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OCR for page 81
Property Rights
in Information
ANNE WELLS BRA3~SCOMB
Hi
The subject of this paper the laws of the Information Age and,
more specifically, property rights in information is a difficult one,
but it is absolutely essential to pursue if we are to enter the Information
Age knowledgeably and with an understanding of the consequences.
After an introductory section which presents definitions of property
and historical background on information protection, the paper reviews
recent developments with respect to property rights in information,
analyzes several of the major areas of concern, and develops some
general principles to guide us in the application of the law to the new
technologies. For almost every right in this area there is an opposing
claim or an adversarial relationship. Therefore, in each individual case
it is a matter of balancing equities and sensibilities that often defy
codification. As discussed in individual sections below, the rights
include:
1. the right to know information about ourselves and the world we live in
2. the right to collect information—the investigative function
3. the right to acquire information—archived by others
4. the right to withhold info~matio~about ourselves, personal, corporate,
or national
5. the right to control the release of information
6. the right to receive compensation for information
7. the right to protect informatio~the security function
8. the right to destroy or expunge information
9. the right to correct or alter information
81
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82
ANNE WELLS BRkSCOAIB
10. the right to publish or disseminate information access to the market-
place of ideas
INTRODUCTION
Many scholars, including Colin Cherry,l Fritz Machlup,2 and Harlan
Cleveland,3 rightfully argue that information has characteristics differ-
ent from those of natural resources and manufactured goods upon the
exchange of which our economic system rests. However, if we are to
transform our economy into one that relies primarily upon the economic
value of gathering, storing, processing, and distributing information,
we must develop principles from which we can derive economic value
for such activities. Therefore, it is not very helpful to the public debate
to insist that information must by its nature be shared or that it is
naturally leaky or uncontainable.
In civilized societies, especially in information societies that are
firmly rooted in an educated citizenry and intellectual prowess, we
will not tolerate the unnecessary spilling of proprietary information
any more than we will tolerate oil spills polluting our oceans. Neither
will we tolerate exclusivity with respect to information upon which
our livelihood as a nation depends. Inevitably we must turn to our
legal system to develop and to sustain those rights that we consider
inalienable and equitable and to delineate the boundaries between what
is considered public and what is to be protected by the law as private.
Definitions of Property
Property is a legal concept that dates back to the earliest history of
civilization and that is central to the efficient functioning of market
economies. The word deals with the boundary line between what is
yours and what is mine, or between what belongs to everybody and
what belongs to nobody.
Property, according to Black's Law Dictionary' is "that which is
peculiar or proper to any person; that which belongs exclusively to
one; in the strict legal sense, an aggregate of rights which are guaranteed
and protected by the government." The word is derived from the Latin
word proprio meaning to "own." The verb appropriate means "to
make a thing one's own; to make a thing the subject of property, to
exercise dominion over an object to the extent, and for the purpose,
of making it subserve one s own proper use or pleasure."
According to Webster's, the word property means. for tangible
objects, "something to which a person has legal title," and for intangible
rights, that "in which a person has a right protected by law.'' The
OCR for page 83
PROPERTY RIGHTS IN lNFOR~ATIO:I
83
word proper itself is the root from which property is derived. Webster~s
defines proper as that "which is socially appropriate: according with
established traditions and feelings of rightness and appropriateness,"
or that which is "sanctioned as according with equity, justice, ethics,
or rationale," or that which is "marked by nghtness, correctness, or
rectitude . . . entirely in accordance with authority, observed facts,
or other sanction."
Our Founding Fathers followed John Locke's definition of property
as including "that property which men have in their persons as well
as goods," and James Madison concluded: "In a word, as a man is
said to have a right to his property, he may be equally said to have a
property in his nghts."4
In Spanish law the propios or proprios were certain plots of land
reserved as the unalienable property of the town, for the purpose of
erecting public buildings, markets, and so forth, or to be used in any
other way, under the direction of the municipality, for the advancement
of the revenues or the prosperity of the place.
In recent years international lawyers have become enmeshed in
defining the ownership of international public spaces. Antarctica is the
world's only landmass not territorially designated by proprietary
ownership. However, the ocean seabed and outer space have been
subject to much debate over what constitutes the "common heritage
of mankind'' or ''the province of all mankind."5
Information is neither naturally proprietary nor naturally shared any
more than the earth, or ocean seabed, or space is naturally the province
of mankind or the property of individuals, nation-states, or other legal
entities.
Although we have lagged behind the Japanese in our research and
study of the social impacts of the Johoka Shakai (the Japanese term
for infonnation society),6 we have led the world in litigation, legislation,
and judicial interpretation of legal rights and obligations with respect
to information. Public discourse for many years to come will concen-
trate on defining property rights in information that are marked by
rightness and in accord with equity, justice, ethics, or reason, and will
focus especially on defining those rights that are subject to an effective
sanction.
History of Information Protection
The conflict between public and private information is as deeply
rooted in our historical documents as is the protection of both private
and public real estate. New England villages were built around a
OCR for page 84
84
ANNE WELLS B~SCO.llB
"common," or public area, in which villagers gathered on public
occasions, much as the Spaniards promenaded around their central
parks in the cool of evenings. In both cases the open spaces were
essential to the exchange of information in communities that depended
upon face-to-face voice communications. Counterparts of such places
include the ancient Greek agora, or marketplace, and London's Hyde
Park Corner.
We have protected our seacoasts for public access up to the high-
water mark and have developed a great national park system for the
protection of animals and for recreational activities. The concept of
public ownership of airwaves arose at the time of Teapot Dome
scandals when the public was outraged about the private exploitation
of our great natural resources. There was no natural obligation to make
the airwaves a public asset, as lawyers could map out private rights
in spectrum resources just as easily as they have in land masses. It
was considered the right and proper way of handling the Tower of
Babel that existed on the airwaves and prohibited anyone from using
that resource efficiently.
The Constitution provides for Congress to protect patents and
copyrights, whereas the Bill of Rights in the First Amendment estab-
lishes an unregulated marketplace of ideas. Thus the Founding Fathers
pursued the contradictory goals of protecting the work products of
inventors and writers while at the same time preserving the public
interest in the availability of information. We have tried to walk a
tightrope between providing too much or too little protection for
information. Cases abound in the law with regard to what constitutes
"fair use'' of information generated by another without his or her
permission. The basic philosophy was that facts and ideas could not
be protected, but only the composition (in the case of authors) and
the embodiment of an idea in a product or process (in the case of
patents).7 Consequently, we have preserved the open access to laws
of nature and to mathematical formulas that can be easily replicated.
At the same time we have attempted to provide authors and inventors
with legal protection for their expertise in order to compensate them
for their efforts, to encourage greater productivity, and to increase the
body of knowledge upon which human progress depends.
This concept of protection of intellectual property is not shared by
all the nations of the world, nor is it denved from any natural law.
Other cultures have their own concepts of propriety with respect to
intellectual output. There is nothing universal about copyright, patents,
or trade secrets. These are devices for reconciling the interests of
society with those of the individual and of linking intellectual produc-
OCR for page 85
PROPERTY RIGHTS IN INFORMATION
85
tivity with commercial gain. Their origins are in Western cultural
history and are deeply rooted in the development of the printing press
and industrial manufacturing societies. These are legal concepts de-
signed to encourage a positive attitude toward innovation and social
change. These concepts began to develop in the late Middle Ages;
they have no logical counterpart in early civilizations where the
products of intellectual expertise belonged to the community and not
to their creators.8
All societies have developed an information policy, the most stringent
of which is exemplified by the burning of books in China in 213 B.C.
and the burying alive of some 460 scholars who were thought to be
able to teach their contents from memory. Throughout history knowl-
edge has been closely guarded, usually by a priesthood whose continuity
depended on the maintenance of secrecy concerning rituals, herbs,
hieroglyphs, or, in the case of American Indians, secrecy of the sand
paintings used to heal the sick and bless newlyweds.
Thus we can consider computer hackers a new breed of priests.
whose primary motive has been to disseminate information about new
computer software as widely as possible rather than to keep their
expertise closely guarded. It is a startlingly new concept, therefore-
that of considering information as a natural resource which in its
natural state will tend to permeate the society. Such dissemination has
always depended upon skills that must be acquired, nurtured, and
supported by social sanctions.
Knowledge can only be acquired by developing one's intellectual
skills. Thus, the protection of intellectual activity developed alongside
the rise of a class of individuals who had the leisure to produce artistic,
literary, or useful inventions. There is substantial evidence that early
Greeks recognized the rights of artists to be identified with their works
and to have them performed or presented as created.9 The first
adjudication of a copyright issue seems to have taken place in the
Middle Ages when a zealous clergyman visited his former teacher long
enough to make a burned copy of his Book of Psalms, the copying of
which was not sanctioned by the king.'° The elaborate rules that we
are attempting to follow today awaited the advent of the printing press
in 1436 and the rapid industrialization of Western Europe.~'
The Constitution of the United States'2 endows the federal govern-
ment with the power to regulate copyrights and patents as a device to
"promote the progress of Science and useful Arts by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." Thereby authors and inventors
were encouraged to share their output with the nation. Surprisingly,
OCR for page 86
86
ANNE WELLS BRANSCO1~B
there was little debate concerning this clause. The Federalist papers
merely reflect that '`the utility of this power will scarcely be questioned.
The copyright of authors has been solemnly adjudged in Great Britain
to be a right of common law. The right to useful inventions seems
with equal reason to belong to the inventors. The public good fully
coincides in both cases with the claims of individuals...."13
In both cases it was assumed that it was in the public interest to
encourage the widespread dissemination of knowledge and to nurture
native intellect. Interestingly enough, the copyright law that was
enacted gave protection only to American authors, denying any
protection to imported works, which led to widespread copying of
English publications. ]4 This had the opposite effect from that of
encouraging native talent allegedly intended by the legislation. As the
piracy and copying of English information products were far cheaper
than acquiring the original works of American authors, a flourishing
publishing industry developed primarily for textbooks copied from
English sources. Thus the Copyright Act of 1790, a high priority on
the calendar of the First Congress, was a cornerstone in the philosophy
of the new nation to encourage literacy and widespread dissemination
of useful knowledge an early development of technology transfer. It
took another century to amend the act to recognize international
copyright arrangements that gave mutual protection to American
authors from unauthorized reprints by foreign publishers.'5
Despite the long and complex historical experience with copyrights
and patents developing protection for the production of information,
it was only late in the last century that we began to build a body of
law limiting the use of personal information. ~6 In the last ~ years we
have made great progress in accommodating ourselves to the intrusion
into our personal and political lives of an independent press, both print
and electronic media, and we are beginning to forge a new law with
respect to computer communications as well.
THE RIGHT TO KNOW
The right to know can involve either simple or complex matters,
e.g., the simple matter of the right of individuals to know of their
origins and who their true parents are, or the more complicated matter
of the right of the public to information that provides the basis for
public decisions. However, no such right is absolute. For example,
with the advent of amniocentesis, which permits identification of the
sex of an unborn child dunug periods of pregnancy when an abortion
can still be legally performed, it has become a controversial issue
t
OCR for page 87
PROPERTY RIGlITS IN INFO~ATION
87
whether or not the couple should be told the sex of the child. Relatives
and doctors withhold the information that a patient has a terminal
disease where, in theirjudgment, it would be psychologically damaging
to the patient.
Geraldine Ferraro and her husband confronted a difficult decision
with respect to the release of information that Mr. Zaccaro considered
would be damaging to his business interests. His tax returns were not
legally required by the strictest interpretation of the campaign disclo-
sure laws, but the public believed it had a right to know the facts in
order to pass judgment on Ms. Ferraro's qualifications to be vice-
president. ]7
"Anatomy of a Libel Suit," an excellent two-hour program produced
for public television by the Columbia School of Journalism, dramatized
the dilemma between the public's right to know and the private right
to control personal information. It contrasted the role of the press in
acting as surrogate for the public with the right of individuals to
maintain secrecy about their personal affairs and the right of co~po-
rations to protect internal memoranda and documents that may prove
embarrassing or damaging to their business. The rule of law that has
evolved, as enunciated in Times v. Sullivan'8 two decades ago, is that
the public's right to know takes precedence over the personal right to
privacy. If one is a "public figure'' (e.g., a public official—even a
policeman on the beat) or a quasi or limited public figure (e.g., one
who is well known in the press already with respect to the controversy
in question), then the press can be held liable for misstating facts only
where malice (e.g., intentional lying or flagrant disregard for the facts)
can be shown.~9
THE RIGHT TO COLLECT INFORMATION
The right to collect information is vested primarily in the government
and is differentiated from the right of journalists to investigate the
facts. Many businesses and institutions collect information banks,
insurance companies, credit institutions, hospitals, universities—but
there is no legal right to do so. Most of the information is freely given
or exchanged for services. In most cases there is a quid pro quo for
the disclosure of the information based upon either an explicit or an
implied contract. Having delivered sufficient consideration to legitimize
a contract, the institutions consider the information proprietary and
are loathe to release it even to the subjects of the information, be they
patient, customer, or student. It has taken federal and state laws as
well as court orders~to require universities to make their records
OCR for page 88
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ANNE WELLS BRANSCOMB
available to students and their parents,20 and universities are still
troubled about the consequences of having what they consider sensitive
records open to inspection because it will inhibit professors and other
staff from being candid about their observations. Also, a recent case
holding that individuals have no inherent legal interest in records
concerning themselves held by others is quite troubling.2'
States as well as the federal government have been forging a new
framework for privacy over the past several decades, and the effort
has become more intense since the 1960s. The primary federal privacy
legislation now in effect controls access of the public to government
data banks in which information is collected and aggregated.22 How-
ever, the right of the government to collect information is fundamental
to the survival of the nation. Its economic health as well as its physical
and political health is at stake. The census, which was started in 1890,
is a fundamental function of the federal government. In order to collect
demographic data and aggregate it for analysis, the government must
have the power to compel citizens to respond. This is a very sensitive
area, and many citizens do not agree that they should be compelled
to release the necessary data. However, allocation of public funds is
based upon percentages of identifiable groups, for example, children
of the military living within a school district. Also, market information-
important to a healthy private sector- is gleaned from the economic
statistics that are collected by the Bureau of Economic Affairs in the
Department of Commerce.
Stringent legislation exists to protect individuals from disclosure of
information that is identifiable as specific to an individual or corpora-
tion. However, the access laws have made it extremely complicated
to protect such anonymity for large enterprises, and many corporations
feel that their trade secrets may be jeopardized even though one of
the exceptions to the law is that such disclosure may occur.
A very disturbing decision was handed down recently by the New
York State Court of Appeals. Under New York law domestic insurance
companies are required to keep certain books and records, including
minutes of their corporate board of directors' meetings. Such records
have been voluntarily sent to the State Insurance Department under a
promise of confidentiality. However, the court ruled that the agency
must disclose the minutes of the directors' meetings to the Washington
Post under New York's Freedom of Information Law, which defined
"records" as "any information kept, held, filed, produced or repro-
duced by, with or for any agency . . ." and that an amendment to the
act had eliminated any reference to an exemption for records "confi-
dentially disclosed."23
OCR for page 89
PROPERTY RIGHTS IN INFORMATION
THE RIGHT TO ACQUIRE INFORMATION
89
The right to acquire infonnation is a public access issue that goes
beyond the right of the press to investigate and/or the right of the
government to collect information. It involves the right of citizens to
acquire information already collected by others. James Madison ob-
served that "a popular government without popular information, or
the means of acquiring it, is but a prologue to a farce or a tragedy, or
perhaps both." Based upon that verity, the United States has built its
information policy upon a broad base of public education, public
libraries, public subsidies for newspapers and other printed materials,
and a government printing office that publishes the information gathered
and processed by the federal government. Strictly speaking, public
access may be difficult to conceive of as a property right. However,
it is basically a legal entitlement to use public property, e.g., that
information which is gathered arid processed and published with federal
funds and/or has become generally available to the public.
Patents and copyrights are the legal means by which authors and
inventors are encouraged to share their creative endeavors with the
public in exchange for the legally protected right to control the use of
their intellectual products.24 However, there has been considerable
concern that many of these patents become buried in government
archives and are never turned to productive use.
This concern is especially pertinent for patents owned by the
government, where private enterprises have no incentive to develop
the technology. Only 4 percent of the government's 30,000 patents
have been developed and marketed.25 In response to this concern,
Congress amended the patent and trademark laws in 1980 to permit
universities, small business firms, and nonprofit institutions to apply
for patents on federally funded research and to retain exclusive licenses
on these patents for as long as eight years.26 Although this legislation
has offered a cure for one problem—the loss of productivity from
development of government patents—it has created another the
concern that the basic purposes of universities will be altered. In
particular, there is concern that university efforts to sponsor research
jointly with industry, in response to diminishing public funding of
research, may change the public availability of information produced
in universities.27
For the general purpose of making information available to the
public, aside from the Government Printing Office (GPO), there are
extensive federal libraries including the Library of Congress (LC), the
National Library of Medicine (NLM), and the National Technical
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90
ANNE WElI,?B~SCOMB
Inflation Service (NTIS). These organizations collect and dissem-
inate information developed with federal funds (as in the case of
NTIS), registered with the Copyright Office (as in the case of the LC),
or collected because it is pertinent to basic research being conducted
by scientists and physicians both in federal employment and around
the country (as in the case of NLM).
In recent years there has been much turmoil about the dissemination
of information that has been processed by federally owned computers
and is available in machine-readable form. The most recent policy
enunciated by the present administration is that such information will
be offered to private contractors for electronic dissemination. Users
will pay for the direct cost of accessing the data from computer-based
systems, but the federal government will exercise no influence over
the fees that contractors or subcontractors may charge the public to
access such on-line data.28 Another pioneering project has been
undertaken by the Trademark Office, which has entered into barter
arrangements with private companies to exchange government data
for services in designing the computer graphics software and entering
the data to access trademark registrations on-line through an electronic
data base. The ultimate goal is to produce the paperless office in~which
manual files will no longer be maintained.29 This is a far cry from the
previous practice of agricultural data being distributed freely and
without charge by congressmen to their constituents and from that of
county agents offering their consulting services to local farmers.
Congressman Byron Rogers from Colorado's First Congressional
District used to send baby books to all new parents with his compli-
ments, and many useful publications are offered at a modest cost by
the Government Printing Office.
Public libraries agonize over the high costs of distributing information
on-line, as charges are not imposed on the the use of books unless
they are overdue.30 There is, of course, no natural rationale that
requires public libraries to permit readers to read books in their
collections without charge. Indeed, in former times libraries were very
carefully guarded assets, access to which was strictly regulated. Neither
is there a natural rationale which requires that access to computer-
based information be subject to usage-sensitive charges. The main
difference is that it is more convenient to measure and collect the
marginal cost of computer access than it is for manual systems.
THE RIGHT TO WITHHOLD INFORMATION
The personal right to privacy is basically a right to withhold
information from public dissemination or disclosure. It is quite limited
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PROPERTY RIGHTS lN INFORMATION
91
in a society that believes in the free flow of information. In the United
States the press is encouraged to serve as a watchdog and to seek out
wrongdoing in public and private institutions.
As the press has become more and more diligent in its role and the
means of surveillance and investigation have become more sophisti-
cated, it is not surprising that public agitation with respect to the
advent of new information technologies has sparked an interest in
privacy laws. The most basic property right is the protection and
integrity of one's own person" the right to withhold information about
oneself that one considers to be Knees own, the right to disclose
information about oneself at such time and place and under such
conditions as one chooses, and the complementary right to know of
and to correct information about oneself that is inaccurate and damaging
to one's pride or reputation.
Scholars of privacy insist that privacy is a natural instinct that has
roots in the earliest of civilizations. However, when one visits the
pueblos and cliff dwellings of the Southwest Indians it is difficult to
believe that our early forebears on this continent enjoyed very much
pnvacy. And those of us who grew up in small-town America also
have serious doubts that privacy is so deeply rooted histoncally.
Indeed, it seems a newly won privilege of urban civilization where the
sheer numbers of citizens living together make it virtually impossible
for everyone to keep track of everyone else. Therefore, it comes as
something of a surprise that there is such commotion about inform citation
technologies that have the capability to reimpose the surveillance that
was characteristic of small, tightly knit communities.
Nonetheless, it is a characteristic of our evolving civilization that
we are developing an increasing respect for the individuality and
privacy of every human being in addition to a recognition of proprietary
rights in real estate and other material possessions. Therefore, it
follows logically that we will also evolve a body of law to protect
information about ourselves as well as information concerning our
corporate enteIpnses and public institutions.
Some rights have become universally accepted and require no legal
sanction. For example, many women in our society prefer not to tell
their age, and that preference is usually respected. The privacy of
other information, such as that about sexual behavior, is less universally
accepted; e.g., we are only recently beginning to accept overt homo-
sexuality among those in positions of power and influence such as the
teaching profession and the judiciary. Consequently, there has been a
strong incentive to protect such information from disclosure. Criminal
activity, physical illness, psychiatric treatment, credit history, and
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ANNE RELIT BRANSCOMB
Broadcasting
The broadcasting counterpart of the right of the individual to access
personal information in public records is the personal attack doctnne,
which permits the subject of an attack to obtain a copy of the offensive
audio or video broadcast and to reply.~°°
Newspapers
There is no right in the pnut media, comparable to the personal
attack doctrine, that permits an individual to reply to material already
published. In order not to chill the freedom of speech that the First
Amendment seeks to protect, the appropriate recourse to an inaccurate
or untrue statement is a libel action after the fact for money damages.
However, in California, where many libel actions are filed by prominent
entertainers, the libel action may not be pursued if the publication
voluntarily published ~ retraction of the alleged inaccurate informa-
tion.~°' Also under the rubric of privacy protection (a competing First
Amendment right), an injunction may be obtained to prevent publication
of material that will place the plaintiff in a "false light.''~02
Efforts to establish news councils to serve as watchdogs on such
abuses and to urge offenders to publish replies have not been very
successful, as some of the major news companies refuse to participate.
The effort of the Flonda legislature to enact a right of reply for
newspapers was struck down by the Supreme Court as intrusive upon
the editorial judgment of the news media.~03
Consequently, the new technologies of both broadcast and computer
have come under more stringent rules than the old media. However,
it must be remembered that the abuses to be corrected at the time of
the First Amendment were strong government intrusions into news
content, whereas today the greater fear is the danger of private
corporate control over the means of distributing information.
Many of the major newspapers and magazines regularly publish
corrections of items from previous editions. They should continue to
do so in their own interest and that of the public. As they enter the
age of electronic publishing (and many, such as Gannett, Time, Inc.,
and Dow Jones, are already delivering their content via satellite or
engaging in the delivery of videotext, they may become subject to the
laws governing the electronic media. However, they may find that the
public is more sympathetic with the later evolution of the law as a
more equitable and workable solution to balancing property rights in
information in the sophisticated technological environment. The First
Amendment shield, with which they so vociferously assert their right
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PROPER RIGHTS IN INFO~ATION
111
to be protected from public accountability, may not serve them well
unless they have themselves conformed to the tenets of its underlying
philosophy.
THE RIGHT TO DISSEMINATE INFORMATION
None of the other rights would be very meaningful if there were no
right to send forth the information into the marketplace of ideas.
However, such dissemination carries an economic cost when any
technology other than the human voice is employed. Every community
has some place that operates as a public forum. In small-town America
it was around the steps of the county courthouse. Portuguese sailors
who settled New Bedford met on street corners, and some New
England villages meet at the town dump. Most societies have large
squares in which great numbers of citizens can assemble for public
festivals and pronouncements of policy- the Mall in Washington,
O.C., Red Square next to the Kremlin in Moscow, St. Peter's Square
in the Vatican, Red Square next to the Forbidden City in Beijing, and
Marcos Square in Manila. Lafayette Square in Washington, D.C., may
have once served that purpose, but it has long since been landscaped
with gardens and walks that discourage protectors from marching near
the White House.
However, the technologies of print, broadcast, and computer have
made this method of disseminating information obsolete except as a
backdrop for television versions that can be disseminated to many
millions more than could ever be accommodated in one place.
In the United States we accommodated our policies very rapidly to
the print media by establishing a system of post roads over which the
mails and the newspapers could travel. We have provided preferential
rates to books, newspapers, and magazines, and even to merchants'
catalogs and a special franking privilege to congressman for expediting
messages to their constituents. A nationwide penny postcard made it
possible for the constituents to reply with low cost, and even to send
their messages to each other.
The applicability of this principle of a public forum cames over into
a concept of common carriage for voice messages on telephone and
telegraph. The law has had great difficulty, however, in coping with
the broadcasting industry because content decisions and carriage media
are both under the control of a regulated broadcaster. Nonetheless,
there is a limited public forum responsibility in the fairness doctrine
which requires that broadcasters devote time to opposing viewpoints
when issues of public importance are aired.~04 Numerous efforts have
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ANNE WE! ~ ~ B~SCOMB
failed to establish a right to communicate over the broadcast media
for the purpose of responding to commercials on the basis that they
were really "infomercials"~05 or to obtain a right of access to the
electronic media for the initiation of public issues.~06
The courts have been very protective of broadcasters and only
recently reaffirmed the long-held view that television is not a public
forum even if it is controlled by a public agency.'07 Viewers have no
right to compel any particular kind of expression over the public
airwaves. The Constitution requires content neutrality only with respect
to an activity that has traditionally functioned as an open marketplace
of ideas. However, the Supreme Court did not view public television
as assuming this role.
In renouncing the Federal Communications Commission's (FCC's)
aborted attempt to establish public-access channels on cable television,
the Supreme Court concluded that the FCC was attempting, without
legislative authorization, to create a public right that did not exist, and
it commented that the right to speak does not include a right to an
audience in a nonpublic forum such as newspapers, magazines, or on
the Senate floor.~°8
However, the power of the press, as a surrogate of the people, is a
powerful too} for redo. As the movie Gandhi so vividly portrayed,
the presence of the New York Times reporter and that paper's
publication of Gandhi's fight for India's independence gave interna-
tional credibility to the separation movement, increasing its influence
internally.
For the protection of human rights the exposure of violations to
public view may be the only way to impose sanctions upon the
wrongdoers. The student demonstrators and ghetto youth of the late
1960s understood this better than did public authonties. As Arthur
Clarke so eloquently expounded concerning his brainchild, the geo-
stationary orbital communications satellite:
The very existence of the myriads of new information channels, operating
in real-time, will be a powerful influence for civilized behavior. If you are
arranging a massacre, it will be useless to shoot the cameraman who has so
conveniently appeared on the scene. His pictures will already be safe in the
studio five thousand kilometres away; and his final image may hang you.~09
Certainly, both the access of the news gatherer or researcher to the
subject matter and the availability of a means of distributing the
information are essential to the health of the public enterprise in a
democratic society. How to assure this access in an economy that
puts high priority both on using private businesses to provide the
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PROPERTY RIGHTS IN INFORMATION
113
technological means of access and on noninterference with freedom
of speech is a quandary of utmost importance to the legal profession
and the public.
SOME OBSERVATIONS ON PRACTICAL PRECEDENTS AND
PHILOSOPHICAL PRINCIPLES
The renewer information technologies have created some options and
opportunities that transform the environment for interactive commu-
nications. They have also precipitated much soul-searching concerning
basic principles that should apply to their use. However, these
technologies do not come to us in a legal vacuum. As a nation we
have many legal theorems and practical precedents gleaned from a
rich heritage of concern about basic rights in information in other
media to guide us.
We can, with some assurance, make several observations:
1. We are reluctant to reward wrongdoers for their wrongdoing.
2. We prefer to encourage and reward innovation even through novel legal
theories based upon notions of common sense, commercial fairness, and
human justice.
3. The courts will not do a useless thing like trying to curtail the videotaping
of broadcast material in private homes or to prohibit the photocopying
of published copyright materials for personal use.
4. The courts will not try to expand a legal theory that is ridiculous in its
application, e.g., attempting to differentiate between source and object
code as a means for determining copynghtability of computer software.
5. The courts are reluctant to apply novel legal theories that have not
received the sanction of the administrative agency which has jurisdiction
over the subject matter, e.g., enunciate a judicial First Amendment right
of access to the broadcast media.
6. The law must conform to public acceptance of what is right and equitable.
7. The concept of property rights, whether applied to material goods or to
intangible information, is neither simple nor absolute. It reflects the
values of a society that equally cherishes individual freedom of action
and the sharing of information for the common good.
It is also possible to derive some basic principles that underpin our
philosophy of property rights in information.
1. We must have a public medium through which information may be
exchanged freely between infonnation providers and information users.
This may be a common-carrier channel (for telephone, telegraph, or
electronic mail), a public-access channel for cable television, an op-ed
page in newspapers, or a public bulletin board such as the Democracy
Wall in the People's Republic of China. The village green or public
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ANNE WED B~SCOMB
auditorium simply will not suffice in the age of electronic information
highways.
2. Liability for content should rest upon the originators and producers of
information, not on the earners, unless they are one and the same.
3. The sources of information and the nature of them economic interest
must be appropriately identified and authenticated in order to establish
credibility and to permit those harmed by a message to seek redress,
unless there is some overriding public interest in protecting the identity
of the source who may be personally harmed or put in jeopardy by the
disclosure.
4. Proprietary rights in information generated for commercial purposes
should be recognized, legally protected, and compensation provided
through justic~able means.
5. The piracy, embezzlement, misappropriation, or misuse of information
should be punished.
6. Freedom of speech should not be impaired except in circumstances in
which there is a clear and present danger that the health and safety of
the nation is in question or that the health and safety of an individual is
in serious jeopardy. This should be true whether or not the person in
question is a public figure or private person.
CONCLUSIONS
The basic principles outlined above need not be circumvented in an
electronic age any more than they have been in the past.~° They are
derived from a long legal history of concern about the integrity and
independence of the individual in a free society. What is needed is a
commitment to preserve the principles we hold dear in a digital
environment no less than in a voice circuit or on a printed page. The
late Ithiel de Sola Pool, who devoted his last intellectual effort to the
preservation of First Amendment principles in the Information Age,
wrote:
The mystery is how the clear intent of the Constitution, so well and
strictly enforced in the domain of pent, has been so neglected in the
electronic revolution. The answer lies partly in changes in the prevailing
concerns and historical circumstances from the time of the founding fathers
to the world of today; but it lies at least as much in the failure of Confess
and the courts to understand the character of the new technologies. Judges
and legislators have tried to fit technological innovations under conventional
legal concepts. The errors of understanding by these scientific laymen,
though honest, have been mammoth. They have sought to guide toward
good purposes technologies they did not understand.
These good and well-intentioned public servants need the sound
judgment and sage guidance of scientists and engineers if the law is to
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PROPERTY RIGHTS IN INFO~ATION
115
make reasonable sense in the Information Age. It is important that
there be mutual understanding among those involved in both legal and
technological innovations as these developments clash at the crossroads
of change.
NOTES
1. C. Cherry, A Second Industrial Revolution? (unpublished manuscnpt).
2. F. Machlup, The Production arid Distribution' of Knowledge in the United States,
Princeton University Press, Princeton, N.J., 1962.
3. H. Cleveland, "Information as a Resource," The Futurist, pp. 3~39, December
1982.
4. ''Legal Lore," New York State Bar Journal, pp. 49-50, May 1984.
5. Compare art. I of the Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other Celestial
Bodies, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.X. 205, signed at Washington,
London, and Moscow on January 27, 1967, and entered into force on October 10,
1967, with the Preamble of the Information Composite Negotiating Text of the
United National Third Conference on the Law of the Sea, A/Conf. 62/WP, 10 Rev.
2, done at Caracas on April 1, 1980, not yet in force and as yet unsigned by the
United States.
6. Y. Ito and K. Ogawa, "Recent Trends in Johoka Shakai and Johoka Policy
Studies," Keio Communication Rev. 5:15ff, March 1984.
I. A. R. Miller and M. H. Davis, Intellectual Property: Patents, Trademarks and
Copyright, pp. 18-19, West Publishing Co., St. Paul, 1983.
8. E. W. Ploman and L. C. Hamilton, Copyright: Intellectual Property in the
Information Age, pp. ~9, Routledge & Kegan Paul, London, 1980.
9. These rights can be traced down to the so-called moral rights of "paternity" and
"integnty" contained in art. 6 of the Paris Convention of 1971 (the latest version
of the Berne Convention). U.S. copyright does not protect these nghts, and the
opposition of Hollywood producers to them may explain the failure of the United
States to ratify the Berne Convention. See generally R. Brown, Kaplan and
Brown's Copyright, p. 656, Foundation Press, Mineola, N.Y., 1978.
10. Ploman and Hamilton, op. cit., supra note 8, at 8.
11. Ibid., at9.
12. Art. I, sec. 8, cl. 8.
13. B. Ringer, "Two Hundred Years of American Copyright Law," in Twenty Years
of English & American Patent, Trademark & Copyright Law, p. 117, American
Bar Association, Chicago, Ill., 1977.
14. Ibid.
15. Copyright Act of March 3, 1891, 26 Stat. 1106. See generally Ringer, op. cit.,
supra note 13, at 127.
16. S. Warren and L. Brandeis, "The Right to Privacy," Harvard L. Rev. 4:193, 1890.
17. Dow Jones News Service documents 120827~219, August 24, 1984; 120822-0348,
August 21, 1984; 120821-0312, August 20, 1984.
18. 376 U.S. 254 (1964).
19. B. W. Sanford, "Twenty Years of Actual Malice," 2 Communications Lawyer 1,
Summer 1984. The definition of `'public figure" has been greatly expanded beyond
that of public of ficials by the recent reversal of the $2.05-million judgment awarded
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116
ANNE WELLS BRANSCO~IB
by a jury in the libel suit of William Tavouleareas, president of Mobi} Corporation.
Tavouleareas unsuccessfully argued that if he had become a "public figure" it was
because of notoriety brought about by the libel and was not due to any inherent
public function of his position. In announcing his intent to appeal his case to the
Supreme Court, he said, "I am appealing because I believe the law must not
accord one institution in our society the unrestrained power to so damage our
leaders that it jeopardizes our society's ability to [unction." Communications
Lawyer 1(3): IO, Summer 1983.
20. See, e.g., The Family Educational Rights and Privacy Act of 1974, P.L. 98-380
sec. 513, 20 U.S.C.A. sec. 1231g, and the Texas Open Records Act, sec. 7 of art.
6252-17a, V.T.C.S., and Office of the Attorney General of Texas, Open Records
Decision nap. 229, October 26, 1979.
21. U.S. v. Miller, 425 U.S. 435 (1976).
22. The Privacy Act of 1974, P.L. 93-579, December 31, 1974, 88 Stat. 1896, Title 5
U.S.C. sec. 552a, as amended P.~. 9~394, September 3, 1976, 90 Stat. 1198, P.O.
95-38, June 1, 1977, 91 Stat. 179.
23. In the matter of the Washington Post Company v. State Insurance Department et
al. No. 73, State of New York, Court of Appeals, March 29, 1984.
24. In the case of copyrights for a period of the lifetime of the author plus 50 years,
17 U.S.C. sec. 302(a); in the case of patents for a period of 17 years, 35 U.S.C.
sec. 154.
25. "New Patent Bill Gathers Congressional Support," Bioscience 29:281, May 1979.
26. The Patent and Trademark Amendment Act, P.L. 96-517, December 12, 1980.
27. See generally, D. Nelkin, "Proprietary Secrecy Versus Open Communication in
Science," Science as Intellectual Property: Who Controls Scientific Research?,
pp. 9-30, Macmillan, London and New York, 1984.
28. Department of Agriculture REP 84 00 R0-6, March 15, 1984. According to remarks
reported in Commerce Business Daily, February 28, 1984, the Of lice of Management
and Budget considers this REP a prototype for distribution of electronic data by
the federal government. Examples include Market News Reports from the Agri-
cultural Marketing Service and Situations Reports from the Economic Research
Service.
29. The authorization for this project contained in P.L. 9~517, sec. 9, requiring
development of a comprehensive plan for transferring the files to an electronic
data base, and P.L. 9~247, Title 35 U.S.C. sec. 6, authorizing "cooperative
exchange ventures," are being challenged by the "cottage industry" of trademark
searchers who use the hard-copy files without paying fees for access.
30. This was not always the case. The first public library in the United States was
started by Benjamin Franlclin in Philadelphia in 1731 as a subscription library.
There were 50 original members, who paid 40 shillings to join and 10 shillings per
annum. Subscribers paid double for books not returned. It was not until 1800 that
the Library of Congress was started, and the New York Public Library opened in
1837. M. C. Tyler, '`The Historic Evolution of the Free Public Library in America
and Its True Function in the Community," in B. Taylor and R. J. Munro, eds.,
American Law Publishing 1860-1900, Glanville, Dobbs Ferry, N.Y., 1984.
31. D. M. Davidson, "Protecting Computer Software: A Comprehensive Analysis,"
Jurimetrics Journal 23(4):339 at 400f, Summer 1983.
32. The leading Supreme Court case in this area is Branzburg v. Hayes, 408 U.S. 665
(1972), which recognized the necessity to compel disclosure to a grand jury when
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PROPERTY RIGHTS IN INFORMATION
117
carnal behavior is involved. See also 99 A.L.R. 3d 37 and P. L. Glenchur,
Hastings L. J. 33:623-6S2. Courts will not countenance tortious behavior in the
gathering of news. See Galella v. Onassis, 487 Fed. 986 (2d Cir. 1973) where
defendant was enjoined from approaching the plaintiff closer than 25 feet.
33. Branzburg v. Hayes, supra note 32.
34. For an excellent discussion of this issue, see D. Nelkin, chap. 4, "Rights of Access
Versus Obligations of Confidentiality," in Science as Intellectual Property: Who
Controls Scientific Research? Macmillan, New York and London, 1984.
35. United States v. Doe (In re Popkin), 460 F. 2d 328 (1st Cir. 1972), cert. denied,
sub nom. Popkin v. United States, 411 U.S. 909, 1973.
36. Public Health Service Act, as amended 1974, 42 U.S.C. sec. 242(a) and the
Comprehensive Drug Abuse, Prevention, and Control Act of 1970, P.L. 95-633,
21 U.S.C. sec. 242a(b) and sec. 872(d).
37. E.g., Privacy of Research Records Bill, S. 867 (Apnl 4, 1979) and H.R. 3409 (April
3, 1979), 96th Cong. 1st Sess.
38. Nelkin, op. cit., supra note 27.
39. R. K. Merton, ea., The Sociology of Science, p. 273, University of Chicago Press,
Chicago, Ill., 1973.
40. Nelkin, op. cit., supra note 27.
41. Pool & Solomon, "Intellectual Property and Transborder Data Flows," Star?. J.
Int'l. L. 16:113, 1980.
42. I he Direct Marketing Association has been monitoring some 80 pieces of proposed
legislation dunog the last several years.
43. E.g., New Jersey, Pennsylvania, Nevada, and Virginia.
44. E.g., Illinois, California, Connecticut, and Wisconsin.
45. Op. cit., supra note 21.
46. Miranda v. Arizona, 384 U.S. 436 (1966); see generally 30 A.L.R. Fed. 824. For
cases concerning illegal beepers, bugging, and wiretapping, see 57 A.L.R. Fed.
646, 59 A.L.R. Fed. 959, and 97 L. Ed. 237. See also M. Goldey, "Aspects of
International Voice Communications to and from the United States," Jurimetrics
J. 24(1):8-12, Fall 1983, regarding electronic surveillance of international mts calls
outside the United States and the admissibility of such evidence in courts.
47. Minnesota v. Marshall, U.S. , 79 L. Ed. 2d 409 (1984); New York v. Quarles,
U.S. _, 81 L. Ed. 2d 550 (1984); Berkemer v. McCarty, 468 U.S. _, 82 L.
Ed. 2d 317 (1984); Massachusetts v. Sheppard, 468 U.S. , 82 L. Ed. 2d 737
(1984).
48. U.S. v. New York Times, 403 U.S. 713 (197I).
49. Elizabeth Taylor v. American Broadcasting Compames, Inc., 82 Civ. 6977 (S.D.N.Y.
1982).
50. New York Civil Rights Law, sec. 5~51; the Lanham Act for damage to protectable
service and trademarks, and unfair competition under New York General Business
Law, sec. 368(d).
51. See Street v. NBC, 645 F. 2d 1227 (1981), settled and cert. dismissed, 70 L. Ed.
2d 636 (1981).
52. Compare Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978) and
Maritote v. Desilu Productions, Inc., 345 F. 2d. 418 (7th Cir. 1965) with Lugosi v.
Universal Pictures Co., Inc., 172 U.S.P.Q. 541 (Cal. Super. 1972) and Price v. Hal
Roach Studios, Inc., 400 F. Supp. 836 (S.D.N.Y.).
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AN1VE WELLS BR~SCOMB
53. See, e.g., Gilliam v. American Broadcasting Companies, Inc., 538 F. 2d 14 (2d
Cir. 1976).
54. 8 Anne, c. 19, republished in R. S. Brown, Copyright, p. 851, Foundation Press,
Mineola, N.Y., 1978.
55. Ploman and Hamilton, op. cit., supra note 8, at 30.
56. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908). This inadequacy
has been cured by the 1976 act, which defines a "copy" as anything tangible from
which the author's work can be replicated. 17 U.S.C. sec. 102(a).
57. Final Report of the National Commission on New Technological Uses of Copy-
righted Works, 27-31, Library of Congress, Washington, D.C., 1979.
58. Ibid., at 12; subsequently enacted 17 U.S.C. sec. 101, 117, as amended P.L. 96-
517, sec. 10, 94 Stat. 3028.
59. Computer Software Copyright Act of 1980; Act of December 12, 1980; L. No. 96-
517, sec. 10; 94 Stat. 3015, 3028; 17 U.S.C. sec. 101, 117.
60. Office of the Register of Copyrights, Announcement SML47 (May 1964); Copyright
Office Circular 31D (January 1965).
61. CONTU Final Report, op. cat., supra note 57, at 85.
62. `'Computer programs are the ordered set of instructions which can operate a
computer.... Source code can be written in languages which are English-like,
such as BASIC or FORTRAN.... Source code instructions are either directly
used by a computer or are first translated into the computer's machine language
as 'object' code. Object code is usually printed as ones and zeros, but can also be
printed as octal numbers (~7) or hexadecimal numbers (0-15), with A-F representing
decimal (1~15). Object code can be directly translated into 'assembly' language,
in which machine instructions are represented by mnemonics.... Object code,
the direct symbolic representation of the machine language, is intelligible to trained
engineers,' (e.g., like the piano player that was only readable by experts). D. M.
Davidson, "Protecting Computer Software: A Comprehensive Analysis," Juri-
metrics Journal 23:339, 341 (Summer 1983).
63. Apple Computer, Inc. v. Franklin Computer Corp., 545 F. Supp. 812 714 F. 2d
1240 (3d Cir. 1983), cert. den., 104 Sup. Ct. 690 (1984).
64. See generally the excellent article by Duncan Davidson, op. cit., supra note 31,
which discusses the various methods of protecting software and the concerns of
lawyers about the viability of each.
65. Dow Jones News Service, Doc. no. 120118~360, January 7, 1984.
66. Dow Jones News Service, Ooc. no. 120706 0544, July 6, 1984.
67. Dow Jones News Service, Doc. no. 110512-1159, May 12, 1983.
68. 17 U.S.C. sec. 109(a).
69. Dow Jones News Service, Doc. no. 120119-0661, January 19, 1984. Until that
release Flashdance and Jane Fonda's Workout had been the top-selling videotapes,
with 200,000 copies each. See also "Hollywood Thriving on Video-Cassette Boom,' '
New York Times, Monday, May 7, 1984, pp. Al, C17.
70. Dow Jones News Service, Doc. no. 110512-1159, December 5, 1983.
71. Sony COIN. v. Universal City Studios, U.S. (1984), 104 Sup. Ct. 774, at
778.
72. 17 U.S.C. sec. 107.
73. Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975).
74. Dow Jones News Service, Doc. no. 110512-1159, May 5, 1983.
75. Rule 10(b)(5).
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PROPERTY R1GlITS IN INFOR~IATION
119
76. New York Times, August 29, 1984, pp. Al, D4; New York Times, Sunday, May
27, 1984, pp. F1, F21.
77. S.E.C. v. Texas Gulf Sulphur Co., 401 F. 2d 833 (2d Cir. 1968).
78. See Chiarella v. United States, 455 U.S. 222 (1980), involving an employee of a
financial printing house who decoded documents about mergers and acquisitions;
S.E.C. v. Dirks, cert. granted, 459 U.S. 1014 (1982) involving a stockbroker; U.S.
v. Newman, 664 F. 2d 12 (2d Cir. 1981) involving employees of Morgan Stanley
who traded shares in a takeover target represented by their firm; S.E.C. v. Thayer
(pending) involving friends of LTV Corp. CEO who may have benefitted from
passing confidential information to his personal fnends; and S.E.C. v. B rant (the
civil case against Winans and his fnends). For a discussion of all of the above
cases, see L. Wayne, "Inside Trading by Outsiders," New York Times, May 27,
1984, pp. F-1, F-21.
79. Lewis v. Baxter, 368 F. Supp. 768 (D.C. Ala. 1973).
80. Public Affairs Press, Inc. v. Rickover, 369 U.S. 111 (1962). The case raises
interesting questions about the copynghtability of the speeches, i.e., whether they
were government documents that cannot be copyrighted under Title 17 U.S.C.
sec. 105, whether they were already in the public domain because of their oral
delivery and circulated copies, or whether they were the private utterances of a
public official in a nonofficial capacity. On remand it was decided that the speeches
were delivered in the admiral's "pnvate capacity" and that the fact that they were
typed, duplicated, and cleared by the Navy was irrelevant, 268 F. Supp. 444 (1967).
81. Nixon v. Sirica, 487 F. 2d 700 (D.C. App. 1973).
82. Harper & Row, Publishers, Inc. and the Reader's Digest Association, Inc., v.
Nation Enterpnses and the Nation Associates, Inc., 723 F. 2d 195 (1983).
83. Tune, Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968);
International News Service v. Associated Press, 248 U.S. 215 (1918); Hoehling v.
Universal City Studios, Inc., 618 F. 2d 972 (2d Cir.) cert. den., 449 U.S. 841
(1980); Rosemont Ente~pnses, Inc. v. Random House, Inc., 366 F. 2d 303 (2d Cir.
1966) cert. den., 385 U.S. 1009 (1967).
84. 723 F. 2d 195.
85. "Fifteen states haste passed 'Son of Sam' laws freezing proceeds from moneymaking
ventures such as book sales of those locked up for capital crimes until claims by
victims of their survivors are satisfied.'' Christian Science Monitor, April 5, 1983,
p. 1.
86. The Government in the Sunshine Act, P.L. 94 409, September 13, 1976, 90 Stat.
1241, Title 19 U.S.C. sec. 420, Title 5 U.S.C. sec. 551f., and the Freedom of
Information Act, P.L. 89-487, July 4, 1966, 80 Stat. 250, Title 5 U.S.C. 552, as
amended, P.L. 90 23 sec. 1, June 5, 1967, 81 Stat. 54, P.L. 93-502 sec. 1-3,
November 21, 1974, 88 Stat. 15-61.
87. 18 U.S.C. sec. 2511 arguably might not include such transmissions.
88. Compression on New Information Technology, New Views: Computers and New
Media Anxiety and Hopes (1979). See also J. Freese, "The Vulnerability of
Computerized Society," Transnational Data Rep. 4(5) at 21 (1981).
89. 50 U.S.C. sec. 2402 et seq., as amended.
90. Defense Science Board Task Force on Export of U.S. Technology, An Analysis
of Export Control of U.S. Technology—A DOD Perspective, Office of the Secretary
of Defense, Washington, D.C., 1976.
91. Dow Jones News Service, Doc. no. 110325-0319, March 24, 1984.
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ANNE WED BRANSCOMB
92. For an excellent discussion of these transborder issues, see Cultures in Collision:
A Canadian-U.S. Conference on Communications Policy, Praeger, 1984, esp.
chaps. 3 and 6.
93. CRTC Public Announcement, The Improvement and Development of Canadian
Broadcasting and the Extension of U.S. Coverage in Canada by CA TV, Ottawa,
December 3, 1969, p. 1.
94. CRTC Public Announcement, The Integration of Cable Television in the Canadian
Broadcasting System, Ottawa, February 26, 1971. See also CRTC Policy Statement,
Cable Television: Canadian Broadcasting: A Single System, Ottawa, July 16, 1971.
95. Canadian Bill C-58, An Act to Amend the Income Tax Act, September 1976.
96. Under sec. 301 of the Trade Act of 1974. The complaint was filed on August 29,
1978, and hearings were held in November 1978.
97. F. Fitzgerald, America Revised, Atlantic Little Brown, Boston, Mass., 1979.
98. Transnatiorzal Data Report, vol. vii, no. 4, p. 195, June-July 1984.
99. Privacy Act of 1974, 5 U.S.C.S. sec. 552a(g) and (1) (A); see also R.R. v.
Department of Army, 482 F. Sup. 770 (D.C. 1980).
100. 28 U.S.C. sec. 315, (a); 47 C.F.R. sec. 73.123, 73.300,73.598, 73.679.
101. Sec. 48a of the California Civil Code n2 provides in part: "1. In any action for
damages for the publication of a libel in a newspaper, or of a slander by a radio
broadcast, plaintiff shall recover no more than special damages unless a correction
be demanded and be not published or broadcast, as herinafter provided...." The
California court hearing the Carol Burnett libel suit against the Enquirer cleared
the way for the record $1.~million verdict by ruling that the publication was a
magazine not a newspaper.
102. Seattle Times v. Rhinehart, 82-1721, is on the Supreme Court docket to determine
whether the Washington State Supreme Court was correct in upholding an injunction
for defamation and invasion of privacy by the leader of a religious group who
sought to suppress publication of information obtained during preparation for teal,
National Law Journal, October 17, 1983, p. 5. Injunctions are more often sought
to protect so-called merchandising rights or the right to publicity. See, e.g., Haelan
Laboratories, Inc. v Topps Chewing Gum, Inc., 202 F. 2d 866 (2d Cir. 1953) cert.
den. 34S U.S. 816. '`This right of publicity would usually yield them no money
unless it could be made the subject of an exclusive grant which barred any other
advertiser from using their pictures.''
103. Miami Herald v. Tornillo, 418 U.S. 241 (1974).
104. 47 U.S.C. sec. 315 (1976), afield, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969).
105. Friends of Earth v. FCC, 449 F. 2d 1164 (D.C. Cir. 1971).
106. Columbia Broadcasting Systems, Inc. v. Democratic National Committee, 412
U.S. 94 (1973).
107. Muir v. Alabama Educational Television Commission, 688 F. 2d 1033 (Sth Cir.
1982) cert. den., U.S. , 75 L. ed. 2d (1984).
108. Midwest Video Corp. v. FCC, 571 F. 2d 1025 (8th Cir. 1978).
109. "Beyond the Global Village." Address on World Communications Day, United
Nations, New York, May 17, 1983.
110. Which is only to say that we have sometimes been more and sometimes less
successful in preserving and protecting them.
111. Technologies of Freedom, Belknap Press, Cambridge and London, 1983.
Representative terms from entire chapter:
supreme court
