Welcome to NETWEAVER
The interactive, intersystem
newsletter of the
Electronic Networking Association

"Our purpose is to promote electronic networking in ways that
enrich individuals, enhance organizations, and build global
communities."
_______________________________________________________________

Volume 3, Number 7 July 1987
Copyright(c) by Electronic Networking Association (ENA), 1987

NETWEAVER is published electronically on Networking and
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CT, 06108 (1-800-624-5916) using Participate (R) sofware from
Network Technologies International, Inc. (NETI), Ann Arbor, MI.


Managing Editor: Lisa Kimball

Contributing Editors: Mike Blaszczak
Al Martin
Hank Mishkoff
Stan Pokras
George Por
Peg Rossing
Tom Sherman
Philip Siddons

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NETWEAVER is available via NewsNet, the world's leading
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We *welcome* anyone interested in joining the Netweaver staff!

The deadline for articles for the next issue is
the 15th of the month.

KUDOS to the "porters," unsung heroes of the Network Nation!
One of them has brought this issue to you.

---------------------------------------------------------------
Volume 3, Number 7 ---CONTENTS--- July 1987

1 Masthead and Index


2 ENA UPDATE ................................ by Lisa Kimball
(2354 char)

FCC proposed rulemaking is being discussed network-
wide. Introduction to this issue of NETWEAVER.


3 DESK TOP PUBLISHING .................... by Phillip Siddons
(6126 char)

The minimum basic requirements and some caveats for
the first time desk top publisher.


4 COPYRIGHT IN THE INFORMATION AGE, Part 1 ..................
by Robert Kost
(10392 char)

Information as property, static vs. dynamic vs.
digital media.


5 COPYRIGHT IN THE INFORMATION AGE, Part 2 ..................
by Robert Kost
(10248 char)

Transaction costs, computer software, works of
function vs works of fact, conclusions.


6 FCC REGULATION CHANGE MAY EFFECT COSTS ... by Robert Cramer
(5131 char)

Announcement of proposed rulemaking on access
fees by the Federal Communications Commision.


7 ACCESS FEES FOR VANS ......................... by Sam Simon
(6552 char)

Another view of the FCC's proposed rulemaking
on access fees by the Federal Communications
Commision.

8 TELENET President's Letter to Customers ...................
from Paolo Guidi, President, GTE-Telenet
(4170 char)

Telenet's President describes their position
on the FCC proposed rulemaking to customers.

9 MEMBERSHIP FORM

TELENET LETTER
(Reprinted with Permission)

Text of TELEMAIL letter sent by TELENET President to
customers re FCC proposal....

June 29, 1987

As many of you know, the FCC recently announced a
notice of proposed rulemaking to impose interstate switched
access charges on enhanced service providers (ESPs), effective
January 1, 1988. If adopted, this proposal would affect
value-added network services such as Telenet, as well as firms
providing remote computing, database services, electronic mail
and other computer-based services involving interstate data
traffic.

Switched access charges were originally designed to
apply to common carriers as compensation for their use of the
local exchange network in originating and terminating MTS/WATS
traffic. Now the FCC proposed to extend these access charges to
ESPs -- a move that would add approximately $4.50 per terminal
hour to ESP costs for local dial terminal access. (For
Telenet's PC Pursuit service, which utilizes dial access at
both ends of the Telenet network, the access charges would be
$7-9 per hour.) These charges would note be subject to volume
discounts or special time-of-day rates and would, to a great
extent, have to be passed on to our customers.

Telenet intends to join with the entire enhanced
services industry in opposing this FCC proposal. We will
vigorously assert our position before the FCC and the Congress
over the next several months, and we will be soliciting the
support of you and your users to do likewise.

Our concerns with the FCC proposal center on its
potential adverse impact upon the computer/information services
industry and its users. The proposal would have a chilling
effect upon the development of this industry because the added
costs associated with access charges would reduce demand for
services and would even price some users out of the market.
Perhaps the greatest relative impact would be felt by
residential, small business and educational computer users, who
are just beginning to have affordable information services made
available to them.

The FCC proposal would also negatively affect the
United States foreign trade balance, because computer-based
services provide an infrastructure that supports trade in other
goods and services. One of this country's greatest strengths
in the world market is our highly developed computing and
information services industry. To the extent that access
charges dampen the development of this industry, our
international trade position is weakened as well.

Additionally, the FCC's proposal is discriminatory
because it earmarks only one class of local exchange users --
ESPs and their users -- for access charge payments. Moreover,
since many private-line networks with dial access lines carry a
mixture of interstate and intrastate traffic, and are used only
partially in the provision of enhanced services, traffic
measurement and even-handed enforcement of the proposed rules
would be extremely difficult. I am confident that there are
many in industry and government -- and certainly consumers --
who will agree with our position and will join us in opposing
the FCC's proposal. I hope we can count on your support.

The FCC has not yet published its formal proposal.
Once this occurs, we will provide you with an analysis of its
provisions, and will suggest specific actions you might take to
express your views to the FCC and the Congress.

Bear in mind that the ESP access charges are not a
fait accompli. The FCC voted to solicit public comment on its
access charge proposal; it did not vote to implement such
charges.

We will be back in touch with you after the FCC's
official notice is published. In the meantime, if you have any
questions I encourage you to contact your Telenet Account
Executive.

Sincerely,
Paolo Guidi
President

ACCESS FEES FOR VANS
by Sam Simon

[note: Sam has been moderating a lively discussion on this
topic in "Access Fees for Vans" on STC which has been ported to
other networks. This material has been excerpted with
permission from that discussion. His viewpoint on this issue is
a little different from that which others have expressed
online. Sam is an attorney in Washington, DC who runs a BBS on
telecommunications policy. He has presented briefs on this
issue representing a coalition of public interest groups. ENA
encourages its members and others to participate actively in
discussion of this issue - contact your ENA porter for
information abuot where the discussion is taking place on your
home system.]

On June 10, 1987, the FCC proposed to revoke a 1982 exemption
for VANS (Value Added Networks) - also referred to as "enhanced
service providers" - from access fees for access to local
exchange companies. What this means, if enacted, is that
Telenet, Tymnet, MCIMail and others who provide interstate data
service will have to pay the same fees for access to local
telephone companies as voice users do. Here is how it will
work:

Each call, voice or data, will have to pay the following
fees:

* ORIGINATING ACCESS - The cost of leaving the local network
and being carried to the point of presence of the carrier is
Columbus, OH calling to The Source in Mclean, VA you have to
pay Ohio Bell .69 cents ($.0069) per minute for the cost of
carrying your data call from your home to Telenet's node (point
of presence) in the Columbus calling area. Right now if you
were to make a call over MCI or AT&T "voice" you would pay that
same charge to have the call carried from your home to those
companies "point of presence."

* TERMINATING ACCESS - Your call is then carried to McLean,
Va and terminates, perhaps, at C&P telephone who then takes it
to The Source in McLean. If that is the case, then there is a
charge of 4.33 cents ($.0433) per minute for terminating
access, or the cost of taking the call from Telenet node to The
Source location. Again, if there were a voice call, it would
be paid for carriage from the long distance company point of
presence to destination.

* VARIABLE COST - In addition, there is about a 3.45
cents ($.0345) per minuyte "variable cost" charge. The first
two charges are based on paying part of the fixed cost of the
local network. The last charge is the added variable cost
added by the call.

Voice users have been paying these costs since 1982. The FCC
had exempted VANS on policy grounds, and now wish to revoke the
exemption. Is it fair to have voice pay more than data for the
identical services? What are the arguments for or against this
change? Will you reduce your calling if the cost goes up $5.00
an hour? What can be done about it?

Data users will probably react negatively to this proposal
because it is about raising costs. But it is important to
understand the positions and issues here. Voice users already
pay these fees. Now, I happen to think voice and data uses
ought to be treated the same. It seems to me that by having a
more favorable data rate than voice rate the FCC has been
fostering an unfortunate split between voice and data users.

On the other hand, the FCC claims that they didn't impose
these fees initially becasue of the potential of rate shock,
but now that the access fees have been reduced by almost 40%
from 1982, the rate shock won't be as severe.

My thought is to suggest to the FCC a transition period over
the next 18 months, to coincide with imposition of new
subscriber line charges. The subscriber line charges, which add
dollars to your local bill each month but reduce your long
distance bill because access charges go down, are going up from
the present $2.00 per month (residential) to $3.50 by february
or March of 1989. My suggestion is that the FCC start at some
point below the anticipated March 1989 price in January 1988,
and increase to the March 1989 price in one or two steps. That
to me is a transition which will give the vans the time to do
some cost cutting.

Let me point out that Centrex users faced exactly the same
problem, and the local telecommunications companies cried that
if access charges applied to Centrex lines like regular lines
they would go out of businesss. So the FCC threw them a sop,
kept them down to $2.00 for the first couple of years, and now
are boosting them to regular business rates. Centrex is doing
just fine, despite all the noise.

Telenet and Tymnet are going to say the sky is falling, but in
fact with time and real competition they will find a way to
keep rates low and recover their access costs too.

These are NOT in fact "new charges". Pre break-up, you were
in fact paying much more for all long distance rates, voice or
data, than you are now! The problem was that since the local
company and the long distance company were all one big happy
family, no one could figure it out, except AT&T, and they would
manipulate it always to their advantage --- they would get your
money whether it was over long distance or wheather it was over
local bill -- it was all AT&T.

Now locals are separate, they charge for the use of their
local network, and the charges go in two directions. On the
one end, you pay local rates -- usually a fixed monthly fee,
unlike gas or electricity, which both have a fixed fee plus
usage charges. Long distance calls are charged by the minute.
The long distance charge includes an element paid by the long
distance company for their use of the local network to reach
your home or to take the call from your home. It's called an
access charge. You pay it, your grandmother pays it, the poor
pay it - but data users don't, unless they use dial-up.

Now I am with you in arguing that the the cost of local
telephone service ought to be kept down, and local companies
should be given every incentive to reduce the costs so these
fees are less. But it is an emotional response to ignore the
inequity of the current system. Moreover, I believe that it is
in the long term self interest of data users to put themselves
on a par with the voice users. There are more voice users than
data users, and right now there is a building anti-data
mentality on the federal and state level, in part fostered by
the idea that voice is subsidizing data. That mentality can
cost you a lot more money later than a limited victory now.

FCC REGULATION CHANGE MAY EFFECT COSTS
by Robert Cramer


June 11, 1987 (RFC)--The Federal Communications Commission on
June 10 voted 4-0 to revoke an exemption, beginning Jan. 1,
1988, that had allowed providers of information services to
people with computers to charge as much as $5.40 an hour less
than almost all other providers of long-distance phone service.

Individuals and church groups would be affected by what's known
as "rate shock" -- a dramatic jump in costs -- at a time when
USA information networks are at last beginning to gain public
support in line with hopes of government, business and social
institutions that public communication via com- puter could
become widespread.

The FCC appears convinced that "equity" is best served by
making all interstate users of telephone-mediated services that
use the facilities of local and regional phone lines equally
compensate the regional phone operating companies. To that
end, it has recently forced those who offer "WATS" long-
distance services to start paying so-called "access charges" to
local phone networks they include. The computer-users
networks, including Telenet, Compuserve and a host of others,
remain the major exception.

Computer users were not scheduled for a price break when the
1982 federal ruling on access charges to long-distance
carriers, by local and regional phone companies, was made. But
the fledgling and potentially significant USA information
industry prevailed upon the FCC to grant a charge-free period
during which they could establish attractive rates and services
that would permit the United States to keep pace with France,
whose government subsidizes the public's use of computer
terminals for the exchange of information. The FCC acquiesced
but warned rates would have to be boosted in the future.

This is the future, the FCC thinks. With hundreds of thousands
of Americans connected to each other, and to databases, via
computer and modem, it's only "a matter of equity" that the
networks that they belong to contribute more fully to the cost
of national and global interconnections, FCC Commissioner Mimi
Dawson said in a hearing June 10. Other commissioners agreed,
some more and some less enthusiastically, according to the
detailed reporting of Communications Daily of Washington, DC.

The information industry -- including giants like Dialog,
Xerox, Compuserve, The Source, NewsNet, AT&T, Telenet and many
others as well as hundreds of smaller firms -- reacted with
"fear" to the FCC proposal June 10 -- apprehensively pre-
dicting that it would "raise rates significantly" to the in-
dustry (and thus to its users), according to Michael Hirsch of
Telenet. A Compuserve lawyer agreed that "rate shock clearly
will be a problem," Communications Daily said.

"However, FCC staff discounted rate shock as a significant
factor," Communications Daily said. They pointed out that all
users of local/regional phone facilities are being brought into
a balance of compensatory charges in which individual resi-
dential users' costs for long distance are going higher, up to
a maximum of $3.50 per month in access charges by 1989, while
long distance carriers' access charges are going down.

Also, the FCC pointed out that national/global information
networks that don't rely upon regional telephone companies but
instead bypass the so-called "switched" facilities won't be
liable for any additional charges. Presently that's fairly
limited, and the FCC's chief of common-carrier policy, Thomas
Sugrue, said it isn't likely that such bypass operations will
become significant.

In hearings between now and the proposed implementation date at
the beginning of next year, the question of "discrimination"
among users of telephone lines is likely to arise, the FCC
admitted. But it said that those who provide the public with
so-called "enhanced" computer communication services should be
able, themselves, to decide what users need a break and to
arrange for it if necessary.

As an interesting footnote, Communications Daily said that
Joseph Markoski, attorney for Compuserve, pointed out that the
FCC had "made a mistake in changing positions again. Markoski
said legally accepted point of view is that enhanced service
providers are (technically) users, not (common) carriers (as
are voice line resellers) and should be liable for subscriber
line charges (only), which they now pay, and not for access
charges."

RFC News Service will issue updates on this story as more
information becomes available.

c/o Copyright 1987 Robert F. Cramer, Resources for
Communication.

-------------
Author's note: Robert F. Cramer, 341 Mark West Station Road,
Windsor, California 95492. 707/542-7819

Robert Cramer owns and operates Resources for Communication, a
company which provides religion-related databases and
consulting on computer communication. He is also a sysop on NWI
ECUDOC conferences and writes the new intelligence briefing for
churches and corporate researchers called CHURCHNEWS DAILY
DIGEST.

COPYRIGHTS IN THE INFORMATION AGE

by Robert Kost


INFORMATION AS PROPERTY:
Capitalism in the Information Age

Your participation in this conference, and your use of this
medium, are very much at the center of an emerging upheaval in
the concept of information as property; an upheaval that
occurs, ironically, just as we enter an Information Age. The
source of wealth for this information age rests, in part, on an
obscure area of the law known as copyright.

Copyright is suffering from a growing number of anomalies
- deviations from a general rule or policy -- which, like the
epicycles invoked to preserve the Ptolomeic view of the solar
system, can be understood as indications of some very
fundamental difficulties with the concept of property rights in
information. The problem can, I believe, be summed up in the
following way: the copyright system grew out of the printing
press, which placed the printer/publisher at the center of the
known technological universe, but computers and
telecommunications are creating a user-centered universe that
copyright has yet to come to terms with.

Copyright and information technology, in contrast to their
present antagonism, were originally wedded together, and
coexisted in bliss for nearly three centuries. This marriage
has, however, been on the rocks since the beginning of this
century, and the technologies of the next century will require
a new reconciliation between the interests of creators and
those of the public.

COPYRIGHT

We can begin to lay the groundwork for this discussion by
defining some of the terms we will use. And, where better to
begin than with copyright itself. By copyright, I understand a
set of positive, statutory rights (as opposed to natural
rights) which attach to the particular expression or
manifestation of information. Information is a more nettlesome
concept, to which I'll return in a moment. It is often said
that the function of copyright is as an incentive to create and
distribute information. This is true, but what we really mean
by this is that the function of copyright is to make
information behave in the marketplace as if it were tangible
property -- hard goods like shoes, refrigerators, and
automobiles. The way in which copyright accomplishes this is
by use of a tautology; the res, the thing that is owned, is an
original work of authorship, and an original work of authorship
is one that is not a copy. Now this definintion presents
little difficulty for cases of "knock off" duplication, where a
copy is a copy is a copy. But it becomes considerably more
difficult in cases, such as the recent computer related
litigation in Whelan v. Jaslow, where what is a copy must be
determined ad hoc by identifying the so-called "expression"
peculiar to a given original. Expression defines what is owned.

INFORMATION AS PROPERTY

If, for the time being, we ignore these complexities, we
can say very simply that copyright turns information into
property. But information is a very reluctant form of
property. Information, which I will define as the meaningful
concatenation of symbols, images, or sounds, is neither
naturally scarce nor naturally exclusive. It is not scarce
because, unlike shoes, refrigerators, and automobiles,
information can be given or taken with no diminution in the
number of "pieces" of it available once it is produced (and
there's the rub). Unlike tangible property, where 1-1=0,
information has a strange arithmetic: 1-1=2. A corollary to
this is that information is not exclusivity; it is not the case
that either *you* or *I* must possess it at any given moment,
as is the case with tangible goods. Instead, both you and I
can possess it, and my possession is not in derogation of
yours. Note that I'm not saying that copying a computer
program doesn't displace a sale, nor that harm to a producer's
market hasn't occured; only that, in the case of information,
the stolen goods need never leave the warehouse.

Scarcity and exclusivity, which do not come naturally to
information, are nevertheless fundamental to the notion of
property, and at the very heart of a market economy. It is,
after all, how we tell buyers from sellers -- sellers have, and
buyers want!

And this is where copyright comes in. Because the Framers
of the Constitution, and before them, the House of Lords,
decided that having lots of books and maps and charts around
was a good idea, and because the free market was so adept at
providing other types of goods demanded by society, some
mechanism had to be found to remedy the market failure of
information. Copyright was a truly ingenious solution; it made
information plentiful by making it scarce, and available to all
by making it exlusive. This was possible because information
was always and everywhere to be found embedded in tangible
goods -- copies -- which went proxy for information in the
marketplace. What was bought and sold in the marketplace was
wood pulp with ink stains -- never mind the fact that what you
were really after was the complete works of Thomas Paine or
Charles Dickens. What we had going was a product compromise:
information could be sold like goods as long as it acted like
them.

THE AGE OF STATIC MEDIA

This compromise, which is today coming unglued, really
began in the mid-1400s, when Johannes Gutenberg concocted a
clever, high volume, low overhead scheme for selling church
indulgences; the moveable, interchangeable, type printing
press. The invention of the printing press necessitated the
invention of copyright. Because books could be mass produced
in days rather than years, because printing allowed for the
standardized, cononical version of works to appear, rather than
being scattered in fragments throughout the monastaries of
Europe, and because authors could be idenfied with their works,
writings became a commercially hot item, and piracy followed in
due course.

But if the printing press made copyright necessary, it
also made it possible. Printing was a capital intensive,
highly visible, 16th century high tech business. It formed a
perfect bottleneck, or chokepoint, by which the King, through
licensing, could control infringements -- or more importantly
at the time, sedition. Of equal was the fact that, once words
were printed on a page, they *stayed* on that page -- fixed,
static, immutable, petrified on paper -- never again to be word
processed. And, at the time, clear and commonsense
distinctions existed between hardware and software, between
inventions and writings; no one could ever mistake the book
explaining the construction of a coke oven for the cast iron
real McCoy.

During this period, which I call the age of Static Media,
copyright was essentially a form of commercial regulation,
since the ability to "print, publish, and vend" a writing --
the original copyright rights -- lay exclusively with
commercial enterprises, rather than private individuals.
Infringement, where it occurred, was a business proposition,
and not a matter of casual button pushing by private
individuals.

THE AGE OF DYNAMIC MEDIA

The age of Static Media ended abruptly near the beginning
of the 20th Century with the invention of new ways of moving
information in intangible, electromagnetic signals -- the
telegraph, the radio, and the television -- and with new ways
of liberating information from the package in which it was sold
- the paper copier, the tape recorder, and the camera. During
this period, which in contrast to its predecessor might be
called the age of Dynamic Media, copyright lost control over
the bottleneck. It was no longer possible or adequate for
copyright to control the sale and distribution of *copies*.
Instead, the Copyright Act of 1976, which was really a response
to the dynamic media of 50 years prior, sought to control the
*use of the work* itself. The distinction between the work and
the copy in which it resides is a point belabored in sections
102 and 202 of the Copyright Act, and is a recognition of the
fact that information is devolving back into its elemental,
nonproperty, form.

THE AGE OF DIGITAL MEDIA

Today, with the emergence of what I call the age of
Digital Media in the late 20th Century, we may have come full
circle, returning in a strange way to a pre-Gutenberg era, with
fragments of full text, searched and summarized by AI editors,
floating in bit streams across national borders. The full
impact on copyright of optical mass storage, computers and
computer networks, analogue to digital conversion devices,
satellite communications, and broadband fiber optic highways
into the home will probably not be felt for some time.
Nevertheless, I believe the enduring effects of modern
technology on copyright can be sorted into basically two types:
effects on practical matters such as enforcment and
permissions, and effects on theoretical matters such as: "what
is it that is owned, anyway?"

One of the charms of copyright was that it was essentially
self-enforcing. Rights holders could spot infringing copies,
and bring the infringers to justice with administrative
mechansims no more complex that the federal courts. Technology
itself imposed limits on the ability of private individuals to
avoid the marketplace. I suspect, for example, that the paper
copier was never a real challenge to a finely bound book. But
with information in digital media, the copy of the work does
not degrade from generation to generation. Moreover,
electronic communications allows copies to be transported
anywhere on the planet at little less than the speed of light,
without the hassles associated with cars and airplanes. For a
particularly compelling illustration of the scope of this
power, imagine that a computer program was "shared" on NWIIS by
one person with two of his friends. These friends, in turn,
"shared" with two of their friends through Gateways to other
networks, and so on, once every 15 minutes. In just 32
iterations taking just over 8 hours, the entire population of
the planet could, in principle, be blanketed with 4.29 billion
copies of the program: The chain letter has returned with a
vengence!

---

Of course, this scenario supposes that the public is
largely dishonest, which, according to a public survey
conducted for OTA's intellectual property report, is not really
true. Instead, the survey revealed that the public is by and
large unaware of some of the more basic principles of
copyright, and is apt to believe that they can do as they wish
with their own possessions. But, even on the supposition that
we have a law abiding, informed public, making full use of the
available technology poses extremely cumbersome problems for
the individual seeking permission from copyright holders. The
CD-ROM, which holds over 550 megabytes of data, or over 200,000
pages of text, or copious amounts of music or still and motion
picture video, is a case in point. Imagine that I am a law
abiding CD-ROM based, value-added, information purveyor who
wants to store a multitude of different texts, musical
compositions, and images on my CD-ROM disk. To store anything
on disk -- possibly even for personal use -- involves
reproducing it under the terms of the copyright act. I have to
get permission, and very likely pay royalties. Provided I know
who they are, this may be as simple as making a phone call to
hundreds or thousands of authors, copyright holders, or their
assignees to negotiate their "OK." "Simple," of course,
provided that I have a WATS line or plenty of spare change
available.

If the attorneys of the copyright owners I are able to
reach some accord on the reproduction rights involved in my
CD-ROM venture, we still have distribution, performance, and
display to think about. Most CD-ROMs work in conjunction with
computers, and it is a simple matter to have computers work in
conjunction with communications facilities. Any communication
of a work stored on CD-ROM (or any other medium) is probably
either a performance or a display, whether sent to 10 people in
Japan via satellite, or to 1000 people in your business via
Local Area Network. Now, if calling the distribution of a work
over phone lines a performance or display sounds like an overly
legalistic stretch, consider this: electronic distribution is
not distribution at all -- at least in the legal sense -- since
one can distribute only copies of a work, and copies are
material objects under the law.

In any event, I'm back on the phone negotiating with an
attorney, who probably want to know how I intend to control the
use of the material on the CD-ROM once the disk is sold. I
probably can't answer...truthfully at least.

TRANSACTIONS COSTS

The enforcement and permissions problems are two sides
of one coin known as transactions costs. The question in the
both cases is whether it will cost me more to enforce my rights
in a work or to gain permission to use it than the revenues
that that work generates. One way around the problems of
transactions costs is to create a compulsory license and have
the government pick up the tab for the costs associated with
pooling and distributing income, but this will not work well
for markets where there are an excessive number of hard to
identify buyers or sellers, as is the case with the audio and
video cassette markets, and probably the microcomputer software
market as well. In this case, a tax can be imposed on blank
media and revenues doled out to copyright holders based on an
estimate of their share of the market which copying supplants.
The problem with this is that, while single purpose media such
as video or audio tape and possibly even floppy disks, may
submit to market substitution analyses, versatile media, such
as CD-ROM and eventually, erasible-programmable compact disk,
do not -- there is simply no way of estimating fairly how much
these disks are used for recording Michael Jackson and how much
they are used for DBase III.

THE CASE OF COMPUTER SOFTWARE

As difficult as the practical problems for copyright may
be, the truly thorny problems are theoretical. In case of
software, for example, I believe we have a choice between too
little protection and too much; the protectable expression can
either be the literal line by line code, in which case the
protection is trivial; or the literal code can be interpreted
in terms of the processes which it executes in a computer, in
which case we have endowed the program with patent like
protection without a showing of novelty or advance over prior
art (even supposing that a record of prior art exist, which it
doesn't). To see how this is so, go back to the watershed case
of *Baker v. Selden*, which held that, though the petitioner's
design for an accounting book could be copyrighted, the system
of accounting that the book implemented could not. "There is a
clear distinction between the Book, as such, and the art it is
intended to illustrate," said the Supreme Court, and the latter
is protected, if at all, by letters patent, and not copyright.
Now imagine that Selden's account ledger was written in
computer code, and try to separate 'the book, as such, from the


art it was intended to illustrate.' I cannot, and I suggest to
you that the clear distinction has collapsed.

It is not clear yet what effect this confusion may have
on the software industry. I understand, however, that Lotus
Development Corporation, which is rightly jealous of its rights
in its excellent 1-2-3 software, is presently being sued by
members of its intellectual and marketplace ancestor.

But I suspect this is the tip of the iceberg. The day is
not long in coming when, within the limits of our ability to
formalize the syntax and semantics of natural language,
computers will execute programs based on commands in spoken
english, and we will be face to face with the question of
whether the logical structure of algorithms is copyrightable.
In a way, such questions are here today: can the factory
foreman who runs a robot arm through a series of steps, which
are simultaneously recorded in code in computer memory, claim
copyright in the procedure for welding a chassis to a frame?

WORKS OF FACT

But software is only part of the problem, and an argument
can be made that software and other *works of function*, such
as the nucleotide sequence that controls the manufacture of
insulin in a microbe, are more coherently treated as patentable
inventions, rather than copyrightable writings. But *works of
fact*, such as stock market information, news stories,
telephone directories, and the like are most emphatically not
patentable, and their protection, absent trade secret, falls to
copyright. Copyright in works of fact ostensibly protects only
the organization, arrangement, design, and selection in works
of fact, and not the underlying information. But computers are
arrangers and designers par excellance; this after all, is the
great power of text editing, spreadsheet, word processing, and
list processing programs. It would seem that copyright is a
slender reed upon which to hang the protection of computer
processable works of fact. The recent case of *West Publishing
v. Mead Data*, which held that West's system of pagination in
its online database was copyrightable, has muddied the waters
somewhat and I think we can anticipate more litigation on this
subject as time goes on.

CONCLUSION

I'd like to close by hazarding a guess about where all
this is headed. For computer programs and for machine
processable works of fact, I suspect that courts will continue
in the direction that they are already going. That is, the
focus will be on infringing conduct, rather than infringing
works. Under this approach, which hearkens back to the common
law doctrine of missappropriation, similarity between works
becomes an indication of malfeasance on the part of a
defendant, rather than the sina qua non of infringement, and it
is the defendant's acts which constitute the important object
of proof. This is a subtle, yet very significant shift, for it
turns copyright on its head. It may in fact be the best way of
avoiding the difficulties of treating information as property,
while at the same time providing the software and database
developer with the protection they need to conduct business.
The question is whether caselaw can be fully developed within
the confines of the current copyright law.

Although I once believed that software and associated
developments in technology were the gordian knot for copyright,
I suspect the issues of enforcement, permissions, and
transactions costs will loom larger as the first large scale
attempts at an Integrated Services Digital Network begin in the
early 1990s, and as computer networks proliferate and become
common, and as digital audio and video tape, optical storage
media, expert systems, and a host of other technologies
converge in an interconnected information utility. Technology
itself may provide some of the stopgap measures, with embedded
copy or transmit disabling signals, public key encryption, and
so forth. Compulsory licensing and collecting societies may
also help to preserve some semblance of copyright, by providing
for network access tariffs and sampling of useage. Contracts
between the electronic publisher and its clients may also help
to keep legal reigns on the problem.

But, the real question is whether we want to continue to
find patchwork solutions for the sake of preserving copyright,
or whether there isn't some better way of taking full advantage
of all the technology can offer, while at the same time
observing the old addage: to every cow her calf.

----------------
Author's note:
Robert Kost is somewhat gainfully employed as a Legal Analyst
for the U.S. Congress' Office of Technology Assessment (OTA),
whose mission is to assist Congress in anticipating and
planning for the social consequences of technological change.
The views represented in this article do not necessarily
represent those of the OTA. If proven wrong, even Mr. Kost may
disown them. He welcomes all comments on this article, hostile
or sympathetic.

DESK TOP PUBLISHING
The Minimum Requirements
by Philip Siddons


By now major computer magazines have devoted issues to Desk Top
Publishing (DTP). The the hardware and software suppliers are
pumping millions of dollars into marketing, advertising, and
training. And for good reason. New tools are available to
computer users that give them exciting communication abilities.
The good news is that business and educational leaders are able
to have greater control over their data, design, and production
deadlines. Printed communications are becoming more visually
effective. A project report, company news letter, or product
catalogue, whether one or 5,000 pages, can be published with
near typeset quality right on our desktops. Corporate depart-
ments are relishing in the fact that now, in house, they are
able to produce camera-ready publications without sending them
out to a printer. They're saving time, money, and dramatically
improving their printed materials.

Despite the hype that has been circulating about laser printer
output, at least two things emerge worth remembering:

(1) Laser printers' quiet 300 dot per inch resolution pro-
duce superb quality text and graphics output far beyond that
of dot matrix printers.

(2) Laser printers, even when the 600 dot per inch resolu-
tion is available near the end of this year, do not approach
the quality of photo typesetting. Lasers do an excellent
job for the majority of corporate and educational tasks, but
a few jobs will still have to go to the printer.

The Xerox "Ventura Publisher" and Aldus "Page Maker" programs
are presently the best selling DTP software packages. We know
these programs are excellent. Happily there are other fine
software programs arriving daily.

We are also at the point where we are more clear on the differ-
ences between the minimum hardware configurations required for
the good programs, and the hardware one really ought to have to
make best use of their time. In short, an 8 MH processor (or
faster), one MB of RAM (or more), Enhanced Graphics (or Her-
cules) adaptor and corresponding monitor, a 20 MB hard disk or
larger, a laser printer, a good word processor, and a mouse in-
terface. Among the list of "nice to have" are: a drawing or
"paint" software package and a graphics scanner.

Because these hardware and software tools are obtainable for
under $9,000, printed communications are dramatically improving
almost everywhere you look. Laser printing with the improved
type and font styles are causing the highest quality carbon
ribbon letter quality correspondence to look "ordinary." The
industry standard has changed.

But there is one essential ingredient necessary in addition to
the software and the hardware.

The Marketing Division of First National Bank has just
purchased an AST Premium Publishing package and the Ventura
Software for under $ 9,000. The computer resource department
has decided that the 10 MH processor, 1 MB of RAM, the 40 MB
hard disk, the TurboLaser and the scanner, driven by the
software, should be able to produce the quality they've been
looking for without go- ing out to a printer. Wrong.

The last essential component necessary to complete this level
of quality publishing is an operator of the system. We're not
talking about a typist, although it sure does help if she or he
has advanced keyboard proficiency. We're not talking about a
programmer. (OK, it would always help if someone knew some
programming.) What is needed is an individual with the
following:

1. Writing skills. Whoever writes the text or copy, of the
document to be published, must have gift of being able to
have something to say in an intelligent, creative, and inter-
esting way. No matter how wonderful it looks on the page,
if the author has nothing to say, the publication is ineffec-
tive.

2. Sense of Spacial Relationships. The DTP software market-
ing claims that one does not have to learn the art form of
typesetting to produce pleasing and professional communica-
tions. That's partially true. While you do not have to be-
come proficient at kerning and point setting, the power at
the user's fingertips can produce some ugly stuff. An artis-
tic sense of what looks good, a sense of balance, and the
ability to determine if something is easy to read is essen-
tial. These abilities will go a long way toward preventing
crowded spacing, too many fonts on one page, and poor use of
white space between the blocks of text.

3. Dedication To Publishing. An employer simply can not sit
her or his best word processing person down in front of a
desk top publishing system and say:

"Learn this, when you get a chance, and see if you can
print some of our correspondence with this fancy print-
er."

Probably the greatest investment a company has is not the
hardware but the personnel. Depending on the size of the
company and the amount of printed output desired, there
should be at least one or more people who do nothing but
desk top publishing. This means that these people should be
given the initial training on the hardware and software.
Learning the software is best done by doing something with
it on the job, but only after a minimum of a week's worth of
intensive instructtion by authorized software trainers. A
firm should plan on setting aside $3,000 for the tuition and
expenses of the training if the classes are out of town.
Think of the best violin crafted in history. To benefit
from the artesian's work, you've got to have concert master
play it. The same is true of the person operating this fine
publishing equipment.

The corporate world continues to be amazed and pleased by new
and powerful technological excellence. It's a good time to be
living. But the strongest firms would be wise to remember
their most important investment: personnel. They are the soul
of the corporation.

ENA UPDATE
by Lisa Kimball


This month the wires have been buzzing with discussions on
almost every network about the FCC's proposed rulemaking on
access fees charged to value added networks by local phone
companies. This discussion has demonstrated a number of things:

- telecommunications policy issues are VERY complex and involve
a large cast of players and interest groups.

- there are significant differences of opinion about which position
is in the best interests of computer networkers and people in
related businesses (and whether these intersts are the same).

- few people feel confident that they have enough hard information
about the consequences of the proposal to be effective in
representing their opinion to policy makers.

ENA members have been active participants in these
discussions. In this issue of NETWEAVER, we are bringing you
articles with several different viewpoints - a newsbriefing
from Resources for Communication, a letter from the President
of Telenet which stands to be affected significantly by any
changes, and excerpts from a discussion led by attorney Sam
Simon who represents a coalition of public interest groups.
Everyone is encouraged to explore this issue and contribute
YOUR ideas about how it should be resolved.

Access fees aren't the only thing networkers are concerned
about these days. The bicentennial of The Constitution is
reminding us that electronic communications technology raises
new questions related to publication and media law. In this
issue, we present a two-part article on implications for
copyright law by a member of the staff of the Congressional
Office of Technology Assessment. We expect this to be the
first of many articles on themes related to how this new media
will change the way we think about writing, publishing, and
broadcasting.

Online systems are only part of this picture. Desktop
publishing not only makes everyone into a publisher - it's
revolutionizing office technology. Our lead article this month
will get *you* started!

Enjoy! And remember - we want to hear about what's going on on
your home network. You are invited to submit articles and
article ideas to the porter who brings you Netweaver!