"Celestial Jukebox" or Digital Dark Age?

A Question of Information Access

Technologies of access redefine the social and cultural aspects of information access. Areas directly affected by this shift include fair use of copyrighted works and the balance of control over statutory rights. Considered over the duration of copyright, the long-term effects of new access regimes could be more extreme. Assuming that technological controls prevail over the public interest in information access, several questions must be asked: Can public access be preserved as information becomes predominantly digital? If not, does our society face a scenario where knowledge and our collective cultural record will be preserved only to the extent that it is profitable?

Is There a Future for Fair Use?

Fair use is a notoriously vague portion of copyright law, that provides a balance between incentives to create intellectual works and promotion of the dissemination of knowledge. Technological and legal developments, however, leave many wondering if fair use has a future. Analyzing trends in areas that affect copyright law should provide insight into the future of fair use (Holland, 2002, p. 171). I will focus on developments in three areas: copyright law, judicial review of fair use, and the development of information access technologies.

With the increasing connection of computers to networks comes a corresponding increase in the threats to the integrity and security of data on those computers. Outbreaks of Internet “worms,” computer viruses, and other “malware” are becoming more frequent and virulent as witnessed by the reports of maladies named “Melissa”, “ILOVEYOU” (Weaver, 2001), and, most recently, “MyDoom” (Legon, 2003). Malicious code, or “malware,” generally describes all types of infectious programs, including viruses and worms (McAfee Security, 2003). Malware attacks in all their forms use a combination of human psychology and the vulnerabilities or design weaknesses found in software to spread rapidly from computer to computer across a network. Such attacks cause tangible damage such as depletion of computing resources, time spent to repair the damage, and loss of electronic data. Additionally, malware attacks have lasting, yet less tangible, effects on the behaviors of computer users and software developers. The problem of systems security and information assurance requires a sophisticated mix of behavioral changes by individual users, software vendors, and possibly governments to solve. Given the complexity of the problem, however, the vulnerabilities of computer systems may never be completely eliminated.

Abstract

In 1998, the United States Congress passed the Digital Millennium Copyright Act as an implementation of the World Intellectual Property Organization's Copyright and Performances Treaty of 1996. The DMCA, in concert with an earlier law, the Digital Performance Right in Sound Recordings Act of 1995, altered the legal balance between copyright holders and broadcasters, particularly those who broadcast on the World Wide Web. The new right granted to the recording industry as well as differences in the consideration of traditional broadcasters and webcasters suggest a broad redefinition of the role of copyright with respect to digital networks. This paper analyzes two important questions: First, how has the DMCA and related laws and rulings affected webcasting? Second, what are the implications of these developments for the diversity and future of digital broadcasting?

Copyright law in the United States derives from the Constitution, which charges Congress “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” (Title I, §8, Clause 8). The expression of this seemingly uncomplicated statement is a compromise between the right of free speech as granted by the First Amendment, and investment in the creation of new works by granting a temporary monopoly on the expression of ideas and inventions. In the time between the passage of the Copyright Act of 1790 and the passage of the Copyright Term Extension Act of 1998 (CTEA), a fundamental changes occurred in the way that information is valued by society which corresponds with the ascension of the concept of “intellectual property.” The legal challenge to the CTEA in the case of Eldred v. Ashcroft is an expression of a dichotomy between the free exchange of ideas and compensation for those who express the ideas. The development of an imbalance between opposing sides of this dichotomy and the implications the imbalance has for the public domain will be explored in this paper.

The terrorist attacks of September 11, 2001, and the subsequent “war on terror” have created a divisive climate in terms of discussions of personal privacy and management of public information. One side of the issue supports limited privacy and retention of “sensitive” information in the interest of greater security and a means of defeating terrorism. The opposite side notes the loss of privacy and posits a “Big Brother” scenario.

In analyzing various research tools and methodologies for application to the study of information policy, Ian Rowlands concluded that research tools were needed that could provide a “value-critical and paradigm-critical approach to the study of information policy.” Rowlands recognized that policy makers should take careful consideration of the variables and assumptions used in determining the “right” answer (Rowlands, 1996, p. 23). The implications of using incomplete methodologies in the study of information policy, an area of study which encompasses a wide variety of disciplines and societal influences, can be far-reaching. The rate of change and complexity associated with information policy necessitates frameworks that policy-makers can use to retain focus on values while accommodating new and often conflicting perspectives. Donald Schön describes such a framework in his essay, “Generative Metaphor: A Perspective on Problem-setting in Social Policy” (Schön, 1993). In this paper, I will explore what Schön means by generative metaphor and the framework that he described. From there, I will examine how his framework is applicable to the examination of US Federal information policy.