Two Wrongs Do Not Still A Right Make

Citation

Arthur Mihram, G. (2001), "Two Wrongs Do Not Still A Right Make", Library Hi Tech News, Vol. 18 No. 7. https://doi.org/10.1108/lhtn.2001.23918gac.002

"Two Wrongs Do Not Still A Right Make"

G. Arthur Mihram

During the week 30 April-3 May 2001, two professional societies held meetings in Washington DC in addition to their respective organization's regular annual membership meetings. The American Library Association (ALA) held its 27th Annual Legislative Day (30 April-1 May) and it was sponsored by ALA's Washington, DC office and the District of Columbia Library Association. (See www.ala.org/washoff/conferenceindex.html). The American Association for the Advancement of Science (AAAS) held its 26th Annual Colloquium on Science and Technology Policy 3-4 May.

No proceedings of the ALA Day are prepared or published. However, the AAAS publishes annually the proceedings of the Colloquium, including the full-length papers of the selected presenters as well as the content of the question-and-answer periods following the speakers (AAAS, 2001). It is unfortunate that the AAAS only makes available this volume of proceedings annually; yet for its annual meeting it provides only abstracts of papers and presentations.

The ostensible goal for each of the two meetings is to discuss national policies for the respective organizations, so that it seems strange that these would be held separate to and away from the societies' own general membership meetings. Perhaps this helps to explain the comment of Judith Krug, who, in defending at the ALA Day's Session on Filtering and the Children's Internet Protection Act (CIPA), warned the audience that many Congressmen advise (justifiably?) librarians who visit with them that it is their impression that the ALA hierarchy has simply "formatted a party line" which they are hearing now again. Indeed, each of the two societies special springtime meetings is directed to influencing legislation which would affect its general membership, particularly as this might bring forth tax dollars to their respective activities. There was a "bit of an attitude" at each of the week's meetings ­ as if each gathering was one of the respective societies' "elitists," though the underlying motivation seemed to be those whose interest was in obtaining money.

The ALA Day made this fact much more explicit. The second day (of the Day!), was convened in a large room within the Senate's Hart Office Building. There, attendees were instructed about the ALA's "party line" on each of several issues before being dispatched to recommended legislators' offices and/or to those Senators and Representatives from their own states. No mention of White House connections was made, even though this might have been anticipated in view of ALA's very prompt publication of Mrs Laura Bush's photograph fronting the February 2001 issue of American Libraries, declaring her thereon "First Librarian." Perhaps Mrs Bush's position, probably in support of the recently enacted (December 2000) Children's Internet Protection Act, will not secure her a membership on any future panel addressing the American Library Association on civic duties vs filtering.

The AAAS's Colloquium did not conclude with such a dispatch, perhaps because they had obtained commitments from several government officials to make presentations. From the executive branch, Lawrence B. Lindsey, Assistant to the President for Economic Policy, gave the opening Keynote Address and Joseph A. Bordogna, Deputy Director of the National Science Foundation, spoke near the end of the Colloquium's first day. From the legislative branch, Representative Sherwood L. Boehert (Republican of New York) and Senator Jeff Bingaman (Democrat of New Mexico) each spoke.

As for the ALA's Day, introduced was Robert Martin (Professor at The School of Library Information Studies at Texas Woman's University) as President Bush's nominee to head the [Federal] Institute of Museum and Library Services. Also, to begin the Day's second day, Representative Edward L. Shrock (Republican of Virginia) received an award presented by the Friends of Libraries USA.

Issues and/or Policies

The ALA's Day found over 650 registrants, an increase from the 500 who attended the previous year. As for the AAAS's Colloquium, approximately 300 registered. The ALA's Day included a luncheon (separate fee) sponsored by the Association of College & Research Libraries (ACRL) and featured Rodney Peterson of the University of Maryland, College Park, where he heads the Policy and Planning Directorate and its Project NEThics See: Mihram, G.A. (2000); Mihram, D. (2000).

Peterson, a lawyer, spoke primarily on the UCITA (Uniform Computer Information Transactions Act), proposed state laws which seek to create a unified approach to the licensing of software and information content. The Association of Research Libraries (ARL) report (2001) notes that the "UCITA has been under development for many years by the National Conference of Commissioners on Uniform State Law [NCCUSL] . . . .[as a method] to develop a new uniform legal framework in computer information transactions." The NCCUSL approved its UCITA in July 1999 and passed this on to the 50 states, expecting ratification. As of today, only Maryland and Virginia (the two states surrounding Washington, DC) have enacted the legislation.

Librarians are being advised by the ALA to be concerned about, actually to be opposed to, UCITA because the Act does not continue the reliance on copyright law for balancing the competing interests of creators, publishers, and users of copyright-registered works. The advent of tele-communicable access to digitized (i.e. computer-protected) files/publications has led to a concern for libraries because the library, now digital and Internet-connected, has allowed itself to become intimately involved in just these very computer information transactions.

Two issues have given rise to the concern. First, imprints on the "shrink-wrap" used to package a computer software programme often contain a message stating that any purchaser of the package has, once the shrink-wrap is broken/removed, agreed contractually to the terms on the shrink-wrap (which might even include a statement, e.g. that the purchaser will not publish subsequently any criticism of the software!). Second, access may not be granted to a Web- (on Internet-) offered programme on file until one has "clicked" on a menu item which actually cites statements implying that the recipient thereafter is contractually agreeing to certain terms once the material is downloaded on his/her receiving computer.

Both of these issues are indeed matters of contract law and not directly copyright laws, essentially criminal statutes authorized by the Constitution of the United States of America. The issue for librarians is that "contractual" obligations associated with software and/or machine-readable materials had not typically been matters for a librarian's concern. Fair use and inter-library loan are activities which libraries have long been accustomed to providing without violating copyright law, though one should again note (Mihram and Mihram, 1998) that Congress indeed failed to meet its responsibility to provide copyright protection once the xerographic copier became available. (Protection might well have been accomplished by requiring thereafter that all copyright-registered works be printed in ink(s) which could be copy-machine-detectable and therefore, that copy machines be thereafter so equipped: the music print industry might thereby have survived!) For more on the anti-UCITA material, one can contact Rodney Peterson by e-mail at: re72@umail.umd.edu

The resolution of the issues raised by UCITA would be likely via Congressional recognition (Mihram, and Mihram, 2000) of its Constitutionally-imposed duty to provide a national electronic post office (and roads) with governmentally issued (and secured) electronic postmarks, enhanced so as to indicate the inclusion in any message of material already copyright-registered. Though pay-per-view implications become a logical conclusion of the implementation of such a national electronic postal service, copyright protection (and, therefore, its value in ensuring the progress of science and the useful arts) would be provided. Indeed, once this becomes "standard operating procedure," one could expect that the "download charges" for selected pages would reduce considerably from those now being implemented (Chronicle of Higher Education, 6 June 2001) at a charge (15c to 25c/page) which seems likely to be excessive for its long-term support. Fortunately, with increased computerization, credit card or debit-card electronic bookkeeping should be able to support per-page fees at one-tenth this rate, if not less.

AAAS on Technology Policy

The AAAS Colloquium similarly dealt with issues pertinent to information technologists, to "Internet librarians." Thomas Finholt, the Director of Collaboratory for Research on Electronic Work at the University of Michigan noted how the computer-telecommunication connection (the tele-computer) is allowing changes in the way some laboratory work is being conducted. The "collaboratory" is a term, popularized by the National Research Council as early as 1993 (see Mihram, and Mihram, 2001b), used to describe computer connected laboratories. Such collaboratories might, for example, imply no more than an arrangement whereby remote sensors (in outer space, Antarctica, near earth tremors or volcanic activity) feed data via the Internet to many ("competing") research laboratories, but which is intended to connote a collection of fellow scientists working "on line" to discuss ongoing research results from their respective laboratories.

Dr Finholt did note one important difficulty that is therefore arising: these are often no more than "electronic chat rooms," so that it later becomes difficult to determine exactly who at which lab originated the critical idea or new conclusion. To use the parlance of the new notion of "intellectual property," Who "owns" the result?

I have two points in response to Finholt's statement. First, historically we have an example from an earlier scientist, Dr Benjamin Franklin, that (during verbal conversations with any fellow scientist) he meticulously took notes as the conversation proceeded, thereby enabling him later to recall better who had first suggested an idea or reached a conclusion. Second, if Congress had by now met its duty (Mihram and Mihram, 2000) in providing the "National Electronic Postal Service," now that we have entered our "Age of Tele-communications" from our earlier "Age of Printed/Written Communications" (Mihram, 1975), then it would be standard operating procedure to have a government certified electronic postmark accompanying each chat-room submission. The matter of priority would be much more readily apparent as a result. Indeed, a reflection on the matter should remind us that the primary purpose for copyright protection is just this very matter of establishing priority, thereby ensuring the progress of science and the useful arts, rather than just ensuring economic rewards.

Also, Leonard Krishtalk, Director of the Natural History Museum and Biodiversity Center (University of Kansas), included in his presentation "10 Grand Challenges for Research in the twenty-first Century," noting that it is the biological sciences which will surely dominate scientific discovery in our twenty-first century.

Dr Krishtalk felt that we are experiencing three "revolutions" in science due to computers:

1. 1.

   the advent of "thinking machines", of simulations capable of handling an immense amount of detail;

2. 2.

   the increased readiness of the connexion, via the Internet, of research results in genomics, neuroscience, and the environment; and

3. 3.

   yet, an increasing "digital divide" between scientists in separate countries, so that alternative cultures will need to study their differences in the meaning of life, the meaning of existence. It seems that he may have been calling for philosophers to be aware of their need to return to "natural philosophy", the foundation of which has always been that of science: viz., to seek out and determine the truth, the actual state of affairs, regarding natural phenomena.

Dr Krishtalk's ten Grand Challenges included the "Tree of Life," for which he asserted that computers are very likely to be used in such a way as to permit biology to become a prescriptive science, rather than the descriptive science that it has almost always been. He felt that this would take place because scientists will be able to author time-dependent mathematical equations describing biological interactions, then have the computer "activate" these equations, producing time-series "predictions" as to what the future holds.

As I then pointed out from the floor, this is a mistaken view of the value of computer simulations. Computer programming languages are distinct from the (third-person) language of mathematics since programming languages are algorithmic, command (i.e. second-person) languages (Mihram and Mihram, 2001a). Since James A. Miller (1978) noted that every biological system, from cell to society, possesses its own "decider" subsystem and since any algorithm is a precise description of a decision-making process, then biologists would be better served, if they wish to become more predictive, less descriptive, in our twenty-first century, to learn to use computer programming languages rather than mathematics strictly.

CIPA: Why TV/Video/Musical Lyrics/ Internet DO Cause Violent and/or Promiscuous Behaviour

Yes, the library is becoming a (an electronic) postal service for much of its clientele, a point which I made during the ALA Day's Session on "Filtering and CIPA". One of the panelists (R. Weingarten) responded there that one can just not determine (because, he asserted, it's a matter of personal opinion) whether material presented is pornographic or obscene. Yet, the US Postal Code has long recognized these categories and continues to provide requirements for any distributors of such materials to have checked the anti-mailing list maintained by the Postal Service to make certain that no one who has filed his/her/their objections to the receipt of such material is an address on the distributor's own mailing list.

Just because we have permitted Web sites to be so "anonymous" (not needing to provide either an "enhanced electronic postmark" or one enhanced with its "content-markers," for example), the Internet has now allowed the owners of pornographic sites to be very "passive" in their electronic "postal dispatch" operations. Law has long required that providers of obscene or pornographic material so declare the contents of their dispatches on the outer envelope. Librarians, instead of helping to fund a suit costing at least $1 million in an effort to invalidate the Children's Internet Protection Act of 2000 [CIPA-2000], would be better served to demand that Congress implement the US Postal Code to the Internet (and its Web sites). Rather than trying to join with the ACLU in suits which seem to say that libraries should provide for anyone, anytime, anything that they want (to read, see, hear), librarians would do better to recognize that persons have a "right" to print or publish obscene or pornographic material, yet that the distribution of the material must be subjected to the long-established criteria of the US Postal Codes (including the citizen's and institution's right to file a warning against an offending party, thereby advising that party that it will be a criminal offense to repeat such action again).

The matter of the scientifically established confirmation that television broadcasting, videos, musical lyrics, and now the Internet DO cause violent and/or promiscuous activities by children was also raised in a question I posed by referencing the session on filtering (Mihram et al., 2001) at the ACRL's Biennial Meeting, held this March (see also the American Library Association's BOOKLIST 76: 204, 1979.). Librarians who "assist" children in receiving pornographic or obscene material are behaving in violation of the US Postal Code. If they would not have been constrained in their behavior via the US Postal Service, then why should they find that behaving so via the "electronic postal service" (which they are providing in their libraries!) is not criminal behavior? Should they not also be guided by the ethical constraint, that of their duty as citizens, given our awareness today that science does know that aberrant (criminal) behavior will result as a consequence of children viewing (TV/video/Internet) such materials?

The Copyright Issue and Distance Learning

Another subject the ALA Legislative Day emphasized was the copyright issue in the context of distance learning. Congress had required that its Register of Copyrights, Marybeth Peters, provide it with recommendations for protection of copyright as more and more institutions become engaged in Distance Learning.

As was emphasised in their report (National Research Council, 2000), the "Digital Dilemma" arises because, once one has dispatched machine-readable material to another computer, one has made automatically a copy of it. The Distance-learning course is therefore replete with copyright violations, unless extreme care has been taken to ensure that every transmission by the course's leader (the institution) either is satisfactory under fair use guidelines or is a copy paid for in multiples sufficient for the class's enrollment. Again, it seems that the issue is readily resolved (and no longer of particular concern to librarians) by the use of governmentally secured (and issued) enhanced electronic postmarks. Electronic watermarking, so pertinent to the electronic copyright registration process (Mihram and Mihram, 2000), can be easily applied also as "electronic fingerprinting" (electronic watermarking applied in the implementation of the enhanced electronic postmark); such an approach would even facilitate pre-authorized electronic billing for each subsequent transmission of a copyright registered work.

Electronic Government Information

The ALA Day also emphasized one other matter: Senators Conrad Burns (Montana) and Joseph Lieberman (Connecticut) introduced a bill which they hope will become the "E-Government Act of 2001." The bill will seek to have the Federal Government make governmental information and services more accessible to citizens. Senate Bill #803 will provide that almost all governmental information will be available over the Internet. Whether Congress will view this as an opportunity to initiate an indelible "copyright seal" on each government document (so that citizens can know that an Internet-viewed document is indeed the authentic version) remains to be seen. It was not particularly apparent just why the ALA deems this matter (of making governmental information available over the Internet) so compelling as to require that its membership support the passage of Senate Bill #803.

Research Funding: Two Wrongs Revealed

The AAAS Colloquium ended with a plenary Session, "Funding Academic Research in an Age of Earmarks," by which the Colloquium's attendees might well have been better served had it been the initial, not the final, session. A near debate was produced by scheduling John Silber, Chancellor of Boston University, just before Dr David Minge, a former Congressman from Minnesota, one who had co-chaired the Congressional Porkbusters Coalition.

Governmental "earmarking" is the Congressional support of a research facility so that it will attract more qualified researchers and better qualified students than might arise if only private enterprises were given time to do likewise. For example, the Manhattan Project was funded at the University of Chicago, though this clearly was a defense earmarking project initiated during wartime.

The rationalization used in support of earmarking is that, "If you build or fund the construction of a well equipped new laboratory, then students and faculty will come there [as opposed to elsewhere]." As James Savage, Professor of Government at the University of Virginia, then noted, earmarking involves Congressional discretion as opposed to peer review in deciding on funding. He added that, after 1994, Speaker Newt Gingrich was able to reduce academic earmarking.

Unfortunately, the top 22 per cent of earmarked funds have gone to only ten academic institutions. Furthermore, institutions receiving these Congressional grants are not required, as is the recipient of a peer-reviewed research proposal, to report on the results, quality of facilities and research, or number of publications or patents.

John Silber defended earmarking by noting that only a small portion ($797 million) of governmental funds for research, out of a total of $15 thousand million, was earmarked, adding that success via peer-review has been shown to be linked to the institution and individual who had submitted the grant application, yet these very same institutions and persons are those selected to be reviewers by, say, the NSF. Silber concluded that this has all the attributes of an "Old Boys Network." He added that 22 per cent of peer-reviewed grant funds go to ten institutions, all of which are in the American Association of Universities, concluding that peer review is necessarily self-serving. Dr Silber also added that frequently Congressional earmarking requires that the receiving institution raise an equivalent amount of private funding: called "leveraging."

To counter this support for earmarking, Dr Minge added that the practice is taxpayer money allocated on a basis other than merit, noting that, if peer review has faults, then these need only be corrected so as to ensure that merit prevails in this allocation procedure. By analogy, he noted that publications in scientific journals result from the peer-review system, so that, if we followed here instead an earmarking model, then Congress would decide which author gets published!

Dr Minge concluded with three objections to Congressional earmarking:

1. 1.

   It encourages loss of merit-based government;

2. 2.

   It creates a loss of morale in academia ("Someone else gets the funds!"); and

3. 3.

   It undermines the integrity of the legislative process.

Good government, he concludes, requires that only merit-based awards and research be granted.

Two Wrongs Now a Right Make?

One could conclude that both the ALA Legislative Day and the AAAS Colloquium serve as illustrations themselves of what Dr Minge finds disturbing. Increasingly, an idea has become widespread not only that the government is a source of money for any who might want it, but also that there is nothing wrong in spending Congressional Representatives' time seeking to have them either give you some of those funds or give you those funds without any constraints.

Probably this attitude was initiated when Franklin D. Roosevelt had Congress increase from seven to nine the size of the US Supreme Court, then "packed" the Court so as to "legalize" the programs which were otherwise (and already) ruled to be unconstitutional. It now is being viewed as justifiable to design any governmental program, or to fund any research program, provided that the courts will not declare the result unconstitutional. And, since several unconstitutional programs were in the later 1930s declared by the Supreme Court constitutional, then why not this current one?

Societies such as the ALA and the AAAS, it seems, are each performing a wrong. Do the two together make it right?

G. Arthur Mihram PhD is an author and consultant from Princeton, New Jersey, USA who has published several books and papers on tele-cybernetics, scientific politics in our age of telecommunications.