ATD LogoCopyright, Access and Digital Texts

Charles Lowe · 9 December 2003

Table of Contents
"To promote 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 . . ."

It Began with the Information Superhighway

In September of 1995, the Clinton Administration released a white paper, an analysis of the "Information Superhighway's" future as a publishing medium for digital content: Intellectual Property and the National Information Infrastructure. A few months later, Pamela Samuelson responded in her Wired Magazine article The Copyright Grab, warning that "the white paper regards digital technology as so threatening to the future of the publishing industry that the public must be stripped of all the rights copyright law has long recognized - including the rights of privacy." That, in the context of the digital text, the administration's analysis could stimulate legislation which would make "browsing through a borrowed book, lending a magazine to a friend, [and] copying a news article for your files" all illegal, effectively "transform[ing] the emerging information superhighway into a publisher-dominated toll road."

Unregulated Use and the Digital Text

Like Stallman, Samuelson understands that when the copyright model is strictly imposed on digital texts, the consumer is the real loser, not the content publishing industries. In his presentation Free Culture, Lawrence Lessig explains what seems obvious: that copyright law regulates copies. Under the first sale doctrine, once we buy a book the copyright holder's rights end, and we can do what we please with our copy: loan the original to a friend, trade it for another or sell it to someone else. These are unregulated uses that we enjoy. Copyright law does, in some instances, make some provision for making personal copies of physical media that we own, but it prohibits the sharing, trading or selling of those copies, except for the few provisions allowed under fair use.

Digital texts differ because they exist only as 1's and 0's outside of a physical medium. So the problem for lawmakers was how to apply copyright law for digital texts: the only way to transfer digital texts is to make a copy, whether on a floppy disk, a CD-ROM or over the Internet. The "Intellectual Property and the National Information Infrastructure" white paper recommends treating each transfer of a digital text as an act of "copying" in the legal sense, thus effectively nullifying the first sale doctrine for digital texts.

Extending Copyright and Controlling Digital Texts

Not long after the white paper, content providers lobbied for and were successful in acquiring legislation in 1998. The Sonny Bono Copyright Term Extension Act (CTEA) extended copyright terms to life of the author plus 70 years, and in the case of corporate produced texts, to 95 years. Even worse, this act retroactively affected all texts currently covered by copyright, effectively limiting the public domain to texts produced before the 1920's. The act has since been upheld by the US Supreme Court in Eldred v. Ashcroft. In doing so, the Court sanctioned Congress's ability to continue to extend copyright terms indefinitely, despite the more limited authority granted Congress in the United States Constitution, Article I, Section 8:

To promote 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 . . .

By halting the expansion of the public domain, a large percentage of texts continue to remain in copyright limbo--out of print and no longer accessible except in library collections--texts which might otherwise be made freely available on the Internet on sites like Project Gutenberg. The few beneficiaries of the CTEA are an extremely small percentage of content creators; even publishing houses see a very limited financial return from extending copyright terms. Meanwhile, many experts agree that these term extensions do more to limit creativity and innovation than promote it by reducing the public commons. A detriment, not a benefit, to American society.

Educators were quite unprepared for the ramifications of part two of the dynamic duo of intellectual property legislation. In the same month of 1998 that President Clinton enacted the CTEA, he also signed the Digital Millennium Copyright Act (DMCA). While the CTEA marks the beginning of perpetual copyright, it does not provide the means to protect copyrighted texts from digital piracy. Historically, not long after content providers create a digital protection scheme, hackers provide cracks to disable protection. In order to complete the publisher's digital paradise called for in the 1995 white paper, the administration needed legislation which would police hacker activities on the "publisher-dominated toll road" described by Samuelson. Two items in the DMCA enable this:

  • The DMCA makes it easy for content providers to subpoena ISP's for the personal information of suspected copyright offenders. As the RIAA has demonstrated with their recent suits against file traders, the process is so simple that a judge is not needed to issue the subpoena.

  • The DMCA makes it illegal to circumvent technology used to prevent piracy of intellectual property. Even academics and researchers in computer science are forbidden to publish or present algorithms which foil encryption schemes. For example, two graduate students were legally blocked from presenting their findings regarding security flaws in a debit card system, one used by many universities and, incidentally, owned by Blackboard.

While the first obviously clashes with what many see as both basic privacy rights and jurisprudence, the second item above is the more harmful of the two, mostly because it facilitates what John C. Vaughn, Executive Vice President of the Association of American Universities, terms Technological Protection Measures, or TPM's. In a 14 January 2003 letter to the United States Patent and Trademark Office, he explains that TPM's

have the potential to alter the delicate balance of rights in the digital environment. While fair use is 'technologically neutral' and is applied and evaluated by courts on a case-by-case basis under an equitable "rule of reason" standard . . .TPMs apply (mostly) to digital technology and can be implemented at the sole discretion of copyright owners. Further, TPMs typically work without regard for the lawfulness of the use that is being presented. Encryption-based TPMs can prevent lawful, fair use of lawfully acquired copies as easily as they prevent infringing users. (4)

With the DMCA to support them, the content industries have quickly moved to develop TPM's, now known as Digital Rights Management (DRM) systems. To date, some DRM attempts have been public relations nightmares, failures which clearly demonstrate the extent to which current DRM implementation is little concerned about any usage rights or expectations of the consumer: CD's which only play on traditional CD players and not an individual's personal computer, or CD's which cause a computer to crash when inserted into a drive.

As most content providers struggle to find independent solutions, Microsoft has developed an integrated solution, their Trusted Computing platform. Also known as Palladium, Trusted Computing will be a part of the operating system in their 2005 projected release of Longhorn, the next generation of Windows after XP. Working in conjunction with Intel and AMD, Microsoft will provide a "trusted" environment for content. "Trusted" in that intellectual property owners can trust your computer to limit all use to their restrictions. Both the hardware and the software will work together to guarantee that CD's will not be copied, MP3's will not be burned to hard drives or shared, and word processing documents will not be modified or opened unless the copyright owner grants the right to do so.

To get an early glimpse of Microsoft's Trusted Computing implementation, consider the description "Information Rights Management" in the Microsoft Office 2003 Beta:

Permission for Office 2003 documents can be restricted on a per-user or per-group basis . . . . Each user or group can be given a set of permissions according to the access levels defined by document authors: Read, Change, or Full Control. Those with Full Control access can select to restrict printing, set expiration dates, and even give permission to others or change permission for existing users. Once permission for a document has expired for authorized users, the document can only be opened by the document author or users with Full Control access to the document. (Introducing Information Rights Management)

Trusted Computing systems allow very fine-grained control of digital content; the user can even be prevented from printing digital texts. Even more alarming, these controls pave the way for pay-per-use services. An electronic text downloaded by a user could have an expiration use date--as with the Microsoft Office 2003 features--or maybe only one allowed viewing, a strategy implemented years ago with the cable industry's Pay-Per-View Movies. Moreover, in the Digital Imprimatur, John Walker warns that in a Microsoft .Net/Trusted Computing Internet, even small websites could charge per viewing using automatic micropayments. News sites, weblogs, and Jane Doe's personal web pages could elect to enable content only on a pay-per-use basis.

Once Trusted Computing becomes commonplace, the average Microsoft Longhorn user will view it as a necessity for enjoying streaming pay-for-use audio and video services or subscriptions to their favorite online magazine or news site. They will likely encounter DRM-enabled documents in the work place or begin to create DRM-protected content themselves. If they gradually accept Digital Rights Management from constant use, these users may forget the freedoms of the first sale doctrine and assume that digital content creators deserve all of the rights.

Digital Texts In Education

In education, control of content through pay-for-use has already begun. Libraries are increasingly expanding their journal holdings through digital subscription services. As these services enlarge their databases by converting older journal issues to digital texts, economic pressures will encourage libraries to further reduce their existing print holdings; the cost of the physical infrastructure and archive preservation can be offset by relying on digital databases instead. At the same time, digital database suppliers are providing deals which make libraries dependent on their services. Elsevier, one of the largest suppliers of digital access to academic journals, sells libraries large subscription packages with little cost benefit in dropping digital subscriptions in favor of print editions, while also charging heavily for additional, necessary subscriptions (Second Thoughts on 'Bundled' E-Journals and Researchers boycott Cell Press ).

Some institutions, meanwhile, are claiming all teaching materials created for online courses as institutional intellectual property under work-for-hire doctrines. Teachers creating course materials may not be able to use them when moving to a position at another school. One could expect that universities might be seeking markets for those texts, making them available, of course, with DRM.

When technology adapts to make reading on a computer less difficult, consider the economic incentives for publishing online. Textbook publishers might turn more and more to subscription-based access to etexts as a means of distribution. The largest textbook publishers have already begun shifting toward a service industry where providers can create customized content for an institution or even an individual class. This customization extends to course-in-a-box products for use with Blackboard and WebCT (Publishers Yearn to E-Learn). A completely digital textbook economy would reduce distribution costs, eliminate booksellers as the middle man and recoup sales previously taken by the used-book trade. Print versions might someday become luxury items, accessible to only the financial elite.

»» Escaping the Future through Legislative Action