Professional Development

Opening Plenary Session, Day 2

Nathan D.M. Robertson, University of Maryland School of Law

Kristin Eschenfelder, University of Wisconsin, Assoc. Professor School of Library and Information Studies

Robertson provided a basic overview of Copyright and Contract Law and how they apply to intellectual property licensing discussions.

One of the most interesting parts of this discussion was the initiative described at www.editeur.org

The organization is a collection of people working on developing standards for “electronic commerce in the books and serials communities.” In particular, they are looking at standards for encoding license interpretations into ERMs. This should facilitate the negotiation process and allow consortial partners to share interpretations and coding. This won’t solve a lot of the current ambiguities; however, it will smooth the process somewhat.

Eschenfelder then spoke about her work which studies the negotiation process between librarians and their “supplier partners.” In particular, she spoke about Digital Rights Management which is yet another layer of complexity on top of licenses. Her Motivating Question: Will digital scholarly licensed resources come to be protected by DRM in a manner similar to popular consumer media? What’s going on with DRM in the scholarly resource market?

She argues that DRM should be replaced by narrower term, technological protection measure. TPM is a narrower term referring to technological tools employed to control access to or use of a digital resource. Furthermore, she proposes a refinement of librarians’ usage of various terms. Our current conceptualizations of TPM are too narrow; we should talk about Hard TPM and Soft TPM:

• Hard TPM: tools that strictly control or disallow certain uses.
• Soft TMP: tools that discourage certain uses. Use may be achieved trough workarounds that may be non-obvious or inconvenient.

Examples of Hard TPM:

Secure container system that encrypts content and requires an external software device to decrypt and serve the content to the user. Patron may or may not be able to save content to a local location. E.G., ARTstor and SAEInternational both require secure container devices. On the good side, ARTstor allows you to save the whole container to desktop; on the more troubling side, SAEInternational—allows you to print, but you can’t store to the desktop.

Basic examples of Soft TPM:

• NetLibrary. Content is chunked—very inconvenient.

Eschenfelder’s basic point: SOFT TPM is changing the way we should think about our rights.

She identifies six types of soft TPM:

1. Extent of use TPM.Blocks excessive or suspicious extent of useBatch sizes limits are in place (e.g., EBBO and ECHO which limit how much users can view from the results of their search).
2. TPM by obfuscation. Interface does not adequately advertise use functionality (e.g., users have to put something in your “box” before you can print them out).
3. TPM by omission. Users have to use browser or operating tools for functionality (e.g., HTML version of NetLibraries where you can’t right click to get a copy toolbar).
4. TMP by decomposition. Putting things into HTML which limits usability for patrons, especially printing and emailing.
5. TPM by frustration. Content is broken up into chunks. Or sometimes, having to download the “whole” can be just as bad.
6. TPM by threat. Declaration of end-use or popups that discourage uses. (e.g., Science Direct pop-ups which seem to threaten students with expulsion if they misuse the downloads).The question remains: are soft TPM really intentional? Or are they just bad design?

   Eschenfelder’s point is that we need to be vigilant about documenting these limitations and develop vocabulary to describe the problems so that we can then determine if it’s intentional or not.