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of copying, extracting some of the data, or transferring some of the data to a different document or to a different device, such as another computer or a personal digital assistant.

Second, DRM technologies can be used to effectuate “click-wrap” contractual restrictions. It is possible to use a combination of direct functionality restrictions and click-wrap contract restrictions to produce a fairly broad range of regulation of the behavior of database users. Click-wrap restrictions might be used to implement a pay-per-use scheme that allows metered access, and possibly some copying, for a fractional fee. Alternatively, they might be used to impose narrower restrictions, such as a prohibition against disclosure of the data to the public, or against use of the data for a commercial purpose, or against use of the data to reverse engineer a computer program. One recent case brought by the New York State attorney general involved a click-wrap contract restriction prohibiting the publication of a critical review of a software package. 2

Finally, DRM technologies can be designed to effectuate what I will call self-help, such as disabling access to the database or to some portion of the database if the system detects an attempt to engage in some sort of impermissible action, or detects unauthorized files residing on the user's computer. For example, if a copyright holder can detect unauthorized MP3 files somewhere on an individual's system, it might use that fact to disable access to a lawful subscription service. A lot of myth and legend surround the potential capabilities of self-help technologies, and I have not heard anything (yet) to suggest that these capabilities are being implemented in the scientific database realm, but certainly they are the subject of experimentation elsewhere in the market for DRM.

IMPLICATIONS OF DRM TECHNOLOGIES FOR SCIENTIFIC RESEARCH

What are some implications of these technologies for access to and use of public-domain information? First of all, direct functionality restrictions will have some obvious implications for access to and use of unprotected, uncopyrightable information. Authentication restrictions can inhibit initial access to the information, allowing access based on the user's device or domain or on possession of a valid subscriber identification. In cases involving collaborative research, this can generate added transaction costs because researchers will have to make sure that everyone with whom they want to collaborate is coming from an authorized device, domain, or subscriber identification. If the DRM restrictions prevent excerpting or extraction of the data, this will hinder research efforts that require extraction and manipulation. If the DRM software or hardware is designed to require proprietary file formats for any data that are extracted, these restrictions may cause other kinds of problems. Papers intended for publication may be subject to limits imposed by the demands of the DRM system. Direct functionality restrictions also raise the risk of loss of access to data, either because a subscription has expired or because the system has invoked self-help functionality to disable itself. Loss of access in turn raises the possibility of damage to other files or programs that may reside on the researcher's system.

Pay-per-use provisions and other click-wrap restrictions also have some important long-term implications for research. First, the pricing of some of these subscriptions can represent a significant cost. In addition, the use of click-wraps to restrict subsequent use and disclosure raises concerns about secrecy and freedom to publish.

It is worth separately highlighting some of the potential effects of DRM technologies on libraries. Libraries will have the headache of managing all of the authentication restrictions. They also will need to worry about loss of access to back issues of journals and databases when subscriptions expire. That is not how their print and microfiche collections have worked, and it is a fairly significant concern for obvious reasons. Libraries also need to be concerned about loss of control over the formats for archival storage, search, and retrieval of data. Search tools have to be able to interact with the file structure of the databases they are designed to search. If the file structures are proprietary for reasons related to the imposition of DRM, then a search engine capable of interacting with that proprietary wrapper may also be considered a proprietary tool. This in turn raises questions about who will be permitted to develop those tools, and what restrictions will be placed on their use. All of these issues are critical to libraries' mission of facilitating access to information by their user communities.


2People v. Network Associates, Inc., No. 400590 (N.Y. Sup. Ct. Jan. 14, 2003).



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