From: news@wolves.uucp (The Wolfe of the Den)
Newsgroups: alt.amateur-comp
Subject: Net Culture Assumptions II - Historical Perspective
Date: 14 Oct 92 04:43:41 GMT
Reply-To: news@wolves.durham.nc.us
Organization: Wolves Den UNIX
X-Md4-Signature: 47d3ea6a54f7746f0e7e557a322f7298

This article was originally written on July 5, 1992.
This version is edited and expanded somewhat.
[The discussion was about the application of copyright law to Usenet.]
{new material is indented less or enclosed in []'s  }

On June 30, 1992, Brad Templeton <brad@clarinet.com> said in part:
>
>However, my old logic still stands.   USENET can't exist legally if you
>think that the copying that goes on under it is generally with the permission
>of the author, rather than at the command of the author.

  The situation is that Usenet is *not* a legal entity!  There are lots of
views of what Usenet is or isn't (see the monthly postings in
news.announce.newusers for various articls and opinions.)   One thing
that can be said is that we arue over this on a too regular basis.

  My view of the net is that it is a co-operative anarchy.  There is no
central authority, but there are some (more-or-less) generally accepted
guidelines for its operation.  The lack of legal status for Usenet is
both a strength and a weakness.   I certainly hope that Usenet does
*not* become a formal organization  --  to do so would end most of the
usefulness of the net.

   How?  The information content would come under the purview and become the
responsibility of that organization, and an organization *must* look out
for its own existence before looking out for the benifits its services
provide to the users.  If the information content of the net becomes an
issue, we could be sure that the organization would suppress information
that might cause its own distruction.

	Let me explain why I have this particular belief, it is based on
a personal view of the net based on observing its history from its
inception to the present time.

	First a caution, my time sense is a bit wierd. A more exact
chronology is available from various sources, and the interpretation of
the observed events is my own.

	I'll begin with Brad's theory of "copyright" in relation to
netnews and proceed with a history lesson with explanations of my views
on the topic.

Brad's model:
>How to draw the line?  Quite simply, human beings violate copyrights.
>Computers can't.   So to violate a copyright, an action of a human being
>is required.   More to the point, the violation is far easier to discern if
>the human being *knowingly* violated a copyright.

	Well, so far the courts seem to view the act of physical
duplication the point at which the violation occurs.  When someone lays
a book or magazine on the imaging surface of a copy machine, they
potientially violate the copyright of the item.  Whether the act of
copying falls under the "fair use" provisions depends on the subsequent
use of the copy.

	If this particular concept is applied to the netnews cooperative
network, then when an article is transmitted to another machine, a copy
is made, and the potential violation occurs.

	If your model that the user "commanded" that that copy be made,
on each and every copy that is made, no matter how many systems
intervene between his finger on the "send" key and that copy, then the
author may become liable for "unauthorized use" of some machine that is
not even on the same continent they are on.  It also becomes very
difficult to define the amount of time that may elapse between the user
commanding the copying, and the act of copying.

[This is a strawman, and is easily answered.  The poster indeed commands
other machines to make the distribution, and in an exchange of favors
(on an informal and cooperative basis), the posters on other machines
can use the first poster's machine to do the same thing.  Since every
site is responsible for its own actions, connecting to Usenet can be
seen as an informal authorization to use that machine for giving netnews
articles to the readers on that machine.]

	On the other hand, a competing argument/model can be made that
the author gives implied consent for the cooperating systems to make
copies and distribute those copies, without giving up the other rights
concerning control of their intellectual property.  Again, there are
problems in that there is no easy way to define the limits of that
permission.

[The main problem here comes when the poster is *not* the author of the
posted item.  The poster cannot give permission for an illegal act.
Only when the poster bears full responsibility for their own actions is
the net in a reasonably secure position.]

	Which of these models is "right?"  Both and neither.

   The "best" model of Usenet in terms of copyright is still a matter of
opinion and conjecture.  Personally, since the original posting of this
article, I have come to think that the "sender commands the copying"
model is the best overall model.  It fits the non-authoritarian
situation that Usenet exists in, and can easily be understood.

	Those who use Usenet, and wish to have some secure legal grasp
on what they contribute fail to comprehend some basic aspects of netnews
that have been inadequately stated since the net began in 1979/80.

	Recalling a bit of the history of the net, we need to look at
the way that the net started and how it has grown.  The seminal concept
of the net is that folks on different machines *desire* to share
information in an easy and timely manner, despite the spatial separation
between them and the machines they are using.

	That is that the persons using the net to communicate *want to
communicate* and are willing to cooperate in effecting that communication.

	This is the absolute basic principle: you want to communicate
with the other folks on the net.

	There is no one holding a gun to your head telling you that you
*must* post something to the net.  (At least, I hope no one is doing that!)

	From this, everything else follows.  The mechanics of how it
happens have changed drastically from the original shell script
implementation of simply checking the time stamps on files and sending
files that had changed since the last check to some other machine.  The
first attempt was barely adequate for two machines, and required a lot
of human effort to assure that directory structures between the machines
was identical.

	As soon as one other machine was added to the mix, it became
obvious that some sort of automated methods of assuring that the
communication would not breakdown when someone wanted to start a new
topic.

	Tom Truscott, Jim Ellis and Steve Bellovin, with assistance from
lots of folks at Duke and UNC, convened an informal conference and
hashed the basic facilites and needs out in about three hours.  Then in
about two weeks, they wrote it and got it working on the "original
three" sites, duke (computer science),  unc (computer science) and phs
(dept of physiology, in the duke medical center). At that time, the 
"A version" of NetNews (as it was originally called) had been placed 
on the conference tape at the Toronto Usenix meeting in January of 1980.

[There is some disagreement over this.  I clearly recall using netnews
prior to getting married in January of 1980.  Our honeymoon was delayed
since my wife's supervisors were at the Toronto Usenix Conference. She
was a programmer at the phs site. :-)  ]


	Under the conditions of the academic UNIX licenses in those
days, the software was placed in the "public domain" and it was the most
popular program from that Conference Tape.   I do not recall that anyone
was quite expecting the explosion that followed.

[Steve Bellovin wrote me to confirm this.  His comment was that they
expected maybe a 100 machines and ONE net. group.  An updated version of
netnews, with much expanded capacity was on the spring conference tape.]

	The early ARPAnet already had a number of mailing lists, and the
management of them was already quite a headache for the folks involved.
The NetNews software was quickly recognized as a superior means of
dealing with very active lists and was quickly placed into service.

	At that point, there were already problems with providing email
service between the ARPAnet machines and the UUCP based network.  The
confusion between bangpath notation and the domain-name system was well
established, with lots of rancor and confusion already evident.

	In any case, one of the early assumptions was that there would
be "local" groups of machines sharing news, and that there would be
little crossover between groups.  The model was that a campus of a
university would have a news network, and it might be shared with
another university that was logically and physically close to it, but
spatially inconvenient for folks to get together physically, and that
netnews would allow them to share information in a timely manner.

	But again, there was a basic point to the model, that the people
wanted to communicate, and would cooperate in effecting that communication.

	The sharing of information was to be handled in local/regional
areas, and the details of who would pay for the phone calls, and the
legal mumbo-jumbo of "responsibility" was to be handled with the usual
academic handwaving and under color of academic freedom.
[Well, there were some arrangements, but they didn't impinge on my view
of the situation. It wasn't all handwaving.]

	When the direction of evolution took an unexpected turn, and a
continental network emerged, spanning the continent from california to
north carolina, and toronto to san diego, it was sort of a shock to
realize what had happened.

	And, since everyone was in an academic environment (well, decvax
was commercial, but it was a very special case -  Bell Labs was academic
really, but it was another special case) and involved in computer
science, there was never any kind of special concern for the legal
mumbo-jumbo.  Everyone *wanted* to be on the net, and it was clear that
they were cooperating in doing so.  (Some folk at Bell Labs were
watching the legal stuff, not in terms of individual posters' rights, 
but in terms of protecting AT&T's rights in and to UNIX source code and
proprietary information.)

	The conventions of net.<name>, fa.<name> and <name> developed as
being netwide, gated mailing lists, and local topic groups.  And the
hierarchical subcategories soon appeared.  Moderated groups appeared and
were placed in the mod.* hierarchy.

	Under the strain of being an international network, with several
new machines being added daily, certain limitations in the basic
assumptions made themselves painfully obvious.  And the re-write known
as B-news made room for the continuing expansion.

	And still, folks *wanted to communicate* and cooperated in doing
so.  An informal structure for the efficient management of the topology
of the network arose, based around a set of sites willing to transfer
news over a set of "backbone" links, and then fan out distributions to
the mid-level and leaf sites.  The administrators of these backbone
sites knew each other, and respected each other in terms of cooperating
and managing the growth of a net that had *no formal existence!*

	The "backbone cabal" (as it was mockingly referred to, in
recognition of its extra-legal existence) established some general
procedures for adding groups, and for dealing with problems that
threatened the voluntary cooperative nature of the net.

	The debate over copyright of postings became, for the first
time, truly acrimonious.  As more sites joined, more and more of them
being non-academic in nature, the missing or hidden assumptions that
guided the folk attempting to manage the net, began to exert pressure.
It *was* stated, plainly and clearly, in several places, that a person
posted to the net as a voluntary act, and that they were assumed to
understand that asserting copyright was not a "friendly" action IN THE
LIGHT OF THIS ASSUMPTION.

[NOTE Well:  At the time the net was formed, the USofA was *not* a
signatory to the Berne Convention on International Copyrights!  The US
had its own peculiar set of laws about copyrights, and something without
a notice was not copyrighted.]

	Meanwhile, AT&T was "liberated" by the MFJ ruling by Judge
Green, in the US Justice Department's Anti-Trust suit against AT&T, to
compete in the computer industry (with certain limitations).  All at
once, the whole nature of things changed, the Universities were no
longer bound by the license restrictions that programs and utilities
developed on the "free license" Unix brand Operating System be placed in
the public domain, and the net continued to grow by leaps and bounds.

	The power of the backbone cabal held through the time of the
Great Renaming, when the old net.*, fa.* and mod.* was transformed
overnight into the "Seven sisters" of {comp,misc,news,rec,sci,soc, and
talk}, plus a smattering of local hierarchies.

	And more sites became connected to the net.  Still under the
assumption that the sites wanted to communicate, and would cooperate in
doing so.  It was noted that postings were voluntary, and that the
backbone considered all postings to be essentially placed in the public
domain.

	But now, this discussion was being held in news.admin, not out
in net.general or net.admin where all would see it, and all were, in
fact, encouraged to read and comment.  And most net.readers were simply
no longer directly involved in the guidance and development of the net.
Partly to remedy this lack of direct involvement, but more as a result
of the dissolution of the backbone cabal (which happened when a vocal
group of folks established the alt.* hierarchy because the backbone folk
had decided that there would *not* be a rec.sex group - several of the
backbone admins threw up their hands and recognized that the anarchy was
no longer under control)  the "Guidelines" were worked out that provided
for a popularity poll (a "vote") for the establishment of new
newsgroups.

	And the net continued to grow, but now sites coming into the net
were no longer really reminded of the basic assumptions before coming on
line, that they were joining a voluntary association, and that people
posting were assumed to be communicating in public because they wanted
to, and that it was a "public domain" situation.  There was no backbone
cabal to contact the new site admin and assure the net that the new site
understood the voluntary nature of the association.

	Home sites and commercial sites began to proliferate in much
greater numbers than before, and anyone could get a feed of as much or
as little of the news as they wanted, and it was no longer assured that
all sites *would* see an item posted to news.announce.important.

  And in 1987 and 1989 -- BANG!   The second of the really major
assumption changes hit.  The USA signed the Berne Convention, and
practically overnight, the net went from a default of no copyrights, to
a situation where copyright was automatic.  The results of this are
still resounding throughout the net.

  This change still did not really undo the underlying assumption -
people using the net WANT to communicate.  Those who worry about the law
and being risk-free tend to loose sight of this.  The poster of an item
is seeking to communicate their ideas, and they (posters) *don't* worry 
about the copyrights and other restrictions until they are brought to their
attention by some other poster or administrator.

	The net has lost sight of its basic nature, a voluntary
association of sites exchanging news in a standard format *under the
assumption* that the site and its users want to communicate, and will
cooperate in doing so.

	The net is acknowledged as a working anarchy.  There is no
authority beyond the administrator of a single machine, and links
between machines are still (by and large) informal arrangements.  The
adding of commercial providers merely makes the model very murky, since
the feeding of a group TO the commercial providers are still generally
informal arrangements.  [No comments have been made otherwise to me.]

	So what is the point of this overly long history lesson?  When
netnews began, it was clearly a situation where items were donated to
the net freely and voluntarily.  The resolution of an early debate on
the appearance of a copyright notice on a posting was the clearly stated
principle that posting on the net was contributing the item to the
public domain (in some sense, the moral rights were *not* at issue then,
before the US joined the Berne Copyright Convention.)  Postings with a
copyright did not make it very far before someone noticed and corrected
the misapprehensions of the poster.

	Today, this assumption is forgotten, folk forget that they are
in a voluntary situation (if they were ever informed of it) and that
this was started as a public domain forum.

	In My Opinion, folks posting an item to the net are doing so
*voluntarily* and they mean to have that item distributed anywhere "the
net" may send it.  I consider it a feckless argument to try and maintain
a distinction between whether that distribution takes place
automatically or with human direction or control.  It is known (or
should be known) before posting that the automatic systems are going to
send it to places that the poster has absolutely no control over, either 
in terms of space, or in terms of time.  They intend to have that item 
seen and read by other humans on the other end of the virtual circuit.  
And they implicitly invite that other human to react to that item.

	Being a "nominally reasonable" person, with due regard for the
moral rights of an author to be known as the author of a particular
work,  I will maintain attributions on the items.   But they have also
granted automatic systems the right to send that item to me without
compensation (or even a [imo] reasonable expectation of compensation,)
that is, it is a gift.

[Actually, certain situations have happened that actually make me care
about some of these "niceties" in realtion to the operation of my site.
I now am of the opinion that a poster "pressing the send key" is
commanding his machine to connect to other machines and to place copies
of his article there as a gift for the readers on that machine.  These
machines (connected directly or indirectly to the posters machine) do
simply what the poster has commanded them to do.  The poster is the
responsible party.  Furthermore, in exchange for having the privledge of
commanding other machines to distribute the posting, the poster allows
other posters to use his machine for the same purpose.   Not a
contractual obligation, but a simple exchange of favors.  Informal and
cooperative.]

	Finally, in my opinion, if they do *not* want me to receive the
item, then they should not post it "on the net."

	And a prediction: Someday, someone who does not understand the
*voluntary* nature of the net, is going to actually sue someone for some
misunderstanding.  I would sure enjoy being called as an "expert
witness" for that trial (if it ever gets to trial.)
-- 
Usenet Net News Administrator @ The Wolves Den  (G. Wolfe Woodbury)
news@wolves.durham.nc.us  news%wolves@cs.duke.edu  ...duke!wolves!news
"The flame war is a specific Usenet art form." --me
[This site is not affiliated with Duke University. (Idiots!) ]
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