Past as Precedent: Some Thoughts on Novel Approaches to the Nexus of Digital Technologies and the Arts

ning vast distances. We are watching markets in the world open up, so now we are seeing an expansion of customers ; notjust the same people, but a lot more people. We are also watching the entire legal and regulatory structures change. And they, too, are evolving. From our standpoint , the waywe see this electronic revolution occurring is that the technology andits capabilities came first. It began to drive customers and people to do things with that technology. And now the regulatory and legal structures are trying to catch up to it, and rationalize it, in some form. The chances are that they will get some ofit right, and most of it wrong, as we go forward. And I agree with Frank that, when all is said and done, what we need to do is find a way to bootstrap onto what people want. Not what we think the law or commercial interest might want. There is one legal decision, from our standpoint at NYNEX,which is quite interesting to us. It's called the Feist Decision , and I thought, knowing that we had several attorneys on the panel, I would mention a legal decision that they might consider later on. The Feist Decision involved a small telephone company called the Rural Telephone Company, which published a white pages directory. They published those white pages in a confined geographic area that served their customers. Feist was a publishing company, much like Frank's might be, which decided to produce a larger geographic area white pages. What Feist did was to find a way to take the white pages of Rural, the little company, change a few things, add a few things, but for the most part, reproduce everything in that Rural Telephone Company's white pages and produce a new white pages listing. Rural took Feist to court, and said, ''you can't do that, that's a copyright infringement ." The case went through all the courts and finally went to the Supreme Court. And, the Supreme Court kind of said, "wait a second," the compilation of facts, which just involves white pages lists of names, really carries with it no "sweat of the brow equity," as it was called in the case. In effect, they said there is no creativity involved in making lists of information . And so we now have started on the proverbial electronic slippery slope. Because we are now seeing the same kinds of things occurring, in our yellow pages and in every database that we have; and, I suspect, in every CD-ROM, and in every library. What is this distinction? How are we going to carry forth the definitions of who is the owner, who is the author , and what is or is not acceptable? What we have seen, at least in our own industry, is the beginning of a serious problem: almost anything that we transmit over our network will not be protectable as easily as we would like. And as we move ahead we not only will transmit information, but we will have service that will capture information. For example, to hold it for a time release . People will collect in a server, and then transmit it at a later point in the evening, or tomorrow, whenever. And so what we are finding is an extraordinary change in the paradigm, under which we operate. We will continue to do all of the technological things that one might expect, such as encryption, and PIN's, and codes, and time stamping, and all of the kinds of things that enable individuals to find waysof protecting their information. What we do find, however, is that it is probably a losing battle. We also encourage lots of contractual relationships. I was heartened to hear Frank Bennack talk about what the publisher views as his or her right with respect to the information. I say,let the courts establish that law and take the distribution systems, like us, out of the picture. And we can move forward on that basis. To conclude, one thing that a company like NYNEXseeks to do is not necessarily to try to protect its intellectual property in traditional ways,like yellow and white...