AUTHOR

Frances Grodzinsky (USA), Joe Griffin (Ireland) and Pat Jefferies (England)

ABSTRACT

Concerns about the increased use and abuse of information technology have evolved into more formalized evaluations of computer ethics in many organizations. This trend extends to most of the universities where there has been an attempt to integrate professional ethics or computer ethics into computer science/information technology curricula. However, whilst a degree of commonality in topics and classroom methods exists in this subject area, little formal evaluation of the effects of collaborative learning on students’ moral reasoning has been undertaken. This is of great concern, since the interpretive nature of moral reasoning suggests that it may be particularly susceptible to social influence. (Francis, 1990). Traditionally, of course, the sphere of social influence that students have been privy to has, to varying extents, been somewhat limited by physical factors such as their geographical location. Now, however, with global access facilitated by ICT such factors pose far fewer barriers to influences from other societies and cultures. It was felt, therefore, that through the appropriate deployment of networked ICT social influence could be significantly widened and then, as a consequence, effects that this may have upon moral reasoning might then be investigated and evaluated.

In order, therefore, to evaluate how collaborative learning may or may not affect moral reasoning skills, the authors have designed a multi-institution study that uses Blackboard, a collaborative management tool, in support of the learning experience. This study involves students in three universities: University of Limerick in Ireland, De Montfort University in England and Sacred Heart University in the USA. First, the authors will describe the implementation of virtual groups that comprise students from the three institutions as well as evaluating their use of collaborative learning management tool in their discussion and analysis of an ethical dilemma. The system to be used in this experiment comprises an integrated set of tools: publishing tools that allow the course instructor to publish teaching materials, communication tools such as discussion boards, chat rooms and whiteboards to allow for asynchronous or synchronous student/student and instructor/student communication and statistical tools to gather data on student activity.

They will then provide some analysis of the development of moral reasoning by discussing the results of pre- and post testing students using the Moral Judgment Test (MJT) (Lind, 2000).

The MJT is one of a number of tools that have been designed to measure moral reasoning. There were a number of reasons for selecting this particular tool. The Moral Judgment Test was originally designed nearly twenty years ago. In that time is has been used in the study of educational interventions with over 40,000 subjects of all ages and from a variety of different cultural and educational backgrounds. As a result of this extensive use it has been possible to validate this tool. The MJT has been shown to be theoretically and cross-culturally valid.

The MJT was developed to assess the ability to make decisions and judgments that are moral. The test owes its inception to the theories of Kohlberg, (1964) who developed a scale of moral judgment competence based of Piagetian principles of learning. The MJT focuses on ethical discourse as a core moral ability used to solve ethical dilemmas and it measures not only an individual’s ability to argue a specific moral point but also to appreciate opposing arguments. The MJT has also been found to have applications in measuring the effects of educational intervention in a learner’s moral reasoning development. Validation studies of this tool not only supported the cross-cultural validity of the MJT but also the universal validity of core assumptions of cognitive-developmental theory of moral behavior and development.

The authors will also investigate if there are any patterns of learning distinguishable between the different groups in the three institutions by analysing the patterns of moral reasoning evident in the threaded Blackboard discussions with those that occurred in non-virtual, face-to-face groups. Because of the large sample space (180 students from the three institutions), the authors will try to set up some virtual groups that are single-sexed, and others that are culturally homogeneous. These additional data points will hopefully give insight into differences, if any, that gender and ethnic background bring to collaborative group work and moral reasoning

The results of this research will be of great value in informing future practice in the learning and teaching of computer ethics and professional issues.

REFERENCES

Crook, C. “Computers in the community of classrooms”. In K. Littleton, & P. Light (Eds.) Learning with computers. Analysing productive interaction. London and New York: Routledge, 1999, pp. 102-117

Dillenbourg, P. “Introduction: What do you mean by “collaborative learning”? In P. Dillenbourg (Ed.) Collaborative learning. Cognitive and computational approaches. Advances in Learning and Instruction Series, Amsterdam: Pergamon, 1999, pp. 1-19.

Hewitt, J. & Tevlops, C. “An analysis of growth patterns in computer conferencing threads”. In Proceedings of the CSCL Conference, C. Hoadley & J. Roschelle (Eds.) Dec. 12-15, Stanford University, Palo Alto, California. Mahwah, NJ: Lawrence Erlbaum Associates, 1999.

Kohlberg, L. (1984). The psychology of moral development. San Francisco: Harper & Row.

Lind, G. (1986). Cultural differences in moral judgment? A study of West and East European University Students. Behavioral Science Research, 20, 208-225.

Lind, G. “Introducing the Moral Judgment Test: Measurement of Moral Judgment Competence and Moral Attitudes for Research and Evaluation.” http://www.uni-konstanz.de/ag-moral/mut/mjt-intro-engl.htm. 2001.

Mäkitalo, K. Salo, P. Häkkinen, P. & Järvelä, S. “Analysing the mechanism of common ground in collaborative web-based interaction.” Paper presented at Euro CSCL conference, Maastricht, Holland, 2001.

AUTHOR

Pedro Z. Caldeira (Lisbon)

ABSTRACT

Rogerson (2001) pointed out that legislation could exert a positive mid to long-term impact in computer ethics. In this paper are presented the impact of Occupational Health and Safety Acts and regulations and Data Protection and Freedom of Information Laws on organizational behavior and computer ethics.

This paper analysis occupational health and safety legislation across Europe (e.g., European Union, United Kingdom, Portugal, Austria and Holland) and North America (United States and Canada) relevant to organizational behaviour and computer ethics.

For instance, this paper analysis and discuss the contribution to organizational behaviour and computer ethics of the British Health and Safety at Work Act 1974, Management of Health and Safety at Work Regulations 1992 (that require employers to carry out risk assessments, make arrangements to implement necessary measures, appoint competent people and arrange for appropriate information and training). Workplace (Health, Safety and Welfare) Regulations 1992 (which covers a wide range of basic health, safety and welfare issues such as ventilation, heating, lighting, workstations, seating and welfare facilities) and Health and Safety (Display Screen Equipment) Regulations 1992 (which set out requirements for work with Visual Display Units – VDUs).

This paper also analysis Data Protection, Data Privacy and Freedom of Information Laws that rules employer/employee relationships, product-service vendor/client relationships, and marketing and opinion research both in Europe (e.g., European Commission’s 1995 data directive, United Kingdom Data Protection and Freedom of Information Laws, Portuguese Data Base Protection Law) and United States (Data Protection and Data Privacy Laws e.g.).

But this second set of Acts and Laws in Europe, according to the Application Service Provider Industry Consortium (ASPIC), are not accommodating the fast changing realities of computers and telecommunications (ab)use on organizations.

ASPIC is an international advocacy group with more than 700 member companies, including 200 active company members in Europe. ASPIC commissioned a research project to address international data protection laws and the impact they can have on the marketplace. It concludes that there is an urgent need for ASPs to operate a highest standard data protection compliance programme in order to comply with relevant legislation in countries where they operate (ASP, 2002).

The ASPIC is leading a call for the European Commission to review urgently the data protection laws across Europe following a major Europe-wide research study published in March 2001. “The report from the ASP Industry Consortium (ASP IC) warns that laws driven by the EC’s 1995 data directive are implemented inconsistently across countries, leaving businesses at risk from prosecution due to uncertainty over compliance procedures, as well as an erosion in individuals’ protections” (ASP, 2002).

The European Chairman of the ASP Industry Consortium said, “The Internet and web-based technology have fundamentally changed the way in which people work and how data is processed and transmitted…. Online businesses such as ASPs want to be able to conduct operations effectively while protecting the rights of individuals. However, current data protection laws, which were written during an era when data was relatively static, need to be changed to catch up with the realities of an online, mobile world.” (ASP, 2002)

ASPIC (2002) is calling on the EC to consider a variety of changes, including:

• Uniform personal data protection laws throughout the European Union, with an exclusion of corporate data
• Establishment of a central European data protection authority to act in partnership with countries to implement a common registration and notification process and to monitor and adapt rules as technology changes
• Redefinition of the roles performed by service providers such as data processor and data controller to reflect technological realities
• Application of the European Union risk assessment approach to determine the adequacy of the data protection laws in non-European Economic Area countries

Is well known that technology could be used to subvert the intent of data protection laws, but even experts do not expect to find a wide latitude in the interpretation of the 1995 directive, including for instance the extension of the law to corporate data (ASP, 2002). London-based law firm D.J. Freeman conducted a research on behalf of ASP IC in 15 European countries and found that almost every region was operating its own regime in terms of data laws.

Alexander Carter-Silk, of DJ Freeman, commented: “While European Community data legislation is not perfect, it does provide a solid foundation for a standardised compliancy framework for the future. In terms of ASPs, the situation in Europe is one where the economy has accelerated past the law and an update is required – not only for the growth of the business model in Europe, but also because the rest of the world is looking to the EU to set the example in achieving cross-border data compliance standards” (ASP, 2002).

AUTHOR

Pedro Z. Caldeira and Manuela Faia-Correia (Lisbon)

ABSTRACT

Many collapses in work setting design involving technology is due to a contributing number of factors: by limiting the consideration of system stakeholders to just the software developer and the customer; scarcity of management time to understand the dynamics between the various stakeholders involved; industrial relations systems and cultures that create institutional and attitudinal obstacles to change in that direction; the entrenchment of a traditional engineering mentality amongst engineers and information staff, supported by the education system; and the frequent failure to understand or address the relative balance of costs and benefits of such systems in different contexts. This leads to design work settings that have surprising negative effects because the needs of relevant system stakeholders were not considered. Other times stakeholders are inadequately identified and thus the scope of the project is compromised.

We should not limit our consideration of stakeholders to those who are financing the project or politically influential (Gotterbarn, 2001). Any typical organizational or technology change has a large number of different stakeholders: people who develop it, maintain it, run the business using it, use it as operators, sell it, families of the users, social institutions which may be radically altered by the introduction of the technology, natural environment, social communities, employees of the development organization and the development organization itself, etc.

Stakeholders are groups as well as individuals and, in general, it includes all those who have expectations of gain from the organization’s successful operation (Donaldson & Preston, 1995). For all those people, the relative weights of various quality attributes may be dramatically different. A well-known and publicized example of conflicting prioritisation of two stakeholder groups is the conflict between developers/programmers and end users concerning usability versus ease of construction. Compromising between priority scales of various stakeholders, or between security and cost aspects, is an important ethical issue (Bereza-Jarocinski, 2001).

In the present paper, we will start by revisiting socio-technical system theory and its more recent developments and complement it with stakeholder theory. We will then build a framework for analysing the dynamics that take place in the design and implementation of information and communication technologies.

It is our contention, that by bringing in stakeholder theory into system design and implementation we can provide the actual context and the forces that are at stake when changes are implemented. In this context, change is adjusting organizational structure, culture and technology to the `demands’ of a limited socio-technical system, but also by configuring the different needs and intentions of the various stakeholders involved to fit a much broader context than socio-technical system tend to assume.

A traditional approach to technology doesn’t take into account all relevant variables of the socio-technical system (Humans and machines working together toward a commum goal). As a result work systems are underoptimized – regarding not only productivity but also self-realization feelings or criteria as stress, satisfaction, and occupational health and safety (Hendrick, 1995).

The Human side of technology is not a priority in the technology-centered design processes, as designers just want to minimize human error and add some phisical confort. Technology-centered design processes are not worried with motivational aspects of work, characteristics of the work force or other variables related with the design of work or organizational systems.

Socio-technical systems theory (STS) is a widely recognized and used work design strategy. STS is grounded in general systems theory (Von Bertalanffy, 1950). Joint optimisation of the social and technical components of the work environment is considered more desirable than simple optimisation of either system at the expenses of the other (Emery & Trist, 1969). STS ostensibly recognizes the importance of social forces in work organizations. This recognition frequently creates a shift from individual to group-or team- methods of performance. This shift is based on the view that a group can more effective allocate its resources to address work conditions of variances than can employees working independently. The focus of STS is thus frequently on empowering work teams to exercise increased influence over their work activities (Lawler, 1986). Positive variance within the work system is viewed favourably as a sign that teams are adapting to their unique environment conditions. Particularly advanced applications of STS allow groups of employees to make strategic decisions and alter not only the way work is accomplished but also the type of work that is carried out (Manz, 1992; Weisboard, 1987). This provides traditional line workers with the ability to initiate and enact organizational change by observing, interpreting, and reacting to environmental change (Weick, 1979). Such empowerment not only improves employee quality of work life, but also facilitates organizational flexibility.

A basic principle of socio-technical systems design is that the optimal efficiency of Men-machines systems is reached only when exists a joint optimization of the human and the material subsystems. Human-centered design processes are the answer to the problem.

This paper analyze and discuss several case-studies about under and misuse of technology on Portuguese organizations.

AUTHOR

Porfirio Barroso and Laura Calvache (Spain)

ABSTRACT

Inspired by a thesis that appeared a decade ago in the U.S., we propose to present an in-depth study of the lessons that have most often been included in ethics handbooks throughout the twentieth century for the purpose of establishing a series of conclusions concerning the evolution of the major topics dealt with in the discipline of Computer Ethics over the century, as well as to demonstrate a legitimate basis for the choice of the ethics themes that are currently taught at the Faculty of Communication Sciences and Information and Communication Technologies of the Universidad Complutense de Madrid, Spain.

At the present time, we are witnessing a loss of confidence in the media as a consequence of their attempts to capture the public by any possible means. Thus, we consider it necessary to establish suitable ethical normative rules and their regulation on the worldwide level, although differing from one continent to another, one country to another, since the evolution, the history of each region is characterized by different socioeconomic, political, cultural and religious variables. To explain this proposal, we provide a brief summary of the situation of the ethical normative rules and their regulation in different regions such as Africa, Asia, Europe and Latin America.

Of all the handbooks analyzed, we have selected only those that address a wide view of journalistic ethics, excluding those presented as monographs of specific aspects of ethics and deontology and, thus, could bias the results of our study. Ultimately, out of a total of 182 manuals, we excluded 101; of the remaining 81, 67 dealt with computer ethics and 14 with ethics theory. As the fruit of the analysis of each of these handbooks, we provide a statistical outline of the recurrence rate throughout the twentieth century of the fifty topics that are currently taught in courses on ethics and computer ethics, as well as the changes in the space devoted to each lesson. This information is presented in two differentiated blocks: on the one hand, ethics (concept, division, sources, etc.) and, on the other, computer ethics, in the attempt to establish a detailed chronology of the evolution of the importance placed on the different themes addressed by each over the last century, based on the date of publication of the selected handbooks. For this purpose, we established three time periods starting in the year 1960 and ending with the present, 2002.

The topics studied within the realm of ethics, according to their rate of recurrence, are basically as follows:

1. Concept and nature of ethics.
2. Sources, method and division of ethics.
3. The ethics of Kant or deontological ethics.
4. Axiological ethics or the ethics of values.
5. Utilitarian ethics.
6. Existentialist ethics.
7. Situation ethics.
8. Ethics of indefinite responsibility.
9. Discursive, dialogic or communicative ethics.
10. Minimum ethics or world ethics.

In the realm of computer ethics, the number of topics studied is greater, but the following are those frequently referred to in handbooks:

1. Truth, objectivity, exactness and precision in information.
2. Codes of ethics, practices, honor and deontology.
3. Respect for intimacy and private life.
4. Defense and freedom of information and responsibility.
5. Professional secrecy and confidentiality.
6. Duty of rectification.
7. Right to honor.
8. Equality in treatment. No discrimination.
9. Deontology and personal ethics.
10. Obligatory nature of professional ethical norms.

Our aim is to present a thorough quantitative study involving content analysis and comparative analysis, concluding with a qualitative assessment of the results, presenting the keys to the evolution of the teaching of ethics and demonstrating that the lessons in the early handbooks offered little or no opportunity for the students to weigh the moral, philosophical or cultural principles that they introduced, while those published more recently (from 1970 on) justified the existence of the discipline of Computer Ethics, defending the need to discover which should be the most important defining moral principles of this subject matter. These principles, converted into lessons included in the program, will be the guidelines that will later confer upon the course its academic legitimacy.

AUTHOR

Tomas A. Lipinski and Elizabeth A. Buchanan (US)

ABSTRACT

Preparing future citizens for the responsibilities of full participation in the information society means more than just imparting an understanding of the use of the information and communication technology (ICT) that supports that society. Rather, it means also imparting an understanding of the responsible uses of that technology. The necessity for the responsible use of ICT is becoming widely recognized, especially as part of the primary and secondary educational experience. The developing case law,¹ as well as the surrounding publicity of the Napster litigation² demonstrates that legal and ethical issues are gaining prominence in educational settings. Many schools, however, have far to go in making their environments both compliant in terms of the law and committed in terms of ethical uses of technology, combining the legal and ethical issues into a compound concept of so-called responsible technologies. In a revealing article, Victoria Slind-Flor,³ asks rhetorically: “Should schools be teaching reading, writing, arithmetic, and copyright?”
Many responsible institutions have come to believe that the answer to that question is “yes.” Unfortunately few effective tools or frameworks exist for incorporating such concepts (“responsible technologies”) into the classroom environment.⁴

Unfortunately, educators are ill prepared to teach legal and ethical concepts regarding the uses of new technologies in the classroom.⁵ Administrators also receive little training and moreover, place legal and technical issues regarding new technologies low on the concern list.⁶ Until faced with the actual threat of impending litigation educational organizations in the PK-12 environment offer ineffective guidance either by doing little to change the behavior of those in its employ, such as teachers and other staff, or to mold the development of the charges in their care, the students. As a result, students learn first hand (by observation) not only how to infringe copyright and abuse the rights of others online but also to take such actions without any thought or consideration of intervening concepts such as fair use. Copyright infringement is now second nature among the upcoming generation of information society participants. It is no wonder then that the current educational system seems more designed to turn out the next generation of teenage “hackers” than it is law abiding or conforming “netizens.”

K-12 schools are particularly at risk for violating ethical principles and legal precedent, as teachers are often pressed for time, money, and resources, but mainly lack of knowledge about technology law and ethics. Previous educational rhetoric, policy, initiatives, and funding has focused decidedly on getting new technology into the classroom with little thought on the legal and ethical implications of those decisions. Perhaps, it was assumed that the adoption of “responsible technologies” would be a given, but an ongoing research study indicates that this is simply not the case. The researchers propose that a systematic program of “Responsible Technologies” is necessary to directly assist teachers, administrators, and ultimately all students in making ethically sound and legal decisions regarding technology use in schools.

This paper presents ongoing results of a project funded by a University of Wisconsin System PK-16 Initiative grant to study the implementation of Wisconsin’s Model Academic Standards for Information and Technology Literacy (WMASITL), in specific the responsible (legal and ethical) uses of technology in PK-12 environments. WMASITL mandate that students, from grades 4 on, will “use information and technology in a responsible manner . . . respect intellectual property rights . . . [and] recognize the importance of intellectual freedom and access to information in a democratic society.”⁷ This three-year study assesses the readiness of teachers, administrators, and students to implement the WMASITL and identifies the components of an effective “responsible technologies” program in a PK-12 environment. The initial results are part of the first and partial second year phases of the project. The focus is on the ethical and legal (copyright) uses of technology in the PK-12 environment. The study is carried out with the cooperation of the Cooperative Education Service Agency, District #1 (CESA 1), and with participating school districts located throughout Milwaukee, Ozaukee, Waukesha, and Washington counties, Wisconsin.

The focus of phase one is upon the educators, phase two focuses on administrators, and phase three focuses on students. The first year phase begins begin with a needs assessment, in which several dozen participating CESA 1 teachers are surveyed on their opinions and knowledge regarding ethical and legal issues in PK-12 environments. A continuing education model for instructing teachers on these issues is developed and assessed. Upon completion of the two in-service sessions, teachers will have the opportunity to review and assess various additional learning and teaching tools including practice quizzes, tutorials, etc. available through a Web CT learning module created by the academic research host. Third, a follow-up on-site assessment and audit of legal and ethical practices is made of selected schools within the participating CESA 1 school districts. On-site observations may be video taped, evaluated, and incorporated into a collection of video clips of best practices. Implementation materials designed for staff and teacher use are developed and include a web-based clearinghouse of resources on copyright issues, a best practices multimedia tool, and teaching modules consisting of lecture ideas, activities, and evaluation plans for teachers to use. (Phase two repeats the process for a selection of administrators from representative CESA 1 school districts.)

Presentation at the ETHICOMP 2002 may include demonstration of the continuing education model and assessment (tutorials), the initial curriculum design, and the clearinghouse and best practices tools. Findings and conclusions of the current level of teacher preparation incorporating WMASITL regarding the use of responsible technologies in their classroom is reported as well as suggestions for achieving success in future implementation initiatives. In addition, areas for improvement as well as unresolved issues are identified. The result is the presentation of several possible directions for compliance efforts in elementary and secondary education regarding the legal and ethical uses of ICT in the classroom.

REFERENCES

1. Chicago School Reform Board of Trustees v. Substance, Inc., 79 F. Supp. 2d 919 (N.D. Ill. 2000).
2. Metallica v. Napster Inc. et al., No. 00-0391, complaint filed (C.D. Cal., April 13, 2000).
3. Victoria Slind-Flor, Students Flunk IP Rights 101, The National Law Journal, March 13, 2000, at B6.
4. Lesley Ellen Harris, Editorial, Copyright & New Media Law Newsletter (Volume 5, Issue 4), 2001, at 1.
5. Douglas W. Green, Copyright Law and Policy Meet the Curriculum: Teachers’ Understanding, Attitudes, and Practices, ERIC Doc. # ED 364 946, 1993; Alex Carter and Landra L. Rezabek, The Awareness of Copyright Issues by Preservice Teachers, 20 International Journal of Instructional Media, 1993, at 43; Dana R. Monts, Student Teachers and Legal Issues, ERIC Doc. # ED 428 039 (1998); F. Patterson and L. Rossow, Preventative Law by the Ounce or by the Pound: Education Law Courses in Undergraduate Teacher Education Programs, 9 National Forum of Applied Educational Research Journal, 1996, at 38.
6. Richard L. Rice, Behavior Opinions and Perceptions of Alabama Public School Teachers and Principals Regarding the Unauthorized Copying and Use of Microcomputer Software, ERIC Doc. # ED 340 703 (1991).
7. Wisconsin Department of Public Instruction, Wisconsin’s Model Academic Standards for Information and Technology Literacy 14 (1998).

AUTHOR

Tomas A. Lipinski and David A. Rice (US)

ABSTRACT

Recent international developments are placing organizations in an environment of expanded rights of information owners¹. This expansion is creating a slow but inexorable paradigm shift in relationship between intellectual property owners, copyright for example, and organizations as users of that property. The shift can be observed along several axis of advance. The first axis is evidenced by the increased compliance requirements placed on those who, like the organization as employer or provider of services to clients, seek to act as intermediaries during the use (“transaction”) of copyrighted material. The “compliance requirements” may be either explicit or implicit. The second axis is observed in the design of recent intellectual property enforcement vehicles. There is an accentuated focus on the functional technology and those who use and supply it in addition to the initial infringing actor and his or her relationship to the infringed work². Third is the ascendancy of property rights over other personal rights, such as free speech, of private rights over public delineated rights. As a result of this shift, organizations and the individuals who work in the organization are facing a new climate in which more will be asked of them and less given in terms of deference to intellectual property owners rights versus users rights of access to information. This paper identifies the emerging legal requirements facing organizations in the use of information and communication technologies.

First there is an increased “compliance” requirement placed on those, who seek to act as intermediaries in the transaction of intellectual property use. For example, in copyright law, the concept of secondary liability for the acts of intermediaries is well established: those who contribute or assist in the infringing activities of others also share in the liability. In response to early cases that extended concepts of secondary liability to the Internet, in some instances with an expansion of intermediary liability³, the U.S. Congress responded by articulating statutory standards under which an intermediary such as an employer or Internet service provider could face reduced damage liability⁴. Subsection 512(i) conditions the application of damage limitation (“safe harbors”) for intermediaries on the adoption and reasonable implementation and dissemination of a policy for terminating the accounts of subscribers who infringe copyright repeatedly. An expanded compliance program is also contemplated for safe harbor provisions afforded to institutions of higher education subsection 512(e). This is an expanding trend in the United States: granting some form of “immunity” to some actors (intermediaries) but only on condition of their expanded role in promoting and monitoring enforcement. A very recent example is found in S. 487,⁵ pending legislation to amend 17 U.S.C. 110(2) governing the use of copyrighted material in distance education. Under the revised subsection 110(2), the use of copyrighted materials in online educational settings would be conditioned upon extensive compliance and monitoring provisions, such as expanded use of warning notices, regulation of student access to secure site material and the use of technological measures that prevent retention or downstream distribution by students, and the establishment and dissemination of a institutional compliance policy. These are explicit measures, but implicit compliance measures also result from the use of UCITA-based⁶ based licensing, UETA,⁷ and recent e-sign legislation,⁸ which operate to validate click-wrap and email-based contracting. As a result, institutions need to increase employee awareness of the risk of inadvertent contract formation by the activation of “I agree” icons in web environs or from the use of email correspondence and other electronic communication.⁹

A second development targets enforcement strategies on the functional technology used to “infringe” instead of the infringing actor and in so doing redefines the concept of direct copyright infringement. This is evidenced by the implementation of the WIPO treaty provisions known as the anti-trafficking and anti-circumvention provisions.¹⁰ Subsection 1201(a)(1) prevents the circumvention of an effective access control a copyright owner places on a work. An example would be the CSS code that is used to restrict the playing of DVD movies on authorized players only. Under 17 U.S.C. 1201(a)(2), transferring the access code to another, by posting it on the Internet by an illegal trafficking of a prohibited access device. If one created a “product” that allowed one to use a technologically protected work and marketed it as such it might also violate a second anti-trafficking provision contained in subsection 1201(b). The significance of these provisions is two fold. First, it conditions fair use of lawfully obtained copyrighted material on a separate permission to access the work. As a result one must not only have a fair use right to use the material but must also have the permission to gain access to the work. Unlike the use of a public park surrounded by private land there is no easement right to gain access to the park. In operation, Section 1201, as it implements the WIPO treaty protocols, gives copyright owners the legal right and ability to foreclose such “public easements.” Second, a subtle but significant shift has occurred: from the infringing act to the functional technology that controls it. This new emphasis represents a shift in over several hundred years of copyright liability and enforcement strategy.

Third is the ascendancy of property rights over personal rights. This can been seen in several developments. First, several recent cases involving copyright and new technologies-some involving litigation of Section 1201, others involving other provisions of the copyright law such as the recent extension of copyright duration-has pitted the rights of copyright owners vis-à-vis the limits of the fair use right against the free speech rights of users.¹¹ In other words users have claimed that while their fair use rights may not have permitted the use made of the copyrighted materials, free speech rights should have supported their use of the material. For example in Universal Studios v. Reimerdes,¹² the defendants claimed that their posting of the DeCSS (“De”cryption of CSS) code that could crack access to DVD files was an act of “civil disobedience.” Courts have not been receptive to these arguments and have instead placed copyright owners’ rights ahead of any personal or civil rights such as free speech. A similar result occurs in the case of UCITA (Uniform Computer Transactions Act) that would create a statutory framework for the expanded capacity of owners to license information products and services. Under a UCITA license, a licensee of a product could be restricted according to the terms of the license from commenting publicly the product.¹³ Finally, licensing systems result in more restrictive limitations on use and access to the acquired content such as databases and software than any legislative reforms either in the United States¹⁴ or internationally¹⁵ have forwarded.¹⁶ These developments impact the ability of organizations to use existing content in the development of new information products and services and may slow or even stifle institutional and industry innovation.

This shift from existing intellectual property norms will have tremendous impact on how organizations will behave in the future. This paper explores the origin, development and future of organizational response that must occur if compliance with these laws is sought and argues that such response is out of proportion to the threat perceived, inconsistent with other principles within copyright and may ultimately prove over whelming for some organizations.

REFERENCES

1. Jason Sheets, Copyright Misused: The Impact of the DMCA Anti-Circumvention Measures on Fair & Innovative Markets, 23 Hastings Communication & Entertainment Law Journal 1 (2000); Shaun Sparks, Case Note: Busting the Code: The Anti-Trafficking Provision of the Digital Millennium Copyright Act and Free Expression in Digital Media, 2000/2001 International Journal of Communication Law & Policy 1 (2000/2001); Amelia H. Boss, Taking UCITA on the Road: What Lessons have we Learned?, in Uniform Computer Information Transactions Act: A Broad Perspective 121, 156-169 (2001) (PLI Intellectual Property Course Handbook Series # G-673) (discussing UCITA as an international uniform act); Rochelle Cooper Dreyfuss, Symposium: Software As A Commodity: International Licensing of Intellectual Property: Commentary: UCITA in the International Marketplace: Are We About to Export Bad Innovation Policy?, 26 Brooklyn Journal of International Law 49 (2000).
2. Jay Dratler, Jr. Cyberlaw: Intellectual Property in the Digital Millennium, Section 1.02[2], at 1-15 (2001) (“For the first time ever in the United States, they [the anti-trafficking and anti-circumvention rules] impose primary or direct liability not on those who make the unauthorized copies, but on those who provide or use the technology for doing so.” (emphasis original, footnotes omitted)).
3. Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).
4. 17 U.C.S. 512.
5. S. 487, 107th Congress, 1st Session (2000) (Technology, Education and Copyright Harmonization Act of 2001).
6. UCITA (Uniform Computer Information Transactions Act), promulgated in 1999 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), is available at www.law.upenn.edu/bll/ucita/ucita.htm. See also, Cem Kaner, Why You Should Oppose UCITA, 17 Computer Lawyer, May 2000, at 20.
7. UETA (Uniform Electronic Transactions Act), promulgated in 1999 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), is available at www.law.upenn.edu/bll/ucl/fnact99/1990s/ueta99.htm.
8. P.L. No. 106-229, 114 Stat. 464 (2000) (Electronic Signatures in Global and Interstate Commerce Act) (codified at 15 U.S.C. §§ 7001-7031).
9. Brook Boyd, E-Sign Laws Could Make You Vulnerable, New York Law Journal, October 17, 2000, at 1.
10. 17 U.S.C. 1201.
11. Eldred v. Reno, 239 F.3d 372, reh’g denied, reh’g en banc denied, 255 F.3d 849 (D.C. Cir. 2001).
12. 82 F. Supp. 2d 211 (S.D.N.Y. 2000), 111 F. Supp. 2d 294, 303, 312 (S.D.N.Y. 2000), aff’d sub nom. Universal City Studios v. Corely, 273 F.3d 429 (2d Cir. 2001) (quoting Universal Studios v. Reimerdes, 273 F.3d at 441).
13. Under UCITA, a “contractual use restriction” defined in UCITA, Section 102(a)(20) could include such a limitation (“concerns the use or disclosure of, or access to licensed information or informational rights”); and the limitation would be enforceable under UCITA, Section 307(a): “If a license expressly limits use of the information or information rights, use in any other manner is a breach of contract.” A non-disclosure clause is a contractual use restriction and it would be thus enforceable.
14. Richard Keck and Damon Goode, Survey: Of Misappropriated Manure Heaps, Rude Robots and Broken Promises: The Devolving Law Of Database Protection 57 Business Lawyer 513 (November 2001). Update pending legislation and cite to Dbase copyright office report and others, law rev too U.S. Copyright Office, Report of Legal Protection of Databases (1997).
15. Council Directive 96/9/EC, of March 11, 1996 on the Legal Protection of Databases, 1996 O.J. (L 77) 20.
16. David D. Rice, Legal-Technological Regulation of Information Access, in Libraries, Museums and Archives: Legal Issues and Challenges in the New Information Era 275 (Tomas A. Lipinski, ed. 2001).