[A2k] Strong Copyright + "DRM" + Weak Net Neutrality = Digital Dystopia?

[Seth Johnson]

This is a multi-part message in MIME format.
--

(PDF text attached.  -- Seth)

-------- Original Message --------
Subject: "Strong Copyright + DRM + Weak Net Neutrality =3D Digital
Dystopia?"Preprint
Date: Wed, 03 May 2006 13:46:38 -0500
From: "Charles W. Bailey, Jr." <cbailey@uh.edu>
To: ACRL Scholarly Communication T.F. <SCHOLCOMM@ala.org>

A preprint of my "Strong Copyright + DRM + Weak Net Neutrality =3D
Digital Dystopia?" paper is now available.

http://www.digital-scholarship.com/cwb/DigitalDystopia.pdf

It will appear in Information Technology and Libraries 25, no. 3
(2006).

This quote from the paper's conclusion sums it up:

What this paper has said is simply this: three issues--a dramatic
expansion of the scope, duration, and punitive nature of
copyright laws; the ability of DRM to lock-down content in an
unprecedented fashion; and the erosion of Net neutrality--bear
careful scrutiny by those who believe that the Internet has
fostered (and will continue to foster) a digital revolution that
has resulted in an extraordinary explosion of innovation,
creativity, and information dissemination. These issues may well
determine whether the much-toted "information superhighway" lives
up to its promise or simply becomes the "information toll road"
of the future, ironically resembling the pre-Internet online
services of the past.

For those who want a longer preview of the paper, here's the
introduction:

Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn.
Tagging. Vlogs. Wikis. These buzzwords point to a fundamental
social change fueled by cheap PCs and servers, the Internet and
its local wired/wireless feeder networks, and powerful, low-cost
software: citizens have morphed from passive media consumers to
digital media producers and publishers.

Libraries and scholars have their own set of buzz words: digital
libraries, digital presses, e-prints, institutional repositories,
and open access journals to name a few. They connote the same
kind of change: a democratization of publishing and media
production using digital technology.

It appears that we are on the brink of an exciting new era of
Internet innovation: a kind of digital utopia. Dr. Gary Flake of
Microsoft has provided one striking vision of what could be (with
a commercial twist) in a presentation entitled "How I Learned to
Stop Worrying and Love the Imminent Internet Singularity," and
there are many other visions of possible future Internet
advances.

When did this metamorphosis begin? It depends on who you ask.
Let's say the late 1980's, when the Internet began to get serious
traction and an early flowering of noncommercial digital
publishing occurred.

In the subsequent twenty-odd years, publishing and media
production went from being highly centralized, capital-intensive
analog activities with limited and well-defined distribution
channels to being diffuse, relatively low-cost digital activities
with the global Internet as their distribution medium. Not to say
that print and conventional media are dead, of course, but it is
clear that their era of dominance is waning. The future is
digital.

Nor is it to say that entertainment companies (e.g., film, music,
radio, and television companies) and information companies (e.g.,
book, database, and serial publishers) have ceded the digital
content battlefield to the upstarts. Quite the contrary.

High-quality thousand-page-per-volume scientific journals and
Hollywood blockbusters cannot be produced for pennies, even with
digital wizardry. Information and entertainment companies still
have an important role to play, and, even if they didn't, they
hold the copyrights to a significant chunk of our cultural
heritage.

Entertainment and information companies have understood for some
time that they must adopt to the digital environment or die, but
this change has not always been easy, especially when it involves
concocting and embracing new business models. Nonetheless, they
intend to thrive and prosper--and to do whatever it takes to
succeed. As they should, since they have an obligation to their
shareholders to do so.

The thing about the future is that it is rooted in the past.
Culture, even digital culture, builds on what has gone before.
Unconstrained access to past works helps determine the richness
of future works. Inversely, when past works are inaccessible
except to a privileged minority, it impoverishes future works.

This brings us to a second trend that stands in opposition to the
first. Put simply, it is the view that intellectual works are
"property"; that this property should be protected with the full
force of civil and criminal law; that creators have perpetual,
transferable property rights; and that contracts, rather than
copyright law, should govern the use of intellectual works.

A third trend is also at play: the growing use of Digital Rights
Management (DRM) technologies. When intellectual works were in
paper form (or other tangible forms), they could only be
controlled at the object-ownership or object-access levels (a
library controlling the circulation of a copy of a book is an
example of the second case). Physical possession of a work, such
as a book, meant that the user had full use of it (e.g., the user
could read the entire book and photocopy pages from it). When
works are in digital form and they are protected by some types of
DRM, this may no longer true. For example, a user may only be
able to view a single chapter from a DRM-protected e-book and may
not be able to print it.

The fourth and final trend deals with how the Internet functions
at its most fundamental level. The Internet was designed to be
content, application, and hardware "neutral." As long as certain
standards were met, the network did not discriminate. One type of
content was not given preferential delivery speed over another.
One type of content was not charged for delivery while another
wasn't. One type of content was not blocked (at least by the
network) while another wasn't. In recent years, "network
neutrality" has come under attack.

The collision of these trends has begun in courts, legislatures,
and the marketplace. It is far from over. As we shall see, it's
outcome will determine what the future of digital culture looks
like.

--
Best Regards,
Charles

Charles W. Bailey, Jr., Assistant Dean for Digital Library
Planning and Development, University of Houston Libraries

E-Mail: cbailey@digital-scholarship.com

Publications: http://www.digital-scholarship.com/ (Provides
access to DigitalKoans, Open Access Bibliography, Open Access
Webliography, Scholarly Electronic Publishing Bibliography,
Scholarly Electronic Publishing Weblog, and others)
--

 Strong Copyright + DRM + Weak Net Neutrality =3D Digital Dystopia?

By Charles W. Bailey, Jr.


Preprint 5/2/06

Introduction

Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging.

Vlogs. Wikis. These buzzwords point to a fundamental social change fueled b=
y cheap PCs and servers, the Internet and its local wired/wireless feeder n=
etworks, and powerful, low-cost software: citizens have morphed from passiv=
e media consumers to digital media producers and publishers.

Libraries and scholars have their own set of buzz words: digital libraries,=
 digital presses, e-prints, institutional repositories, and open access jou=
rnals to name a few. They connote the same kind of change: a democratizatio=
n of publishing and media production using digital technology.

It appears that we are on the brink of an exciting new era of Internet inno=
vation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided =
one striking vision of what could be (with a commercial twist) in a present=
ation entitled "How I Learned to Stop Worrying and Love the Imminent Intern=
et Singularity,"1 and there are many other visions of possible future Inter=
net advances.

When did this metamorphosis begin? It depends on who you ask. Let's say the=
 late 1980's, when the Internet began to get serious traction and an early =
flowering of noncommercial digital publishing occurred.

In the subsequent twenty-odd years, publishing and media production went fr=
om being highly centralized, capital-intensive analog activities with limit=
ed and well-defined distribution channels to being diffuse, relatively low-=
cost digital activities with the global Internet as their distribution medi=
um. Not to say that print and conventional media are dead, of course, but i=
t is clear that their era of dominance is waning. The future is digital.

Nor is it to say that entertainment companies (e.g., film, music, radio, an=
d television companies) and information companies (e.g., book, database, an=
d serial publishers) have ceded the digital content battlefield to the upst=
arts. Quite the contrary.

High-quality thousand-page-per-volume scientific journals and Hollywood blo=
ckbusters cannot be produced for pennies, even with digital wizardry. Infor=
mation and entertainment companies still have an important role to play, an=
d, even if they didn't, they hold the copyrights to a significant chunk of =
our cultural heritage.

Entertainment and information companies have understood for some time that =
they must adopt to the digital environment or die, but this change has not =
always been easy, especially when it involves concocting and embracing new =
business models. Nonetheless, they intend to thrive and prosper.and to do w=
hatever it takes to succeed. As they should, since they have an obligation =
to their shareholders to do so.

The thing about the future is that it is rooted in the past. Culture, even =
digital culture, builds on what has gone before. Unconstrained access to pa=
st works helps determine the richness of future works. Inversely, when past=
 works are inaccessible except to a privileged minority, it impoverishes fu=
ture works.

This brings us to a second trend that stands in opposition to the first. Pu=
t simply, it is the view that intellectual works are "property"; that this =
property should be protected with the full force of civil and criminal law;=
 that creators have perpetual, transferable property rights; and that contr=
acts, rather than copyright law, should govern the use of intellectual work=
s.

A third trend is also at play: the growing use of Digital Rights Management=
 (DRM) technologies. When intellectual works were in paper form (or other t=
angible forms), they could only be controlled at the object-ownership or ob=
jectaccess levels (a library controlling the circulation of a copy of a boo=
k is an example of the second case). Physical possession of a work, such as=
 a book, meant that the user had full use of it (e.g., the user could read =
the entire book and photocopy pages from it). When works are in digital for=
m and they are protected by some types of DRM, this may no longer true. For=
 example, a user may only be able to view a single chapter from a DRM-prote=
cted e-book and may not be able to print it.

The fourth and final trend deals with how the Internet functions at its mos=
t fundamental level. The Internet was designed to be content, application, =
and hardware "neutral." As long as certain standards were met, the network =
did not discriminate. One type of content was not given preferential delive=
ry speed over another. One type of content was not charged for delivery whi=
le another wasn't. One type of content was not blocked (at least by the net=
work) while another wasn't. In recent years, "network neutrality" has come =
under attack.

The collision of these trends has begun in courts, legislatures, and the ma=
rketplace. It is far from over. As we shall see, it's outcome will determin=
e what the future of digital culture looks like.

Stronger Copyright: 1790 vs. 2006

Copyright law is a complex topic. It's not my intention to provide a full c=
opyright primer here. (Indeed, I will assume that the reader understands so=
me copyright basics, such as the notion that facts and ideas are not covere=
d by copyright.) Rather, my aim is to highlight some key factors about how =
and why U.S. copyright law has evolved and how it relates to the digital pr=
oblem at hand.

Three authors (Lawrence Lessig, Professor of Law at the Stanford Law School=
; Jessica Litman, Professor of Law at the Wayne State University Law School=
; and Siva Vaidhyanathan, Assistant Professor in the Department of Culture =
and Communication at New York University) have done brilliant and extensive=
 work in this area, and the following synopsis is primarily based on their =
contributions.

I heartily recommend that you read the cited works in full.

1. The purpose of copyright: Let's start with the basis of U.S. copyright l=
aw, the Constitution's "Progress Clause": "Congress has the power to promot=
e the Progress of Science and useful Arts, by securing for limited Times to=
 Authors and Inventors the exclusive Right to their respective Writings and=
 Discoveries."2 Copyright was a bargain: society would grant creators a tim=
e-limited ability to control and profit from their works before they fell i=
nto the public domain (where works are unprotected) because doing so result=
ed in "Progress of Science and useful Arts" (a social good). Regarding the =
Progress Clause, Lessig notes:

It does not say Congress has the power to grant "creative property rights."=
 It says that Congress has the power to promote progress. The grant of powe=
r is its purpose, and its purpose is a public one, not the purpose of enric=
hing publishers, nor even primarily the purpose of rewarding authors.3

However, entertainment and information companies can have a far different v=
iew, as illustrated by this quote from Jack Valenti, former president of th=
e Motion Picture Association of America: "Creative property owners must be =
accorded the same rights and protections resident in all other property own=
ers in the nation."4

2. Types of works covered: When the Copyright Act of 1790 was enacted, it p=
rotected published books, maps, and charts written by living U.S. authors a=
s well as unpublished manuscripts by them.5 The Act gave the author the exc=
lusive right to "print, reprint, publish, or vend" these works. Now, copyri=
ght protects a wide range of published and unpublished "original works of a=
uthorship" that are "fixed in a tangible medium of expression" without rega=
rd for "the nationality or domicile of the author," including "1. literary =
works; 2. musical works, including any accompanying words; 3. dramatic work=
s, including any accompanying music; 4. pantomimes and choreographic works;=
 5. pictorial, graphic, and sculptural works; 6. motion pictures and other =
audiovisual works; 7. sound recordings; 8. architectural works."6

3. Rights: In contrast to the limited print publishing rights inherent in t=
he Copyright Act of 1790, current law grants copyright owners the following=
 rights (especially notable is the addition of control over derivative work=
s, such as a play based on a novel or a translation):

=95 To reproduce the work in copies or phonorecords;

=95 To prepare derivative works based upon the work;

=95 To distribute copies or phonorecords of the work to the public by sale =
or other transfer of ownership, or by rental, lease, or lending;

=95 To perform the work publicly, in the case of literary, musical, dramati=
c, and choreographic works, pantomimes, and motion pictures and other audio=
visual works;

=95 To display the copyrighted work publicly, in the case of literary, musi=
cal, dramatic, and choreographic works, pantomimes, and pictorial, graphic,=
 or sculptural works, including the individual images of a motion picture o=
r other audiovisual work; and

=95 In the case of sound recordings, to perform the work publicly by means =
of a digital audio transmission.7

4. Duration: The Copyright Act of 1790 granted authors a term of 14 years, =
with one renewal if the author was still living (28 years total).8 Now, the=
 situation is much more complex, and, rather than trying to review the deta=
ils, I'll provide the following example. For a personal author who produced=
 a work on or after 1/1/78, it is covered for the life of the author plus 7=
0 years.9 So, assuming a male author lives on average 74 years, 144 years, =
which is approximately 116 years longer than in 1790.

5. Registration: Registration was required by the Copyright Act of 1790, bu=
t very few eligible works were registered from 1790-1800, which enriched th=
e public domain.10 Now, registration is not required, and no work enriches =
the public domain until its term is over, even if the author (or the author=
's descendants) have no interest in the work being under copyright or it is=
 impossible to locate the copyright holder to gain permission to use his or=
 her works (creating so-called "orphan works").

6. Drafting of legislation: By 1901, copyright law had become fairly esoter=
ic and complex, and drafting new copyright legislation had become increasin=
gly difficult. Consequently, Congress adopted a new strategy: let those who=
se commercial interests were directly affected by copyright law deliberate =
and negotiate with each other about copyright law changes, and use the resu=
lts of this process as the basis of new legislation.11 Over time, this incr=
easingly became a dialog among representatives of entertainment, high-tech,=
 information, and telecommunications companies; other parties, such as libr=
ary associations; and rights holder groups (e.g., ASCAP). Since these parti=
es often had competing interests, the negotiations were frequently contenti=
ous and lengthy, and the resulting laws created a kind of crazy quit of spe=
cific exceptions for the deals made during these sessions to the ever expan=
ding control over intellectual works that copyright reform generally engend=
ered. Since the public was not at the table, its highly diverse interests w=
ere not directly represented, and, since stakeholder industries lobby Congr=
ess and the public doesn't, the public's interests were often not well serv=
ed. (There were some efforts by special interest groups to represent the pu=
blic on narrowly focused issues.)

7. Frequency of copyright term legislation: With remarkable constraint, Con=
gress enacted one copyright bill that extended the copyright term in its fi=
rst hundred years and one in the next 50; however, starting in 1962, it pas=
sed 11 bills in the next 40 years.12 Famously, Jack Valenti once proposed t=
hat copyright "last forever less one day."13 By continually extending copyr=
ight terms in a serial fashion, Congress may grant him his wish.

8. Licenses: In 1790, copyrighted works were sold and owned. Today, many di=
gital works are licensed. Licenses usually fall under state contract law ra=
ther than federal copyright law.14 Licensed works are not owned, and the fi=
rst sale doctrine is not in effect.15 While copyright is the legal foundati=
on of licenses (i.e., works can be licensed because licensors own the copyr=
ight to those works), licenses are contracts, and contract provisions trump=
 user-favorable copyright provisions, such as fair use, if the licensor cho=
oses to negate them in a license.

9. Criminal and civil penalties: In 1790, there were civil penalties for co=
pyright infringement (e.g., statutory fines of "50 cents per sheet found in=
 the infringer's possession").16 Now, there are criminal copyright penaltie=
s, including felony violations that can result in a maximum of five years o=
f imprisonment and fines as high as $250,000 for first-time offenders; civi=
l statutory fines that can range as high as $150,000 per infringement (if i=
nfringement is "willful"), and other penalties.17

Once the copyright implications of digital media and the Internet sunk in, =
entertainment and information companies were deeply concerned: digital tech=
nologies made creating perfect copies effortless, and the Internet provided=
 a free (or low-cost) way to distribute content globally.

Congress, primarily spurred on by entertainment companies, passed several l=
aws aimed at curtailing perceived digital "theft" through criminal penaltie=
s. Under the 1997 No Electronic Theft (NET) Act, copyright infringers face =
"up to 3 years in prison and/or $250,000 fines," even for noncommercial inf=
ringement.18 Under the 1998 Digital Millennium Copyright Act (DMCA), those =
who defeat technological mechanisms that control access to copyrighted work=
s (a process called "circumvention") face a maximum of five years in prison=
 and $500,000 in fines.19

10. Effect of copyright on average citizens: In 1790, copyright law had lit=
tle effect on citizens. The average person was not an author or publisher, =
private use of copyrighted materials was basically unregulated, the public =
domain was healthy, and many types of works were not covered by copyright a=
t all. In 2006, virtually every type of work imaginable is under automatic =
copyright protection for extended periods of time, private use of digital w=
orks is increasingly visible and of concern to copyright holders, the publi=
c domain is endangered, and ordinary citizens are being prosecuted as "pira=
tes" under draconian statutory and criminal penalties. Regarding this devel=
opment, Lessig says:

For the first time in our tradition, the ordinary ways in which individuals=
 create and share culture fall within the reach of the regulation of the la=
w, which has expanded to draw within its control a vast amount of culture a=
nd creativity that it never reached before. The technology that preserved t=
he balance of our history.between uses of our culture that were free and us=
es of our culture that were only upon permission.has been undone. The conse=
quence is that we are less and less a free culture, more and more a permiss=
ion culture.20

How has copyright changed since the days of the founding fathers? As we hav=
e seen, there has been a shift in copyright law (and social perceptions of =
it) from promoting progress to protecting intellectual property owners "rig=
hts," from covering limited types of works to covering virtually all types =
of works, from granting only basic reproduction and distribution rights to =
granting a much wider range of rights, from offering a relatively short dur=
ation of protection to offering a relatively long (potentially perpetual) o=
ne, from requiring registration to providing automatic copyright, from draf=
ting laws in Congress to drafting laws in work groups of interested parties=
 dominated by commercial representatives, from making infrequent extensions=
 of copyright duration to making frequent ones, from selling works to licen=
sing them, from relatively modest civil penalties to severe civil and crimi=
nal penalties, and from ignoring ordinary citizens typical use of copyright=
ed works to branding them as "pirates" and prosecuting them with lawsuits. =
(Regarding lawsuits filed by the Recording Industry Association of America =
against four students, Lessig notes: "If you added up the claims, these fou=
r lawsuits were asking courts in the United States to award the plaintiffs =
close to $100 billion.six times the total profit of the film industry in 20=
01."21)

Complicating this situation further is intense consolidation and increased =
vertical integration in the entertainment, information, telecommunications,=
 and other high-tech industries involved in the Internet. 22 This vertical =
integration has implications for what can be published and the free flow of=
 information. For example, A company that publishes books and magazines, pr=
oduces films and television programs, provides Internet access and digital =
content, and provides cable television services (including broadband Intern=
et access) has different corporate interests than a company that performs a=
 single function, and these interrelated interests may affect not only what=
 information is produced and whether competing information and services are=
 freely available through controlled digital distribution channels, but cor=
porate perceptions of copyright issues as well.

One of the ironies of the current copyright situation is this: if creative =
works are by nature "property" and stealing property is (and has always bee=
n) wrong, then some of the very industries that are demanding that this tru=
th be embodied in copyright law have, in the past, been "pirates" themselve=
s, even though certain acts of "piracy" may have been legal (or appeared to=
 be legal) under then existing copyright laws.23

Lessig states:

If "piracy" means using the creative property of others without their permi=
ssion.if "if value, then right" is true.then the history of the content ind=
ustry is a history of piracy. Every important sector of "big media" today.f=
ilm, records, radio, and cable TV.was born of a kind of piracy so defined. =
The consistent story is how last generation=92s pirates join this generatio=
n=92s country club.until now.24

Let's take a simple case: cable television. Early cable television companie=
s used broadcast television programs without compensating copyright owners,=
 who branded their actions as "piracy" and filed lawsuits. After two defeat=
s in the Supreme Court, broadcast television companies won a victory (of so=
rts) in Congress, which took nearly 30 years to resolve the matter: cable t=
elevision companies would pay, but not what broadcast television companies =
wanted, rather they would pay fees determined by law.25

Of course, this view of history ("big media" companies as "pirates" in thei=
r infancy) is open to dispute. For the moment, let's assume that it is true=
. Put more gently, some of most important media companies of modern times f=
lourished because of relatively lax copyright control, a relatively rich pu=
blic domain, and, in some cases, a societal boon that allowed them to pay s=
tatutory license fees, which are compulsory for copyright owners, instead o=
f potentially paying much higher fees set by copyright owners or being deni=
ed use at all.

Today, the very things that fostered media companies growth are under attac=
k by them. The success of those attacks is diminishing the ability of new d=
igital content and service companies to flourish and, in the long run, may =
diminish even "big media's" ability to continue to thrive as a "permission =
culture" replaces a permissive culture.

Several prominent copyright scholars have suggested copyright reforms to he=
lp restore balance to the copyright system.

James Boyle, Professor of Law at the Duke University Law School, recommends=
 a twenty-year copyright term with "a broadly defined fair use protection f=
or journalistic, teaching, and parodic uses.provided that those uses were n=
ot judged to be in bad faith by a jury applying the 'beyond a reasonable do=
ubt' standard."26

William W. Fisher III, Hale and Dorr Professor of Intellectual Property Law=
 at Harvard University Law School, suggests that "we replace major portions=
 of the copyright and encryption-reinforcement models with. . . a governmen=
tally administered reward system" that would put in place new taxes and com=
pensate registered copyright owners of music or films with "a share of the =
tax revenues proportional to the relative popularity of his or her creation=
" and would "eliminate most of the current prohibitions on unauthorized rep=
roduction, distribution, adaptation, and performance of audio and video rec=
ordings."27

Lawrence Lessig recommends that copyright law be guided the following gener=
al principles: (1) short copyright terms; (2) a simple binary system of pro=
tected/not protected works without complex exceptions; (3) mandatory renewa=
l, and (4) a "prospective" orientation that forbids retrospective term exte=
nsions. 28 (Previously, Lessig had proposed a 75-year term contingent on fi=
ve-year renewals). He suggests reinstating the copyright registration requi=
rement using a flexible system similar to that used for domain name registr=
ations. He favors works having copyright marks, and, if they are not presen=
t, he would permit their free use until copyright owners voice their opposi=
tion to this use (uses of the work made prior to this point would still be =
permitted).

Jessica Litman wants a copyright law "that is short, simple, and fair" in w=
hich we "stop defining copyright in terms of reproduction" and recast copyr=
ight as "an exclusive right of commercial exploitation."29 Litman would eli=
minate industryspecific copyright law exceptions, but grant the public "a r=
ight to engage in copying or other uses incidental to a licensed or legally=
 privileged use"; the "right to cite" (even infringing works); and "an affi=
rmative right to gain access to, extract, use, and reuse the ideas, facts, =
information, and other public domain material embodied in protected works" =
(including a restricted circumvention right).30

Things change in over 200 plus years, and the law must change with them. Si=
nce the late 19th century, copyright law has been especially impacted by ne=
w technologies. The question is this: has copyright law struck the right ba=
lance between encouraging progress through granting creators specific right=
s and fostering a strong public domain that also nourishes creative endeavo=
r? If that balance has been lost, how can it be restored? Or, is society si=
mply no longer striving to maintain that balance because intellectual works=
 are indeed property, property must be protected for commerce to prosper, a=
nd the concept of balance is outmoded and it no longer reflects societal va=
lues?

DRM: Locked-Up Content and Fine-Grained Control

Noted attorney Michael Godwin defines Digital Rights Management (DRM) as "a=
 collective name for technologies that prevent you from using a copyrighted=
 digital work beyond the degree to which the copyright owner (or a publishe=
r who may not actually hold a copyright) wishes to allow you to use it."31

Like copyright, DRM systems are complex, with many variations. There are tw=
o key technologies: (1) Digital marking (i.e., digital fingerprints that un=
iquely identify a work based on its characteristics, simple labels that att=
ach rights information to content, and watermarks that typically hide infor=
mation that can used to identify a work), and (2) encryption (i.e., scrambl=
ed digital content that requires a digital key to decipher it).32 Specializ=
ed hardware can be used to restrict access as well, often in conjunction wi=
th digital marking and encryption.

My intent is not to provide a technical tutorial, but to overview the basic=
 DRM concept and to discuss its implications. What is of interest here is n=
ot how system ABC works in contrast to system XYZ, but what DRM allows copy=
right owners to do and the issues related to DRM.

To do so, let's use an analogy, understanding that real DRM systems can wor=
k in other ways as well (e.g., digital watermarks can be used to track ille=
gal use of images on the Internet without those images being otherwise prot=
ected).

For the moment, let's imagine that the content a user wishes to access is i=
n an unbreakable, encrypted digital safe. The user cannot see inside the sa=
fe. By entering the correct digital combination, certain content becomes vi=
sible (or audible or both) in the safe. That content can then be utilized i=
n specific ways (and only those ways), including, if permitted, leaving the=
 safe. If a public domain work is put in the safe, access to it is restrict=
ed regardless of its copyright status.

Bill Rosenblatt, Bill Trippe, and Stephen Mooney provide a very useful conc=
eptual model of DRM rights in their landmark DRM book, which I will summari=
ze here.33

There are three types of content rights: (1) render rights, (2) transport r=
ights, and (3) derivative works rights. Render rights allow authorized user=
s to view, play, and/or print protected content. Transport rights allow aut=
horized users to copy, move, and/or loan content (the user retains the cont=
ent if it is copied and gets it back when a loan is over, but does not keep=
 a copy if it is moved). Derivative works rights allow authorized users to =
extract pieces of content, edit the content in place, and embed content by =
extracting some of it and using it in other works.

Each one of these individual rights has three attributes: (1) consideration=
, (2) extents, and (3) types of users. Access to content is provided for so=
mething of value to the publisher (e.g., money or personal information): th=
e consideration. Content can then be used to some extent (e.g., for a certa=
in amount of time or a certain number of times). What rights and attributes=
 users have is determined by their user types.

For example, an academic user, in consideration of a specified license paym=
ent by his or her library, can view a DRM-protected scholarly article.but n=
ot copy, move, loan, extract, edit, or embed it.for a week, after which it =
is inaccessible. We can extend this hypothetical example by imagining that =
the library could pay higher license fees to gain more rights to the journa=
l in question, and the library (or the user) could dynamically purchase add=
itional article-specific rights enhancements as needed though micropayments=
.

This example is extreme; however, it illustrates the fine-grained, high-lev=
el of control that publishers could potentially have over content by using =
DRM technology.

Godwin suggests that DRM may inhibit a variety of legitimate uses of DRMpro=
tected information, such as access to public domain works (or other works t=
hat would allow liberal use), preservation of works by libraries, creation =
of new derivative works, conduct of historical research, exercise of fair u=
se rights, and instructional use.34 The ability of blind (or otherwise disa=
bled) users to employ assistive technologies may also be prevented by DRM t=
echnology.35 DRM also raises a variety of privacy concerns.36

Fair use is an especially thorny problem. Rosenblatt, Trippe, and Mooney st=
ate:

Fair use is an "I'll know it when I see it" proposition, meaning that it ca=
n't be proscriptively defined. . . . Just as there is no such thing as a "b=
lack box" that determines whether broadcast material is or isn't indecent, =
there is no such thing as a "black box" that can determine whether a given =
use of content qualifies as fair use or not. Anything that can't be proscri=
ptively defined can't be represented in a computer system.37

No need to panic about scholarly journals, yet. Your scholarly journal publ=
isher or other third-party supplier is unlikely to present you with such de=
tailed options tomorrow. But, you may already be licensing other digital co=
ntent that is DRM-protected, such as digital music or e-books that require =
a hardware e-book reader.

As the recent Sony BMG "rootkit" episode illustrated, creating effective, s=
ecure DRM systems can be challenging, even for large corporations.38 Again,=
 the reasons for this are complex. In very simple terms, it boils down to t=
his: assuming that the content can be protected up to the point it is place=
d in a DRM system, the DRM system has the best chance of working if all pos=
sible devices that can process its protected content either directly suppor=
t its protection technology, recognize its restrictions and enforce them th=
rough another means, or refuse access.39 Anything less creates "holes" in t=
he protective DRM shell, such as the well-known "analog hole" (e.g., when D=
RM-protected digital content is converted to analog form to be played, it c=
an then be re-recorded using digital equipment without DRM protection).40

In other words, ideally, every server, network router, PC and PC component,=
 operating system, and relevant electronic device (e.g., CD player, DVD pla=
yer, audio recording device, and video recording device) would work with th=
e DRM system as outlined previously or would not allow access to the conten=
t at all.

Clearly, this ideal end-state for DRM may well never be realized, especiall=
y given the troublesome backward-compatibility equipment problem.41 However=
, this does not mean that the entertainment, information, and high-technolo=
gy companies won't try to make whatever piecemeal progress that they can in=
 this area.42

The Trusted Computing Group is an important multiple-industry security orga=
nization, whose standards work could have a strong impact on the future of =
DRM. Robert A. Gehring notes:

But a DRM system is almost useless, that is from a content owner's perspect=
ive, until it is deployed broadly. Putting together cheap TC components wit=
h a market-dominating operating system "enriched" with DRM functionality is=
 the most economic way to provide the majority of users with "copyright box=
es."43

Seth Schoen argues computer owners should be empowered to override certain =
features of "trusted computing architecture" to address issues with "antico=
mpetitive and anti-consumer behavior" and other problems.44

DRM could potentially be legislatively mandated. There is a closely related=
 legal precedent, the Audio Home Recording Act, which requires that digital=
 audiotape equipment include special hardware to prevent serial copying.45 =
There is currently a bill before Congress that would require use of a "broa=
dcast flag" (a digital marker) for digital broadcast and satellite radio re=
ceivers.46 Last year, a similar FCC regulation for broadcast digital televi=
sion was struck down by a federal appeals court, and, consequently, the cur=
rent bill explicitly empowers the FCC to "enforce 'prohibitions against una=
uthorized copying and redistribution.'"47 Another bill would plug the analo=
g-to-digital video "analog hole" by putting "strict legal controls on any v=
ideo analog to digital (A/D) convertors."48 Whether these bills become law =
of not, efforts to mandate DRM are unlikely to end.

The Digital Millennium Copyright Act strongly supports DRM by prohibiting b=
oth the circumvention of technological mechanisms that control access to co=
pyrighted works (with some minor exceptions) and the "manufacture of any de=
vice, composition of any program, or offering of any service" to do so.49

What would the world be like if all newly published (or released) commercia=
lly created information was in digital form, protected by DRM? What would i=
t be like if all old works in print and analog formats were only reissued i=
n digital form, protected by DRM? What would it be like if all hardware tha=
t could process that digital information had to support the information's D=
RM scheme or block any access to it because this was mandated by law? What =
would it be like if all operating systems had direct or indirect built-in s=
upport for DRM? Would "Progress of Science and useful Arts" be promoted or =
squashed?

Weaker Net Neutrality

Lessig identifiers three important characteristics of the Internet that hav=
e fostered innovation: (1) edge architecture: software applications run on =
servers connected to the network, rather than on the network itself, which =
ensures that the network itself does not have to be modified for new or upd=
ated applications to run; (2) no application optimization: a relative simpl=
e, but effective, protocol is utilized (Internet Protocol) that is indiffer=
ent to what software applications run on top of it, again insulating the ne=
twork from application changes; and (3) neutral platform: the network does =
not prefer certain data packets or deny certain packets access.50

Lessig's conceptual model is very useful when thinking about Net neutrality=
, a topic of growing concern.

EDUCAUSE's definition of Net neutrality aptly captures these concerns:

"Net neutrality" is the term used to describe the concept of keeping the In=
ternet open to all lawful content, information, applications, and equipment=
. There is increasing concern that the owners of the local broadband connec=
tions (usually either the cable or telephone company) may block or discrimi=
nate against certain Internet users or applications in order to give an adv=
antage to their own services. While the owners of the local network have a =
legitimate right to manage traffic on their network to prevent congestion, =
viruses, and so forth, network owners should not be able to block or degrad=
e traffic based on the identity of the user or the type of application sole=
ly to favor their interests.51

For some time, there have been fears that Net neutrality was endangered as =
the Internet became increasingly commercialized, a greater percentage of ho=
me Internet users migrated to broadband connections not regulated by common=
 carrier laws, and telecommunications mergers (and vertical integration) ac=
celerated. Now, some of these fears appear to be being realized, albeit wit=
h resistance by the Internet community.

For example, AOL has indicated that it will implement a two-tier e-mail sys=
tem for companies, nonprofits, and others who send mass mailings: those who=
 pay bypass spam filters, those who don't pay don't.52 Critics fear that un=
der a twotier system free e-mail services will deteriorate. Facing fierce c=
riticism from the DearAOL.com Coalition and many others, AOL has relented s=
omewhat on the nonprofit issue by offering special treatment for "qualified=
" nonprofits.

A second example is that an analysis of Verizon's FCC filings reveals that =
"more than 80% of Verizon's current capacity is earmarked for carrying its =
service, while all other traffic jostles in the remainder."53 Content-orien=
ted Net companies are worried:

Leading Net companies say that Verizon's actions could keep some rivals off=
 the road. As consumers try to search Google, buy books on Amazon.com, or w=
atch videos on Yahoo!, they'll all be trying to squeeze into the leftover l=
anes on Verizon's network. . . . "The Bells have designed a broadband syste=
m that squeezes out the public Internet in favor of services or content the=
y want to provide," says Paul Misener, vicepresident for global policy at A=
mazon.com.54

A third example is a comment by William L. Smith, BellSouth 's chief techno=
logy officer, who "told reporters and analysts that an Internet service pro=
vider such as his firm should be able, for example, to charge Yahoo Inc. fo=
r the opportunity to have its search site load faster than that of Google I=
nc.," but qualified this assertion by indicating that "a pay-for-performanc=
e marketplace should be allowed to develop on top of a baseline service lev=
el that all content providers would enjoy."55 About four months later, AT&T=
 announced that it would acquire BellSouth, after which it "will be the loc=
al carrier in 22 states covering more than half of the American population.=
"56

Finally, in a white paper for Public Knowledge, John Windhausen, Jr. states=
:

This concern is not just theoretical -- broadband network providers are tak=
ing advantage of their unregulated status. Cable operators have barred cons=
umers from using their cable modems for virtual private networks and home n=
etworking and blocked streaming video applications. Telephone and wireless =
companies have blocked Internet telephone (VoIP -- Voice over the Internet =
Protocol) traffic outright in order to protect their own telephone service =
revenues.57

These and similar examples are harbingers of troubled days ahead for Net ne=
utrality. The canary in the Net neutrality mine isn't dead yet, but it's ge=
tting very nervous.

The bottom line? Noted open access advocate Peter Suber analyzes the situat=
ion as follows:

But now cable and telecom companies want to discriminate, charge premium pr=
ices for premium service, and give second-rate service to everyone else. If=
 we relax the principle of net neutrality, then ISPs could, if they wanted,=
 limit the software and hardware you could connect to the net. They could c=
harge you more if you send or receive more than a set number of emails. The=
y could block emails containing certain keywords or emails from people or o=
rganizations they disliked, and block traffic to or from competitor web sit=
es. They could make filtered service the default and force users to pay ext=
ra for the wide open internet. If you tried to shop at a store that hasn't =
paid them a kickback, they could steer you to a store that has. . . .

If companies like AT&T and Verizon have their way, there will be two tiers =
of internet service: fast and expensive and slow and cheap (or cheaper). We=
 unwealthy users -- students, scholars, universities, and small publishers =
-- wouldn't be forced offline, just forced into the slow lane. Because the =
fast lane would reserve a chunk of bandwidth for the wealthy, the peons wou=
ld crowd together in what remained, reducing service below current levels. =
New services starting in the slow lane wouldn't have a fighting chance agai=
nst entrenched players in the fast lane. Think about eBay in 1995, Google i=
n 1999, or Skype in 2002 without the level playing field provided by networ=
k neutrality. Or think about any OA journal or repository today.58

Is Net neutrality a quaint anachronism of the Internet's distant academic/r=
esearch roots that we would be better off without? Would new Internet compa=
nies and noncommercial services prosper better is it was gone, spurring on =
new waves of innovation? Would telecommunications companies (who may be par=
t of larger conglomerates), free to charge for tiered-services, offer us ex=
citing new service offerings and better, more reliable service?

Defending the Internet Revolution

Sixties icon Bob Dylan's line "Then you better start swimmin' or you'll sin=
k like a stone" couldn't be more apt for those concerned with the issues ou=
tlined in this paper. Here's a brief overview of some of the strategies bei=
ng used to defend the freewheeling Internet revolution.

1. Darknet: J. D. Lasica says: "For the most part, the Darknet is simply th=
e underground Internet. But there are many darknets: the millions of users =
trading files in the shady regions of Usenet and Internet Relay Chat; stude=
nts who send songs and TV shows to each other using instant messaging servi=
ces from AOL, Yahoo, and Microsoft; city streets and college campuses where=
 people copy, burn, and share physical media like CDs; and the new breed of=
 encrypted dark networks like Freenet. . ." 59 We may think of the Darknet =
as simply fostering illegal file swapping by ordinary citizens, but the Dar=
knet strategy can also be used to escape government Internet censorship, as=
 is the case with Freenet use in China.60

2. Legislative and Legal Action: There have been attempts to pass laws to a=
mend or reverse copyright and other laws resulting from the counter- Intern=
et-revolution, which have been met by swift, powerful, and generally effect=
ive opposition from entertainment companies and other parties affected by t=
hese proposed measures. The moral of this story is that these large corpora=
tions can afford to pay lobbyists, make campaign contributions, and otherwi=
se exert significant influence over lawmakers, while, by and large, advocat=
es for the other side do not have the same clout. The battle in the courts =
has been more of a mixed bag; however, there have been some notable defeats=
 for reform advocates, especially in the copyright arena (e.g., Eldred v. A=
shcroft), where most of the action has been.

3. Market Forces: When commercial choices can be made, users can vote with =
their pocketbooks about some Internet changes. But, if monopoly forces are =
in play, such as having a single option for broadband access, the only othe=
r choice may be no service. However, as the open access movement (described=
 later) has demonstrated, a concerted effort by highly motivated individual=
s and nonprofit organizations can establish viable new alternatives to comm=
ercial services that can change the rules of the game in some cases. Compan=
ies can also explore radical new business models that may appear paradoxica=
l to pre-Internet-era thinking, but make perfect sense in the new digital r=
eality. In the long run, the winners of the digital content wars may be tho=
se who aren't afraid of going down the Internet rabbit hole.

4. Creative Commons: Copyright is a two-edged sword: it can be used as the =
legal basis of licenses (and DRM) to restrict and control digital informati=
on or it can be used as the legal basis of licenses to permit liberal use o=
f digital information. For example, the Creative Commons Attribution Licens=
e requires that the work is attributed to the author; however, the work can=
 be used for any commercial or noncommercial purpose without permission, in=
cluding creating derivative works.61 By using one of the six major Creative=
 Commons Licenses, authors can retain copyright, but significantly enrich s=
ociety's collective cultural repository with works that can be freely share=
d for noncommercial purposes and, in some cases, used for commercial purpos=
es and/or to easily build new derivative creative works. There are a variet=
y of other licenses, such as the GNU Free Documentation License, that can b=
e used for similar purposes.62

5. Open Access: Scholars create certain types of information, such as journ=
al articles without expecting to be paid to do so, and it is in their best =
interests for these works to be widely read, especially by specialists in t=
heir fields.63 By putting e-prints (electronic preprints or postprints) of =
articles on personal home pages or in various types of digital archives (e.=
g., institutional repositories) in full compliance with copyright law and, =
if needed, in compliance with publisher policies, scholars can provide free=
 global access to these works with minimal effort and at no cost (or little=
 cost) to themselves. Further, a new generation of free e-journals are bein=
g published on the Internet that are being funded by a variety of business =
models, such as advertising, author fees, library membership fees, and supp=
lemental products. These "open access" strategies make digital scholarly in=
formation freely available to users across the globe, regardless of their p=
ersonal affluence or the affluence of their affiliated institutions.

Impact On Libraries

This paper's analysis of copyright, DRM, and network neutrality trends hold=
s no good news for libraries.

Copyright

With the reach of copyright law constantly encompassing new types of materi=
als and the duration of copyright terms ever lengthening, the public domain=
's growth is increasingly contingent copyright holders explicitly placing t=
heir works in it.

Needless to say, the public domain is a primary source of materials that ca=
n be digitized without having to face a complex, potentially expensive, and=
 sometimes hopeless permission clearance process. This process can be espec=
ially daunting for media works (such as films and video), even for the use =
of very short segments of these works. J. D. Lasica recounts his effort to =
get permission to use short music and film segments in a personal video: fi=
ve out of seven music companies declined; six out of seven movie studios de=
clined, and the one that agreed had serious reservations.64 The replies to =
his inquiry, for those companies that bothered to reply at all, are well wo=
rth reading.

For U.S. libraries without the resources to deal with complicated copyright=
related issues, the digitization clock stops at 1922, the last year we can =
be sure that a work is in the public domain without checking its copyright =
status and getting permission if it is under copyright.65 What can we look =
forward to? Lessig says: "Thus, in the twenty years after the Sonny Bono Ac=
t, while one million patents will pass into the public domain, zero copyrig=
hts will pass into the public domain by virtue of the expiration of a copyr=
ight term."66 (The Sonny Bono Term Extension Act was passed in 1998.)

Digital preservation is another area of concern in a legal environment wher=
e most information is automatically copyrighted, copyright terms are length=
y (or endless), and information is increasingly licensed. Simply put, a lib=
rary can't digitally preserve what it doesn't own, unless the work is in th=
e public domain, the work's license permits it, or the work's copyright own=
er grants permission to do so.

Or can it? After all, the Internet Archive doesn't ask permission ahead of =
time before preserving the entire Internet, although it responds to request=
s to restrict information. And that's why the Internet Archive is currently=
 being sued by Healthcare Advocates Inc., who says that it: "is just like a=
 big vacuum cleaner, sucking up information and making it available."67 If =
it is not settled out of court, this will be an interesting case for more d=
igitally adventurous libraries to watch.

As the cost of the hardware and software needed to effectively do so contin=
ues to drop, faculty, students, and other library users will increasingly w=
ant to repurpose content, digitizing conventional print and media materials=
, remixing digital ones, and/or creating new digital materials from both.

With the "information commons" movement, academic libraries are increasingl=
y providing users with the hardware and software tools to do so. Given that=
 the wording of the U.S. Copyright Act Section 108 (f) (1) is vague enough =
that it could be interpreted include these tools when they are used for inf=
ormation reproduction, is the old "copyright disclaimer on the photocopier"=
 solution enough in the new digital environment? Or, in light the unprecede=
nted transformational power of these tools to create new digital works and =
their widespread use both within libraries and on campus, do academic libra=
ries bear heavier responsibilities regarding copyright compliance, permissi=
on-seeking, and education?

Similar issues arise when faculty want to place self-created digital works =
that incorporate copyrighted materials in electronic reserves systems or in=
stitutional repositories. End-user contributions to "Library 2.0" systems t=
hat incorporate copyrighted materials may also raise copyright concerns.

DRM

As libraries realize that they cannot afford dual formats, their new journa=
l and index holdings are increasingly solely digital. Libraries are also li=
censing a growing variety of "born digital" information. The complexities o=
f dealing with license restrictions for these commercial digital products a=
re well understood, but imagine if DRM was layered on top of license restri=
ctions. As we have discussed, DRM will allow content producers and distribu=
tors to slice, dice, and monetize access to digital information in ways tha=
t were previously impossible.

What may be every publisher/vendor's dream, may be every library's nightmar=
e. Aside from a potential surge of publisher/vendor-specific access licensi=
ng options and fees, libraries may also have to contend with publisher/vend=
or-specific DRM technical solutions, which may depend on particular hardwar=
e/software platforms, be incompatible with each other, decrease computer re=
liability and security, eliminate fair or otherwise legal use of DRM-protec=
ted information, raise user privacy issues, restrict digital preservation t=
o bitstream preservation (if allowed by license), make it difficult to asse=
ss whether to license DRM-protected materials, increase the difficulty of p=
roviding unified access to information from different publishers and vendor=
s, multiply user support headaches, and necessitate increased staffing.

DRM makes solving many of these problems both legally and technically impos=
sible. For example, under the DMCA, libraries have the right to circumvent =
the DRM for a work in order to evaluate whether they want to purchase it, h=
owever, they cannot do so without the software tools to crack the work's DR=
M protection. But, the distribution of those tools is illegal under the DMC=
A, and local development of such tools is likely to be prohibitively comple=
x and expensive.68

Fostering Alternatives to Restrictive Copyright and DRM

Given the uphill battle in the courts and legislatures, Creative Commons li=
censes (or similar licenses) and open access are particularly promising str=
ategies to deal with copyright and DRM issues. Copyright laws do not need t=
o change for these strategies to be effective.

It is not just a question of libraries helping to support open access by pa=
ying for institutional memberships to open access journals, building and ma=
intaining institutional repositories, supporting open access mandates, enco=
uraging faculty to edit and publish open access journals, educating faculty=
 about copyright and open access issues, and encouraging them to utilize Cr=
eative Commons (or similar) licenses. To truly create change, libraries nee=
d to "walk the talk" and either let the public domain materials they digiti=
ze remain in the public domain or put them under Creative Commons (or simil=
ar licenses), and, when they create original digital content, put it under =
Creative Commons (or similar) licenses.

As the open access movement has shown, using Creative Commons licenses does=
n't rule out revenue generation (if that is an appropriate goal), but it do=
es require facilitating strategies, such as advertising and offering fee-ba=
sed add-on products and services.

Net Neutrality

There are many unknowns surrounding the issue of Net neutrality, but what i=
s clear is that it is under assault. It is also clear that Internet service=
s are more likely to require more, not less, bandwidth in the future as dig=
ital media and other high-bandwidth applications become more commonplace, c=
omplex, and interwoven into a larger number of Internet systems.

One would imagine that if a corporation such as Google had to pay for a hig=
hspeed digital lane, it would want it to reach as many consumers as possibl=
e. So, it may well be that libraries' Google access would be unaffected or =
possibly improved by a two-tier (or multiple-tier) Internet "speed-lane" se=
rvice model. Would the same be true for library-oriented publishers and ven=
dors? That may depend on their size and relative affluence. If so, the abil=
ity of smaller publishers and vendors to offer innovative bandwidth-intensi=
ve products and services may be curtailed.

Unless they are affluent, libraries may also find that they are confined to=
 slower Internet "speed lanes" when they act as information providers. For =
libraries engaged in digital library, electronic publishing, and institutio=
nal repository projects, this may be problematic, especially as they increa=
singly add more digital media, large-data-set, or other bandwidth-intensive=
 applications.

It's important to keep in mind that Net neutrality impacts are tied to wher=
e the chokepoints are, with the most serious potential impacts being at cho=
kepoints that affect large numbers of users, such as local ISPs that are pa=
rt of large corporations, national/international backbone networks, and maj=
or Internet information services (e.g.,Yahoo!).

It is also important to realize that the problem may be partitioned to part=
icular network segments. For example, on-campus network users may not exper=
ience any speed issues associated with the delivery of bandwidth-intensive =
information from local library servers because that network segment is unde=
r university control, but remote users, including affiliated home users, ma=
y experience throttled down performance beyond what would normally be expec=
ted due to "speed-lane" enforcement by backbone providers or local ISPs con=
trolled by large corporations. Likewise, users at two universities connecte=
d by a special research network may experience no issues related to accessi=
ng the other university's bandwidth-intensive library applications from on-=
campus computers because the backbone provider is under a contractual oblig=
ation to deliver specific network performance levels.

Although we have been using the example of "speed lanes" in our examination=
 of potential Net neutrality impacts on libraries, the problem is more comp=
lex than this, because network services, such as peer-to-peer networking pr=
otocols, can be completely blocked, digital information can be blocked or f=
iltered, and other types of fine-grained network control can be exerted.

Conclusion

This paper has deliberately presented one side of the story. It should not =
be construed as saying that copyright law should be abolished or violated, =
that DRM can serve no useful purpose (if it is possible to fix certain crit=
ical deficiencies and if it is properly employed), or that no one has to fo=
ot the bill for content creation/marketing/distribution and ever-more-bandw=
idth-hungry Internet applications.

Nor should it be construed to say that the other side of the story, the sid=
e most likely told by spokespersons of the entertainment, information, and =
telecommunications industries, has no validity and doesn't deserve to be he=
ard. However, that side of the story is having no problem being heard, espe=
cially in the halls of Congress. The side of the story presented in this pa=
per isn't as widely heard, at least, not yet.

Nor does it intend to imply that entertainment, information, telecommunicat=
ions, and other corporate executives lack a social conscience, are fully un=
ified in their views, or are unconcerned with the societal implications of =
their positions. However, by focusing on short-term issues, they may not fu=
lly realize the potentially negative long-term impact that their positions =
may have on their own enterprises.

Nor has this paper presented all of the issues that threaten the Internet, =
such as assaults on privacy, increasingly determined (and malicious hacking=
), state and other censorship, and the seemingly insolvable problem of over=
laying national laws on a global digital medium.

What this paper has said is simply this: three issues -- a dramatic expansi=
on of the scope, duration, and punitive nature of copyright laws; the abili=
ty of DRM to lock-down content in an unprecedented fashion; and the erosion=
 of Net neutrality -- bear careful scrutiny by those who believe that the I=
nternet has fostered (and will continue to foster) a digital revolution tha=
t has resulted in an extraordinary explosion of innovation, creativity, and=
 information dissemination. These issues may well determine whether the muc=
h-touted "information superhighway" lives up to its promise or simply becom=
es the "information toll road" of the future, ironically resembling the pre=
-Internet online services of the past.

Notes

1. Gary Flake, "How I Learned to Stop Worrying and Love the Imminent Intern=
et Singularity," http://castingwords.com/transcripts/O3/5073.html.

2. Lawrence Lessig, Free Culture: The Nature and Future of Creativity (New =
York, Penguin Books, 2005), 130, http://www.free-culture.cc/.

3. Ibid, 131.

4. Ibid, 117-118.

5. William F. Patry, Copyright Law and Practice (Washington, DC: Bureau of =
National Affairs, 2000), http://digital-law-online.info/patry/.

6. U.S. Copyright Office, Copyright Basics (Washington, DC: U.S. Copyright =
Office, 2000), http://www.copyright.gov/circs/circ1.html.

7. Ibid.

8. Lessig, Free Culture: The Nature and Future of Creativity, 133.

9. Barbara M. Waxer and Marsha Baum, Internet Surf and Turf Revealed: The E=
ssential Guide to Copyright, Fair Use, and Finding Media (Boston: Thompson =
Course Technology, 2006), 17.

10. Patry, Copyright Law and Practice; and Lessig, Free Culture: The Nature=
 and Future of Creativity, 133.

11. Jessica Litman, Digital Copyright (Amherst: Prometheus Books, 2001), 35=
-63.

12. Lessig, Free Culture: The Nature and Future of Creativity, 134.

13. Ibid, 326.

14. Association of American Universities, the Association of Research Libra=
ries, the Association of American University Presses, and the Association o=
f American Publishers, Campus Copyright Rights & Responsibilities: A Basic =
Guide to Policy Considerations (Association of American Universities, the A=
ssociation of Research Libraries, the Association of American University Pr=
esses, and the Association of American Publishers, 2006), 8, http://www.arl=
.org/info/frn/copy/CampusCopyright05.pdf.

15. George H. Pike, "The Delicate Dance of Database Licenses, Copyright, an=
d Fair Use," Computers in Libraries 22, no. 5 (2002): 14, http://infotoday.=
com/cilmag/may02/pike.htm.

16. Patry, Copyright Law and Practice.

17. Computer Crime and Intellectual Property Section Criminal Division, U.S=
. Department of Justice, "Prosecuting Intellectual Property Crimes Manual,"=
 http://www.cybercrime.gov/ipmanual.htm; and U.S. Copyright Office, Copyrig=
ht Law of the United States of America and Related Laws Contained in Title =
17 of the United States Code (Washington, DC: U.S. Copyright Office, 2003),=
 http://www.copyright.gov/title17/circ92.pdf.

18. Recording Industry Association of America, "Copyright Laws," http://www=
.riaa.com/issues/copyright/laws.asp.

19. Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative =
Strategies and Practical Solutions, 2nd ed. (Chicago: American Library Asso=
ciation, 2006), 94.

20. Lessig, Free Culture: The Nature and Future of Creativity, 8.

21. Ibid, 51.

22. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Conn=
ected World (New York: Vintage Books, 2002), 165-166, 176.

23. Lessig, Free Culture: The Nature and Future of Creativity, 53-61.

24. Ibid, 53.

25. Ibid, 59-61.

26. James Boyle, Shamans, Software and Spleens: Law and the Construction of=
 the Information Society (Cambridge: Harvard University Press, 1996), 172.

27. William W. Fisher III, Promises to Keep: Technology, Law, and the Futur=
e of Entertainment (Stanford, CA: Stanford University Press 2004), 202.

28. Lessig, Free Culture: The Nature and Future of Creativity, 289-293.

29. Litman, Digital Copyright, 179-180.

30. Ibid, 181-184.

31. Michael Godwin, Digital Rights Management: A Guide for Librarians (Wash=
ington, DC: Office for Information Technology Policy, American Library Asso=
ciation, 2006), 1, http://www.ala.org/ala/washoff/WOissues/copyrightb/digit=
alrights/DRMfin al.pdf.

32. Ibid, 10-18.

33. Bill Rosenblatt, Bill Trippe, and Stephen Mooney, Digital Rights Manage=
ment: Business and Technology (New York: M&T Books, 2002), 61-64.

34. Godwin, Digital Rights Management: A Guide for Librarians, 2.

35. David Mann, "Digital Rights Management and People with Sight Loss," IND=
ICARE Monitor 2, no. 11 (2006), http://www.indicare.org/tikiprint_ article.=
php?articleId=3D170.

36. Julie E. Cohen, "DRM and Privacy," Communications of the ACM 46, no. 4 =
(2003), 46-49.

37. Rosenblatt, Trippe, and Mooney, Digital Rights Management: Business and=
 Technology, 45.

38. J. Alex Halderman and Edward W. Felten, "Lessons from the Sony CD DRM E=
pisode," 14 February 2006, http://itpolicy.princeton.edu/pub/sonydrmext.

pdf.

39. Godwin, Digital Rights Management: A Guide for Librarians, 18-36.

40. Wikipedia, "Analog Hole," http://en.wikipedia.org/wiki/Analog_hole.

41. Godwin, Digital Rights Management: A Guide for Librarians, 18-20.

42. Ibid, 36.

43. Robert A. Gehring, "Trusted Computing for Digital Rights Management," I=
NDICARE Monitor 2, no. 12 (2006), http://www.indicare.org/tikiread_ article=
.php?articleId=3D179.

44. Seth Schoen, " Trusted Computing: Promise and Risk," http://www.eff.org=
/Infrastructure/trusted_computing/20031001_tc.php.

45. Pamela Samuelson, "DRM {and, or, vs.} the Law," Communications of the A=
CM 46, no. 4 (2003), 43-44.

46. Declan McCullagh, "Congress Raises Broadcast Flag for Audio," CNET News=
.com, 2 March 2006, http://news.com.com/Congress+raises+broadcast+flag+for+=
audio/2100- 1028_3-6045225.html.

47. Ibid.

48. Danny O'Brien, "A Lump of Coal for Consumers: Analog Hole Bill Introduc=
ed," EFF DeepLinks, 16 December 2005, http://www.eff.org/deeplinks/archives=
/004261.php.

49. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual=
 Property and How it Threatens Creativity (New York: New York University Pr=
ess, 2001), 174-175.

50. Lessig, The Future of Ideas: The Fate of the Commons in a Connected Wor=
ld, 36-37.

51. EDUCAUSE, "Net Neutrality," http://www.educause.edu/content.asp?PAGE_ID=
=3D645&PARENT_ID=3D807&bhc p=3D1.

52. Electronic Frontier Foundation, "DearAOL.com Coalition Grows from 50 Or=
ganizations to 500 In One Week," 7 March 2006, http://www.eff.org/news/arch=
ives/2006_03.php - 004461.

53. Catherine Yang, "Is Verizon a Network Hog?," BusinessWeek, 13 February =
2006, 58, http://www.businessweek.com/technology/content/feb2006/tc20060202=
_0618 09.htm.

54. Ibid.

55. Jonathan Krim, "Executive Wants to Charge for Web Speed," Washington Po=
st, 1 December 2005, D05, http://www.washingtonpost.com/wpdyn/ content/arti=
cle/2005/11/30/AR2005113002109.html.

56. Harold Furchtgott-Roth, "AT&T, or Another Telecom Takeover," The New Yo=
rk Sun, 7 March 2006, http://www.nysun.com/article/28695. (See also: http:/=
/www.furchtgott-roth.com/news.php?id=3D87.)

57. John Windhausen, Jr., Good Fences Make Bad Broadband: Preserving an Ope=
n Internet through Net Neutrality (Washington, DC: Public Knowledge, 2006),=
 http://www.publicknowledge.org/content/papers/pk-net-neutrality-whitep- 20=
060206.

58. Peter Suber, "Three Gathering Storms That Could Cause Collateral Damage=
 for Open Access," SPARC Open Access Newsletter, no. 95 (2006), http://www.=
earlham.edu/~peters/fos/newsletter/03-02-06.htm - collateral.

59. J. D. Lasica, Darknet: Hollywood's War Against the Digital Generation (=
New York: John Wiley & Sons, 2005), 45.

60. John Borland, "Freenet Keeps File-Trading Flame Burning," CNET News.com=
, 28 October 2002, http://news.com.com/2100-1023-963459.html.

61. Creative Commons, "Attribution 2.5," http://creativecommons.org/license=
s/by/2.5/.

62. Lawrence Liang, "A Guide To Open Content Licences," http://pzwart.wdka.=
hro.nl/mdr/research/lliang/open_content_guide.

63. Peter Suber, "Open Access Overview: Focusing on Open Access to Peer- Re=
viewed Research Articles and Their Preprints," http://www.earlham.edu/~pete=
rs/fos/overview.htm; and Charles W. Bailey, Jr., "Open Access and Libraries=
," in Mark Jacobs, ed., Electronic Resources Librarians: The Human Element =
of the Digital Information Age (Binghamton, NY: Haworth Press, 2006), forth=
coming, http://www.digitalscholarship.com/cwb/OALibraries.pdf.

64. Lasica, Darknet: Hollywood's War Against the Digital Generation, 72-73.

65. Waxer and Baum, Internet Surf and Turf Revealed: The Essential Guide to=
 Copyright, Fair Use, and Finding Media, 17.

66. Lessig, Free Culture: The Nature and Future of Creativity, 134-35.

67. Joe Mandak, " Internet Archive's Value, Legality Debated in Copyright S=
uit," Mercury News, 31 March 2006, http://www.mercurynews.com/mld/mercuryne=
ws/news/local/states/california/northern_california/14234638.htm.

68. Arnold P. Lutzker, Primer on the Digital Millennium: What the Digital M=
illennium Copyright Act and the Copyright Term Extension Act Mean for the L=
ibrary Community (Washington, DC: ALA Washington Office, 1999), http://www.=
ala.org/ala/washoff/WOissues/copyrightb/dmca/dmcaprimer.pdf. The Chamberlai=
n Group, Inc. v. Skylink Technologies, Inc. decision offers some hope that =
authorized users of DRM-protected works could legally circumvent DRM for la=
wful purposes if they had the means to do so (see: Crews, Copyright Law for=
 Librarians And Educators: Creative Strategies And Practical Solutions, 96-=
97).

Copyright =A9 2006 by Charles W. Bailey, Jr.

This work is licensed under the Creative Commons Attribution-NonCommercial =
2.5 License. To view a copy of this license, visit http://creativecommons.o=
rg/licenses/by-nc/2.5/ or send a letter to Creative Commons, 543 Howard Str=
eet, 5th Floor, San Francisco, California, 94105, USA.

This paper will appear in Information Technology and Libraries 25, no. 3 (2=
006).
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