"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?
Although we can safely assume that the printed book and other physical forms of information are not likely to disappear from our libraries, new ways of retrieving information via digital media will have a significant effect on access. Digital information objects such as e-books and online information services may be controlled in ways that are not practical for their analog counterparts. The premise of library shelves full of locked books or journals that suddenly vanish after a few readers have viewed its pages seems incredible. Yet with digital objects, protected by access restriction technologies, such occurrences are not so unlikely.
Libraries, Now and in the Future
Libraries cater to all sorts of clientèle, including children, adults, and scholars. Users rely on libraries to provide access to information for many purposes, whether for research or academics, or for personal improvement and fulfillment. No single library contains all possible works within its walls. Libraries are networked in such a way, however, that if specific materials are desired, and are physically retrievable, then access to those materials may be obtained through alternate means. First sale doctrine and interlibrary loan comprise the traditional services that a library provides to the public as explicitly permitted under copyright law (17 USC §108 & 109). Because of this, access to a library's holdings is not revoked if a book goes out of print for whatever reason or if copyright terms are extended. Once a library has an item, access to that item is only affected by physical factors such as distance, the condition of the objects, and the funds that a library or its users have available to facilitate access.
Physical limitations and changes in information seeking behavior encourage libraries to implement digital information services (Bertot, 2003; Moyo, 2004). Subscriptions to digital content aggregators and publishers increase the number of works that a library can make available without having to increase its physical capacity. Furthermore, digital information services shift the focus of information seeking from the container to the content within which, arguably, can be seen as serving the needs of users accustomed to finding information on the Internet. Whether these digital services reduce the procurement costs expended by a library over time is not fully known (Bertot, 2003, p. 222), but the benefits to the users are usually enough to justify their implementation.
Current digital services are subscription based (Bertot, 2003, p. 222), and are offered by publishers such as Reed Elsevier (www.reedelsevier.com) and online content aggregators such as netLibrary (www.netlibrary.com). As these services continue to mature, the aforementioned benefits will be accompanied by significant disadvantages. Licenses that govern digital services will be enforced by technologies that shift control over access from libraries to the entities that provide the services. Such a shift affects uses that are traditionally allowed by copyright law. To understand the implications of this shift we must understand the technologies of access and the laws that affect them.
Technologies of Access
Copying is an intrinsic property of digital information. When users view a text via a digital information service, they view a copy that was ostensibly derived from an authoritative original maintained by the service provider. Information services currently exercise very little control over what happens with the copy that is provided beyond informing users of the terms of contract and protecting the copy with basic access controls. Once a copy of a text is made, the copy can be removed from its licensing environment and thus from its contractual restrictions – the license only restricts the original user. It is this loss of control over the copies that compels content providers to pursue technological means of contractual enforcement.
Digital access controls are more broadly known as Digital Rights Management (DRM). DRM involves converting digital objects to an encrypted form that is configured to allow access only under certain conditions. Access policies may be established at very granular levels for a variety of tasks, such as read-only access or the ability to copy (Erikson, 2003, pp. 35-36). For example, if a library were to subscribe to a publication in digital form, the governing contract could specify that only a certain number of users at a time may view the publication, which would be monitored by software designed to access DRM-aware objects. Should the maximum number of concurrent users be reached, the system's licensing policy might allow additional access for an extra fee (Stefik, 1997, Section D).
As it stands now, such granular control over a digital object is not possible without imposing excessive costs on the participating agency. For DRM to perform as described requires more than object-level control – it is necessary that the systems that access protected content respect these controls. These so-called “trusted systems” include hardware and software that are certified to comply with DRM controls (Stefik, 1997; Erikson, 2003). It is conceivable that trusted systems could restrict transfers between software and devices, such as denying the ability to cut-and-paste text from a controlled work. Additionally, “watermarking” could be implemented to prevent capture of audio or video by devices external to the trusted system.
From the publisher's perspective, DRM is an ideal technology for controlling the use of digital objects. As a means of modeling the social expectations of copyright, however, DRM's binary architecture is not so ideal. Copyright is a deliberately “leaky” system that contains many, often loosely defined, exceptions to certain enumerated rights. Content provided under a DRM-controlled contract can readily overstep the boundaries of copyright law (Cohen, 1998, p. 472; Samuelson, 2003, p. 48). For instance, a system that is programmed to prevent copying will not know how to differentiate a fair use copy from an illegal copy (Felten, 2003, p. 58). One might say that if a copy is allowed by law, then any means by which it can be made should be allowed. Unfortunately, it is not that simple. Once control is removed for a legal use, how will unauthorized uses of that copy be prevented? A fundamental conflict arises between arbitrary copyright exceptions and rigid access controls.
The Digital Millennium Copyright Act (DMCA, PL 105-304) was designed to update copyright law in anticipation of technological changes. Some of the most prominent portions of the DMCA criminalize the circumvention of access controls and the development and distribution of tools that can do the same (17 USC §1201). The statute simultaneously states that nothing in the circumvention prohibitions affects the rights of fair use or any of the exceptions granted in the Copyright Act (17 USC §1201(c)). Assuming that technological controls mature and computing environments become complicit in enforcing these controls, these assurances are rendered virtually useless (Burk & Cohen, 2001, p. 54). The conflict between the code of DRM and the code of law is embodied in section 1201. As a result, copyright is defined by contract, enforced by code, and leaves no legal recourse to do what would otherwise be legal.
Failures of Access Control
Let us assume that the current trends in rights management technologies and the laws that affect them continue unabated into the future. We can envision a time when DRM and trusted systems lock down digital information in all its forms, including the subscription services used by libraries to increase inventory and better serve their users. Every conceivable action, including reading, copying, and printing, can now be audited by the service provider and billed incrementally to the library or passed through to the user, as defined by contract. Setting aside privacy concerns for a moment (see writings by Julie Cohen), we can already see how fair use is revoked in this environment (Erikson, 2003; Felten, 2003; Samuelson, 2003). But what other effects will such control have?
Should the majority of a library's digital offerings be provided in the form of service subscriptions, collection management decisions are delegated to the service providers. Decisions by the service provider that affect the type, quantity, and character of their offerings will directly determine what is available to the library's users. One might query that if all possible works are made available, much like Goldstein's “celestial jukebox” (2003), would collection management become irrelevant? Perhaps much further in the future, when digital storage is essentially free and the difficulties with preserving the reliability of and access to such an enormous volume of data are resolved. Until then, there are several points of failure that may reduce or eliminate access to digital works. These failures may be characterized as technical, economic, and social.
Technical failure is already at issue in current subscription services. If a library has a subscription to a periodical, and later cancels the subscription, patrons may still use the copies that were received before cancellation. Under the digital model, however, cancellation of a subscription may leave the library without access to any of the periodicals (Moyo, 2004, p. 229). Technical failures of this sort result from the characteristic differences between digital and print media.
Additional failures of access are characterized by economic instabilities. Assuming that a service provider must prioritize its holdings because of technical limitations, the relative value of the works will be influential. Only a small percentage of works has an economically viable life approaching the current term of copyright (Rappaport, 1998, p. 4). Likewise, it can be expected that many works beyond a certain age will fail to be of interest or use for other than historical purposes, especially in the case of scientific works or news. A service provider may audit usage data for their inventory and determine that certain works no longer meet the interest criteria to justify the expense of maintaining them. These works may simply be removed from the service (and, presumably, archived), or perhaps exchanged with other content aggregators. Unless a devalued work finds its way to another subscription service of the library, it will be inaccessible to the patrons. Permanent losses due to economic competition is unfortunate since recent findings reveal that usage trends become difficult to predict, deviating from profitability as selection increases (Anderson, 2004).
Similarly, none but the most well-established publishers are likely to operate indefinitely. Publishers are bought and sold or otherwise succumb to economic changes. One hopes that the works controlled by a failing publisher would be transferred or otherwise preserved in some way. Since the decision is one of market value and not of value to the public, however, preservation of the works is not assured (Kuny, 1998). In recent years, digital collections have nearly vanished as a result of corporate volatility. For example, the music archives of MP3.com were nearly lost when the company was sold to CNET Networks in 2003 (Bialik, 2003). USENET news archives dating back to 1981 narrowly escaped disappearance when Google bought them in 2001 (Google, 2001). These cases illustrate how collections of digital information are susceptible to commodification.
Another economic threat to access results from the consolidation of service providers. Scholarly journals are currently undergoing a transition, due in part to the fact that fewer companies hold more of the assets while charging increasing rates for access (Ganshorn, 2002, p. 1, 3). If such a trend manifests in other digital content services, libraries with smaller budgets could find themselves unable to gain access to some or all of the available holdings, thus perpetuating the digital divide.
A social failure of access is characterized by First Amendment concerns. Removing control of collections from a local agency to a centralized provider exposes the possibility that external pressures could force the removal of politically inexpedient works. The normalization of community standards could potentially affect all subscribers to the service. At the least, a service provider would be compelled to deny access to certain works in certain locales to satisfy complaints. If service providers tend to be risk-averse, such localized measures would circumnavigate the traditional barriers to censorship that community libraries currently employ.
Taken together, these failures result in the denial of access to works that library patrons seek. These losses may not be absolute; the market may provide remedies for some of these problems, or patrons could seek alternative facilities to find the information they desire. Furthermore, these failures are not completely foreign to traditional libraries, but the effects are more acute in the case of digital information. Unfortunately, the problem indicated by these points of failure is larger than that of mere convenience (Kuny, 1998). Libraries, from the Library of Congress down to the smallest local library, contain a vast amount of printed material that captures a significant portion of our cultural heritage in literature, music, and scholarly works. The library system, taken in its entirety, represents a massively redundant, fault-tolerant system for preserving the cultural record. Reexamining the digital situation just described, no such system exists for securing digital works beyond that of securing intellectual property. Commercial services have suddenly found themselves having to address issues previously relegated to public archives (Rosenzweig, 2003, p. 752). We may face a time when the only digital works that survive the coming decades are those that are the most profitable or popular.
Towards Preserving the Digital Cultural Record
The problem of long-term digital preservation is significant, even without considering the tension between access and rights. Research in digital archives addresses many of the key problems for ensuring the reliability of digital information across standards and exchanges. Digital archivists are wary of encryption for digital objects, often avoiding the problem altogether by not accepting encrypted objects into their repositories (Waugh, et al., 2000, p. 181). Such policies will not suffice for public information agencies that provide DRM protected objects. Because of the complexities, long-term digital preservation must involve all parties, public and private, in a coordinated effort to ensure that the balance of public access and private compensation enshrined in copyright is maintained for digital information.
The complexities of the problem and the relatively recent ascension of the digital preservation field discourage the formulation of generalized solutions. We may look to policy to provide the impetus for action. For printed information, the Copyright Act contains provisions that allow libraries and archives to make copies of works for preservation purposes (17 USC §108). The intent of Congress in this case is clear, if only for a relatively narrow definition of preservation. No such intent for digital information is implied in the statute. In fact, the anti-circumvention prohibitions of section 1201 of the Copyright Act seem to remove such concerns from the public interest entirely. If the public interest in preserving digital information is to be served this dichotomy must be resolved. Provisions for digital archiving that take the restrictions of DRM into account and allow libraries to act before the format becomes obsolete may provide a solution.
Alternately, content providers could be held accountable for ensuring the long term reliability of their information. If information can be seen as an asset worthy of copyright protection, then compulsory measures for information preservation are reasonable. A public digital deposit system using trusted third parties could assist these efforts. Congress enacted the National Digital Information Infrastructure and Preservation Program (NDIIPP) in 2000 to begin planning for long-term digital preservation (Friedlander, 2002). Unfortunately, such support from the Federal government is rare and the effect of this legislation has yet to be observed(Rosenzweig, 2003, pp. 752-754). In the private sector, Elsevier Science, a division of Reed Elsevier, is currently involved in trusted repository agreements with Yale University and the National Library of the Netherlands for preservation of electronic journals (Ayre, 2004, §5). Actions such as these constitute the beginnings of preservation policy.
If self-archiving and digital deposit fail to materialize or to provide adequate solutions, then the basis of current copyright statutes may need to be reexamined. Much of the reasoning behind recent copyright laws is the assumption that digital media eliminates content creator's income because of massive, near-perfect distribution. Should DRM become the norm, and remuneration be extracted at the most granular level, then content providers stand to make greater profits than ever. It follows in this scenario that the exclusive rights could be exchanged for greater control over content. A shorter term of copyright could reduce the impacts of format obsolescence and market instability by allowing the content to enter the public domain and the relative safety of unrestrained distribution.
Conclusion
Preserving the cultural record as it becomes digital is a significant challenge. Technologies of access and the transfer of control over information access from public to private interests increase the risk of information loss. The volatility of digital information should compel us to act in a decisive way, in both the public and private interest. Failure to do so will create gaps in our cultural record as digital objects become permanently inaccessible or lost completely.
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