So why don't librarians just defeat DRM, as it is often possible to do, and jailbreak Kindles and iPads to collect these materials? Because it's illegal, of course. And if these chronically under-funded institutions want to keep their funding, they need to stay above the board.
DMCA Makes Piracy Culturally Important
To complicate things, there is a way to legally circumvent the anti-circumvention part of the DMCA. Every three years, the Librarian of Congress may review and implement temporary exemptions to the anti-circumvention provision based on suggestions from the public.
Cultural institutions have taken advantage of this the best they can, but it's been a frustrating exercise in endless legal petitioning and campaigning every three years when the exemptions come up for review. At present, the current slate of DMCA exemptions don't cover nearly enough, and law-abiding archivists are forced to sit on their hands while digital cultural works come and go, missing opportunities to legitimately archive them for future study.
In the course of my reporting on similar issues, I've recently spoken to a number of cultural historians and archivists, and they universally take issue with section 1201 of the DMCA, citing it as a major barrier to their work.
"DMCA is a mess," says Henry Lowood, Curator for History of Science & Technology Collections at Stanford University Libraries. "It's basically putting cultural repositories in positions where they either have to interpret very murky scenarios or they have to decide that they are going to do something that they realize is forbidden and hope that nobody's going to notice."
Lowood says that Stanford stays on the murky (but legal) side of things, so unless the law changes, his university and others will be forced to rely on the work of amateurs who break the law to free cultural works from DRM, collecting them in underground archives that will some day become available to scholars.
Thanks to the DMCA, the future of our cultural history will be based on the work of people who ignored the law -- the same people that many copyright holders would call "pirates." How ironic that the pirates will be the ones that save the day when they're supposed to be the bad guys. If librarians wanted to do the same thing, they'd be branded as criminals.
Repeal Section 1201 of the DMCA
Digitally distributed cultural works are here to stay, and it is very possible that such works will subsume every information-based cultural format over the next decade. Some books are now only published as e-books, and even TV shows are beginning to show up only on the Internet, such as Netflix's House of Cards series.
So we're looking at a future where 100% of all major cultural commercial works could be protected with DRM, taking 100% of those works out of the flow of cultural history until they become public domain, at which point they will likely already be lost due to technological obsolescence and media decay. (Interestingly, this will tilt our future understanding of the history of this period toward those works that never relied on DRM for copy protection.)