Re: "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" Preprint

[Jonathan Franklin <jafrank@u.washington.edu>]

A fourth factor is the increasing willingness of courts to 
enforce clickwrap agreements & end user license agreements that 
contain surprising, but not unconscionable, terms.

- Jonathan

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Jonathan Franklin
Associate Law Librarian
Gallagher Law Library
University of Washington        Tel:(206)543-4089
Box 353025                      Fax:(206)685-2165
Seattle, WA 98195-3025  jafrank@u.washington.edu
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At 05:24 PM 5/3/2006, you wrote:

> A preprint of my "Strong Copyright + DRM + Weak Net Neutrality =
> 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