May 2002 Public Policy Computer Graphics Column

Introduction

Laurie Reinhart

In our last column we introduced the course and panel proposals we submitted to SIGGRAPH 2002. The Introductory and Intellectual Property/Digital Rights Management courses have been accepted and we have an update here. At the SIGGRAPH 2001 Public Policy BOF meeting Mark Banas volunteered to set up an email list. This has been done and is available; instructions on how to get onto it are in this column. We are looking for a volunteer to implement a mechanism for making available pointers to articles on policy of interest to computer graphics professionals. We are also looking for a graphic arts volunteer.

We have discussed the Uniform Computer Information Transactions Act (UCITA) before. Cem Kaner participated in the December meeting of the UCITA drafting committee and his report is included here. Also an American Bar Association working group recently issued a report on their study of UCITA; we provide a link to it and a recent article about the report.

Many readers of Computer Graphics are at academic institutions. What intellectual property issues arise there? Cem Kaner from Florida Tech describes the emerging policy there which governs the rights of faculty and university for "stored courses"(sometimes called "distance learning", etc.) And in our next column we plan to publish a tutorial on intellectual property and the implications for computer graphics professionals from Barb Helfer of Ohio State University. Those of you who are interested in learning about copyright issues should find this upcoming tutorial very interesting.

Bob Ellis summarizes two recent reports on broadband Internet services: one from the National Research Council's Computer Science and Telecommunications Board and another by the Computer Systems Policy Project.

The ACM Public Policy Office in Washington D.C. publishes an email newsletter. Our final item reviews the newsletter and describes how to subscribe. In addition to their newsletter, the office is available to members and contact information is given here. To illustrate the office's work we also present some of its recent efforts concerning a proposed law that sought to force changes in the architecture of computers so as to limit their ability to replicate copyrighted information.

I visited Lillie Coney in the ACM Public Policy Office in February. She and Jeff Grove keep up on the issues affecting us, brief the policy makers, and send information to the ACM newsletter. They encourage organizations of computer professionals to keep in touch and to indicate what public policy areas are of special interest to that group (the better to collaborate on issues of shared concern). I was told that writing letters repeatedly on the same issue to our policy makers is effective, and that written letters are much more effective than emails. Bob Ellis has heard that the order of importance from highest to lowest seems to be: a visit, a phone call, a fax, a letter, and an email.

SIGGRAPH 2002 Courses and Panel Update

Bob Ellis

In our last column (http://www.siggraph.org/pub-policy/CGColumn-02-2002.html) we introduced the course and panel proposals we submitted to SIGGRAPH 2002. As of this writing (mid-February) we have had acceptance of the Introductory and Intellectual Property/Digital Rights Management courses.

We have just learned that the panel proposal was not accepted. Comments from the Panels Jury indicated that they wanted to see panelists with computer graphics related knowledge and that patents should be covered. I can appreciate their position regarding the first comment, but I just do not see that it is appropriate for us to cover patents and copyright in the same panel because they are so different. In addition, there is really only one technology policy issue associated with patents and that concerns the granting of software patents, while copyright has many policy issues. Finally, most people seek legal advice when working on patents but do not when working with copyrighted materials so I feel we should concentrate our attention on copyright. It is likely that we will develop a panel proposal for S2003 so if anyone would like to be involved or knows people who would make good panelists, please contact me.

We were of course disappointed that the third course "Broadband Internet Services, Digital Television and their Impact on Computer Graphics" was not accepted. We continue to believe that these topics and in particular their slow rate of adoption has a major impact on computer graphics. We will continue to bring you information on these two topics in this column and will undoubtedly propose it as a course for SIGGRAPH 2003.

We already presented the statements of the courses. In this issue we include the syllabi for the two courses which were accepted.

Introduction to the Impact of Public Policy on Computer Graphics
8:30 AM to 10:15 AM, Tuesday, July 23

Introduction to Public Policy (Ellis and Simons) (5 Minutes)

Overview of Computing and Public Policy (Simons and Ellis) (25 Minutes)

Cryptography (Simons)
Digital Copy Protection (Ellis)
Electronic Commerce (Ellis)
Free Speech (Simons)
Intellectual Property (Simons)
Internet Futures (Simons)
Privacy/Surveillance (Simons)
Telecommunications (Ellis)
Convergence of Computing and Television (Ellis)
User Access (Ellis)

Deployment of Broadband Telecommunications (Ellis) (10 Minutes)

Digital Subscriber Lines
Cable Modems
Satellite
Terrestrial Wireless
Security
Privacy
Regulatory Policy

Use and Protection of Intellectual Property (IP) (Simons) (10 Minutes)

Definition of IP
Using IP
Creating IP
World Intellectual Property Organization (WIPO)
Digital Millennium Copyright Act (DMCA)
Fair Use/First Sale Rights
Contract Law/Shrink Wrap Licenses (UCITA)

Digital Copy Protection (Losch/Ellis) (10 Minutes)

Technological Mechanisms (Cryptography, Watermarking, etc.)
Users' Rights
Copyright Holders' Rights
Consumer Acceptance

Convergence of Computing and Television (Ellis) (10 Minutes)

Digital Television (DTV)
High Definition Television
Influence of Digital Copy Protection on DTV
Future of Free Terrestrial TV Broadcast

Research Support (Ellis) (10 Minutes)

Role of Government
Role of the Private Sector
SIGGRAPH Activities

Public Policy (Ellis and Simons) (10 Minutes)

How Effected
How Influenced
Role of Technical Societies
Role of Professionals
Role of Citizens
Public Policy Organizations
Web Resources

Discussion (Ellis and Simons) (15)

Intellectual Property, Copyright and Digital Rights Management for Computer Graphics
10:30 AM to 12:15 AM, Wednesday, July 24

Copyright Overview (Burk) (10 Minutes)

U.S. Approach - incentive based
European Approach - personality based
International Treaties

Copyright Basics (Burk) (15 Minutes)

Subject Matter
Exclusive Rights of Authors
Fair Use
Contributory Infringement

Copyright in Digital Media (Burk) (15 Minutes)

On-line Service Provider (OSP) Liability
Linking & Framing
Digital Millennium Copyright Act (DMCA) Anti-circumvention

Digital Rights Management Systems (Simons) (15 Minutes)

Cryptography
Watermarking
Content Scrambling System (CSS)
Secure Digital Music Initiative (SDMI)
Content Protection for Recordable Media (CPRM)

Implications of the Use of Digital Rights Management Systems (Simons) (20 Minutes)

Copyright Owners Have Protection
Fair Use Rights May Be Impacted
Any System Can Be Compromised, Some More Easily Than Others
Works Become Unavailable in the Public Domain and for Archiving

Actions/Discussion (Burk and Simons) (30 Minutes)

SIGGRAPH Public Policy Email List

Bob Ellis and Mark Banas

At the SIGGRAPH 2001 Public Policy BOF meeting Mark Banas volunteered to set up an email list. This has been done and has been available for a while. To date there hasn't been much activity but Mark and I have several ideas of how to make it more useful and active.

To subscribe to this automated list, send an email to publicpolicy-request@mab4d.com with the word "subscribe" in the Subject line. You will receive a reply asking you to confirm the email address you are subscribing. Once you reply to this message you will receive a welcome email, and then you are officially on the list. You will begin receiving all messages sent to the list for distribution, and can contribute messages as well. If you would like to unsubscribe at any time, send an email to publicpolicy-request@mab4d.com with the word "unsubscribe" in the Subject line. Again, you will be asked to confirm your request before that email address is removed.

One of the activities I've been interested in pursuing is to establish a mechanism where pointers to policy articles of interest can be made available. Several of us actively scan and have interesting articles and materials on policy sent to us. One possibility would be to have a special section on the web page for this. Or we could use the email list and send out a weekly update. I'm looking for a volunteer (see article on volunteers) who would like to get involved in SIGGRAPH's public policy activity by organizing this activity.

Mark has set up an archive of the emails sent to the list and is interested in setting up a searchable database of the archive. He has also proposed initiating a digest of material in the archive and perhaps sending it out on a regular basis. That way people who would like to monitor the activity on the list could have their communications from it batched.

If the activity ever reaches a significant level we might also want the list to be moderated, but we're a long way from that level of activity.

SIGGRAPH Public Policy Volunteers Needed

Bob Ellis

Articles of interest Elsewhere in this column there is a mention of the need for a volunteer to implement a mechanism for making available pointers to articles on policy of interest to computer graphics professionals. The information could be made available on our website (http://www.siggraph.org/pub-policy) or via the email list or both.

Adding to the main body of the website requires specialized knowledge not only about websites but also how siggraph.org is structured. David Richard Nelson currently performs that task. But there is a simpler mechanism available for making rapid updates. Other SIGGRAPH groups such as chapters use this. This is probably what we would use.

To use the email list would be quite straightforward, but we might want to batch the material for the convenience of list members. There might also be other mechanisms we could use.

Graphic arts

At our committee meeting at SIGGRAPH 2001 it was suggested that the public policy program could use a bit of pizzazz. Several possibilities were suggested such as a graphic identity for the program, T-shirts and other things.

If anyone is interested in pursuing either of these activities, please contact me: ellis@siggraph.org.

UCITA Update

Bob Ellis

We have discussed the Uniform Computer Information Transactions Act (UCITA) (http://www.siggraph.org/pub-policy/CGColumn-11-2000.html ; http://www.siggraph.org/pub-policy/CGColumn-05-2001.html ; http://www.siggraph.org/pub-policy/CGColumn-08-2001.html). In December 2001, Cem Kaner, Professor, Department of Computer Sciences, Florida Institute of Technology participated in a meeting of the UCITA drafting committee. His report is in Appendix I. The committee made numerous changes to the model, but unfortunately, UCITA is fundamentally flawed and no amount of tinkering with it can really fix it.

On another front, the American Bar Association (ABA) chartered a working group to review and report on UCITA. The group recently finished its work and issued a report. The report is too long to include here but it can be accessed at http://www.abanet.org/leadership/ucita.pdf. In a copyrighted article (http://www.computerworld.com/storyba/0,4125,NAV47_STO68009,00.html), Computerworld reviewed the report. The title of the article says it pretty well: "ABA: UCITA Law Confusing, Susceptible to Litigation" Computerworld Online (02/04/02), Thibodeau, Patrick.

THE PROPOSED FLORIDA TECH STORED COURSE POLICY

Cem Kaner

The October 8, 2001 draft of the "Proposed Policy for Stored Course Materials" (Appendix 2) is a proposal. Florida Tech has not yet officially adopted this, and adoption will probably come with a few amendments. I predict that the underlying decisions reflected in the document will be preserved in the final document.

I was the main author of the proposal, and much of my role in the university's Intellectual Property Committee was to surface the issues that could or should be of concern to different stakeholders. As we came to understand the different perspectives on the issues, we looked for ways to satisfy everyone, or at least, for ways to avoid unfairly disadvantaging anyone. The policy reflects a lot of tradeoffs. As the senior author, I have a bias--I think we did a good job, and I'm proud of this result. But you might prefer different tradeoffs, and there are a lot of other tradeoff solutions that look very different from this, that I think yield essentially the same net levels of benefit for everyone. The solution is non-unique. The awareness of the issues and the willingness to look for mutually agreeable solutions is more important than the specific details of the tradeoffs in this proposal.

Here is a summary of some of the issues. If you want more discussion, I can send you a sanitized (of Florida Tech confidential information) discussion memo that I wrote to outline the contributions, benefits and risks from different stakeholders' viewpoints. I think that most readers would find that memo tedious, but if you want it, send me an email at kaner@kaner.com.

A "stored course" is a course that is taped or stored in some other way. It is available for presentation to students in the absence of the instructor who created the course. Such courses are typically offered today as "distance learning" courses, but once the course is on tape (on the web, on whatever), it might be used anywhere by anyone.

The "course" might be used in entirety or in fragments. We don't just store courses. We store individual lectures, or parts of lectures. People might want to reuse any subset of what is stored. In the notes below, when I talk about "stored course materials," I might mean a full semester course or a five-minute clip. The essence of the idea is teaching-related intellectual property that was created to be reusable by someone other than the original creator.

A Preliminary Question--Faculty Rights

Should the university own the instructional material prepared by a faculty member? I think the answer most obvious to people who create intellectual property for private employers is that the university should own the instructional material because the faculty member is an employee, the university is the employer, and employers always own the employment-based workproducts of employees.

This is a bad answer for several reasons, including:

Academic Freedom. If the university owns what you write, it can tell you what to write or what not to write. Even if it doesn't treat you in this hamfisted way, a university that owns your work can still hire someone to revise your material without your consent. Additionally, a university that owns your work can insist that you publish it in the most profitable place. Rather than distributing your material for free on your website, or putting it in a prestigious but pay-nothing journal, you might be pressured to place your works where the university (maybe with a share for you) can get income from them. Traditional Agreement. Even though universities have asserted rights to patentable inventions for a long time, they have left books, course notes, and other copyrightable material well enough alone. We faculty don't make the bajillion-dollar salaries that we might expect from private employers. (Speaking as someone who became a professor at the peak of a consulting career, the university pays me between 1/2 and of what I would reasonably expect to make as a consultant.) On the other hand, we get to publish what we want, where we want, under whatever contracts we want, so long as that doesn't interfere with our other professorial duties. We get to keep the royalties from our publication, and these can make a significant contribution to our income. Changing the rules that have traditionally governed the treatment of our primary workproducts fundamentally changes the nature of our employment. Legal History. I haven't found any recent cases, but old ones placed ownership of course materials and books with the professor (largely out of respect for the longstanding social policies in the United States that favor academic freedom).

I am aware of some universities that don't find arguments like these persuasive, and they assert rights to courses and writings. Happily, I didn't have to deal with that issue at Florida Tech. When I decided to look for a professorship, I also decided to treat the university's intellectual property policies as a gating factor in my employment decision. Florida Tech's Faculty Handbook makes it clear that faculty own all rights to their copyrightable materials, and therefore a possible rights grab by the university was simply not a factor that I had to contend with.

Next Question--University Rights

Should the faculty member own the instructional material created for a stored course? Maybe your first answer is, "of course." But what if the university staff hires a camera crew to tape the course, edit the tapes, pays for stock footage the faculty member wants to use to [enhance] basic lecture shots and spends a lot of other money so the professor can get the course "just so."

What rights should the university have against the professor who licenses other schools to teach from the course tape? The professor makes money, but the university doesn't. After this level of investment by the school, is that appropriate?

What incentive does the university have to invest in making the course excellent? It costs money to simply tape and package a talking head. It costs a lot more to make it more interesting. And more again to retape as needed to keep the course up to date. Distance learning courses aren't showing big profits yet. How can the university afford quality?

Setting a Threshold--Substantial Use

Let's start from the premise that the faculty member should own all rights to "typical" course materials. The university pays her to create and teach from these materials but it asserts no rights to them. So, she owns her lecture notes, her transparencies or slides, the exams and assignments she creates, and any other intellectual property that she creates for the course.

If the university makes a big enough investment, way beyond what it would normally pay to support the course -- we decided that at some level of investment, it should gain some rights in the course. Ultimately, we called this idea, "substantial use." ("We" means several of the individuals who make up the Intellectual Property Committee at Florida Tech. I cannot speak in any official way for the committee, but I also can't take primary credit for developing this idea.)

When a faculty member creates stored course materials:

If she did not make "substantial use" of university facilities to create them, she owns the rights to them, just like a book or a journal article. If she did make substantial use of university facilities, she and the university become joint owners of the resulting intellectual property.

The proposed policy narrows the definition of substantial use by listing several examples of things that do not count toward substantial use. For example, if you use money from a research grant to pay for the materials, that counts as your investment, not the university's. (You got the grant--you get the credit.)

Howdy, Pardner

Suppose the university does invest a substantial amount into your course, with your approval. It now has some rights in your course. How should we define those rights? In a simple situation of co-owned materials, either of the partners could license the material to others, use the material as they want, or revise the materials as they see fit.

The policy proposal in front of you starts with restrictions on the rights of both sides. The expectation is that if the professor or the university wants to commercially exploit the course, they should negotiate an agreement. The baseline rules (the ones that apply if no further contract is signed) lay out some minimum rights and responsibilities, just enough to

• allow the university to make very basic reuse of the stored course material for a finite period of time, and to
• enable the professor to protect the intellectual integrity of his work

The policy proposal says little about money. If you or the university want to make extra money from the course materials, make a contract. The policy suggests some terms for that contract, some starting points for negotiation.

Summary

The ultimate effects of the policy should be these:

• Faculty will retain editorial and artistic control over their work.
• Faculty can develop reusable course materials, within the course of their employment, using facilities at the university, without giving the university any rights to the materials, so long as they don't make "substantial use" of the facilities.
• If there is substantial use, the university gains the right to build courses around the materials, without having the authoring professor teach the courses. However, without a contract or other permission from the professor, it can't use those materials for very long.
• In most cases, if either party (university or professor) wants to commercially exploit the course, it will have to make a reasonable deal with the other

Two Reports on Broadband Internet Service

Bob Ellis

Introduction

I've recently reviewed two reports on broadband Internet services. The National Research Council's (NRC) (http://www.nrc.edu/) Computer Science and Telecommunications Board (CSTB) (http://www4.nationalacademies.org/cpsma/cstb.nsf) has released a report titled "Broadband: Bringing Home the Bits" (http://www4.nationalacademies.org/cpsma/cstb.nsf/web/pub_broadband?OpenDocument and http://www.nap.edu/books/0309082730/html/). The Computer Systems Policy Project (CSPP) (http://www.cspp.org) has recently issued a report titled "Building the Foundation of the Networked World" (http://www.cspp.org/reports/networkedworld.pdf).

As regular readers know, the SIGGRAPH Public Policy Project has stressed broadband Internet access as vital to computer graphics (http://www.siggraph.org/pub-policy/CGColumn-0599.html, http://www.siggraph.org/pub-policy/CGColumn-0899.html and http://www.siggraph.org/pub-policy/CGColumn-1199.html). In addition, our SIGGRAPH 2001 Tutorial covered this issue (http://www.siggraph.org/pub-policy/pdf/PPCourseNotes-S2001.pdf). Not only will high-speed access make access to images and animations better, it will enable the development of innovative applications and user interfaces.

Many computer graphics professionals have high speed Internet access via their place of employment and are probably early adopters of such access for their homes. But the general public has not been quick to adopt these new technologies due to availability, cost and lack of compelling applications. This inhibits the availability of our work.

I must also mention the importance of regulatory structures in this context. These services are sometimes regulated by government agencies and sometimes not. Regulatory policy is something most of us prefer not to pay attention to unless our phone or electric rates increase. Unfortunately, there is a need to understand this regulatory environment if we want to make the results of our work widely available.

NRC Report Broadband: Bringing Home the Bits

(In the interest of full disclosure SIGGRAPH has been working with the NRC to define a study of computer graphics research and has contributed $50,000 as seed funding for the study (http://www.siggraph.org/pub-policy/CGColumn-02-2001.html).)

This review is based on a pre-publication copy, but I'm sure the final report with the clever title is very close. As usual for a NRC study, the study and its report are extremely thorough and unbiased. It is also a very large document. However the findings and recommendations are not particularly earth shaking and lack some concreteness as is typical of NRC studies; I suspect that it is the need for consensus that forces such results.

The thoroughness of the report makes it an excellent, if somewhat intimidating, vehicle for understanding broadband from technology to regulation and policy. For example, the reader will become thoroughly familiar with the crosstalk problems inherent in DSL technology and even learn that A. G. (probably Alexander Graham) Bell invented the twisted copper pair!

There are seven findings, several with sub-parts. Finding 1 says that broadband is a convergent technology that supports multiple applications ranging from Internet access to digital television distribution. Finding 2 states that broadband should be defined in a dynamic and multidimensional way and not fixed to any particular technology or performance characteristics.

Finding 3 says that the demand for broadband is evident even with a limited set of enabled applications. While I agree in general, I feel that demand cannot be separated from cost and in fact at today's costs, there is in general not a great demand. Finding 4 states that broadband deployment should be a national and local imperative. Others have made this statement and it is probably only mildly controversial.

Finding 5 summarizes the many factors that face deployment of broadband. These include issues associated with cost and investment with technology playing a minor role. Finding 6 discusses the shape of broadband deployment. There are several sub-findings including the rapidly evolving technology, uncertainties beyond the next several years, avoidance of a race among competing technologies, competition that will have substantial geographical differences, the uncertainty of the future of competitive providers and while the underlying technologies are keeping pace with computing, the deployment of these technologies is not.

Finally, Finding 7 states that the relationship between broadband and the content and applications businesses is critical and in flux.

There are also seven recommendations with several having multiple parts. Recommendation 1 is to prioritize widespread deployment and defer new regulation in the early stages. Although pretty general, there are some strong messages here. Recommendation 2 states that regulation should be structured to emphasize facilities-based competition and encourage new entrants. As with the first recommendation, the intent is to emphasize market-based solutions rather than extensive new regulation. Of import is a sub- recommendation to favor alternatives to physical unbundling. This recognizes the difficulty of some of the current regulatory directions of trying to promote competition by requiring last mile providers to open access to their physical plants.

Recommendation 3 says to reflect the convergent nature of broadband and target policy at the appropriate layer by targeting regulation at services rather than technology. Recommendation 4 is to take steps to promote increased deployment. Sub-recommendations are focused on support for local initiatives.

Recommendation 5 is to increase local capacity to promote broadband deployment by supporting planning grants, field trials and establishing a national clearinghouse for information. Recommendation 6 is to defer a universal service policy for broadband until the nature of broadband services becomes clearer. Recommendation 7 is, as always, to support research and experimentation. All in all, the report has a solid set of recommendations.

There are other interesting ideas in the report. Although there is talk of innovative applications, much of the justification for broadband relies on video download as a primary application. Unfortunately, there are numerous almost as convenient alternatives for accessing video content. Plus truly innovative applications including "beyond the desktop metaphor" user interfaces are not mentioned.

Wireless considerations are not emphasized saying that the problem of installation requiring FCC certified installers is difficult to surmount. The report is probably too quick to relegate wireless access to this minor status.

The report does a great service by emphasizing the difficulties alternative providers have under the current regulatory, technical and business structures and supports logical layer, rather than physical layer unbundling.

There is a good discussion of security issues, but it is all buried in the body of the report.

There is also good information on the tendency of certain service providers to control content either by caching policies or by outright control of access to certain sources of information. Entertainment-based providers, such as cable companies, are particularly prone to this control.

Finally, there is some discussion of the fact that it's not always the last mile where the bottlenecks lie, but again, it's buried in the body of the report.

I highly recommend this report to anyone interested in understanding issues about broadband.

CSPP Report - Building the Foundation of the Networked World

(In the interest of full disclosure in 1991-1993 I was Sun Microsystems representative on the CSPP Technology Policy Committee.)

The CSPP is a public policy advocacy group consisting of the Chairmen and CEOs of leading information technology companies. The current CSPP Chair is Michael Dell. Companies represented are Dell, Compaq, H-P, Motorola, IBM, Intel, NCR, EMC and Unisys.

The report follows the usual style of CSPP reports: slick, but with solid content. The report is 25 pages long with 30 references. The report addresses wireless as well as wired broadband. The central thesis of the report is that today's broadband is not adequate for the future in terms of speed, mobility, access and availability. Fiber to the home (FTTH) is probably a minimum requirement. The report is interesting to the technical audience and accessible to policy makers. There are numerous charts and graphs, some of which have substantial quantitative content.

The report begins by pointing out the rate of broadband adoption is much less than for basic Internet services. It also indicates in the period 1992 to 2001 microprocessor speed has increased by 4,778% while modem speed has only increased by 268%. Comparison is made to historical rates of adoption of other technologies. Reports are cited giving the potential economic impacts of widespread broadband Internet use.

The report next describes the impact of new applications which would be enabled by broadband including public health, improved business operations, electronic commerce, distance learning, access to government, appliances, entertainment and location independent access. Some aspects of several fixed and mobile broadband technologies are reviewed. Unfortunately for computer graphics one of my favorite reasons for broadband, innovative user interfaces, is not among the list.

CSPP's offers specific recommendations:

1. A national vision should be adopted which would provide by 2003 that 80% of U.S. homes should be able to get at least 1.5 Mbps and 50% should be able to get at least 6 Mbps from at least two providers. By the end of the decade 100 million U.S. homes and businesses should be able to get up to 100 Mbps of affordable capacity. Also, CSPP recommends that by 2004 120 MHz of spectrum should be made available for wireless broadband with another 80 MHz by 2010 to be harmonized as much as possible with global spectrum use.
2. Regulatory reform should result in steps toward eliminating barriers to widespread broadband deployment. By the end of 2003 the FCC should complete a review of current unbundling and price regulations for last mile broadband facilities and services. Further, state and local governments should review road and building codes to assure the use of new trenching techniques such as those used in Europe. Finally the administration should convene an interagency National Spectrum Management Policy Group to determine goals for the long-term management of spectrum. Other recommendations address access to public rights of ways, adoption of incentives such as a rural broadband tax credit, build-out of infrastructure and making available analog TV broadcast spectrum to other uses.
3. Research should be supported and carried out by public and private sectors in the development of innovative applications and the speed, security and mobility of 21st Century networked infrastructures. In addition, the public and private sectors should commit to funding programs that help educate the next generation of researchers.
4. Industry should commit to implementation of ease of use, security, interoperability, interconnectivity and the development of richer content. Industry should be responsive to government partnerships. Finally, industry must commit to resolving copyright issues and the development of a digital rights management strategy that protects content consumer choice and technical innovation.

On February 11, 2002 in a copyrighted article in Computerworld (http://www.computerworld.com/cwi/story/0,1199,NAV47-74_STO68141,00.html), David Moschella comments that the CSPP has confused the role of the U.S. government. He asserts that while the government is clearly involved in the spectrum allocation issue, it should not be involved in broadband in general.

Moschella makes an interesting point. But I do think the report calls for a vision and not a lot of regulation. After all it was a government vision that got us the Internet in the first place and the telecommunications industry initially showed no interest at all in the project. The sentence "The CSPP would be wise to let the telecommunications industry sort itself out and perhaps aim its lobbying efforts at the music industry and other sources of potential new consumer demand." shows one problem with the criticism: the telecommunications industry, unlike the computer industry, has no history of being able to sort itself out or even come up with any sort of visionary implementations of technology.

I highly recommend the report.

The ACM Public Policy Office and ACM Washington Update

Bob Ellis and Myles Losch

The ACM Public Policy Office in Washington D.C. publishes an email newsletter. The issue dated January 31, 2002 contains the following items:

Start of the Second Session of the 107th Congress
NAS Panel Releases Report on Broadband Deployment
Election Reform Legislation Update
AAAS Colloquium to Address Issues Raised by September 11 Attacks
Two New Cybersecurity Bills Introduced in the Senate
OMB Reports to Congress on Federal IT Security
NAS Report Makes Recommendation to Enhance Infrastructure Security
ACM Fellow Dr. Peter Freeman to Head the NSF's Computer Division

While not as timely as the newspaper or other news media, the newsletter does highlight issues of interest to computing professionals.

To subscribe to the ACM WASHINGTON UPDATE send an e-mail to listserv@acm.org with " subscribe WASHINGTON-UPDATE " (no quotes) in the body of the message. Back issues are available at: http://www.acm.org/usacm.

The office is interested in interactions with ACM members. To contact the ACM Public Policy Office should you have questions, comments, suggestions or recommendations regarding public policy issues or USACM activities, please contact the ACM Public Policy Office located in Washington, DC, by e-mailing usacm_dc@acm.org or calling +1 202 659 9711. The ACM Public Policy Office would also be pleased to assist ACM members in contacting or meeting with U.S. elected officials in Washington, DC.

To show how the office works to educate government officials on topics important to our members, early in 2002 its director Jeff Grove supplied the example below. In it, 'SSSCA' (http://cryptome.org/sssca.htm) denotes a failed legislative proposal by movie studios which this column cited as follows in February 2002:

"... In the U.S. Senate, pressure from the computer industry [in late 2001] derailed efforts ... to force architectural constraints on computers and software, the better to protect against copyright infringement. This initiative was accurately described (by Harvard professor Jean Camp et al.) as the 'Turing Machine Prohibition Act,' and ... analysts warned that it could yet re-surface ..."

The legislation would have banned new general purpose computers (defined as able to arbitrarily manipulate digital data). Regular contributor Myles Losch notes that in the computing field, reaction to this proposal resembled what might have been expected from bicyclists (not to mention motorcycle enthusiasts, scooter users et al.), had it been suggested that to reduce road accidents involving two-wheel vehicles, only three- or four-wheelers be made or sold to consumers.

Grove writes: "[ACM's Past President, Dr.] Barbara Simons, Andy Grosso (Chair of the ACM Law Committee) and I ... visited with [South Carolina] Sen. Hollings' top counsel on the [U.S.] Senate Commerce Committee [which Hollings chairs] ... We took the opportunity to educate him on our concerns with legislation like SSSCA and its potential damaging effects on computing research and education, not to mention the rights of consumers. He told us that SSSCA as we knew it was out, but that Chairman Hollings is still committed to working with industry to protect content. The Committee is holding a hearing on February 28 to discuss what role the government has in getting industry to agree to a standard for content protection. [Disney CEO] Eisner, [Rupert Murdoch's] News Corp, Mitsubishi, and an unnamed CEO of an IT company are to testify. We were told that there is not an opportunity for ACM to testify at this time, but he committed to talking with us as things move forward. He did mention the possibility of subsequent hearings with folks like [Stanford computer law professor] Larry Lessig being called to testify.

"On the [U.S.] House [of Representatives] side, both the Commerce and Judiciary Committee staff have told me that SSSCA is not a priority this [year]..."

In future columns, we hope to report new developments on this important subject.

Appendix 1

Cem Kaner

A few weeks ago, Professor Phil Koopman, Sharon Roberts, Professor Don Gotterbarn and I went to the 17th meeting of the Uniform Computer Information Transactions Act drafting committee (I've attended 16 of these meetings).

The drafting committee is under intense pressure to work a political compromise, because, after passing in Virginia and Maryland, UCITA has been rejected in every state that has considered it and three states have passed "bomb shelter" laws designed to keep UCITA-governed contract rules out of their states. Additionally, the National Association of Attorneys General recently published a letter (signed by 33 Attorneys General) saying that UCITA is so fundamentally flawed that it should be abandoned rather than amended. Additionally, the UCITA process is under the scrutiny of a Task Force appointed by the American Bar Association. The ABA has not yet committed itself for or against UCITA. Some of its Sections (comparable to SIGs) appear to favor UCITA; others appear to oppose it. One of the Sections actively opposes UCITA and triggered the study by the ABA. It is likely that UCITA will have no further legislative success if ABA recommends against its adoption.

The committee met privately, after the official meeting, and adopted 19 of the amendments.

A couple of things that I was advocating were passed, especially a ban on "self-help" (ability of a vendor to remotely shut down your system if there's a contract dispute between you and the vendor). This shuts down a serious security flaw that UCITA was encouraging large-system vendors to build into every significant piece of commercial software.

Here is my analysis of the amendments that were passed. Overall, I think we are still seeing a big trend favoring large companies over small companies and individuals. In this case, though, large customers are scoring some wins and smaller customers are picking up a little bit as a side-benefit.

For the text of UCITA, see http://www.law.upenn.edu/bll/ulc/ucita/ucita01.htm.

For a detailed analysis (of mine) of UCITA, see http://www.badsoftware.com/engr2000.htm.

The Attorneys General letter is at http://www.affect.ucita.com/pdf/Nov132001_Letter_from_AGs_to_Carlyle_Ring.pdf

Here are my first impressions of those amendments. Please feel free to circulate them.

1) Consumer protection

UCITA defines the typical consumer software transaction as an intangible license, the purchase of a right to use the software, rather than the sale of a copy of the software. So, when you buy a copy of Microsoft Word and a book on how to use Microsoft Word at your local computer store, you buy two things that contain copyrighted intellectual property. The sale of the book is a sale of goods under UCITA but under UCITA, the sale of the software is not. If you download that same book from Barnes & Noble, instead of buying the paper copy at Barnes & Noble, the book is treated like software under UCITA.

By defining consumer purchases of software as licenses, rather than sales, UCITA pulls consumer software out of the scope of all of the consumer protection statutes that protect buyers of "consumer goods." All of the consumer warranty laws, for example, are "consumer goods" laws.

The revisions to UCITA still pull software outside of the scope of the consumer warranty laws. The changes offer very little protection.

2) E-SIGN

In the second amendment, UCITA supercedes E-SIGN, except in certain listed sections. In general, I think that E-SIGN is more consumer-friendly than UCITA. I have not had time to analyze the new relationship between the two statutes.

3) Choice of Forum

The change proposed will make it slightly harder for vendors to make an outrageous choice of forum (where the customer must sue the vendor, if the customer wants to bring suit).

4) Electronic Self-Help

I am glad to see that UCITA has been revised in the way that Sharon Marsh Roberts (Independent Computer Consultants Association) and I recommended, with the support of the Society for Information Management. Electronic self-help is banned, but a vendor retains extensive power to protect its rights under UCITA. For example, the software can come with a built-in automatic termination, stopping performance after a specified number of days or uses. In the event of a dispute, the vendor can simply refuse to renew the license. The vendor can also get an injunction.

5) Public Criticism & Contract Laws

The amendment (section 105(d)) appears to address the public criticism issue, but leaves open a wide loophole. People are allowed to criticize a product that has been "offered in its final form to the general public." But anything that is not "in its final form" is not open to criticism. Let's consider Viruscan, published by McAfee. McAfee has issued licenses that ban publication of benchmarks or other reviews of Viruscan without McAfee's permission. Viruscan is updated frequently. I don't think it is ever in "final form." So it appears to be outside of the scope of this consumer protection. Anything that is sold with the promise of frequent automatic updates (think of the dot-NET business model) is, arguably, never in its "final form". Any vendor who wants to ban criticism of its products has an obvious way around 105(d).

6) Known Defects

This amendment specifically states that UCITA does not displace the laws of "fraud, including fraudulent inducement, misrepresentation, or unfair and deceptive practices." This amendment does nothing whatsoever. UCITA already does not displace these laws. To the best of my knowledge (which is fairly extensive on this point), every software publisher in the United States releases software with known defects, and many of those known defects are serious. It is very difficult to hold vendors accountable for this under current law. UCITA shields vendors further, by making it easier for them to disclaim warranties, harder for a customer to establish that a product demonstration upon which the customer relied actually created an express warranty, easier for the vendor to limit remedies, and harder for the customer to recover a "minimum adequate remedy.

What was proposed, time after time after time in the UCITA meetings, was that the drafting committee provide an affirmative incentive to manufacturers to reveal their known defects. This was in return for the many vendor protections being written into the statute. This amendment does not address that proposal and is no better than the unmodified UCITA.

7) Presentation of Later Terms

"Later terms" are contract terms that you see only after you pay for the product.

Amendment 7, new Section 216, appears to add nothing to UCITA's rules. The question is not whether some of the terms in the click-wrapped licenses will be enforced. Most people know that some contract terms will be presented in the box in some form or another. The question is which terms will be enforced and how much notice customers will have of those terms.

The new UCITA requirement is satisfied merely by putting a notice on the box that says, "Terms inside" or a statement when you start to download a product that contract terms will be presented later. This is trivially easy to satisfy. The only people who will have difficulty satisfying it will be the open source / free software community because so much of their software is already circulating and will continue to circulate. That software was not packaged in a way that will meet the new, fairly formal, UCITA requirements.

What was repeatedly requested was a requirement that customers could get a copy of the terms before the sale if they asked for the copy. This is one of the basic tenets of the consumer warranty laws that UCITA helps software publishers evade.

Under this amendment, customers will still have to pay for the software and start installing it (if that's how the vendor chooses to structure the deal, which most software vendors seem to want to do) before being able to discover the terms of the contract.

The "right of return" under UCITA is the same extremely weak "right" that it was before, more marketing fluff than a consumer benefit. Remember: even though this is promoted regularly as a consumer benefit, it was brought to the UCITA drafting committee by the representative of the Business Software Alliance and it has (to the best of my knowledge) never been endorsed by any consumer protection advocate.

8) Retention of Terms

Amendment 8 provides that the license must be provided to the customer in a form in which it can be printed and/or retained by the customer. That this is an improvement on the current UCITA is an illustration of the extent to which the current UCITA is poorly drafted. Of course the customer is entitled to a copy of the license that can be printed and retained. How can you hold the terms of a license against someone who can't even refer to it? What court would enforce the terms of a contract that the customer is allowed to see once and never again? Vendors need this rule as much as customers. Without it, they might sometimes be tempted to make terms irretrievable or to allow a product to ship with terms that happen to be irretrievable. In either case, they would face severe problems in the courts under current law, (including UCITA) because judges would be so unlikely to enforce such terms.

9) Open Source Software--Noncontractual Permissions

As the Reporter of the UCITA Drafting Committee pointed out in the November meeting, UCITA already does not cover permissions that are not intended as contracts. However, all of the open source and free software licenses / permissions that I have seen are in fact contracts. This amendment provides zero or almost zero protection to the Open Source / Free Software communities.

10) Warranties for "Free" Software

UCITA provides an important protection for free software and broadens it in a way that will also often serve vendors of non-free commercial software. It eliminates warranties for software when there is "no contract fee for the right to use, make copies of, modify, or distribute" the software. The critical word here is OR, which should be AND. With the OR in place, the vendor need only satisfy one of these conditions in order to claim that the software is free.

Here's an example: under this new definition of free software, Internet Explorer is free software because there is (currently) no contract fee for the right to use the software. That's all that is needed. You don't have to have the right to make copies of the software or modify it or reverse engineer it or obtain source code to it or distribute it, as long as you get a free right to use it.

So, if Vendor X sells you installation and support services and "throws in" the software "for free", the Vendor achieves free software status and no warranties apply. This is an easy way for a traditional software vendor to escape all warranty liability.

Warranty liability cannot be excluded, under this amendment, if the licensee is a consumer. Thus, genuinely free software is fully subject to consumer warranties. This is still going to be a big problem.

A point was made at the UCITA meeting that no one would sue free software developers anyway, because they don't have any assets. But universities and libraries and many businesses post free software at their websites. That makes them distributors, under UCITA, even if they are giving away software that was written to be given away. Universities, libraries, and many businesses do have deep pockets (i.e. they have insurance policies) -- if a credible threat of liability can be made against them, they will stop distributing free software.

So, what do we have? Microsoft gets to completely avoid warranty protection for business users of some of its products, and organizations that distribute free software (which Microsoft now appears to consider a competitive threat) can still be targeted for consumer lawsuits and thus might be successfully intimidated out of distributing the free software.

This is not a victory for the Free Software community.

We could solve part of this problem by fixing the definition of "merchant." George Graf (one of the ABA Advisors who helped write UCITA) had an important idea, and I was surprised not to see this amendment. He said that we should change the definition of merchant to be someone who is in the business of licensing software. I like this, but it might exclude consultants too much. Here's a slight variation that I think should be adopted: (46) "Merchant" means a person that received consideration in this transaction or a transaction associated with this one:

(A) that deals in information or informational rights of the kind involved in the transaction;
(B) that by the person's occupation holds itself out as having knowledge or skill peculiar to the relevant aspect of the business practices or information involved in the transaction; or
(C) to which the knowledge or skill peculiar to the practices or information involved in the transaction may be attributed by the person's employment of an agent or broker or other intermediary that by its occupation holds itself out as having the knowledge or skill. Supplement this with a Comment (in the UCITA Comments) that public institutions and others who are not the developers and are also not receiving fees for distribution should not be warrantors in a consumer transaction.

11) Transfer

Software that comes with a computer can be transferred WITH THE COMPUTER as a gift to a library or K-12 school or from one consumer to another. This still allows the vendor to kill the market in used software and it allows only a minimal number of transfers of software. The general rule under UCITA will be that if you buy a copy of the software, you will not be able to sell it when you are done with it, or give it away unless you are willing to give away your computer with it.

12) Express Warranty by Sample, Model or Demonstration

This amendment improves the current UCITA by stating that the product must conform (rather than "reasonably conform") to the sample, model or demonstration. However, even as modified, UCITA section 402 provides that the following does not create a warranty: "a display or description of a portion of the information to illustrate the aesthetics, appeal, suitability to taste, subjective quality, or the like of informational content." It is not a breach of contract if there are differences in the user interface and usability (or in the aesthetics, appeal, suitability to taste or subjective quality) between the demonstrated model and the model shipped, even if these are material to the consumer.

13) Infringement and Hold Harmless Duties

I'm not sure of the effect of this amendment and therefore will not comment on it.

14) Implied Warranty Scope

The amendment specifies that the implied warranty runs from the licensor to ITS end-user licensee and to ITS distributor.

I'm not sure, but it looks to me as though UCITA is re-establishing a privity rule. I am unsure of the intent, but I expect that we will see the argument in court that Vendorsoft provided no warranty to Consumer because Consumer is the licensee of Distributorsoft, who distributes Vendorsoft's software. Given the other sections of UCITA, I don't think this argument would prevail, but if it is not to make room for an argument like this, I don't understand why this restrictive language is here.

15) Delete Section 308

In Section 308, current UCITA allows a vendor, after the sale, to terminate a license by determining the duration of the license, as long as that duration has been "a reasonable time". It was never clear to me that this was a big deal (in comparison to the rules that would apply under Article 2) nor that this deletion offers a big advantage over what the courts will do in the absence of specific terms.

16) Delete Section 307(c)

Current UCITA 307(c) states that "(c) An agreement that does not specify the number of permitted users permits a number of users which is reasonable in light of the informational rights involved and the commercial circumstances existing at the time of the agreement." I'm not sure that deleting this will offer any advantage over what the courts will do in the absence of specific terms.

17) Section 605 Automatic Restraints

This is a clarifying amendment that closes a loophole that was apparently not intended by the drafting committee.

18) Corrects a typo, no policy impact

19) Reverse engineering

This is very narrow and not very useful. It is narrower than the provisions in DMCA that allow reverse engineering. It does not permit reverse engineering in order to detect security holes or defects or to enable repair of the security holes or other defects. Additionally, if "the elements" to be reverse engineered were ever previously "readily available to the licensee" (when he didn't need them) then the licensee can't reverse engineer to discover them now, when he does need them.

K) Scope

As the comments point out, the electronics manufacturers (who will be able to opt their goods within the scope of UCITA under the current scope) support the current scope. And no wonder! They get to apply UCITA's rules to their customers instead of Article 2's.

We proposed a rule that addressed safety-critical software, rather than one that tried to distinguish between embedded and nonembedded software. The drafting committee did nothing to restrain UCITA's application to safety-critical embedded software. Never during the UCITA drafting meetings did we discuss the potential consequences of applying UCITA to embedded software or, especially, safety critical software. There will undoubtedly be unintended consequences of the application of UCITA to this domain. Where lives are involved, I think it is grossly irresponsible to press forward with the application of a new body of law to an ill-considered domain.

-- Cem Kaner

Appendix 2

Proposed Policy for Stored Course Materials
Revision October 8, 2001
DRAFT

INTRODUCTION

The current Florida Tech Intellectual Property Policy as contained in the Faculty Handbook focuses on traditional Copyright and Patent issues. This policy is to create a balance between the goals of creating and disseminating knowledge while deriving revenue from commercially viable inventions. Through this policy faculty, staff, or employed students retain ownership of copyright material while they are required to disclose to the standing committee on Intellectual Property all creations or inventions that have patent potential. The committee reviews each circumstance and recommends a course of action, be it to seek a patent, return the rights to the creator, or some other appropriate process.

The policy also contains a provision where the institution and the creator of copyright material can create a contract for the investment of resources, the control over the product, and the associated rights. As educational material is now frequently created, stored, and reused in a digital format it is necessary to establish procedures to govern this stored course material.

STORED COURSE MATERIAL:

In the digital world, the products of intellectual property create new forms of value and have an extended life that make them commercially viable. These products are changing the format, content and economics of educational delivery. This extension to the Intellectual Property Policy sets out some basic principles for stored course materials that will mutually benefit the creators and the institution. This extension to the Intellectual Property policy does not address patent or trademark rights and it is not intended to apply to traditional printed materials such as books and lecture notes.

A primary concern of this policy is to promote the broadest possible creation and dissemination of knowledge while protecting academic freedom.

With the university's encouragement and support, faculty are creating course materials that can be reused in later courses. Digitally encapsulated course segments range from simple inexpensive productions to major investments:

• If the stored course material is created by full time faculty in the context of the normal duties and does not involve the substantial use of Florida Tech resources, the ownership of the intellectual property products remain with the creator.
• If a substantial use of Florida Tech Facilities is involved in the creation of the product, the institution and the faculty member should plan together to enable the institution to recover its investment over time. A separate contract must be developed at the start of the project to cover the concerns and interests of the creator(s) and the institution. This will involve intellectual property rights as well as such matters as initial investments, protections, editorial control, marketing, royalties, extended use, and eventual disposition.

This policy defines substantial use. Substantial use is a threshold for the investment of institutional resources that require additional planning and preparations to insure the recovery of this investment over some period of time. If use is substantial, the university is acting with the faculty member as a partner in the development of stored materials and will have rights to those materials.

DEFINING SUBSTANTIAL USE

A faculty member makes substantial use of university facilities or funds if the use significantly exceeds the normal and customary level needed to support the teaching responsibilities. The department chair, under the supervision of the dean will determine whether the development of a stored course or stored segment made substantial use of university facilities. The input of service providers whose services were used or are planned to be used is relevant to this determination. Factors to be considered in the determination include the following, and others not listed here:

• It does not count toward substantial use, for a faculty member to use an online presentation system like the Blackboard, that is offered to all faculty for normal use in their courses.
• The fact that a course will be stored and offered later or offered remotely by the university does not affect a determination of substantial use.
• Use of any materials or services that are paid for out of an external grant to the faculty member does not count toward substantial use.
• Use of the university's Technology Enhanced Content (TEC) facilities is not substantial use if it is intended to provide the faculty member with basic training in multimedia course development.
• Use of the university's TEC facilities is not counted toward substantial use if the faculty member reimburses the university at the university's then-current rate for use of the lab.
• Unreimbursed use of the university's TEC facilities is presumed to be substantial if the TEC facilities staff say that, in their opinion, it will be substantial or that further effort would make a use substantial.
• Use of the library is not normally substantial, but extensive use of the library staff as research assistants could contribute toward a determination of substantial use.
• Use of the faculty member's regular time at school DOES NOT count toward substantial use if the faculty member is developing and teaching this course or a live equivalent as part of her normal teaching responsibilities and without a compensatory reduction in teaching load or significant additional teaching or support staff to support this course. A determination that a use of university facilities is or is not "substantial" is not a determination that a proposed use is reasonable or within the capacity of the university's service providers. Service providers (such as the library or the TEC facilities) have limited bandwidth. Whether or not a use is deemed "substantial" under this definition, the service provider may advise a faculty member that a proposed use is significant, that it must be approved by the department chair or dean, that extra funding will be required to provide the level of service requested, or that the service cannot be provided in the time frame requested.

NOTE: The TEC facilities are currently (2001) those facilities provided to develop technology enhanced content by Florida Tech Information Technology and these currently include a multimedia studio, a training center, a camera crew and related services. However, this is an expanding role in terms of services and service providers. TEC is subject to competing demands for limited resources and is required to maximize the use of institutional resources in achieving Florida Tech's educational and research goals.

WHEN THERE IS NO SUBSTANTIAL USE

If a faculty member does not make substantial use of university facilities in the development of copyrightable course materials, the copyright to those materials will belong to the faculty member, not to the university. The university may not make use of these materials in other courses without permission of the faculty member. The faculty member has the same rights to use these materials in other courses or at other schools as he or she would have if they were written lecture notes.

WHEN THERE IS SUBSTANTIAL USE

If a faculty member does make substantial use of university facilities in the development of copyrightable course materials, the university will have rights to those materials. The faculty member and the university should enter into a contract at the start of the project, before development of any materials.

If there is no written contract between the faculty member and the university, a contract will be implied and it will include the following terms:

• The faculty member will own the copyright to the materials, but the university will have a license to use the materials.
• The university may use the materials in courses not taught by the faculty member for one year after the end of the first course that uses the materials, even if the faculty member leaves the university before this year has ended. The university may continue to use the materials indefinitely if the faculty member does not instruct the university to stop using the materials.
• The faculty member will have artistic and editorial control over the materials, subject to constraints that the university may impose on the nature and level of its investment.
• The faculty member may revise the materials. Normally, the university will make reasonable efforts to work with the faculty member to revise the materials in a reasonable time. However, the university shall accelerate its efforts if the faculty member believes, in good faith, that continued use of some segment(s) would damage her or his reputation or expose the university or the faculty member to a successful lawsuit. In either of these cases, the university shall make its best efforts to work with the faculty member to promptly revise the materials in a way that is satisfactory to the instructor.
• The faculty member will deposit a copy of the materials with the university library, which will hold them as non-circulating reference materials for local use only. They may not be loaned out on interlibrary loan.
• In the event of a lawsuit, the same rules for liability allocation apply to stored course materials as to live materials. However, (a) If one of the parties (the university or the faculty member) uses the materials without revision, after being advised of a legal risk by the other, the using party assumes all risk, indemnifies and holds the other party harmless, from all legal claims arising out of the matters warned about by the other party. (b) A party sub-licenses at its own risk. For example, if the university sub-licenses materials to a third party, then as between the faculty member and the university, it is the university that takes on the risk of any liability that arises out of or in connection with the third party's use of the materials. (c) If one of the parties uses the materials outside of their geographic scope, that party assumes all risk, indemnifies and holds the other party harmless, from all legal claims arising out of differences in legal rules in the out-of-scope geographic area. (The normal geographic scope is the country in which the faculty member teaches for the university. For example, if the university is based in the United States, then Canada is outside the geographic scope.)

A typical contract will include additional terms, for example:

• The university will normally be granted a longer term, at least two years after the end of the first course that uses the materials, during which it can use the materials.
• In the absence of a contract, the university will not owe the faculty member a royalty or fee for using the materials in courses not taught by the faculty member. The contract may specify such a royalty or fee.
• The university will normally be granted a right to sublicense the materials to other institutions, and the contract will specify the maximum term of the sublicense that the university may grant. In the absence of a contract, the university may not sublicense the materials.
• If the university sublicenses the course materials, the license fee will normally be divided equally between the university, the faculty member's department, and the faculty member.
• The faculty member may be granted a right to sublicense the materials to other institutions. The contract will specify the maximum term of the sublicense that the faculty member may grant, and the royalty or fee due the university. In the absence of a contract, the faculty member may not sublicense the materials.
• The faculty member may be granted the right to market and use these course materials in courses presented independently of the university. If so, it will specify the royalty or fee due the university for such presentations. In the absence of a contract term, the faculty member many not market or use these materials outside of the university without permission of the university.
• The university may be granted the right to modify the course materials. In the absence of a contract term, modifications may not be made without the approval of the faculty member.