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Knowbots, Permissions Headers and Contract Law
paper for the conference on
Technological Strategies for Protecting Intellectual
Property in the Networked Multimedia Environment
April 2-3, 1993 with revisions of 4/30/93
Copyright 1993
Henry H. Perritt, Jr.
Professor of Law
Villanova Law School
Villanova, PA 19085
(215) 645-7078
FAX (215) 645-7033, (215) 896-1723
Internet: perritt@ucis.vill.edu
Introduction
One of the ways to protect intellectual property on the
NREN is through a digital library concept. Under this
concept, a work would have attached to it a "permissions
header," defining the terms under which the copyright owner
makes the work available. The digital library
infrastructure, implemented on the NREN, would match request
messages from users with the permissions headers. If the
request message and the permissions header match, the user
would obtain access to the work. This concept encompasses
major aspects of electronic contracting, which is already in
wide use employing Electronic Data Interchange ("EDI")
standards developed by ANSI Committee X12.1
This paper explains the relationship between the digital
library concept and EDI practice, synthesizing appropriate
solutions for contract law, evidence, and agency issues that
arise in electronic contracting. The question of how
electronic signatures should work to be legally effective is
an important part of this inquiry. The paper also defines
particular types of service identifiers, header descriptors,
and other forms of labeling and tagging appropriate to allow
copyright owners to give different levels of permission,
including outright transfer of the copyright interest, use
permission, copying permission, distribution permission,
display permission, and permission to prepare derivative
works.The paper considers how payment authorization
procedures should work in conjunction with a permissions
header and digital library concept in order to integrate the
proposed copyright licensing procedures with existing and
anticipated electronic payment authorization systems. The
paper necessarily considers whether existing standards
approaches related to SGML and X12 are sufficient or whether
some new standards development efforts will be necessary for
implementation of the concepts. The paper considers the
relationship between technology and law in enforcing
intellectual property, and emphasizes that the traditional
adaptation of legal requirements to levels of risk is
appropriate as the law is applied to new technologies.
There are certain common issues between the intellectual
property question and other applications of wide area
digital network technology. The question of signatures and
writings to reflect the establishment of duties and
permissions and the transfer of rights is common to the
intellectual property inquiry and to electronic commerce
using EDI techniques. There also are common questions
involving rights to use certain information channels: First
Amendment privileges, and tort liability. These are common
not only to technological means of protecting intellectual
property but to all forms of wide area networking.
The problem
The law recognizes intellectual property because
information technology permits one person to get a free ride
on another person's investment in creating information
value. Creative activity involving information usually is
addressed by copyright, although patent has a role to play
in protecting innovative means of processing information.2
Intellectual property arose in the context of
letterpress printing technology. Newer technologies like
xerography and more recently small computer technology and
associated word processing and networking have increased the
potential for free rides and accordingly increased the
pressure on intellectual property.
The concern about free ride potential is especially
great when people envision putting creative works on
electronic publishing servers connected to wide area
networks intending to permit consumers of information
products to access these objects, frequently combining them
and generally facilitating "publishing on demand" rather
than the well known publishing just in case, typified by
guessing how many copies of a work will sell, printing those
in advance, and then putting them in inventory until someone
wants them.
The concern is that it will be too easy to copy an
entire work without detection and without paying for it.
Worse, it will be easy to copy an entire work and resell it
either by itself or as a part of a new derivative work or
collection.
But technology is capable of protecting investment in
new ways as well as gaining a free ride. Computer networks
make it possible to restrict access and to determine when
access occurs. Depending on how new networks are designed,
they may actually reduce the potential for a free ride. The
digital library is one way of realizing that potential.
Professor Pamela Samuelson has observed that the digital
library model replaces intellectual property with a system
of technological controls.3
Digital Library Concepts
Basic Concepts
A digital library is a set of information resources
("information objects") distributed throughout an electronic
network. The objects reside on servers (computers with
associated disk drives connected to the network). They can
be retrieved remotely by users using "client" workstations.
Origin of Concepts
The phrase "digital library" and the basic concept was
first articulated in a 1989 report growing out of a workshop
sponsored by the Corporation for National Research
Initiatives.4 From its inception, the digital library
concept envisioned retrieval of complete information
resources and not merely bibliographic information.5
The technologies of remote retrieval of complete
information objects using electronic technologies is in wide
use through the WESTLAW, Dialog, LEXIS, NEXIS, and National
Library of Medicine databases. These remotely accessible
databases, however, unlike the digital library involved a
single host on which most of the data resides. The digital
library concept envisions a multiplicity of hosts (servers).
Recent Developments
The remotely accessible database host concept is
converging with the digital library concept as more of the
electronic database vendors provide gateways to information
objects actually residing on other computers. This now is
commonplace with WESTLAW access to Dialog, and Dialog's
gateways to other information providers.
The most explicit implementation of the digital library
concept is the Wide Area Information Service ("WAIS"), which
implements ANSI standard Z.39.6 WAIS permits a remote user
to formulate a query that is applied to a multiplicity of
WAIS servers each of which may contain information
responsive to the query. The WAIS architecture permits
search engines of varying degrees of sophistication,
resident on WAIS information servers to apply the query
against their own information objects, reporting matches
back to the user.7 Future implementations of WAIS permit
automatic refinement of searches according to statistical
matching techniques.
The Corporation for National Research Initiatives has
proposed a test bed for an electronic copyright management
system.8 The proposed system would include four major
elements: automated copyright recording and registration,
automated, on line clearance of rights, private electronic
mail and digital signatures to provide security. It would
include three subsystems: a Registration and Recording
System (RRS), a Digital Library System (DLS), and a Rights
Management System (RMS). The RRS would provide the functions
enumerated above and would be operated by the Library of
Congress. It would provide "change of title" information.9
The RMS would be an interactive distributed system capable
of granting rights on line and permitting the use of
copyrighted material in the Digital Library System. The test
bed architecture would involve computers connected to the
Internet performing the RRS and RMS functions.
Digital signatures would link an electronic
bibliographic record with the contents of the work, ensuring
against alteration after deposit.10 Multiple RMS servers
would be attached to the Internet. A user wishing to obtain
rights to an electronically published work would interact
electronically with the appropriate RMS. When copyright
ownership is transferred, a message could be sent from the
RMS to the RRS11 - creating an electronic marketplace for
copyrighted material.
The EBR submitted with a new work would "identify the
rights holder and any terms and conditions on the use of the
document or a pointer to a designated contact for rights and
permissions."12 The EBR, thus, is apparently equivalent to
the permissions header discussed in this paper. Security in
the transfer of rights would be provided by digital
signatures using public key encryption, discussed further,
infra in the section on encryption.
Basic Architectural Concepts
The digital library concept in general contemplates
three basic architectural elements: a query, also called a
"knowbot" in some descriptions; a permissions header
attached to each information object; and a procedure for
matching the query with the permissions header.
Two kinds of information are involved in all three
architectural elements: information about the content of
information objects desired and existing, and information
about the economic terms on which an information object is
made available. For example, a query desiring court opinions
involving the enforcement of foreign judgments evidencing a
desire to download the full text of such judicial opinions
and to pay up to $1.00 per minute of search and downloading
time would require that the knowbot appropriately represent
the subject matter "enforcement of foreign judgments." It
also requires that the knowbot appropriately represent the
terms on which the user is willing to deal: downloading and
the maximum price. The permissions header similarly must
express the same two kinds of information. If the
information object to which the permissions header is
attached is a short story rather than a judicial opinion,
the permissions header must so indicate. Or, if the
information object is a judicial opinion and it is about
enforcement of foreign judgments, the permission header may
indicate that only a summary is available for downloading at
a price of $10.00 per minute. The searching, matching, and
retrieval procedure in the digital library system must be
capable of determining whether there is a match on both
subject matter and economic terms, also copying and
transmitting the information object if there is a match.
Comparison to EDI
Electronic Data Interchange ("EDI") is a practice
involving computer-to-computer commercial dealing without
human intervention. In the most widespread implementations,
computers are programmed to issue purchase orders to trading
partners, and the receiving computer is programmed to
evaluate the terms of the purchase order and to take
appropriate action, either accepting it and causing goods to
be manufactured or shipped or rejecting it and sending an
appropriate message. EDI is in wide use in American and
foreign commerce, using industry-specific standards for
discrete commercial documents like purchase orders,
invoices, and payment orders, developed through the American
National Standards Institute.
There obviously are similarities between the three
architectural elements of the digital library concept and
EDI. There is a structured way of expressing an offer or
instruction, and a process for determining whether there is
a match between what the recipient is willing to do and what
the sender requests.
There is also, however, an important difference. In the
digital library concept, a match results in actual delivery
of the desired goods and services in electronic form. In EDI
practice, the performance of the contractual arrangement
usually involves physical goods or performance of
nonelectronic services.
Nevertheless, the digital library and EDI architectures
are sufficiently similar and, it turns out the legal issues
associated with both are sufficiently similar to make
analogies appropriate.
Elements of Data Structure
For purposes of this paper, the interesting parts of the
data structure are those elements that pertain to
permission, more than those elements that pertain to content
of the information object to which the header is attached.
Accordingly, this section will focus on only permissions-
related elements, after noting in passing that the content
part of the header well might be a pointer to an inverted
file to permit full text searching and matching.
The starting point conceptually for identifying the
elements of the permissions header are the rights
exclusively reserved to the copyright owner by 106 of the
copyright statute. But these exclusive rights need not be
tracked directly because the owner of an information object
free to impose contractual restrictions as well as to enjoy
rights granted by the Copyright Act. Accordingly, it seems
that the following kinds of privileges in the requester
should be addressed in the permissions header:
outright transfer of all rights
use privilege, either unrestricted or subject to
restrictions
copying, either unlimited or subject to restrictions
like quantitative limits
distribution, either unlimited or subject to
restrictions, like geographic ones or limits on the
markets to which distribution can occur
preparation of derivative works
Display and presentation rights, separately identified
in 106 would be subsumed into the use element, because
they are particular uses.
The simplest implementation would allow only binary
values for each of these elements. But a binary approach
does not permit the permissions header to express
restrictions, like those suggested in the enumerated list.
Elements could be defined to accept the most common kinds of
restrictions on use, and quantitative limits on copying, but
it would be much more difficult to define in advance the
kinds of geographic or market-definition restrictions that
an owner might wish to impose with respect to distribution.
In addition to these discrete privileges, the
permissions header must express pricing information. The
most sensible way of doing this is to have a price
associated with each type of privilege. In the event that
different levels of use, copying, or distribution privilege
are identified, the data structure should allow a price to
be associated with each level.
A complicating factor in defining elements for price is
the likelihood that different suppliers would want to price
differently. For example, some would prefer to impose a flat
fee for the grant of a particular privilege. Others might
wish to impose a volume-based fee, and still others might
wish to impose a usage or connect-time based fee. The data
structure for pricing terms must be flexible enough to
accommodate at least these three different approaches to
pricing.
Finally, the data structure must allow for a
specification of acceptable payment terms and have some kind
of trigger for a payment approval procedure. For example,
the permissions header might require presentation of a
credit card number and then trigger a process that would
communicate with the appropriate credit card database to
obtain authorization. Only if the authorization was obtained
would the knowbot and the permissions header "match."
There is a relationship between the data structures and
legal concepts. The knowbot is a solicitation of offers.
The permissions header is an offer. The matching of the two
constitutes an acceptance. Mr. Linn's "envelope" could be
the "contract."
There are certain aspects of the data structure design
that are not obvious. One is how to link price with
specific levels of permission. Another is how to describe
particular levels of permission. This representation
problem may benefit from the use of some deontic logic,
possibly in the form of a grammar developed for intellectual
property permissions. Finally, it is not clear what the
acceptance should look like. Conceptually, the acceptance
occurs when the knowbot matches with a permissions header,
but it is unclear how this legally significant event should
be represented.
Role of Encryption
The CNRI test bed proposal envisions the use of public
key encryption to ensure the integrity of digital signatures
and to ensure the authenticity of information objects.
Public key encryption permits a person to encrypt a message
- like a signature using a secret key, one known only to the
sender, while permitting anyone with access to a public key
to decrypt it. Use of public key cryptography in this
fashion permits any user to authenticate a message, ensuring
that it came from the purported sender.13 A related
technology called "hashing" permits an encrypted digital
signature to be linked to the content of a message. The
message can be sent in plain text (unencrypted) form, but if
any part of it is changed, it will not match the digital
signature. The digital signature and hashing technologies
thus permit not only the origin but also the content
integrity of a message of arbitrary length to be
authenticated without necessitating encryption of the
content of the message. This technology has the advantage,
among others, that it is usable by someone lacking
technological access to public key encryption. An
unsophisticated user not wishing to incur the costs of
signature verification nevertheless can use the content of
the signed information object.
It is well recognized that encryption provides higher
levels of security than other approaches. But security
through encryption comes at a price. Private key encryption
systems require preestablished relationships and exchange of
private keys in advance of any encrypted communication. The
burdens of this approach have led most proponents of
electronic commerce to explore public key encryption
instead. But public key systems require the establishment
and policing of a new set of institutions. An important
infrastructure requirement for practicable public key
cryptography is the establishment and maintenance of
certifying entities that maintain the public keys and ensure
that they are genuine ones rather than bogus ones inserted
by forgers. A rough analogy can be drawn between the public
key certifying entities and notaries public. Both kinds of
institutions verify the authenticity of signature. Both
kinds require some level of licensing by governmental
entities. Otherwise the word of the "electronic notary"
(certifying entity) is no better than an uncertified,
unencrypted signature. In a political and legal environment
in which the limitations of regulatory programs have been
recognized and have led to deregulation of major industries,
it is not clear that a major new regulatory arrangement for
public key encryption is practicable. Nevertheless,
experimentation with the concept in support of digital
library demonstration programs can help generate more
empirical data as to the cost and benefits of public key
encryption to reinforce electronic signatures.
On the other hand, it is not desirable to pursue
approaches requiring encryption of content. No need to
encrypt the contents is apparent in a network environment.
Database access controls are sufficient to prevent access to
the content if the permissions header terms are not matched
by the knowbot. On the other hand, if the electronic
publishing is effected through CDROMs or other physical
media possessed by a user, then encryption might be
appropriate to prevent the user from avoiding the
permissions header and going directly to the content.
While encrypted content affords greater security to the
owner of copyrighted material. Someone who has not paid the
price to the copyright owner must incur much higher cost to
steal the material. But the problem is everyone must pay a
higher price to use the material. One of the dramatic
lessons of the desktop computer revolution was the clear
rejection of copyright protection in personal computer
software. The reasons that copy protection did not survive
in the market place militate against embracing encryption
for content. Encryption interferes with realization of
electronic markets, because producer and consumer must have
the same encryption and description protocols. Encryption
burdens processing of electronic information objects because
it adds another layer. Some specific implementations have
encryption require additional hardware at appreciable costs.
Digital libraries cannot become a reality until
consumers perceive that the benefits of electronic formats
outweigh the costs, compared to paper formats. Encryption
interferes with electronic formats' traditional advantages
of density, reusability, editability, and computer search
ability and also, by impairing open architectures may
perpetuate some of papers' advantages with respect with
browsibility.14
The need for encryption of any kind depends upon whether
security is available without it. That depends, in turn, on
the kinds of free rides that may be obtainable and the legal
status of various kinds of electronics transactions in the
digital library system.
Legal Issues
Copyright: What legal effect is intended?
The design of the permissions header and the values in
the elements of the header must be unambiguous as to whether
an outright transfer of a copyright interest is intended or
whether only a license is intended. If an outright transfer15
is intended, then the present copyright statute requires a
writing signed by the owner of the rights conveyed.16
Recordation of the transfer with the Copyright office is not
required, but provides advantages in enforcing transferee
rights.17 On the other hand, non exclusive licenses need not
be in writing nor registered. If the electronic transaction
transfers the copyright in its entirety, then the rights of
the transferor are extinguished, and the rights of the
transferee are determined by the copyright statute. The only
significant legal question is whether the conveyance was
effective.
On the other hand, when the copyright is not transferred
outright but only certain permissions are granted or certain
rights conveyed, the legal questions become more varied.
Then, the rights of the transferor and the obligations of
the transferee are matters of contract law. It is important
to understand the degree to which the contract is
enforceable and how it is to be interpreted in the event of
subsequent disputes. The following sections consider briefly
the first sale doctrine as a potential public policy
obstacle to enforcing contractual restrictions different
from those imposed by the copyright statute and then explore
in greater depth whether electronic techniques satisfy the
formalities traditionally required for making a contract,
whether they adequately ensure against repudiation, and
whether they provide sufficient information to permit
predictable interpretation of contractual obligations and
privileges.
First Sale Doctrine
The first sale doctrine may invalidate restrictions on
use. It is impermissible for the holder of a patent to
impose restrictions on the use of a patented product after
the product has been sold. Restrictions may be imposed,
however, on persons who merely license the product.18 The
rationale for this limit on the power of the owner of the
intellectual property interest is that to allow limitations
on use of the product would interfere with competition
beyond what the Congress - and arguably the drafters of the
Constitution - intended in setting up the patent system.
The first sale doctrine applies to copyright owners.19
Indeed, because of the First Amendment's protection of
informational activity, the argument against restrictions
after the first sale may be even stronger in the copyright
arena then in the patent arena.
The first sale doctrine is potentially important because
it may invalidate restrictions imposed on the use of
information beyond what is authorized by the Copyright Act
and by common law trade secret. Thus, there may be serious
questions about the legal efficacy of use restrictions
suggested in ___, although such restrictions are common in
remote database service agreements. The vendors could argue
that the limitations pertain to the contractual terms for
delivery of a service rather than use of information as
such. The characterization avoids the overlap with copyright
and thus may also avoid the conflict between federal policy
and contract enforcement.20
Contract Formation Issues
The law does not enforce every promise. Instead, it
focuses its power only on promises surrounded with certain
formalities to make it likely that the person making the
promise (the "promisor") and the person receiving the
promise (the "promisee") understood that their communication
had legal consequences. A threshold question for the digital
library system is whether the traditional formalities for
making a contract are present when the contract is made
through electronic means. The digital library system
considered in this paper clearly contemplates that a
contract is formed when the knowbot and the permissions
header achieve a match. In this respect, the digital library
concept converges with EDI where trading parties contemplate
that a contract to perform services or deliver goods is
formed when a match occurs either upon the receipt of a
purchase order or upon the transmission of a purchase order
acknowledgment.
It is not altogether clear, however, whether the match
between values and computer data structures meets contract
formation requirements, particularly those expressed in
various statutes of frauds. Statutes of frauds require
"writings" and "signatures" for certain kinds of contracts -
basically those contemplating performance extending beyond a
period of one year.21
In many instances, the digital library contract will be
fully performed almost instantaneously upon delivery of the
information object after the knowbot and the permissions
header match. In such a case, the statute of frauds is not a
problem and its requirements need not be satisfied. In other
cases, however, as when the intent of the owner of the
information object is to grant a license to do things that
will extend beyond one year, the statute of frauds writing
and signature requirements must be met.
Historical application of Statutes Of Frauds by the
courts clearly indicates that there is flexibility in the
meaning of "writing" and "signature." A signature is any
mark made with the intent that it be a signature.22 Thus an
illiterate person signs by making an "X," and the signature
is legally effective. Another person may sign a document by
using a signature stamp. Someone else may authorize an agent
to sign his name or to use the signature stamp. In all three
cases the signature is legally effective. There may of
course be arguments about who made the X, or whether the
person applying the signature stamp was the signer or his
authorized agent, but these are evidentiary and agency
questions, not arguments about hard and fast contract-law
requirements.
Under the generally accepted legal definition of a
signature, there is no legal reason why the "mark" may not
be made by a computer printer, or for that matter by the
write head on a computer disk drive or the data bus in a
computer random access memory. The authorization to the
computer agent to make the mark may be given by entering a
PIN ("Personal Identification Number") on a keyboard. To
extend the logic, there is no conceptual reason to doubt the
legal efficacy of authority to make a mark if the signer
writes a computer program authorizing the application of a
PIN upon the existence of certain conditions that can be
tested by the program. The resulting authority is analogous
to a signature pen that can be operated only with a
mechanical key attached to somebody's key ring, coupled with
instructions to the possessor of the key.
Which of these various methods should be selected for
particular types of transactions must depend, not on what
the law requires, because the law permits any of these
methods. Rather, it must depend on the underlying purposes
of the legal requirement and which method best serves those
purposes.
The real issue is how to prove that a particular party
made the mark. In other words, the contingency to be
concerned about is repudiation, not absence of formalities.
Repudiation should be dealt with through usual evidentiary
and fact finding processes rather than artificial
distinctions between signed and unsigned documents.
Authority is skimpier on how flexible the "writing"
requirement is. The best approach is to borrow the fixation
idea from the copyright statute and conclude that a writing
is "embodiment in a copy . . . sufficiently permanent or
stable to permit it to be perceived, reproduced, or
otherwise communicated for more a period of more than
transitory duration."23
The most important thing conceptually is to understand
the purpose of the writing and signature requirements. They
have two purposes: awareness or formality and reliability of
evidence. Signature requirements, like requirements for
writings and for original documents have an essentially
evidentiary purpose. If there is a dispute later, they
specify what kind of evidence is probative of certain
disputed issues, like "who made this statement and for what
purpose?" The legal requirements set a threshold of
probativeness. Surely the values in a knowbot as well as the
values in a permissions header constitute and "mark," and
someone who knowingly sets up potential transactions in a
digital library scheme can have the intent that the mark be
a signature.
When a contract is made through a signed writing, it is
more likely that the parties to the contract understand what
they are doing. They are aware of the legal affect of their
conduct because the writing in the signature involve a
greater degree of formality than a simple conversation.
The awareness/formality purpose can be served by
computerized contracting systems. This is so not so much
because the computers are "aware" of the affect of their
"conduct." Rather, it is true because the computers are
agents of human principals. The programming of the computer
to accept certain contract terms is the granting of
authority to the computer agent to enter into a contract.
The fact that a principal acts through an agent engaging in
conduct at a later point and time never has been thought to
defeat contract formation in the traditional evolution of
agency and contract law. Nor should it when the agent is a
computer.
Fulfillment of the evidentiary purpose depends on the
reliability of the information retained by the computer
systems making up the digital library. Such systems must be
designed to permit the proponent of contract formation to
establish the following propositions if the other party to
the purported contract attempts to repudiate it.
1.It came from computer X
2.It accurately represents what is in computer X24 now25
3.What is in computer X now is what was in computer X
at the time of the transaction
4.What was in computer X at the time of the transaction
is what was received from the telecommunications
channel26
5.What was received from the telecommunications channel
is what was (a) sent, (b) by computer Y.
Two other questions relate to matters other than the
authenticity of the message:
6 Computer Y was the agent of B
7 The message content expresses the content of the
contract (or more narrowly, the offer or the
acceptance).27
Factual propositions 1-4 can be established by testimony
as to how information is written to and from
telecommunications channel processors, primary storage, and
secondary storage. Factual proposition 5 requires testimony
as to the accuracy of the telecommunications channel and
characteristics of the message that associate it with
computer Y. Only the last proposition (number 5) relates to
signatures, because signature requirements associate the
message with its source.28 The other propositions necessitate
testimony as to how the basic message and database
management system works. It is instructive to compare these
propositions with the kinds of propositions that must be
established under the business records exception to the
hearsay rule when it is applied to computer information.
Those propositions may be supported with non technical
evidence, presented by non programmers. A witness can lay a
foundation for admission of computer records simply by
testifying that the records are generated automatically and
routinely in the ordinary course of business. The more
inflexible the routine, and the less human intervention in
the details of the computer's management of the database the
better the evidence.29
The ultimate question is trustworthiness, and if the
computer methods are apparently reliable, the information
should be admitted unless the opponent of admissibility can
raise some reasonable factual question undercutting
trustworthiness.30
Contract Interpretation Issues
Assuming that the permissions header and knowbot
constitute sufficient writings to permit a contract to be
formed and that the signature requirement also is met,
through digital signature technology or otherwise, there
still are difficult contract interpretation questions.
Contract interpretation questions arise not only after
contractual relationships are formed, but also in connection
with deciding whether there has been offer and acceptance,
the prerequisites to contract formation.31 Contract
interpretation always seeks to draw inferences about what
the parties intended. When contract interpretation issues
arise at the contract formation stage, the questions are
what the offeror intended the content of the offer to be and
what the offeree intended the content of the purported
acceptance to be. The proposed Digital Library System
envisions extremely cryptic expressions of offer and
acceptance - by means of codes. The codes have no intrinsic
meaning. Rather, extrinsic reference must be made to some
kind of table, standard, or convention associating
particular codes with the concepts they represent. Extrinsic
evidence is available to resolve contract interpretation
questions when the language of the contract itself is
ambiguous, and perhaps at other times as well.32 The codes in
the permissions header and knowbots certainly are ambiguous
and become unambiguous only when extrinsic evidence is
considered. So there is no problem in getting a standard or
cable into evidence. The problem is whether the parties
meant to assent to this standard.
In current EDI practice, this question is resolved by
having parties who expect to have EDI transactions with each
other to sign a paper trading partner agreement, in which
the meaning of values or codes in the transaction sets is
established.33 But requiring each pair of suppliers and users
of information in a digital library to have written
contracts with each other in advance would defeat much of
the utility of the digital library. Thus the challenge is to
establish some ground rules for the meaning of permissions
header and knowbot values that all participants are bound
by. There are analogous situations. One is a standard credit
card agreement that establishes contractual terms among
credit card issuer, credit card subscriber, and merchant who
accepts the credit card. The intermediary - the credit card
company - unilaterally establishes contract terms to which
the trading partners assent by using and accepting the
credit card.34 Also, it is widely recognized that members of
a private association can, through their constitution and
bylaws establish contractual relationships that bind all of
the members in dealing with each other.35 In the Digital
Library System, similar legal arrangements can establish the
standards by which electronic transactions between
permissions header and knowbots will bind transferor and
transferee of information.
Third Party Liability
It is not enough merely to ensure that the licensee is
contractually bound. Trading partners also must ensure that
the participants in funds transfers have enforceable
obligations. For example, if the digital library system
envisions that the information object would not be released
to the purchaser without simultaneous release of a payment
order, the supplier may be interested in enforcing the
obligations of financial intermediaries who handle the
payment order. This implicates the federal Electronic Funds
Transfer Act, and Article 4A of the Uniform Commercial Code,
regulating wire transfers.
Solutions
Satisfy the Business Records Exception to the Hearsay
Rule
The discussion of contract formalities earlier in this
paper concluded that legally enforceable contracts can be
formed through electronic means and that the significant
legal questions relate to reliability of proof and intent of
the parties to be bound by using the electronic techniques.
This section considers the reliability of proof further.
Traditional evidence law permits computer records to be
introduced in evidence when they satisfy the requirements of
the business records exception: basically that they are made
in the ordinary course of business, that they are relied on
for the performance of regular business activities, and that
there is no independent reason for questioning their
reliability.36
The business records exception shares with the
authentication concept statute of frauds and the parol
evidence rule a common concern with reliability.37 The same
procedural guarantees and established practices that ensure
reliability for hearsay purposes also ensure reliability for
the other purposes. Under the business records exception,
the proponent must identify the source of a record, through
testimony by one familiar with a signature on the record, or
circumstantially.38 The steps in qualifying a business record
under the common law, which since have been relaxed,39 were:
Proving that the record is an original entry made in the
routine course of business
Proving that the entries were made upon the personal
knowledge of the proponent/witness or someone reporting
to him
Proving that the entries were made at or near the time of
the transaction
Proving that the recorder and his informant are
unavailable.40
These specific requirements are easier to understand and
to adapt to electronic permissions and obligations formed in
a digital library system by understanding the rationale for
the business records exception. The hearsay rule excludes
out of court statements because they are inherently
unreliable, primarily because the maker of the statement's
demeanor cannot be observed by the jury and because the
maker of the statement is not subject to cross examine. On
the other hand, there are some out of court statements that
have other guarantees of reliability. Business records are
one example. If a continuing enterprise finds the records
sufficiently reliable to use them in the ordinary course of
business, they should be reliable enough for a court. The
criteria for the business records exception all aim at
ensuring that the records really are relied upon the
business to conduct its ordinary affairs.
The Manual for Multidistrict Litigation suggests steps
for qualifying computer information under the business
records exception:
1.The document is a business record
2.The document has probative value
3.The computer equipment used is reliable
4.Reliable data processing techniques were used41
The key in adapting the business records exception to
electronic permissions in a digital library system are
points 3 and 4. Establishing these propositions and the
propositions set forth in section ___ of this paper requires
expert testimony. Any designer of a digital library system
must consult with counsel and understand what testimony an
expert would give to establish these propositions. Going
through that exercise will influence system design.
Reinforce the Evidentiary Reliability by Using Trusted
Third Parties
The evidentiary purpose of contract formation
requirements can be satisfied by using a trusted third party
as an intermediary, when the third party maintains archival
records of the transactions. The third party lacks any
incentive for tampering with the records and when the third
parties archiving system is properly designed, it can
provide evidence sufficient to establish all of the
propositions identified in ___.
This third party intermediary concept is somewhat
different from the concept for a certifying agent in digital
signature systems. To be sure, the custodian of transaction
records envisioned by this section could be the same as the
certifying entity for public and key encryption, but the
custodian role can be played in the absence of any
encryption. Indeed, the digital library itself is a good
candidate for the custodian role. The library has no
incentive to manipulate its records in favor of either of
the producers of information value or the consumers. In
order to carry out its affairs, it must use these
transactional records in the ordinary course of business,
thereby making it likely that digital library records would
qualify under the business records exception.
Standardization
Obviously, the digital library concept depends upon the
possibility of an automated comparison between the knowbot
and the permissions header. This means that potential
requesters of information and suppliers of information must
know in advance the data structures for representing the
elements of the permissions header and the knowbot. This
requires compatibility. Compatibility requires
standardization. Standardization does not, however,
necessarily require "Standard" in the sense that they are
developed by some bureaucratic body like ANSI. It may simply
imply market acceptance of a particular vendor's approach.
Indeed, each digital library might use different data
structures. All that is necessary is that the structure of
the knowbot and the structure of the permissions header be
compatible within any one digital library system. Also, as
demands emerge for separate digital libraries to communicate
with each other, there can be proprietary translation to
assure compatibility between systems much as common word
processing programs translate to and from other common
formats and much as printers and word processing software
communicate with each other through appropriate printer
drivers. In neither of these cases has any independent
standards organization developed a standard that is at all
relevant in the marketplace.
Standardizing the elements of Knowbot and permissions
headers involves content standardization, which generally is
more challenging than format standardization.42 A permissions
header/Knowbot standard is a system for representing legal
concepts and for defining legal relations. As such, the
standard is basically a grammar for a rule based substantive
system in a very narrow domain.43 The data elements must
correspond to legally meaningful relational attributes. The
allowable values must correspond to legally allowable
rights, obligations, privileges and powers. In other words,
the standard setter must meet many of the challenges that a
legal expert system designer working with Hohfeldian
frameworks must meet.44 This adds a constraint to the
standards setting process. Unlike setting format standards,
where the participants are free to agree on an arbitrary way
of expressing format attributes, participants in setting a
content standard must remain within the universe of
permissible content. The set of permissible values is
determined by the law rather than being determined only by
the imagination of format creators.
Enforcement and Bottlenecks
One of the many profound observations by Ithiel de Sola
Pool was that copyright always has depended upon
technological bottlenecks for its enforceability. The
printing press was the original enforcement bottleneck.
Now, a combination of the printing press and the practical
need to inventory physical artifacts representing the work
constitute the enforcement bottlenecks. As technologies
change, old bottlenecks disappear and enforceability
requires a search for new bottlenecks. When there are single
hosts, like Westlaw, Dialog, Lexis, and CompuServe, access
to that host is the bottleneck. The problem with distributed
publishing on an open architecture internet is that there is
no bottleneck in the middle of the distribution chain
corresponding to the printer, the warehouse or the single
host.
If new bottlenecks are to be found, they almost surely
will be found at the origin and at the point of consumption.
Encryption and decryption techniques discussed elsewhere in
this volume concentrate on those bottlenecks as points of
control. It also is possible that rendering software could
become the new bottleneck as Mr. Linn suggests.
Even with those approaches, however, a serious problem
remains in that the new technologies make it difficult or
impossible to distinguish between mere use and copying.
Thus the seller cannot distinguish between an end user45 and
a potential competitor. On the other hand, the new
technologies permit a much better audit trail, potentially
producing better evidence for enforcement adjudication.
If network architectures for electronic publishing
evolve in the way that Ted Nelson suggests with his Xanadu
concept, the real value will be in the network and the
pointers, not in the raw content. Thus, the creative and
productive effort that the law should reward is the creation
and productive effort that the law should reward is the
creation and production and delivery of pointers,
presentation, distribution, and duplication value. If this
is so, then technological means will be particularly
important, foreclosing access by those lacking passwords and
other keys and limiting through contract what a consumer may
do with the information.
In such an architecture, the law either will be
relatively unimportant because technology can be counted on
to prevent free riding or, the law will need to focus not on
prohibiting copying or use without permission, but on
preventing circumvention of the technological protections.
Thus, legal approaches like that used to prevent the sale of
decryption devices for television broadcasts and legal
issues associated with contract enforcement may be more
important than traditional intellectual property categories.
Weighing Risks and Costs
The law generally imposes sensible levels of
transaction costs. Usually, transaction costs are
proportional to the risk. Figure 1 shows a continuum of
risk and transaction cost in traditional and new
technologies. A real estate closing involves significant
risks if there is some dispute later about the transaction.
Therefore, the law affords much protection, including a
constitutional officer called a registrar of deeds who is
the custodian of records associated with the transaction.
The risk level analogous to this in electronic publishing
might be access to an entire library including access
software as well as contents. Next, is a transaction
involving a will or power of attorney. There, the risk is
substantial because the maker of the instrument is not
around to help interpret it. The law requires relatively
high levels of assurance here, though not as great as those
for real estate transactions. The law requires witnesses
and attestation by a commissioned minor official called a
notary public. The electronic publishing analogy of this
level of risk might be the contents of an entire CDROM.
Next, in level of risk is the purchase of a large
consumer durable like an automobile. The law requires
somewhat less, but still significant protections for this
kind of transaction: providing for the filing and
enforcement of financing statements under the Uniform
Commercial Code. The electronic publishing analogy might be
the transfer of copyright to a complete work. Next, down
the risk continuum, is the purchase of a smaller consumer
durable like a television set. Here, the law typically is
reflected in written agreements of sale, but no special
third party custodial mechanisms. The electronic publishing
analogy might be use permission for a complete work.
Finally, is the purchase of a relatively small consumer
item, say a box of diskettes. Neither the law or commercial
practice involves much more than the exchange of the product
for payment, with no written agreement or anything else to
perform channeling, cautionary, evidentiary, or protective
functions [make sure these function and the citation appears
earlier]. The electronic publishing analogy might be use
permission for part of a work.
Cost effectiveness = risk-proportional security
traditional transaction institutions electronic equivalent
real estate closing registrar of deeds entire library - software and
contents
will/power of attorney witnesses, notary public contents of entire CDROM
auto purchase UCC financing statement complete work - transfer of
copyright
television set purchase written sale agreement complete work - use permission
box of diskettes - part of a work - use
permission
An encrypted object combined with rendering software is
probably inconsistent with an open architecture. Because of
the difficulty of setting standards for such technologies,
this approach to intellectual property protection probably
would be effectuated by proprietary approaches thus
frustrating the vision of an open market for electronic
publishing.
Conclusion
Realization of the digital library vision requires a
method for collecting money and granting permission to use
works protected by intellectual property. The concept of a
knowbot and a permissions header attached to the work is the
right way to think about such a billing and collection
system. Standards for the data structures involved must be
agreed to, and systems must be designed to satisfy legal
formalities aimed at ensuring awareness of the legal
significance of transactions and reliable proof of the terms
of the transactions.
In the long run, not only must these technological
issues be resolved, with appropriate attention to levels of
risk and protections available under traditional legal
doctrines, but also further conceptual development must be
undertaken. Proponents of electronic publishing over wide
area networks need to think about the appropriate metaphors:
whether it is a library or a bookstore, if a library whether
with or without xerox machines, if a bookstore whether it is
a retail bookstore, or a mail order operation. Then,
thought must be given to how standards will be set.
Finally, and most important, much more needs to be
understood about the need for third party institutions.
There is a good deal of enthusiasm for public key
encryption. Yet the vulnerability of public key encryption
systems is in the integrity of the key authority. In
traditional legal protections, the third party custodians or
authenticating agents like notary public and registrars of
deeds receive state sanction and approval, and in the case
of registrars of deeds, public funding. We must be clearer
as to whether a similar infrastructure must be developed to
protect against substantial risks and the use of EDI and
electronic publishing technologies.
Finally, and perhaps most importantly, we must be
thoughtful about what legal obligations, imposed on whom,
are appropriate? The suggested 102(e) and (f) in the High
Performance Computing Act looks very much like King James
I's licensing of printing presses. It also looks like the
FBI's proposal to prohibit the introduction of new
technologies until certain conformity with past legal
concepts is assured. Such approaches make the law a hurdle
to new technology -- an uncomfortable position for both law
and technology.
_______________________________
1 The use of EDI techniques to meter usage and determine
charges for use of intellectual property is an example of
billing and collection value in a typology of different
types of value that can be produced in electronic
marketplaces for information. See Henry H. Perritt, Jr.,
Market Structures for Electronic Publishing and Electronic
Contracting in Brian Kahin, ed., Building Information
Infrastructure: Issues in the Development of the National
Research and Education Network (Harvard University and
McGraw-Hill 1992) (developing typology for different types
of value and explaining how market structures differ for the
different types); Henry H. Perritt, Jr., Tort Liability, the
First Amendment, and Equal Access to Electronic Networks, 5
Harv.J.Law & Tech. 65 (1992) (using typology of ten types of
value to analyze access by competing producers of value).
2 See, e.g.U.S.Pat. No. 5,016,009, Data compression
apparatus and method (May 14, 1991); U.S. Pat. No.
4,996,690, Write operator with gating capability (Feb. 26,
1991);U.S. Pat. No. 4,701,745, Data compression system (Oct.
20, 1987); Multi Tech Systems, Inc. v. Hayes Microcomputer
Products, Inc., 800 F. Supp. 825 (D. Minn. 1992) (denying
summary judgment on claim that patent for modem escape
sequence is invalid)..
3 Comments on the 8\21 draft of "Knowbots in the Real
World" from the intellectual property workshop participants
at page 6 (author unknown, source unknown). Professor
Samuelson also observed that the workshop, despite its
title, actually did not focus much on intellectual property
issues.
4 Corporation for National Research Initiatives,
Workshop On The Protection Of Intellectual Property Rights
In A Digital Library System: Knowbots in the Real World-May
18-19, 1989 (describing digital library system).
5 See generally Clifford A. Lynch, Visions of Electronic
Libraries (libraries of future can follow acquisition-on-
demand model rather than acquiring an advance of use; Z39.50
protocol will facilitate realization of that possibility,
citing Robert E. Kahn & Vinton G. Serf, An Open Architecture
for a Digital Library System and a Plan for Its Development.
The Digital Library Project, volume 1: The World of Knowbots
(draft) (Washington D.C.: Corporation for National Research
Initiatives; 1988)).
6 Clifford A. Lynch, The Z39.50 Information Retrieval
Protocol: An Overview and Status Report, ACM Sigcomm
Computer Communication Review at 58 (describing Z39.50 as an
OSI application layer protocol that relieves clients from
having to known the structure of data objects to be queried,
and specifies a framework for transmitting and managing
queries and results and syntax for formulating queries).
7 Brewster Kahle, Wide Area Information Server Concepts
(Nov. 3, 1989 working copy; updates available from Brewster
@THINK. (describing WAIS as "open protocol for connecting
user interfaces on workstations and server computers")
(describing information servers as including bulletin board
services, shared databases, text searching and automatic
indexing and computers containing current newspapers and
periodicals, movie and television schedules with reviews,
bulletin boards and chat lines, library catalogues, Usenet
articles).
8 Robert E. Kahn, Deposit, Registration, Recordation in
an Electronic Copyright Management System (August 1992)
(Corporation for National Research Initiatives, Reston,
Virginia).
9 Kahn 1992 at 4.
10 Kahn 1992 at 6.
11 Kahn 1992 at 10.
12 Kahn 1992 at 12.
13 Kahn 1992 at 15.
14 Browsability through techniques like the collapsible
outliner function in Microsoft Word for Windows and
competing products require more chunking and tagging value
in the form of style and text element codes. Handling this
additional formatting information through encryption and
description processes is problematic.
15 " A 'transfer of copyright ownership' is an
assignment, mortgage, exclusive license, or any other
conveyance, alienation, or hypothecation of a copyright or
of any of the exclusive rights comprised in a copyright,
whether or not it is limited in time or place of effect, but
not including a non-exclusive license " 17 U.S.C. 101
(1988).
16 17 U.S.C. 204(a) (1988); Valente-Kritzer Video v.
Pinckney, 881 F.2d 772, 774 (9th Cir. 1989) (affirming
summary judgment for author; oral agreement unenforceable
under Copyright Act); Library Publications, Inc. v. Medical
Economics Co., 548 F. Supp. 1231, 1233 (E.D. Pa. 1982)
(granting summary judgment against trade book publisher who
sought enforcement of oral exclusive distribution agreement;
transfer of exclusive rights, no matter how narrow, must be
in writing), aff'd mem., 714 F.2d 123 (3d Cir. 1983).
17 17 U.S.C. 205 (1988) provides constructive notice of
the contents of the recorded document, determining priority
as between conflicting transfers, and determines priority as
between recorded transfer and non-exclusive license. The
former requirement for transfers to be recorded in order for
the transferee to maintain an infringement, 17 U.S.C.
205(d), was repealed by the Berne Act Amendments 5.
18 under Adams v. Burke, 84 U.S. (17 Wall.) 453 (1873), a
patentee must not attempt to exert control past the first
sale. In general, use restrictions may be placed only on
licensees, consistent with General Talking Pictures v.
Western Elec., 304 U.S. 175 (1938). See generally Baldwin-
Lima-Hamilton Corp. v. Tatnall, 169 F. Supp. 1 (E.D.
Pa.1958) (applying no control after purchase rule).
19 See Red-Baron-Franklin Park, Inc. v. Taito Corp., 883
F.2d 275, 278 (4th Cir. 1989) (purchase of video game
circuit boards did not create privilege to perform video
game under first sale doctrine); United States v. Moore, 604
F.2d 1228, 1232 (9th Cir. 1979) (pirated sound recording not
within first sale doctrine in criminal copyright
infringement prosecution). But see Mirage Editions, Inc. v.
Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir. 1988)
(first sale doctrine did not create privilege to prepare
derivative work by transferring art in book to ceramic
tiles).
20 The way in which the first sale doctrine would impact
the electronically imposed use restrictions is by
frustrating a breach-of-contract lawsuit by the licensor
against a licensee who exceeds the use restrictions. The
licensee exceeding the use restrictions would argue that it
violates public policy to enforce the restrictions and
therefore that state contract law may not impose liability
for their violation. See generally Restatement (second) of
Contracts 178 (1981) (stating general rule for determining
when contract term in unenforceable on grounds of public
policy).
21 In addition, as ___ of this paper notes, the
Copyright Act itself requires signed writings for transfers
of copyright interests. 17 U.S.C. 204(a). (1988).
22 Michael S. Baum & Henry H. Perritt, Jr., Electronic
Contracting, Publishing and EDI Law ch. 6 (1991) (contract,
evidence and agency issues) [hereinafter "Baum & Perritt"].
Accord, Signature Requirements Under EDGAR, Memorandum from
D. Goelzer, Office of the General Counsel, SEC to Kenneth A.
Fogash, Deputy Executive Director, SEC (Jan. 13, 1986)
(statutory and non-statutory requirements for "signatures"
may be satisfied by means other than manual writing on paper
in the hand of the signatory . . . "In fact, the electronic
transmission of an individual's name may legally serve as
that person's signature, providing it is transmitted with
the present intention to authenticate.").
23 17 U.S.C. 101 (1988). For copyright purposes, a work
is created, and therefore capable of protection, when it is
fixed for the first time. 17 U.S.C. 101 (1988). "[I]t makes
no difference what the form, manner, or medium of fixation
may be - whether it is in words, numbers, notes, sounds,
pictures, or any other graphic or symbolic indicia, whether
embodied in a physical object in written, printed,
photographic, sculptural, punched, magnetic, or any other
stable form, and whether it is capable of perception
directly or by means of any machine or device 'now known or
later developed.'" 1976 U.S. Code Cong. & Admin. News 5659,
5665. The legislative history further says that, "the
definition of `fixation' would exclude from the concepts
purely of an evanescent or transitory nature --
reproductions such as those projected briefly on a screen
shown electronically on a television or other video display
or captured momentarily in the `memory' of a computer." 17
U.S.C. 102 note (excerpting from House Report 94-1476).
24 Or, more likely, what is on computer medium read by
computer x, such as a magnetic cartridge used for archival
records. Further references in the textual discussion to
"what is in computer x now" should be understood to include
such computer readable media.
25 Cf. Peritz, Computer Data and Reliability: A Call for
Authentication of Business Records Under the Federal Rules
of Evidence, 80 Nw.U.L.Rev. 956, 980 (1986) (proof that a
printout accurately reflects what is in the computer is too
limited a basis for authentication of computer records).
26 In some cases, the electronic transaction will be
accomplished by means of a physical transfer of computer
readable media. In such a case, this step in the proof would
involve proving what was received physically.
27 See generally Peritz, Computer Data and Reliability: A
Call for Authentication of Business Records Under the
Federal Rules of Evidence, 80 Nw.U.L.Rev. 956, 979 (1986)
(citing as examples of authentication Ford Motor Credit Co.
v. Swarens, 447 S.W.2d 53 (Ky. 1969) (authentication by
establishing relationship between computer-generated monthly
summary of account activity and the customer reported on);
Ed Guth Realty, Inc. v. Gingold, 34 N.Y.2d 440, 315 N.E.2d
441, 358 N.Y.S.2d 367 (1974) (authentication of summary of
taxpayer liability and the taxpayer)).
28 Of course, a paper document signed at the end also is
probative of the fact that no alternations have been made.
In this sense, a signature requirement telescopes several
steps in the inquiry outlined in the text.
29 United States v. Linn, 880 F.2d 209, 216 (9th Cir.
1989) (computer printout showing time of hotel room
telephone call admissible in narcotics prosecution). See
also United States v. Miller, 771 F.2d 1219, 1237 (9th Cir.
1985) (computer generated toll and billing records in price-
fixing prosecution based on testimony by billing supervisor
although he had no technical knowledge of system which
operated from another office; no need for programmer to
testify; sufficient because witness testified that he was
familiar with the methods by which the computer system
records information).
30 See United States v. Hutson, 821 F.2d 1015, 1020 (5th
Cir. 1987) (remanding embezzlement conviction, although
computer records were admissible under business records
exception, despite trustworthiness challenged based on fact
that defendant embezzled by altering computer files; access
to files offered in evidence was restricted by special
code).
31 Restatement (Second) of Contracts ___ (1981).
32 Cite for when extrinsic evidence is admissible.
33 See Baum & Perritt 2.6; The Electronic Messaging
Services Task Force, The Commercial Use of Electronic Data
Interchange--A Report and Model Trading Partner Agreement,
45 Bus.Law. 1645 (1990); Jeffrey B. Ritter, Scope of the
Uniform Commercial Code: Computer Contracting Cases and
Electronic Commercial Practices, 45 Bus.Law. 2533 (1990);
Note, Legal Responses to Commercial Transactions Employing
Novel Communications Media, 90 Mich.L.Rev. 1145 (1992)
34 Garber v. Harris Trust & Savings Bank, 432 N.E.2d
1309, 1311-1312 (Ill. App. 1982) ("each use of the credit
card constitutes a separate contract between the parties;"
citing cases).
It is not quite this simple, because both merchant and
credit card customer have separate written contracts with
the credit card issuer. But there is no reason that a
supplier of information to a Digital Library System and all
customers of that system might not have their own contracts
with the Digital Library System in the same fashion.
35 Rowland v. Union Hills Country Club, 757 P.2d 105
(Ariz. 1988) (reversing summary judgment for country club
officers because of factual question whether club followed
bylaws in expelling members); Straub v. American Bowling
Congress, 353 N.W.2d 11 (Neb. 1984) (rule of judicial
deference to private associations, and compliance with
association requirements, counseled affirmance of summary
judgment against member of bowling league who complained his
achievements were not recognized). But see Wells v. Mobile
County Board of Realtors, Inc., 387 So.2d 140 (Ala. 1980)
(claim of expulsion of realtor from private association was
justiciable and bylaws, rules and regulations requiring
arbitration were void as against public policy; reversing
declaratory judgment for defendant association).
36 F.R.E. 803(6) (excluding business records from
inadmissibility as hearsay); 28 U.S.C. 1732 ("Business
Records Act" permitting destruction of paper copies of
government information reliably recorded by any means and
allowing admission of remaining reliable record).
37 See Peritz, Computer Data and Reliability: A Call for
Authentication of Business Records Under the Federal Rules
of Evidence, 80 Nw.U.L.Rev. 956, 978-80, 984-85 (1986)
(noting body of commentator opinion saying that business
records exception and authentication are parallel ways of
establishing reliability).
38 See F.R.E. 901(b)(4) (appearance, contents, substance,
internal patterns, as examples of allowable authentication
techniques).
39 Peritz, Computer Data and Reliability: A Call for
Authentication of Business Records Under the Federal Rules
of Evidence, 80 Nw.U.L.Rev. 956, 963-64 (1986) (identifying
steps and trend resulting in F.R.E.).
40 Peritz, Computer Data and Reliability: A Call for
Authentication of Business Records Under the Federal Rules
of Evidence, 80 Nw.U.L.Rev. 956, 963 (1986).
41 Peritz, Computer Data and Reliability: A Call for
Authentication of Business Records Under the Federal Rules
of Evidence, 80 Nw.U.L.Rev. 956, 974 (1986) (reporting four
requirements of Manual, and endorsing their use generally).
42 See Henry H. Perritt, Jr., ___, ___ Jurimetrics ___
(1993) (distinguishing between format and content
standardization).
43 See Marc Lauritsen, ___ (explaining relationship
between substantive legal systems and the field of
artificial intelligence).
44 See Thorne, McCarty; Kevin Ashley; and Gardner.
45 It may not be particularly important to limit
competition by consumers, because the consumers will never
have the pointers and the rest of the network
infrastructure.
.
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