Keeping stuff: How to preserve course papers despite technological change

Digital restrictions management and software patents

Looking ahead to the next few years, I foresee two new threats to the preservation of course papers, both arising from the frantic attempts of corporations to control creative processes and to convert creative work into marketable property.

One of these trends is that proprietary operating systems, and proprietary applications designed to be used under such systems, are increasingly supporting digital restrictions management (DRM) mechanisms that enable the creator of a document to determine who may read a document, who may make a copy of it, who may print it, who may revise it, who may play it (if it is an audio or video file), and who may execute it (if it is a computer program), and under what conditions, and when, and where, and how many times, and for how long. These restrictions will be enforced by your computer's hardware and software.

The copyright laws of the United States currently state that the creator (or, more precisely, the copyright holder) may impose such restrictions from the moment at which the document is created until seventy years after his death, or for ninety-five years altogether if the copyright holder is a corporation. Most other countries confer similar rights.

However, digital restrictions management systems also give copyright holders powers to which the law does not entitle them. Copyright is supposed to balance the interests of authors and readers, in order to “promote the progress of science and useful arts” (as it says in Article I, section 8 of the Constitution of the United States). To effect this balance, copyright law recognizes several limitations and exceptions to copyright, most notably the ``fair use'' rule (which allows readers to quote from a published text, without the copyright holder's permission, in order to comment on it, criticize it, or parody it) and the ``first sale'' rule (which allows the purchaser of a copy of a copyrighted work to resell it, lend it, or give it away without the copyright holder's permission). Digital restrictions management systems are not required to respect these limitations on copyright, and indeed it would be extremely difficult to create a DRM system that accurately balances the legal rights of authors and readers -- especially since many of the key legal questions about fair use are still open, having never been adjudicated precisely.

If DRM becomes commonplace and widely used, I expect that it will be a serious impediment to preserving course papers, since access to documents protected by such a system depends on the continued existence and operability of the software and hardware under which they were created, on remembering or having recorded the passwords that secure them, and so on. Another possible scenario is moving from College A to University B and discovering that documents created on College A's computers cannot be opened or read on University B's computers, because College A claims to hold the copyright of all documents created by its employees and has programmed the DRM software on its computers to enforce this claim.

The second worrisome trend is the increasing use of software patents to restrict the use of particular algorithms or techniques. In the United States, the last quarter-century has seen a degree of abuse of the patent system that is almost unbelievable. Corporations now routinely apply for patents on ideas, algorithms, and even numbers that are obvious, unoriginal, well established in prior art, and not physically implemented, and incompetent patent officials, apparently unaware of the legal requirements of their job, rubber-stamp such applications without making even cursory inquiries.

As a result, many large corporations now have libraries of software patents, which they use as weapons against smaller and less wealthy competitors. It is now practically impossible to develop a software package without giving the appearance of having violated patent rights improperly granted to some megacorporation.

My guess is that restrictive software patents are unlikely to hold up in court, since the patent applications are so poorly grounded as to be silly, but powerful economic interests are backing them and, indeed, are currently trying very hard to propagate the worst features of the U.S. patent system to other parts of the world. It is not impossible that they will prevail.

My recommendation for the next few years, then, is to avoid digital restrictions management (turning it completely off by default on any document-creation software that offers it) and to use only file formats that are not patented -- plain text for computer programs; TeX, XHTML, DocBook, or OpenOffice formats for text documents, the Portable Network Graphics format for static images, Ogg Vorbis for audio files, and so on.