically
recognized but nonetheless atypical forms of property, such as
intellectual property, are becoming increasingly important relative to
the old paradigms of property, such as farms, factories, and furnishings
(Ibid, p. 288).  This atypical form of property is the subject of this
section.  

Pamela O. Long argues that what could be considered "intellectual
property" springs from medieval craft guilds that "fostered proprietary
attitudes towards (intangible) Craft knowledge, but that intellectual
property developed separately from the notion of individual authorship
(Long, 1991, p. 870) [ftn 2]. Craft guilds used intellectual property
rights to protect trade secrets from competitors. Intrinsic to
intellectual property are two concepts: a distinction between tangible
and intangible works; and intangible products are commercial property
(Long, p. 858). Important to Long's analysis is the claim that authorship
develops separately from intellectual property. A concept of authorship
was well established as early as the 1st century B.C. (Long, p. 853)
However, this ancient notion of authorship, while concerned with theft
of words and ideas, was not tied to an economic system. Instead,
"immortal fame" and a "precious legacy" were at stake (LOng, p. 856).
While authors and scholars worried about theft of works, there was a
"complete lack of a concept of intellectual property" (Long, p. 858). 
During the Middle Ages the link between authorship and intellectual
property remained unimportant. In part, the importance of alchemy and the
corresponding focus on esoteric writing created the framework through
which authorship was viewed. From this perspective one did not possess
or own knowledge, but was possessed and transformed by knowledge (Long,
p. 865). To the alchemist knowledge possesses, the individual is merely
a vessel for knowledge. Thus, proprietary ownership of knowledge is
inconsistent with the beliefs of the alchemist.  

A concept of intellectual property did develop within the market
economies of Italian medieval cities by the mid-13th century (Long, p.
870). Crucial to any craft were the processes used to create the goods.
These processes were intangible and thus difficult to protect.
Considering them as intangible property and thus subject to property
rules ensured some measure of protection. The economic importance of
guild "secrets" made it necessary to conceptualize these processes in a
manner worthy of protection. Within the guild/community context the
principles of intellectual property developed. Individuals leaving guilds
took more than trade secrets with them, they took a notion of
intellectual property. In order to justify leaving the guild with that
specific guild's "secrets," an individual emphasized their individual
ingenuity and the importance of authorship. Thus, intellectual property
rights developed through a strange mixture of guild secrets and
individuals attempting to justify their walking away from the guild with
those secrets (Long, p. 881). Thus, the first legal standards were drawn
from what would best protect the "rights" of guilds, the rights of
enterprising individuals, and the collective good. 

From 13th century Italian cities we move to 18th century England. The
Stationers' Company, the body established to censor printed material by
the Crown, held a virtual monopoly on all printing. This group was a
descendant of craft guilds. Before anything could be published it had to
be registered with the Company and became the "copies" of the Stationers'
Company (Earle, 1991, p. 269-290). The emergence of the "copy-right"
then, is the Stationers' Company right to copy rather than an individual
author's right to publish. However, at this point, control of copyright
was unimportant because the remains of guild practices kept the printing
monopoly intact (Prescott, 1989, p. 453-455). 

It wasn't until Scotland, not bound by English guild rules, began to
infringe on the London monopoly that copyright issues became salient
resulting in the important decision of Donaldson v. Beckett and setting
the stage for the development of the proprietary author (Prescott, p.
453-455).  Within the cultural framework of 18th century England the
battle over copyright raged (Rose, p. 56). The concept of the "modern
proprietary author" was used as a weapon in the struggle between the
London booksellers and the booksellers of the provinces" (Rose, p. 56)
What is unique here, and distinguishes it from Long's viewpoint, is that
authorship became proprietary instead of for posterity. 

This move is also what tied intellectual property and the legal
dimensions of that concept to the concept of an author. What is unique
about the Donaldson decision is the "development of 'intellectual
property' as a creation of the author's intellect..." (Earle, p. 278). 
Interestingly, the proprietary author was the London publisher's tool to
maintain strict control over copyrights. However, the arguments, once
made, took on new meaning with unexpected consequences. The creation of
the author has had a much more profound impact. This new social
relationship transformed the way society perceives the ownership of
knowledge.  In preliterate societies ownership of knowledge is
nonsensical. As Doug Brent puts it, "There simply is no "text" apart from
each individual incarnation of each tale" (Brent, 1993) In such a society
knowledge is not "owned" it is "performed." 

The story changes over time, but the change is not recognized as such
because there is no older text to return to. Knowledge cannot be
individualized because it is a collective process. Knowledge was held in
common, entrusted to the tellers of tales who were maintained by the
tribe, not for their individual contributions to the growth of ideas, but
for their ongoing duty to keep knowledge alive by performing it (Brent,
p. 3).  Copyright, the printing press, and literacy radically changes
ownership of knowledge. Writing allows for one to separate the text from
the author. Knowledge is no longer within the performance, but separate.
"A manuscript, however, can be handled, stored, retrieved from a vault
and re-performed a millennium after all previous readers have died.
Therefore, with writing, knowledge comes to be seen as something reified,
as existing outside the self" (Brent, p. 3) Once separated from the
group, knowledge is easily partitioned off into the individual "creators"
"property." This notion is assisted by the enlightenment notion of
authorship. The development of the author as originator of ideas is a
romantic notion with no intrinsic tie to intellectual property. 

The French case differs substantially from the English case and is worth
mentioning because of these differences. [fnt3] Using natural rights
philosophy French law "is said to enshrine the author: exclusive rights
flow from one's (preferred) status as a creator" (Hesse, p. 110). Like
England, the argument that ideas were the property of the individual
author was first advanced by the Paris Publishers' Guild in order to
defend their monopoly over texts from long dead authors (Hesse, p. 112). 
Essentially, Hesse agrees with Rose that the "modern author was first
conceived as individual property owner" (Hesse, p. 115). However, she
also argues that a second position was also prevalent in 18th century
France, one important to today's debate as well. Unlike a piece of land,
an idea can be discovered, inhabited, and used by an infinite number of
people at the same time. Ideas are not the creation of individual minds,
be it through revelation, appropriation, or cognition. Rather, they
inhere in nature, and hence are equally and simultaneously accessible
through the senses to all. They therefore can belong to no single
individual (Hesse, p. 116).   

This position, put forward by Condorcet in the 18th century is equally
important to evaluate today. It provides an argument derived from a
different perspective than the individual property rights analysis
defined by Rose and entrenched for centuries. But while it is clear that
the development of the proprietary author did not go uncontested the
alternative, romantic author found in the French example still does not
escape the notion of knowledge as individually possessed. What is missing
is a collective concept of knowledge. Certainly, knowledge should be
available for the public good, but within both these perspectives it is
still individually "owned." Roses' argument about the emergence of the
proprietary author is extremely important for understanding today's
debates over intellectual property. However, there is a dialectical
nature to the debates apparent when one looks at the French example.
Ultimately, then, authorship did not emerge uncontested as proprietary.
Instead, Eighteenth-century France witnessed the emergence not of one
modern position on the nature of the author and his relation to the text
(i.e., the property-bearing individual) but rather of a modern tension
between Diderot's conception of the author as the original creator and
hence inviolable proprietor of his works and Condorcet's depiction of the
ideal author as the passive midwife to the disclosure of objective
knowledge (Hesse, p. 117).  

This tension, while not diminishing Rose's argument, provides the
dialectic existing between proprietary authorship and the romantic, but
more communal approach to knowledge. However, history tells us that the
notion of proprietary authorship has won. The French debate does little
to disprove this conclusion, it simply provides the second side.
Ultimately, copyright protects the expression of an idea while
recognizing the idea itself exists outside the person thinking it,
reifying knowledge. Both sides of the debate outlined above do this. When
applied to the individual, proprietary author a clear link is made
between property and ideas. "Implicit in our thinking about the author's
claim on his "intellectual property" is an assumption that he is somehow
morally entitled to that which he has produced through mental
labour"[emphasis in original](Earle, p. 270). The printing press ensured
private ownership of knowledge was firmly cemented into culture by
separating knowledge from the producer and placing the rights to that
knowledge in private hands.  

One cannot ignore the economic reasons for this new concept of authorship
and intellectual property. Arguments were made defending the author and
the individuality of ideas, but the primary benefactors from this new
system of knowledge ownership were publishers who owned the copyrights.
Economic power remained in the hands of those who owned the technology
of printing, not the "originators" of the ideas. The modern proprietary
author simply created a useful euphemism for protecting company rights
to copy. The decline of the patron system because of new economic
conditions gave the author a larger degree of autonomy and further
cemented the notion of the proprietary author, thus legitimizing the
trade (Earle, p. 287).  What is lost through this view of intellectual
property? First, the canonization of this form of authorship naturalizes
a certain process of knowledge production. A communally based knowledge
firmly situated within a local group is overshadowed by proprietary
authorship. Emphasis on individual contribution denigrates the concept
of community knowledge and helps promulgate the notion of individual as
owner. Knowledge could have become community property without the notion
of individual authorship being attached to printed knowledge. 

Each person would be perceived as contributing to the larger body of
knowledge to which they were all a part. The debate for this viewpoint
is significantly impoverished and unable to defend itself against the
powerful logic of the economic marketplace. Thus, a second naturalization
is the privatization of knowledge as private property instead of socially
beneficial ideas.  The debate over authorship and property rages today
in a new setting - that of electronic space. 

The 18th century debate has significant bearing present events. First,
these debates established a specific type of knowledge production.
Second, the emergence of printing and the emergence of electronic writing
mark places differing from their predecessors. In looking at the legal
discourse over intellectual property and computer technology I first wish
to visit an interesting parallel debate to the London booksellers debate
in a 1993 edition of the Electronic Journal. 

AUTHORSHIP VERSUS COLLECTIVE GOOD REVISITED  

EJournal is an electronically published journal with the following
command: * This electronic publication and its contents are (c) copyright
1992 by _EJournal_. Permission is hereby granted to give away the journal
and its contents, but no one may "own" it. Any and all financial interest
is hereby assigned to the acknowledged authors of individual texts. This
notification must accompany all distribution of _EJournal_ (EJournal,
1992).   

The debate is between John Levine and John Dilworth over claims of
authorship and copyright protection. John Dilworth argues that by
increasing the space in which ideas are exchanged (electronically,)
publishers lose control of information (held through copyright) and more
authors are free to express ideas in a scholarly and academic setting.
Levine's primary argument against Dilworth is that "real authors," those
who made their living writing, would never accept such a system because
they could not be paid for their jobs. Furthermore, absent the
discriminating eye of publishing houses, there would be lower quality
material available. True, publishers have hugh slush piles of unpublished
stuff, however, most of this is worthless and not suitable for
publication, John Levine argues. Dilworth's position weakens published
material by infusing it with "junk." I, of course, side with Dilworth and
find Levine's views fascinating, especially in light of the preceding
historical narrative. By cementing the notion of the proprietary author
into intellectual property law the role publishers play (as primary
benefactors) is obscured and authors are divided into "real" ones, ones
doing if for money, and the "fake?" ones -- those who publish for other
reasons. Of course, when pushed, Levine is unable to support the claim
of "real" authorship as proprietary. Not when faced with the multiplicity
of evidence (poets and academics, for example) who publish for reasons
not directly related to profit. There is something more at stake here
than bad debating skills. 

A legal system of intellectual property with the proprietary author as
its gemstone obscures who benefits and what copyright is about. Computer
technology challenges this because publisher control is no longer
essential. Electronic journals have no copyrights as traditionally
understood. The concept of the author as "real" only if paid is
insupportable in this new atmosphere. More often than not who wrote a
specific piece is lost along the way. Information and thoughts pass from
person to person accumulating an electronic trail of sorts, but very
often the originating author is not part of this trail. It must be kept
in mind that the proprietary author is a historically specific system
benefitting specific groups of people.  In a real way there is a parallel
with the more ancient belief in contributing to posterity. Electronic
authors often ask only that their names remain attached to their
electronic piece or software. It is possible to escape the
commodification of knowledge, replacing it with more collective forms of
debate/writing/knowledge. Electronic journals and discussion groups still
have filters for "junk," however, the proprietary author as "natural" is
debunked and those who have traditionally benefitted (primarily
publishers) are displaced. Copyright, from this perspective, becomes
irrelevant because computers can help us transform the way we think about
knowledge. [fnt 4] 

Essentially, computers offer a space from which Condorcet's understanding
of knowledge can be played out, and thus provide a more substantial
opponent for the proprietary notion of authorship. Of course, we must
recognize that even as authorship breaks free of legal and commercial
restraints, new powerful elites are springing up to replace the old.
These elites own the new information technology making new forms of
knowledge transmission possible. Copyrights and intellectual property
laws still serve to protect the powerful -- this time in the
technological realm. Protection is granted through a legal discourse that
continues to naturalize ownership of ideas and the commodification of
creation. In naturalizing individual ownership of knowledge these new
conglomerates use authorship and the proprietary nature of ideas to
conceal who benefits and who is disadvantaged. It is to the legal
discourse dealing with computer technology I now turn. It is my argument
that the legal discourse influences the way technology is developed is
critical ways.  

The legal debate spreads from the traditional arena of copyright law to
the fringes of the computer world -- the world of the hacker. The debate
where authorship as ownership is at stake begins with copyrights and
competitive market arrangements, it takes place in courtrooms and law
offices. In these debates, corporations are afraid of other companies and
individuals stealing their ideas or making cheap imitations. They are
also afraid of the illegal transfer of software from computer to computer
without compensation to the company. Much like the guilds or the London
booksellers, modern corporations are interested in maintaining an
economic monopoly on the industry by structuring computer technology as
intellectual property and owning all uses of this technology. They are
being challenged by other companies and "provinces" (in this case
countries such as China who are not yet bound by American intellectual
property standards, though recent trade agreements work to do so.) The
contest is not about authorship, but about who owns the technology used
to produce this new mode of communication.  

The debate continues and expands beyond the courthouse walls to include
hackers and discourse on the internet, generally. Hackers become the easy
to use symbol for a body of thought. Their actions threaten the
definitions created by the first level of this debate. They challenge the
hidden assumption of private ownership. When talking the story of
hackers, one talks about freedom of information and equal access to
knowledge. Essentially, this side of the debate is interested in a
conceptually different understanding of knowledge and its relationship
to individuals and the community. Hackers are cast as the "evil other"
in the computer world. They are portrayed as criminals who illegally
break and enter, as spreaders of viruses, cheaters of the phone company,
and what every American fears -- nerds. Additionally, while hackers are
relegated to the fringe of computer and legal discourses, they represent
a radical fringe that must be kept in check. Even as the legal system
eats away at freedom of information over computers and applies
traditional copyright to computer technology, the Dilworth/Levine debate
indicate some are seeing computer discourse as an escape from the notion
of the proprietary author. 

The unintended consequence is that new dimensions of authorship are
spawned (or ancient ones rekindled,) new understandings of how ownership
relates to communication are tested and, even though the legal system
trudges on in hopes of clearly defining the issues, the meaning of
private property in relation to information is questioned. What is at
stake is the way knowledge is constructed. When journals become
electronic, authors lose control of their writing. In fact, many give up
control to make their information free to any who want it.[fnt 5] It is
as changeable by the receiver as it was by the originator. 

Another example is freeware. Freeware is free software available at no
cost directly from the internet. Knowledge can be shared across
geographical boundaries between "virtual communities." [fnt 6] The
implications are at times mindboggling and endless.  The legal discourse
on computer technology is familiar -- one of rights and private property.
The more radical discourse advocating freedom of information challenges
the legal one. What is at stake is not only ownership and money, but the
metaphors used to talk about technology and computer "crimes." In the
process, a narrative is created obscuring inequities of power existing
in the area of information technology. It is a conflict over rights and
images, both of which become visible within the legal narrative, to which
I now turn. 

LEGAL DISCOURSE ON INTELLECTUAL PROPERTY AND COMPUTER TECHNOLOGY 

Types of intellectual property include property recognized through
existing copyright, patent, trademark, and trade secret law. It also
includes "gathered information" as in phone books and directories. [fnt
7] Computer technology is being staked out through traditional
intellectual property rights claims. Legal debates are having a profound
influence on the development of computer technology. In fact, it is the
central thesis of one author that legal battles will determine how the
software industry will grow (Clapes, 1993). Thus, computer technology
potentially offers a challenge to our understanding of intellectual
property, but simultaneously, the legal system is defining how technology
develops and keeping that development under control (Clapes, 1993). 

The discourse used is both a legal one and of paramount concern. A legal
discourse creates a certain construction of the world. Through this
legalistic framework the future of computer technology is shaped. Often
times computer technology is treated as traditional intellectual
property. However, because it is significantly different, substantial
questions arise about its fit within traditional bodies of law. As Edwin
Mansfield notes, "A variety of new technologies have come into being that
fit awkwardly, if at all, into traditional concepts of intellectual
property" (Mansfield, 1990, p. 28). In fact, the interactions of hardware
and software, tangible and intangible items of property, make legal
distinctions meaningless (IPLR, 1991, p. 174). Generally, even though the
fit is not perfect, and legal distinctions are exposed as arbitrary
boundaries, copyright has become the primary method for protecting
computer technology and the corresponding intellectual property rights. 

Into this framework I would like to briefly discuss the landmark 1983
court case over the copyrightability of computer software and the
intellectual property concepts used to justify the claims. Intellectual
property law has generally been divided into two categories -- industrial
property law and copyright law (Stern, 1987, p. 539). Computer
technology, while seemingly better fitted for the first, has in recent
years been protected under copyright law (Stern, p. 539). Apple Computer
Inc, v. Franklin Computer Corp. dealt with this issue -- is computer
software copyrightable? 

In Apple, Franklin, a small computer company that manufactured "macintosh
compatible" computers, was charged with violating copyright on 14
different programs written by Apple programmers. These computers, Apple
argued, used exact copies of their own software, with only minor changes
like the elimination of the copyright warnings and author's names. Apple
claimed, and Franklin never denied, their software was copied. Apple
claimed they could prove authorship because Franklin had not removed the
author's names which had been embedded in the programs.  Franklin's
argument was that the programs were not protectable under copyright law
and thus copies could be made (Apple Computer Inc., v. Frankline Computer
Corporation, 714 F.2d 1240 (3rd Cir. 1983). The court reversed the lower
court's decision in favor of Franklin and extended "copyright protection
to all forms of software" (Rodau, 1986, p. 414). In this decision the
court reaffirmed the definition of "literary" as indirectly including
computer programs as "works of authorship" (Apple Computer v Franklin,
p. 1247). 

Just as in the London bookseller case, authorship granted to computer
programs works to maintain monopolistic control by the already
advantaged. [fnt 8]  Again, like the London Booksellers, the underlying
tension is between a large company with a virtual monopoly over a certain
expression of an idea and a smaller company wishing to produce a similar
product. Furthermore, in both cases (Donaldson v. Beckett and Apple) the
author is suspiciously invisible. [fnt 9]  Interesting enough, while
authors are invisible in the copyright battles, their presence in the
justificatory arguments made by those who wish to establish the
copyrightablity of computer software is more than apparent. Anthony
Lawrence Clapes, assistant general council for IBM and author of Softwars
understands the importance of establishing the creative and artistic role
of the software author in order to perpetuate current methods of
copyright protection. 

The first chapter of his book is dedicated to establishing the beauty and
artistic value of well produced software. Software writing is compared
with poetry, music and painting in its ability to capture imagination and
make dreams reality (Clapes, p. 10-16). I do not wish to argue that
writing software is uncreative or unartistic. Rather, my point is that
the creative genius of the individual author is developed in order to
make arguments of copyright fit, then creativity and authorship is
undermined and obscured by the large industries that actually own this
property. In essence, the romantic myth of authorship may have validity,
but within the vast complex of industrial production it is merely a ploy
used to perpetuate a certain economic situation.  Going back to the Apple
case for a moment, another interesting development appears. There is
evidence to indicate that in many computer programs ideas and expression
merge. The court decided it lacked sufficient evidence on the
idea/expression issue to make a ruling. The claim that there are a
limited number of ways to arrange computer operating systems was not
considered because Franklin admitted it could have rewritten several of
the programs thus indicating there existed more than one expression (714
F.2d at 1253).  In part because the court rejected Franklin's argument
on this point, the argument that computer software is uncopyrightable was
found unpersuasive. However, at least one author believes that when it
comes to computer languages, the idea/expression analysis is
inappropriate.  ...when the courts understand precisely what a computer
language is, and then apply idea/expression analysis, they must conclude
that a computer language is almost always an uncopyrightable idea
(Posner, 1993, p. 493).  

The Apple case illuminates the false nature of an idea/expression
dichotomy. It is a subjective distinction dependant on how the expression
is defined. The narrower the more likely it is to have only one
expression (and thus be uncopyrightable). Ultimately, the arbitrary
nature of such a dichotomy becomes visible, opening the entire discourse
to further critique.  Computers have the potential of challenging our
notions about knowledge. The commercial aspect of knowledge makes it
important to construct boundaries between ideas and expressions in order
to protect one's work, but one should begin to question how that boundary
is perpetuated. Within a legal discourse of copyright, narrative
competition is between those who have monopolistic control over the
technology and those who use similar products, or create products
similar. The general trend in copyright law is towards increasing
protection of user interfaces and software. 

The trend is away from anything resembling "copying" of a product
(Clapes, 1993). In making this step the courts use standards of
"structure, sequence and organization" and "look and feel" (Posner, p.
504-512) to substantiate their decisions. However, these types of rulings
further privatize innovation and, in my opinion, make innovation more
difficult to accomplish. What is obscured in this discourse? Obscured are
other ways of viewing knowledge besides that of private property.
Ownership and property rights are usually not challenged within a legal
discourse, though hackers challenge it consistently. In fact, anyone who
offers an alternative opinion within the legal framework is labeled "so
extreme as to be inconsistent with existing law" with minds that have
"closed like an oyster shell around the brittle pearl of a personal
ideology" (Clapes, p. 198-199). Interestingly missing from this
accusatory note is the ideological nature of existing copyright practices
and the limited nature of the legal discourse. In this case, legal
discourse is used to avoid dealing with alternative viewpoints that are
instead labeled as brittle ideology. However, as we will see, there are
alternative ways of thinking about knowledge. 

Within the private property/legal nexus the assumption that protection
and proprietary rewards are needed to encourage individuals to create is
used to perpetuate intellectual property regimes (Mansfield, p. 30). The
proprietary author is naturalized and the fact that many individuals are
not motivated by profit is obscured. Furthermore, virtually all
disadvantages cited are in terms of dollars lost. No mention is made to
the growing gap between the rich and poor along information lines, a gap
that is both a global as well as a national problem. No mention is made
of the social significance of this new technology both philosophically
and politically. The larger picture is virtually ignored, and instead the
specific ownership is focused on resulting in a tightly made argument
difficult to escape.  The debate is between those who finance
technological development and those who want information to be common
property shared by all (Mansfield, p. 48). Where this boundary will be
drawn is yet to be determined. It is also between those who hold virtual
monopolies over technology and those who want a piece of the economic
pie. Again, like the booksellers of old, those who own the means of
dissemination benefit from the process.  

Each new level of restriction makes the possibility of freedom of
information dimmer. The thrill of "seeing if it can be done" is made
illegal. While companies attempt to count the money they lose to "bad"
hackers, no one is assessing the loss of creativity and flexibility due
to harsher penalties. The stakes are high and scientists and computer
hackers "are frustrated to discover that their electronic playgrounds
have been invaded by avaricious and enterprising entrepreneurs who prefer
dollars to the joy of the "great hack" or the reward of the Nobel prize"
(Branscomb, 1990, p. 48). Presently, some feel legal restrictions on
computer technology unnecessarily stifles advances in the field
(Branscomb, p. 154-156). 

The implications outside of the economic/legal debate are even more
interesting. First, computers exemplify the communal nature of knowledge.
Much innovation occurs because of other, already existing technologies.
New ideas do not spring from the ether preformed, but are usually built
on ideas/products/creations from other projects. Putting limitations on
new technologies limits the ability of others to be innovative (Stern,
1992). Second, unlike the past, computer technologies improve so rapidly
that waiting for a patent or a copyright to expire would make innovation
impossible. Unlike books or art, the creation of new technology is
dependent on already existing technology. Consequently, restraints stifle
creation. Furthermore, law moves significantly slower than technological
innovations. The legal system cannot keep up, or catch up, with
technological advances.  A second layer of legal discourse is also at
work. So far, I have discussed a certain type of case. In these cases,
individuals make few appearances, what is at stake is corporate dollars
usually "stolen" by competing companies wishing to compete in a
competitive market. This discourse is primarily involved in establishing
computer technology as private property and legitimizing the owners of
the technology. Another legal discourse is involved in identity creation
of "the enemy." In the case of computer technology, the enemy is the
computer hacker. 

I would like to deal with one significant event -- Operation Sundevil.
On May 9, 1990 the United States secret service obtained 27 search
warrants in order to carry out searches and seizures of computer property
thought to have been used in illegal activities. The press reported the
existence of a nationwide computer conspiracy with hackers working in
tandem to commit computer credit card fraud, "computer tampering," and
"computer trespass" (Chicago Tribune, 1990). One teenager was arrested
and had his home raided because the phone company had lists of times he
had called a target of the raid, Acid Phreak. Ultimately, while some
crimes had been committed, the amount of money lost and damage done was
grossly exaggerated by the secret service and the media. Several hackers
who pled guilty received 14 months each and were also fined $233,000 for
the value of "access devices" they had stolen from BellSouth. These
access devices were computer codes and telephone card numbers. "As the
foundation (Electronic Frontier Foundation) asked, how can a value be
assessed when no loss can be demonstrated?" (Mungo and Clough, p. 220).
The economic power of the phone company, however, is not to be reckoned
with. The most important aspect of the Sundevil operation was the
resulting demonization of computer hackers. In a obvious identity move
Garry M. Jenkins depicted hackers as: "no longer misguided teenagers, now
"high tech computer operators using computers to engage in unlawful
conduct" (Aldrich, 1990). The identity of misguided teenagers is not
sufficiently evil (nor is computer nerd) for the grand scale operation
the secret service undertook. Thus, a bigger enemy needed to be created.
Despite the fact that your typical hacker is a teenager, the image
created is of an older, more sophisticated manipulator with only illegal
activities on the brain. It seemed to have worked too. As one neighbor
said about 18 year old Frank Fazzio Jr., "I've never thought him capable
of that sort of thing" (Aldrich, reprinted from the San Francisco
Chronicle, 1990). Somehow the dastardly nature of the deeds is emphasized
instead of the playful depictions in many books written about hackers. 

This is possible because the secret service claimed that "unlawful
computer hacking imperils the health and welfare of individuals,
corporations, and government agencies in the United States who rely on
computers and telephones to communicate" (Ibid). When such claims are
made one should begin to be afraid for personal liberties.  Ultimately,
the harm done was insignificant and the general threat to health and
welfare never materialized. What was obscured, however -- and what the
Electronic Frontier Foundation was created in response to -- was the
trampling of civil liberties in the pursuit of a largely imaginary enemy.


Hackers were demonized, private property was further solidified through
court decisions. Business as usual continues without thought to the
implications. Following the discourse created within a legal framework
it becomes obvious that many aspects of computer technology are left
unturned. It becomes virtually impossible to talk about issues of
inequality in information access because court cases over who owns
intellectual property start from the premise that knowledge can be
individually owned. Within this framework, to suggest that knowledge
should be shared instead of owned and parceled out is to ask the
unthinkable. Hackers, while also beginning to retreat into a legal world
in order to protect themselves from government abuse, think the
unthinkable because they situate themselves in a different discourse.
They start from the premise that information should be free and shared
by all. It is more likely to see how gaps in information are serious when
you look at it from the more "radical" discourse. A legal discourse will
only begin to ask that question if there is a fear of monopoly control
of the industry. Further obscured is the fact that most people don't have
computers and the vast majority in the world still struggle for basic
survival. It is easy to loose sight of the problems of the vast majority
by reducing debate to the small circle of private property and freedom
of information. Research into the international implications of the
information age must be done. Indeed, how the computer develops will be
crucial to how the world develops. My argument is that by using the legal
language (which we are prone to do) we obscure the larger picture and
naturalize the ownership of intangible property when a different
perspective might be more appropriate. 

People use computers and the resulting discourses to further entrench the
notion of private property. In the case of computer technology language
is used to create a spatial relationship. By doing this, space is created
where space doesn't exist. Language constructs computer space.
Consequently, it is easier to use metaphors of "trespass" and "theft"
because spatial thinking renders intangible objects at least conceptually
tangible.  When looking closely, the metaphors used become visible for
what they are -- ways of obscuring modes of thinking in favor of others.
[fnt 10] The metaphor of "property" is ill fitted to computer technology
which is difficult to own. It is easy to "steal" technology without ever
taking something tangible from a specific geographic space (Branscomb,
1991, p. 154-157). Theft of property takes on new dimensions.
"Trespassing" becomes visible as a meaningless metaphor within the
computer context, but is still used. Computers challenge notions of what
is "published" material. "Copyright" becomes meaningless in a world where
information is transferred too quickly to control. "Authorship" is also
often lost because ideas can sometimes be difficult to trace. All these
concepts are problematized because of their new context. This is the
positive nature of computer technology and communication.  These
arguments point to a flexible law at worst, and making this knowledge
public at best. Indeed, this is what the debate must decide. As Anne
Wells Branscomb argues, "Therefore, the real challenge is to determine
the appropriate boundaries between the public domain and proprietary
interests" (Branscomb, p. 58).  In order to appropriately test the
boundaries between the public domain and private economic interest, it
is necessary to move to a different, challenging discourse. Inequities
in access to information are not part of the legal discourse over
intellectual property rights, nor does it become an issue in the criminal
realm of the computer hacker. Corporations and courts assume corporations
"rightfully" own computer technology regardless of the political or
social implications. To pose alternative questions requires a different
perspective. That discourse is provided by the self-named subculture of
hackers -- individuals whom have created new identities for themselves
based upon the computer systems they inhabit. 

As I argue above, and Operation Sundevil painfully illustrates, without
alternative narratives and stories individuals "are coopted into
identities they did not author and cannot transform" (Cobb and Rifkin,
p. 74). Those disadvantaged by the legal discourse on intellectual
property rights are involved in a struggle to transform the discourse,
and to create their own identities. 

ALTERNATIVE IDENTITIES AND DISCOURSES ON COMPUTER TECHNOLOGY  

The word hack was first used at MIT to refer to a feat "imbued with
innovation, style, and technical virtuosity" (Levy, 1984, p. 10). As
early as 1958, computers were influencing the minds of young kids, who
engaged in behavior at times stretching the boundaries of legality, were
fascinated with what computers could do. To this day, individuals are
still fascinated with pushing themselves and computers to their limits.
The hours of time and energy invested by a hacker in learning a new
system, or trying to write a complex program, is an argument against
copyright protection. Only after knowledge becomes a commodity do people
ask for protection. This constitutes a distinctly different attitude
towards knowledge from the "pure hack."  The 80's marked the decade when
computer technology became available to virtually anyone. 

With mass availability of computer technology many young adults realized
that:  "For the first time in recent history you could reach out and
change reality, you could do stuff that affected everything and everyone,
and you were suddenly living this life that was like something out of a
comic book or adventure story..." (Kroupa, 1993, p. 59).   While one
should not glorify this lifestyle uncritically, the identity construction
occurring is important.  The basic ethic involves several tenants. It was
a discourse based upon freedom of information, anything that would
enhance creativity, suspicion of government and bureaucracies (and thus
advocates of decentralization), and equal treatment based upon ability
to hack instead of age, race, or sex. (Levy, p. 27). All of these
criteria pose a distinctly different discourse to law. The orientation
of freedom of information makes certain behaviors conceivable where they
would not be if one comes from the privatizing discourse of the law. As
Emmanuel Goldstein, editor and publisher of 2600, a hacker journal
states,  If I want to access a credit[tracking] company like TRW and
access my credit file, is that an invasion of TRW's privacy? What about
my privacy -- all that information they've gathered on me? (Kiely, 1992
p. 70).   The general hacker discourse centers equal access and suspicion
of centralization to such a great degree that issues of private property
are pushed to the side. Much as in the legal discourse, certain ideas are
obscured by what becomes the focus.  The identity constructed is that of
a creative innovator whom "takes on" the institutions controlling
information in order to engage in a knowledge expanding and creative
process. Hackers are usually labeled misfits and rebels, or embrace these
labels for themselves. They are characterized as having "unimposing
exteriors," (Levy, p. vx) as being either characteristically sloppy
dressers or uncharacteristically neat and tidy. Hackers work weird hours,
usually at night, taking chemicals to stay awake. Hackers hack systems
under pseudonyms like "Triludan the Warrior" or "Captain Crunch" with the
objective of capturing sysman status (which means system manager). They
see hacking as a game. [fnt 11] "There is an unwritten ethic for hackers.
Hackers aren't getting into personal files; they're exploring systems"
(Levy, p. 68). 

However, this exploration of systems is threatening. Freedom of
information is even more threatening because it exposes the power
relationships built into information systems and perpetuated through a
legal discourse empowered to construct these exploring individuals as
criminals.  Those involved in illegal activities, or destructive
activities do exist (and usually gain media attention.) The image of a
"bad" hacker, while having basis in reality, serves the practices of the
legal system. "Hacker" takes on connotations of wrongdoing and
criminality. In the process the identity of "hackers" is contested and
usurped by the legal system. Many succumb to market pressures and the law
(who can blame them?) and build businesses designed to "bust" other
hackers. However, there are still countless others who take the identity
of hacker or cyberpunk to heart and the corresponding ethic. A hacker
ethic in conjunction with a focus on the growing gap between information
rich and information poor can be used to question the legal discourse on
computer technology.  So far I have tried to delineate how the discourses
of both law and its opponents construct specific ways of talking about
information technology -- either as a right of the people, or as
intellectual property rights. These two modes of talking at times seem
unrelated. There is the debate occurring in the courtroom over rights and
ownership, and there is the debate occurring on the internet and in
academic circles. In this latter debate people are envisioning a system
where information is free, where communal ownership takes the place of
individual ownership, and where there is a lowering of the information
gap. Both converge within a rights discourse to argue for either
intellectual property rights or the right to access to information and
technology. 

The hacker discourse begins to talk about "rights" to information as they
are faced with the powerful legal discourse of intellectual property
rights and barriers to access to information. Ultimately, given current
trends, the power of the state will be used to continue to repress
movements towards equal access to information. Those considered
"subversive" will continue to be arrested, their property will be
confiscated and they will be tried and sent to jail. Secrecy and
ownership will continue to dominate our governmental relations to
information even as challenges are made to these concepts.  Change will
probably only occur from the bottom up only when individuals recognize
that information and knowledge are power that they should have access to.
This is beginning to occur as grass roots organizations and people
involved with computer mediated communication begin to talk about rights
to information and communication. 

Obviously, computer technology is here to stay. However, we must ensure
that the metaphors we use do not obscure from view the inequities that
exist on both a national and international level. Using a legal discourse
and telling our stories as ones about property only conceal inequalities.
At the same time, computer mediated communication can hopefully begin to
transcend traditional notions of property ownership as it relates to
information. There are many exciting and novel issues within this field.
Hopefully, creativity can continue to prosper as the boundaries between
intellectual property and freedom of information begin to blur.  

FOOTNOTES  

1. For a good assessment of the transitions from oral to writing 
to print see: M. Ethan Katsh, The Electronic Media and the Transformation
of Law (Oxford: Oxford University Press, 1989), p. 17-48.  2. Long and
Rose have different perspectives on this point. In Long's opinion (which
I agree with) intellectual property existed before the 18th century. It
seems consistent that intellectual property developed prior to the 18th
century, but was still innovatively applied to printed matter thus
transforming authorship into its more modern form. It also makes sense
that intellectual propety would be associated with the publisher and not
the author, much like the initial claims to property came from guilds and
not individuals.  3. For a detailed account of the differences between
the French and English development of authorship see: Carla Hesse,
"Enlightenment Epistemology and the Laws of Authorship in Revolutionary
France, 1777-1793,"  4. On a more mundane level the Feist decision
illustrates this point. Compilations of data in the form of phone books
used to be considered copyrightable because of the "sweat of the brow"
standard. However, in the computer age, this standard no longer seems
relevant and thus what is viewed as copyrightable material is
transformed. See Robert Gorman, "The Feist Case: Reflections on a
Pathbreaking Copyright Decision," IPLR, (25:1993), p. 355- 396.  5. The
Doug-Brent exchange is an electronically conducted "debate" on just this
issue. See: Electronic Journal for Humanists, _EJournal_ Volume 1 Number
3-1 (Supplement to V1N3)   6. This is a term I a drawing from the title
of Howard Reighnhold's new book by the same name. I do not know what he
means by this term, but I thought it was appropriate here.   7. This
later category's protection has been successfully challenged in Rural
Tel. Serv. Co. v. Feist Publications, Inc., 663 F. Supp. 214 (D. Kan.
1987), aff'd, 916 F.2d 718 (10th Cir. 1990) as cited in Gorman, p.
355-398. The Supreme Court decided that "Rural's exhaustive listing of
telephone numbers, organized alphabetically... lacked creative authorship
with respect to both selection and arrangement, and was thus found not
to be copyrightable." (p. 356).  8. "Putting it baldly and exaggerating
for the sake of clarity, it might be said that the London booksellers
invented the modern proprietary author, constructing him as a weapon in
their struggle with the booksellers of the provinces." Rose, p. 56.   9.
In Apple the author testified that he had written the software Franklin
had stolen. However, his right to original authorship was not centered
in this case, Apple's right to legal ownership of his expression was at
stake.   10. This is not to say that metaphors should be avoided, this
is impossible. However, one should be aware of how metaphors are obscure
certain relationships.  11. These descriptions pervade the literature I
have read. The books I rely most heavily on are: Levi's Hackers and Paul
Mungo and Bryan Clough, Approaching Zero  

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