Bailey


116   INFORMATION TECHNOLOGY AND LIBRARIES | SEPTEMBER 2006

Three critical issues—a dramatic expansion of the scope, 

duration, and punitive nature of copyright laws; the abil-

ity of Digital Rights Management (DRM) systems to 

lock-down digital content in an unprecedented fashion; 

and the erosion of Net neutrality, which ensures that all 

Internet traffic is treated equally—are examined in detail 

and their potential impact on libraries is assessed. How 

legislatures, the courts, and the commercial marketplace 

treat these issues will strongly influence the future of 

digital information for good or ill.

Editor's Note: This article was submitted in honor of the 
fortieth anniversaries of LITA and ITAL.

B
logs. Digital photo and video sharing. Podcasts. 
Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzz-
words point to a fundamental social change fueled 

by cheap personal computers (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 buzzwords: 
digital libraries, digital presses, e-prints, institutional re-
positories, and open-access (OA) journals, to name a few. 
They connote the same kind of change: a democratiza-
tion 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. 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.1

When did this metamorphosis begin? It depends on 
who you ask. Let’s say the late 1980s, 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 conven-
tional 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 jour-
nals and Hollywood blockbusters cannot be produced for 
pennies, even with digital wizardry. Information and enter-
tainment 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 under-
stood for some time that they must adapt 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 share-
holders 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, 
future works are impoverished.

This brings us to a second trend that stands in opposi-
tion 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 intel-
lectual works were in paper (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 (i.e., the user could read the entire book 
and photocopy pages from it). When works are in digital 
form and are protected by some types of DRM, this may 
no longer be 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-neu-
tral. 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 

Strong Copyright + DRM + 

Weak Net Neutrality = 

Digital Dystopia? Charles W. Bailey Jr.

Charles W. Bailey Jr. (cbailey@digital-scholarship.com) is 
Assistant Dean for Digital Library Planning and Development at 
University of Houston Libraries.



DIGITAL DYSTOPIA | BAILEY  117

content was not charged for delivery while another was 
free. One type of content was not blocked (at least by the 
network) while another was unhindered. In recent years, 
network neutrality has come under attack.

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

฀ Stronger copyright: 
1790 versus 2006

Copyright law is a complex topic. It is not my intention 
to provide a full copyright primer here. (Indeed, I will 
assume that the reader understands some copyright 
basics, such as the notion that facts and ideas are not cov-
ered by copyright.) Rather, my aim is to highlight some 
key factors about how and why United States copyright 
law has evolved and how it relates to the digital problem 
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 con-
tributions. I heartily recommend that you read the cited 
works in full.

The purpose of copyright

Let us start with the basis of U.S. copyright law, the 
Constitution’s “Progress Clause”: “Congress has the 
power 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.”2 Copyright was a bargain: society would 
grant creators a time-limited ability to control and profit 
from their works before they fell into the public domain 
(where works are unprotected) because doing so resulted 
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 power is its purpose, and 

its purpose is a public one, not the purpose of enriching 

publishers, nor even primarily the purpose of reward-

ing authors.3

However, entertainment and information companies 
can have a far different view, as illustrated by this quote 
from Jack Valenti, former president of the Motion Picture 
Association of America: “Creative property owners must 

be accorded the same rights and protections resident in all 
other property owners in the nation.”4

Types of works covered

When the Copyright Act of 1790 was enacted, it protected 
published books, maps, and charts written by living U.S. 
authors as well as unpublished manuscripts by them.5 The 
act gave the author the exclusive right to “print, reprint, 
publish, or vend” these works. Now, copyright protects a 
wide range of published and unpublished “original works 
of authorship” that are “fixed in a tangible medium of 
expression” without regard for “the nationality or domi-
cile of the author,” including “1. literary works; 2. musical 
works, including any accompanying words; 3. dramatic 
works, including any accompanying music; 4. pantomimes 
and choreographic works; 5. pictorial, graphic, and sculp-
tural works; 6. motion pictures and other audiovisual 
works; 7. sound recordings; 8. architectural works.”6

Rights

In contrast to the limited print publishing rights inherent 
in the Copyright Act of 1790, current law grants copyright 
owners the following rights (especially notable is the addi-
tion of control over derivative works, such as a play based 
on a novel or a translation): 

฀ to reproduce the work in copies or phonograph 
records;

฀ to prepare derivative works based upon the work;
฀ to distribute copies or phonograph records of the work to 

the public by sale or other transfer of ownership, or 
by rental, lease, or lending;

฀ to perform the work publicly, in the case of literary, musi-
cal, dramatic, and choreographic works, pantomimes, 
and motion pictures and other audiovisual works;

฀ to display the copyrighted work publicly, in the case of 
literary, musical, dramatic, and choreographic works, 
pantomimes, and pictorial, graphic, or sculptural 
works, including the individual images of a motion 
picture or other audiovisual work; and

฀ in the case of sound recordings, to perform the work pub-
licly by means of a digital audio transmission.7

Duration

The Copyright Act of 1790 granted authors a term of four-
teen years, with one renewal if the author was still living 
(twenty-eight years total).8 Now the situation is much more 
complex, and, rather than trying to review the details, I’ll 
provide the following example. For a personal author who 
produced a work on or after January 1, 1978, it is covered 
for the life of the author plus seventy years.9 So, assuming 



118   INFORMATION TECHNOLOGY AND LIBRARIES | SEPTEMBER 2006

an author lives an average seventy-five years, the work 
would be covered for 144 years, which is approximately 
116 years longer than in 1790. 

Registration

Registration was required by the Copyright Act of 1790, 
but very few eligible works were registered from 1790 to 
1800, which enriched the public domain.10 Now registra-
tion 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”). 

Drafting of legislation

By 1901, copyright law had become fairly esoteric and com-
plex, and drafting new copyright legislation had become 
increasingly difficult. Consequently, Congress adopted a 
new strategy: let those whose commercial interests were 
directly affected by copyright law deliberate and negoti-
ate with each other about copyright law changes, and use 
the results of this process as the basis of new legislation.11

Over time, this increasingly became a dialogue among 
representatives of entertainment, high-tech, information, 
and telecommunications companies; other parties, such 
as library associations; and rights-holder groups (e.g., 
ASCAP). Since these parties often had competing interests, 
the negotiations were frequently contentious and lengthy. 
The resulting laws created a kind of crazy quilt of specific 
exceptions for the deals made during these sessions to 
the ever-expanding control over intellectual works that 
copyright reform generally engendered. Since the public 
was not at the table, its highly diverse interests were not 
directly represented, and, since stakeholder industries 
lobby Congress and the public does not, the public’s 
interests were often not well served. (There were some 
efforts by special interest groups to represent the public 
on narrowly focused issues.) 

Frequency of copyright term legislation

With remarkable restraint, Congress, in its first hundred 
years, enacted one copyright bill that extended the copy-
right term and one in its next fifty; however, starting in 1962, 
it passed eleven bills in the next forty years.12 Famously, 
Jack Valenti once proposed that copyright “last forever less 
one day.”13 By continually extending copyright terms in a 
serial fashion, Congress may grant him his wish.

Licenses

In 1790, copyrighted works were sold and owned. Today, 

many digital works are licensed. Licenses usually fall 
under state contract law rather than federal copyright 
law.14 Licensed works are not owned, and the first-sale
doctrine is not in effect.15 While copyright is the legal 
foundation of licenses (i.e., works can be licensed because 
licensors own the copyright to those works), licenses are 
contracts, and contract provisions trump user-favorable
copyright provisions, such as fair use, if the licensor 
chooses to negate them in a license.

Criminal and civil penalties

In 1790 there were civil penalties for copyright infringe-
ment (e.g., statutory fines of “50 cents per sheet found 
in the infringer ’s possession”).16 Now there are criminal 
copyright penalties, including felony violations that can 
result in a maximum of five years of imprisonment and 
fines as high as $250,000 for first-time offenders; civil 
statutory fines that can range as high as $150,000 per 
infringement (if infringement 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 technologies 
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 laws aimed at curtailing 
perceived digital “theft” through criminal penalties. 
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 infringement.18 Under 
the 1998 Digital Millennium Copyright Act (DMCA), 
those who defeat technological mechanisms that control 
access to copyrighted works (a process called “circum-
vention”) face a maximum of five years in prison and 
$500,000 in fines.19

Effect of copyright on average citizens

In 1790, copyright law had little 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 at all. In 2006, 

฀ virtually every type of work imaginable is under 
automatic copyright protection for extended periods 
of time; 

฀ private use of digital works is increasingly visible 
and of concern to copyright holders;

฀ the public domain is endangered; and 
฀ ordinary citizens are being prosecuted as “pirates” 

under draconian statutory and criminal penalties. 



DIGITAL DYSTOPIA | BAILEY  119

Regarding this development, 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 law, which has expanded 

to draw within its control a vast amount of culture and 

creativity that it never reached before. The technology 

that preserved the balance of our history—between uses 

of our culture that were free and uses of our culture that 

were only upon permission—has been undone. The 

consequence is that we are less and less a free culture, 

more and more a permission culture.20

How has copyright changed since the days of the 
founding fathers? As we have seen, there has been a shift 
in copyright law (and social perceptions of it) from

฀ promoting progress to protecting intellectual prop-
erty owners’ “rights”; 

฀ from covering limited types of works to covering 
virtually all types of works; 

฀ from granting only basic reproduction and distribu-
tion rights to granting a much wider range of rights; 

฀ from offering a relatively short duration of protection to 
offering a relatively long (potentially perpetual) one; 

฀ from requiring registration to providing automatic 
copyright;

฀ from drafting laws in Congress to drafting laws in 
work groups of interested parties dominated by com-
mercial representatives; 

฀ from making infrequent extensions of copyright 
duration to making frequent ones; 

฀ from selling works to licensing them; 
฀ from relatively modest civil penalties to severe civil 

and criminal penalties; and 
฀ from ignoring ordinary citizens’ typical use of copy-

righted works to branding them as pirates and prosecut-
ing 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 four 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 2001.”)21

Complicating this situation further is intense consolida-
tion and increased vertical integration in the entertainment, 
information, telecommunications, and other high-tech 
industries involved in the Internet.22 This vertical integra-
tion has implications for what can be published and the free 
flow of information. For example, a company that publishes 
books and magazines, produces films and television pro-
grams, provides Internet access and digital content, and 
provides cable television services (including broadband 
Internet access) has different corporate interests than a 
company that performs a single function. 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 corporate 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 been) wrong, then some of 
the very industries that are demanding that this truth be 
embodied in copyright law have, in the past, been pirates 
themselves, 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 permission—if “if value, then right” is 

true—then the history of the content industry is a his-

tory of piracy. Every important sector of “big media” 

today—film, records, radio, and cable TV—was born of 

a kind of piracy so defined. The consistent story is how 

last generation’s pirates join this generation’s country 

club—until now.24

Let’s take a simple case: cable television. Early cable 
television companies used broadcast television programs 
without compensating copyright owners, who branded 
their actions as piracy and filed lawsuits. After two defeats 
in the Supreme Court, broadcast television companies won 
a victory (of sorts) in Congress, which took nearly thirty 
years to resolve the matter: cable television 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 their infancy) is open to dispute. For the 
moment, let’s assume that it is true. Put more gently, some 
of the most important media companies of modern times 
flourished because of relatively lax copyright control, a 
relatively rich public domain, and, in some cases, a societal 
boon that allowed them to pay statutory license fees—
which are compulsory for copyright owners—instead 
of potentially paying much higher fees set by copyright 
owners or being denied use at all.

Today, the very things that fostered media companies’ 
growth are under attack by them. The success of those 
attacks is diminishing the ability of new digital 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 help 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 for journalis-
tic, teaching, and parodic uses—provided that those uses 
were not judged to be in bad faith by a jury applying the 
‘beyond a reasonable doubt’ standard.”26



120   INFORMATION TECHNOLOGY AND LIBRARIES | SEPTEMBER 2006

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 
governmentally administered reward system” that would 
put in place new taxes and compensate 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 reproduction, distribution, adaptation, and 
performance of audio and video recordings.”27

Lessig recommends that copyright law be guided 
by the following general principles: (1) short copyright 
terms, (2) a simple binary system of protected/not pro-
tected works without complex exceptions, (3) mandatory 
renewal, and (4) a “prospective” orientation that forbids 
retrospective term extensions.28 (Previously, Lessig had 
proposed a seventy-five-year term contingent on five-year
renewals). He suggests reinstating the copyright registra-
tion requirement using a flexible system similar to that 
used for domain name registrations. He favors works 
having copyright marks, and, if they are not present, he 
would permit their free use until copyright owners voice 
their opposition to this use (uses of the work made prior 
to this point would still be permitted). 

Litman wants a copyright law “that is short, simple, 
and fair,” in which we “stop defining copyright in terms of 
reproduction” and recast copyright as “an exclusive right of 
commercial exploitation.”29 Litman would eliminate indus-
try-specific copyright law exceptions, but grant the public 
“a right to engage in copying or other uses incidental to a 
licensed or legally privileged use”; the “right to cite” (even 
infringing works); and “an affirmative 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 two hundred-plus years, and the law 
must change with them. Since the late nineteenth century, 
copyright law has been especially impacted by new tech-
nologies. The question is this: has copyright law struck 
the right balance between encouraging progress through 
granting creators specific rights and fostering a strong 
public domain that also nourishes creative endeavor? If that 
balance has been lost, how can it be restored? Or is society 
simply no longer striving to maintain that balance because 
intellectual works are indeed property, property must be 
protected for commerce to prosper, and the concept of bal-
ance is outmoded and no longer reflects societal values?

฀ DRM: Locked-up content and 

fine-grained control

Noted attorney Michael Godwin defines DRM as “a collec-
tive name for technologies that prevent you from using a 

copyrighted digital work beyond the degree to which the 
copyright owner (or a publisher 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 two key technologies: (1) digital mark-
ing (i.e., digital fingerprints that uniquely identify a work 
based on its characteristics, simple labels that attach rights 
information to content, and watermarks that typically hide 
information that can be used to identify a work), and (2) 
encryption (i.e., scrambled digital content that requires a 
digital key to decipher it).32 Specialized hardware can be 
used to restrict access as well, often in conjunction with 
digital marking and encryption.

The intent of this article is not to provide a technical 
tutorial, but to set forth an overview of the basic DRM 
concept and discuss its implications. What is of interest 
here is not how system A-B-C works in contrast to system 
X-Y-Z, but what DRM allows copyright owners to do and 
the issues related to DRM. 

To do so, let’s use an analogy, understanding that real 
DRM systems can work in other ways as well (e.g., digi-
tal watermarks can be used to track illegal use of images 
on the Internet without those images being otherwise 
protected).

For the moment, let’s imagine that the content a user 
wishes to access is in an unbreakable, encrypted digital 
safe. The user cannot see inside the safe. By entering the 
correct digital combination, certain content becomes visible 
(or audible or both) in the safe. That content can then be 
utilized in 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 restricted regardless of its 
copyright status.

Bill Rosenblatt, Bill Trippe, and Stephen Mooney pro-
vide a very useful conceptual model of DRM rights in their 
landmark DRM book, Digital Rights Management: Business 
and Technology, summarized here.33

There are three types of content rights: (1) render 
rights, (2) transport rights, and (3) derivative-works rights. 
Render rights allow authorized users to view, play, and 
print protected content. Transport rights allow authorized 
users to copy, move, and loan content (the user retains the 
content 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. In the 
first attribute, consideration, access to content is provided 
for something of value to the publisher (e.g., money or 
personal information). Content can then be used to some 
extent (e.g., for a certain amount of time or a certain 
number of times). The rights and attributes users have are 
determined by their user types.



DIGITAL DYSTOPIA | BAILEY  121

For example, an academic user, in consideration of a 
specified license payment by his or her library, can view 
a DRM-protected scholarly article—but not 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 journal in question, and the 
library (or the user) could dynamically purchase additional 
article-specific rights enhancements as needed through 
micropayments.

This example is extreme; however, it illustrates the 
fine-grained, high level 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 DRM-protected information, such 
as access to public-domain works (or other works that 
would allow liberal use), preservation of works by librar-
ies, creation of new derivative works, conduct of histori-
cal research, exercise of fair-use rights, and instructional 
use.34 The ability of blind (or otherwise disabled) users to 
employ assistive technologies may also be prevented by 
DRM technology.35 DRM also raises a variety of privacy 
concerns.36

Fair use is an especially thorny problem. Rosenblatt, 
Trippe, and Mooney state:

Fair use is an “I’ll know it when I see it” proposition, 

meaning that it can’t be proscriptively defined. . . . Just 

as there is no such thing as a “black 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 proscriptively defined can’t 

be represented in a computer system.37

No need to panic about scholarly journals—yet. Your 
scholarly journal publisher or other third-party supplier is 
unlikely to present you with such detailed options tomor-
row. But you may already be licensing other digital content 
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, secure DRM systems can be challeng-
ing, even for large corporations.38 Again, the reasons for 
this are complex. In very simple terms, it boils down to 
this: assuming that the content can be protected up to the 
point it is placed in a DRM system, the DRM system has 
the best chance of working if all possible devices that can 
process its protected content either directly support its 
protection technology, recognize its restrictions and enforce 
them through another means, or refuse access.39 Anything 
less creates “holes” in the protective DRM shell, such as 
the well-known “analog hole” (e.g., when DRM-protected 
digital content is converted to analog form to be played, it 
can then be rerecorded using digital equipment without 
DRM protection).40

Ideally, in other words, every server, network router, 
PC and PC component, operating system, and relevant 
electronic device (e.g., CD player, DVD player, audio-
recording device, and video-recording device) would work 
with the DRM system as outlined previously or would not 
allow access to the content at all.

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

The Trusted Computing Group is an important mul-
tiple-industry security organization, 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 con-

tent owner’s perspective, until it is deployed broadly. 

Putting together cheap TC components with a market-

dominating operating system “enriched” with DRM 

functionality is the most economic way to provide the 

majority of users with “copyright boxes.”43

Seth Schoen argues computer owners should be 
empowered to override certain features of “trusted com-
puting architecture” to address issues with “anti-competi-
tive 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 equip-
ment include special hardware to prevent serial copying.45 

There is currently a bill before Congress that would require 
use of a “broadcast flag” (a digital marker) for digital 
broadcast and satellite radio receivers.46 Last year, a similar 
FCC regulation for broadcast digital television was struck 
down by a federal appeals court; consequently, the current 
bill explicitly empowers the FCC to “enforce ‘prohibi-
tions against unauthorized copying and redistribution.’”47

Another bill would plug the analog-to-digital video analog 
hole by putting “strict legal controls on any video analog to 
digital (A/D) convertors.”48 Whether these bills become law 
or not, efforts to mandate DRM are unlikely to end.

DMCA strongly supports DRM by prohibiting both the 
circumvention of technological mechanisms that control 
access to copyrighted works (with some minor exceptions) 
and the “manufacture of any device, 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) commercially created information was in digital 
form, protected by DRM? What would it be like if all old 
works in print and analog formats were only reissued in 
digital form, protected by DRM? What would it be like if all 
hardware that could process that digital information had to 
support the information’s DRM scheme or block any access 
to it because this was mandated by law? What would it be 



122   INFORMATION TECHNOLOGY AND LIBRARIES | SEPTEMBER 2006

like if all operating systems had direct or indirect built-in
support for DRM? Would “Progress of Science and useful 
Arts” be promoted or squashed?

฀ Weaker Net neutrality

Lessig identifies three important characteristics of the 
Internet that have fostered innovation: (1) edge architec-
ture: software applications run on servers connected to 
the network, rather than on the network itself, ensuring 
that the network itself does not have to be modified for 
new or updated applications to run; (2) no application 
optimization: a relatively simple, but effective, protocol 
is utilized (Internet Protocol) that is indifferent to what 
software applications run on top of it, again insulating 
the network 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 cap-
tures these concerns:

“Net neutrality” is the term used to describe the concept 

of keeping the Internet open to all lawful content, infor-

mation, 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 discriminate against certain Internet users 

or applications in order to give an advantage to their own 

services. While the owners of the local network have a 

legitimate right to manage traffic on their network to pre-

vent congestion, viruses, and so forth, network owners 

should not be able to block or degrade traffic based on 

the identity of the user or the type of application solely 

to favor their interests.51

For some time, there have been fears that Net neutral-
ity was endangered as the Internet became increasingly 
commercialized, a greater percentage of home Internet 
users migrated to broadband connections not regulated 
by common carrier laws, and telecommunications mergers 
(and vertical integration) accelerated. Some of these fears 
are now appearing to be realized, albeit with resistance by 
the Internet community.

For example, AOL has indicated that it will implement 
a two-tier e-mail system for companies, nonprofits, and 
others who send mass mailings: those who pay bypass 
spam filters, those who don’t pay don’t bypass spam 
filters.52 Critics fear that free e-mail services will deterio-
rate under a two-tier system. Facing fierce criticism from 
the DearAOL.com Coalition and many others, AOL has 
relented somewhat 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-oriented
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 watch videos on 

Yahoo!, they’ll all be trying to squeeze into the leftover 

lanes on Verizon’s network. . . . “The Bells have designed 

a broadband system that squeezes out the public Internet 

in favor of services or content they want to provide,” 

says Paul Misener, vice-president for global policy at 

Amazon.com.54

A third example is a comment by William L. Smith, 
BellSouth ‘s chief technology officer, who “told reporters 
and analysts that an Internet service provider such as his 
firm should be able, for example, to charge Yahoo Inc. for 
the opportunity to have its search site load faster than that 
of Google Inc.,” but qualified this assertion by indicat-
ing that “a pay-for-performance marketplace should be 
allowed to develop on top of a baseline service level 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 local 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 taking advantage of their unregulated 

status. Cable operators have barred consumers from 

using their cable modems for virtual private networks 

and home networking 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 neutrality. The canary in the Net neu-
trality mine isn’t dead yet, but it’s getting very nervous.

The bottom line? Noted OA advocate Peter Suber 
analyzes the situation as follows:

But now cable and telecom companies want to discrimi-
nate, charge premium prices 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 con-
nect to the net. They could charge you more if you send 
or receive more than a set number of emails. They could 
block emails containing certain keywords or emails from 
people or organizations they disliked, and block traffic to 
or from competitor web sites. They could make filtered 
service the default and force users to pay extra for the 



DIGITAL DYSTOPIA | BAILEY  123

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 would 
crowd together in what remained, reducing service 
below current levels. New services starting in the slow 
lane wouldn't have a fighting chance against entrenched 
players in the fast lane. Think about eBay in 1995, Google 
in 1999, or Skype in 2002 without the level playing field 
provided by network neutrality. Or think about any OA 
journal or repository today.58

Is Net neutrality a quaint anachronism of the Internet’s 
distant academic/research roots that we would be better 
off without? Would new Internet companies and noncom-
mercial services prosper better if it was gone, spurring on 
new waves of innovation? Would telecommunications 
companies (who may be part of larger conglomerates), free 
to charge for tiered-services, offer us exciting new service 
offerings and better, more reliable service?

฀ Defending the Internet revolution

Sixties icon Bob Dylan’s line in “The Times They Are A-
Changin’”—“Then you better start swimmin’ or you’ll sink 
like a stone”—couldn’t be more apt for those concerned 
with the issues outlined in this paper. Here’s a brief over-
view of some of the strategies being used to defend the 
freewheeling Internet revolution.

1. Darknet: J. D. Lasica says: “For the most part, the 
Darknet is simply the underground Internet. But there are 
many darknets: the millions of users trading files in the 
shady regions of Usenet and Internet Relay Chat; students 
who send songs and TV shows to each other using instant 
messaging services 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 Darknet 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 amend or reverse copyright and 
other laws resulting from the counter-Internet-revolution, 
which have been met by swift, powerful, and generally 
effective opposition from entertainment companies and 
other parties affected by these proposed measures. The 
moral of this story is that these large corporations can 

afford to pay lobbyists, make campaign contributions, 
and otherwise exert significant influence over lawmakers, 
while, by and large, advocates 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. Ashcroft), 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 
other choice may be no service. However, as the OA move-
ment (described later) has demonstrated, a concerted effort 
by highly motivated individuals and nonprofit organiza-
tions can establish viable new alternatives to commercial 
services that can change the rules of the game in some 
cases. Companies can also explore radical new business 
models that may appear paradoxical to pre-Internet-era
thinking, but make perfect sense in the new digital real-
ity. In the long run, the winners of the digital-content
wars may be those who are not 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 information, or it can 
be used as the legal basis of licenses to permit liberal use of 
digital information. By using one of the six major Creative 
Common Licenses (CCL), authors can retain copyright, but 
significantly enrich society’s collective cultural repository 
with works that can be freely shared for noncommercial 
purposes, used, in some cases, for commercial purposes, 
and used to easily build new derivative creative works. 
For example, the Creative Commons Attribution License 
requires that a work is attributed to the author; however, 
a work can be used for any commercial or noncommercial 
purpose without permission, including creating derivative 
works.61 There are a variety of other licenses, such as the 
GNU Free Documentation License, that can be used for 
similar purposes.62

5. OA: Scholars create certain types of information, 
such as journal 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 their fields.63

By putting e-prints (electronic preprints or post-prints)
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 compli-
ance with publisher policies, scholars can provide free 
global access to these works with minimal effort and at 
no (or little) cost to themselves. Further, a new generation 
of free e-journals are being published on the Internet that 
are being funded by a variety of business models, such 
as advertising, author fees, library membership fees, and 
supplemental products. These OA strategies make digital 



124   INFORMATION TECHNOLOGY AND LIBRARIES | SEPTEMBER 2006

scholarly information freely available to users across the 
globe, regardless of their personal affluence or the affluence 
of their affiliated institutions.

฀ Impact on libraries

This paper’s analysis of copyright, DRM, and network 
neutrality trends holds no good news for libraries.

Copyright

The reach of copyright law constantly encompasses new 
types of materials and for an ever-lengthening duration. 
As a result, copyright holders must explicitly place their 
works in the public domain if the public domain is to 
continue to grow.

Needless to say, the public domain is a primary source 
of materials that can be digitized without having to face 
a complex, potentially expensive, and sometimes hope-
less permission clearance process. This process can be 
especially 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: 
five out of seven music companies declined; six out of 
seven movie studios declined, 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 
worth 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 Act, while one million 
patents will pass into the public domain, zero copyrights 
will pass into the public domain by virtue of the expiration 
of a copyright term.”66 (The Sonny Bono Term Extension 
Act was passed in 1998.)

Digital preservation is another area of concern in a 
legal environment where most information is automati-
cally copyrighted, copyright terms are lengthy (or end-
less), and information is increasingly licensed. Simply 
put, a library cannot digitally preserve what it does not 
own unless the work is in the public domain, the work’s 
license permits it, or the work’s copyright owner grants 
permission to do so.

Or can it? After all, the Internet Archive does not ask 
permission ahead of time before preserving the entire 
Internet, although it responds to requests to restrict infor-
mation. And that is why the Internet Archive is currently 
being sued by Healthcare Advocates, which 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 digitally adventurous 
libraries to watch.

As the cost of the hardware and software needed to 
effectively do so continues to drop, faculty, students, and 
other library users will increasingly want to repurpose 
content, digitizing conventional print and media materials, 
remixing digital ones, and/or creating new digital materi-
als from both.

With the “information commons” movement, academic 
libraries are increasingly providing users with the hard-
ware and software tools to repurpose content. Given that 
the wording of the U.S. Copyright Act section 108 (f) (1) is 
vague enough that it could be interpreted to include these 
tools when they are used for information reproduction, is 
the old “copyright disclaimer on the photocopier” solution 
enough in the new digital environment? Or—in light of 
the unprecedented transformational power of these tools 
to create new digital works, and their widespread use both 
within libraries and on campus—do academic libraries 
bear heavier responsibilities regarding copyright compli-
ance, permission-seeking, and education?

Similar issues arise when faculty want to place self-cre-
ated digital works that incorporate copyrighted materials in 
electronic reserves systems or institutional repositories. End-
user contributions to “Library 2.0” systems that incorporate 
copyrighted materials may also raise copyright concerns.

DRM

As libraries realize that they cannot afford dual formats, 
their new journal and index holdings are increasingly 
solely digital. Libraries are also licensing a growing variety 
of “born digital” information. The complexities of dealing 
with license restrictions for these commercial digital prod-
ucts are well understood, but imagine if DRM was layered 
on top of license restrictions. As we have discussed, DRM 
will allow content producers and distributors to slice, dice, 
and monetize access to digital information in ways that 
were previously impossible.

What may be every publisher/vendor’s dream could 
be every library’s nightmare. Aside from a potential surge 
of publisher/vendor-specific access licensing options and 
fees, libraries may also have to contend with publisher/
vendor-specific DRM technical solutions, which may:

฀ depend on particular hardware/software platforms, 
฀ be incompatible with each other, 
฀ decrease computer reliability and security, 
฀ eliminate fair or otherwise legal use of DRM-pro-

tected information, 
฀ raise user privacy issues, 
฀ restrict digital preservation to bitstream preservation 

(if allowed by license), 



DIGITAL DYSTOPIA | BAILEY  125

฀ make it difficult to assess whether to license DRM-
protected materials, 

฀ increase the difficulty of providing unified access to 
information from different   publishers and vendors, 

฀ multiply user support headaches, and 
฀ necessitate increased staffing.

DRM makes solving many of these problems both 
legally and technically impossible. For example, under 
DMCA, libraries have the right to circumvent DRM for a 
work in order to evaluate whether they want to purchase 
it. However, they cannot do so without the software tools 
to crack the work’s DRM protection. But the distribution 
of those tools is illegal under DMCA, and local develop-
ment of such tools is likely to be prohibitively complex 
and expensive.68

Fostering alternatives to restrictive copyright 
and DRM

Given the uphill battle in the courts and legislatures, 
CCLs (or similar licenses) and OA are particularly prom-
ising strategies to deal with copyright and DRM issues. 
Copyright laws do not need to change for these strategies 
to be effective. 

It is not just a question of libraries helping to support 
OA by paying for institutional memberships to OA jour-
nals, building and maintaining institutional repositories, 
supporting OA mandates, encouraging faculty to edit and 
publish OA journals, educating faculty about copyright 
and OA issues, and encouraging them to utilize CCLs (or 
similar licenses). To truly create change, libraries need to 
“walk the talk” and either let the public-domain materials 
they digitize remain in the public domain, or put them 
under CCLs (or similar licenses), and, when they create 
original digital content, put it under CCLs (or similar) 
licenses as well.

As the OA movement has shown, using CCLs does not 
rule out revenue generation (if that is an appropriate goal), 
but it does require facilitating strategies, such as advertis-
ing and offering fee-based add-on products and services.

Net neutrality

There are many unknowns surrounding the issue of Net 
neutrality, but what is clear is that it is under assault. It is 
also clear that Internet services are more likely to require 
more, not less, bandwidth in the future as digital media 
and other high-bandwidth applications become more com-
monplace, complex, and interwoven into a larger number 
of Internet systems.

One would imagine that if a corporation such as Google 
had to pay for a high-speed digital lane, it would want it to 
reach as many consumers as possible. So, it may well be that 
libraries’ Google access would be unaffected or possibly 

improved by a two-tier (or multi-tier) Internet “speed-lane” 
service model. Would the same be true for library-oriented 
publishers and vendors? That may depend on their size and 
relative affluence. If so, the ability of smaller publishers and 
vendors to offer innovative bandwidth-intensive 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 institutional 
repository projects, this may be problematic, especially as 
they increasingly 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 where the chokepoints are, with the 
most serious potential impacts being at chokepoints that 
affect large numbers of users, such as local ISPs that are 
part of large corporations, national/international back-
bone networks, and major Internet information services 
(e.g.,Yahoo!).

It is also important to realize that the problem may be 
partitioned to particular network segments. For example, 
on-campus network users may not experience any speed 
issues associated with the delivery of bandwidth-intensive
information from local library servers because that net-
work segment is under university control. Remote users, 
however, including affiliated home users, may experience 
throttled-down performance beyond what would normally 
be expected due to speed-lane enforcement by backbone 
providers or local ISPs controlled by large corporations. 
Likewise, users at two universities connected by a spe-
cial research network may experience no issues related 
to accessing the other university’s bandwidth-intensive
library applications from on-campus computers because 
the backbone provider is under a contractual obligation to 
deliver specific network performance levels.

Although the example of speed lanes has been used 
in this examination of potential Net neutrality impacts on 
libraries, the problem is more complex than this, because 
network services, such as peer-to-peer networking proto-
cols, can be completely blocked, digital information can be 
blocked or filtered, 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 critical defi-
ciencies and if it is properly employed), or that no one has 
to foot the bill for content creation/marketing/distribution 
and ever-more-bandwidth-hungry Internet applications.



126   INFORMATION TECHNOLOGY AND LIBRARIES | SEPTEMBER 2006

Nor is it to say that the other side of the story, the side 
most likely to be told by spokespersons of the entertain-
ment, information, and telecommunications industries, has 
no validity and does not deserve to be heard. However, 
that side of the story is having no problem being heard, 
especially in the halls of Congress. The side of the story 
presented in this paper is not as widely heard—at least, 
not yet.

Nor does it intend to imply that executives from the 
entertainment, information, telecommunications, and 
other corporate venues lack a social conscience, are fully 
unified in their views, or are unconcerned with the societal 
implications of their positions. However, by focusing on 
short-term issues, they may not fully 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, increas-
ingly 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 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 dis-
semination. These issues may well determine whether 
the much-touted 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.

References and notes

1. Gary Flake, “How I Learned to Stop Worrying and Love 

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Creativity (New York: Penguin, 2005), 130, www.free-culture.cc/ 

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3. Ibid., 131.

4. Ibid., 117–18.

5. William F. Patry, Copyright Law and Practice (Washing-

ton, D.C.: Bureau of National Affairs, 2000), http://digital-law

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6. U.S. Copyright Office, Copyright Basics (Washington, D.C.: 

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7. Ibid.

8. Lessig, Free Culture, 133.

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12. Lessig, Free Culture, 134.

13. Ibid., 326.

14. Association of American Universities, the Association 

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16. Patry, Copyright Law and Practice.

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18. Recording Industry Association of America, “Copyright 

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tors: Creative Strategies and Practical Solutions, 2nd ed. (Chicago: 

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21. Ibid., 51.

22. Lawrence Lessig, The Future of Ideas: The Fate of the Com-

mons in a Connected World (New York: Vintage Bks., 2002), 

165–66, 176.

23. Lessig, Free Culture, 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 Univ. 

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27. William W. Fisher III, Promises to Keep: Technology, Law, and 

the Future of Entertainment (Stanford, Calif.: Stanford Univ. Pr., 

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28. Lessig, Free Culture, 289–93.

29. Litman, Digital Copyright, 179–80.

30. Ibid., 181–84.

31. Michael Godwin, Digital Rights Management: A Guide for 

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copyrightb/digitalrights/DRMfinal.pdf (accessed May 2, 2006).



DIGITAL DYSTOPIA | BAILEY  127

32. Ibid., 10–18.

33. Bill Rosenblatt, Bill Trippe, and Stephen Mooney, Digital

Rights Management: Business and Technology (New York: M&T 

Bks., 2002), 61–64.

34. Godwin, Digital Rights Management: A Guide for Librar-

ians, 2. 

35. David Mann, “Digital Rights Management and People 

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.indicare.org/tiki-print_article.php?articleId=170 (accessed May 

2, 2006).

36. Julie E. Cohen, “DRM and Privacy,” Communications of the 

ACM 46, no. 4 (2003): 46–49.

37. Rosenblatt, Trippe, and Mooney, Digital Rights Manage-

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38. J. Alex Halderman and Edward W. Felten, “Lessons from the 

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

18–36.

40. Wikipedia, “Analog Hole,” http://en.wikipedia.org/

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

18–20.

42. Ibid., 36.

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45. Pamela Samuelson, “DRM {and, or, vs.} the Law,” Com-

munications of the ACM 46, no. 4 (2003): 43–44. 

46. Declan McCullagh, “Congress Raises Broadcast Flag 

for Audio,” CNET News.com, Mar. 2, 2006,  http://news.com

.com/Congress+raises+broadcast+flag+for+audio/2100-1028

_3-6045225.html (accessed May 2, 2006).

47. Ibid.

48. Danny O’Brien, “A Lump of Coal for Consumers: Analog 

Hole Bill Introduced,” EFF DeepLinks, Dec. 16, 2005, www.eff

.org/deeplinks/archives/004261.php (accessed May 2, 2006).

49. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise 

of Intellectual Property and How it Threatens Creativity (New York: 

New York Univ. Pr., 2001), 174–75.

50. Lessig, The Future of Ideas, 36–37.

51. EDUCAUSE, “Net Neutrality,” www.educause.edu/

c o n t e n t . a s p ? PA G E _ I D = 6 4 5 & PA R E N T _ I D = 8 0 7 & b h c p = 1 

(accessed May 2, 2006).

52. Electronic Frontier Foundation, “DearAOL.com Coalition 

Grows from 50 Organizations to 500 In One Week,” Mar. 7, 2006, 

www.eff.org/news/archives/2006_03.php#004461 (accessed 

May 2, 2006).

53. Catherine Yang, “Is Verizon a Network Hog?” Business-

Week, Feb. 13, 2006, 58, www.businessweek.com/technology/

content/feb2006/tc20060202_061809.htm (accessed May 2, 2006).

54. Ibid.

55. Jonathan Krim, “Executive Wants to Charge for Web 

Speed,” Washington Post, Dec. 1, 2005, D05, www.washingtonpost

.com/wp-dyn/content/article/2005/11/30/AR2005113002109

.html (accessed May 2, 2006).

56. Harold Furchtgott-Roth, “AT&T, or Another Telecom 

Takeover,” The New York Sun, Mar. 7, 2006. www.nysun.com/

article/28695 (accessed May 2, 2006). (See also: www.furchtgott

-roth.com/news.php?id=87 (accessed May 2, 2006).

57. John Windhausen Jr., Good Fences Make Bad Broadband: 

Preserving an Open Internet through Net Neutrality (Washington, 

D.C.: Public Knowledge, 2006), www.publicknowledge.org/

content/papers/pk-net-neutrality-whitep-20060206 (accessed 

May 2, 2006).

58. Peter Suber, “Three Gathering Storms That Could Cause 

Collateral Damage for Open Access,” SPARC Open Access News-

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03-02-06.htm#collateral (accessed May 2, 2006).

59. J. D. Lasica, Darknet: Hollywood’s War against the Digital 

Generation (New York: Wiley, 2005), 45.

60. John Borland, “Freenet Keeps File-Trading Flame Burn-

ing,” CNET News.com, Oct. 28, 2002, http://news.com.com/2100

-1023-963459.html (accessed May 2, 2006).

61. Creative Commons, “Attribution 2.5,” http://creative

commons.org/licenses/by/2.5/ (accessed May 2, 2006).

62. Lawrence Liang, “A Guide To Open Content Licenses.”

http://pzwart.wdka.hro.nl/mdr/research/lliang/open

_content_guide (accessed May 2, 2006).

63. Peter Suber, “Open Access Overview: Focusing on Open 

Access to Peer-Reviewed Research Articles and Their Preprints.” 

www.earlham.edu/~peters/fos/overview.htm (accessed May 

2, 2006); Charles W. Bailey Jr., “Open Access and Libraries,” in 

Mark Jacobs, ed., Electronic Resources Librarians: The Human Ele-

ment of the Digital Information Age (Binghamton, N.Y.: Haworth, 

2006), forthcoming, www.digital-scholarship.com/cwb/OA

Libraries.pdf (accessed May 2, 2006).

64. Lasica, Darknet, 72–73.

65. Waxer and Baum, Internet Surf and Turf Revealed, 17.

66. Lessig, Free Culture, 134–35.

67. Joe Mandak, “Internet Archive’s Value, Legality Debated 

in Copyright Suit,” Mercury News, Mar. 31, 2006, www

.mercurynews.com/mld/mercurynews/news/local/states/

california/northern_california/14234638.htm (accessed May 2, 

2006).

68. Arnold P. Lutzker, Primer on the Digital Millennium: What 

the Digital Millennium Copyright Act and the Copyright Term Exten-

sion Act Mean for the Library Community (Washington, D.C.: ALA 

Washington Office, 1999), www.ala.org/ala/washoff/WOis

sues/copyrightb/dmca/dmcaprimer.pdf (accessed May 2, 

2006). The Chamberlain Group Inc. v. Skylink Technologies Inc. deci-

sion offers some hope that authorized users of DRM-protected 

works could legally circumvent DRM for lawful purposes if they 

had the means to do so (see: Crews, Copyright Law for Librarians 

and Educators: Creative Strategies and Practical Solutions, 96–97). 

continued on page 139 



TOWARD A TWENTY-FIRST-CENTURY LIBRARY CATALOG  | ANTELMAN, LYNEMA, AND PACE  139

Copyright © 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.org/licenses/by-nc/2.5/ or send a letter 

to Creative Commons, 543 Howard St., 5th Floor, San Francisco, 

CA, 94105, USA. 

Bailey continued from 127

฀ Known-Item Questions

1. “Your history professor has requested you to start 
your research project by looking up background 
information in a book titled Civilizations of the 
Ancient Near East.”
a. “Please find this title in the library catalog.”
b.  “Where would you go to find this book physically?”

2. “For your literature class, you need to read the 
book titled Gulliver’s Travels written by Jonathan 
Swift. Find the call number for one copy of this 
book.”

3. “You’ve been hearing a lot about the physicist 
Richard Feynman, and you’d like to find out 
whether the library has any of the books that he has 
written.”
a. “What is the title of one of his books?”
b. “Is there a copy of this book you could check out 

from D. H. Hill Library?”
4. “You have the citation for a journal article about 

photosynthesis, light, and plant growth. You can 
read the actual citation for the journal article on 
this sheet of paper.” Alley, H., M. Rieger, and J.M. 
Affolter. “Effects of Developmental Light Level 
on Photosynthesis and Biomass Production in 
Echinacea Laevigata, a Federally Listed Endan-
gered Species.” Natural Areas Journal 25.2 (2005): 
117–22. 
a. “Using the library catalog, can you determine if 

the library owns this journal?”
b. “Do library users have access to the volume that 

actually contains this article (either electronically 
or in print)?”

฀ Topical Questions

5. “Please find the titles of two books that have been 
written about Bill Gates (not books written by Bill 
Gates).”

6. “Your cat is acting like he doesn’t feel well, and you 
are worried about him. Please find two books that 
provide information specifically on cat health or 
caring for cats.”

7. “You have family who are considering a solar 
house. Does the library have any materials about 
building passive solar homes?”

8. “Can you show me how would you find the most 
recently published book about nuclear energy 
policy in the United States?”

9. “Imagine you teach introductory Spanish and you 
want to broaden your students’ horizons by expos-
ing them to poetry in Spanish. Find at least one 
audio recording of a poet reading his or her work 
aloud in Spanish.”

10. “You would like to browse the recent journal litera-
ture in the field of landscape architecture. Does the 
Design Library have any journals about landscape 
architecture?”

Appendix A: NCSU Libraries Catalog Usability Test Tasks