It is, by now, a banality to say that the advent of digital technology is revolutionizing how educators use textbooks, periodicals, course modules and other educational materials to reach students in the classroom and on-line. It is also obvious that digital technology raises a new set of challenges, legal and otherwise, in balancing the interests of publishers and others who own the materials with the interests of those who use them. The recent negotiations on Capitol Hill on the TEACH Act, a bill to bring the so-called distance education provisions of the copyright law into the 21st Century, is reason to be encouraged that stakeholders can work together to find common ground. A compromise appears to have been reached, and if enacted into law, the TEACH Act will enable instructors and students to use copyrighted works in on-line courses while providing safeguards against unauthorized duplication and transmission of copyrighted materials.

Despite the advances on the legislative front, an issue yet to be resolved is how technological measures - "digital asset management" technology - will fit into the mix. The technology in theory would allow content owners to specify in computer code a user's authority to view, print, play or modify works in digital format and to track their usage automatically. As many critics have pointed out, it is possible that technological measures could be programmed to prohibit uses of a digital work that would otherwise be allowed under the copyright law. Unlike the more traditional license arrangement in which the user would have at least an opportunity to make a case to an arbitrator or to a court to defend his or her use of the product, it is unclear what recourse a consumer has if a technological measure automatically disables a legal use of the product.

Most of the action so far has been in the music industry in the wake of Napster and other software that enable widespread copying and distribution of copyrighted music. The music industry's Secure Digital Music Initiative (SDMI), which aims to "build standards to protect the playing, storing and distributing of digital music," is being closely watched to see if the technology works and what the reaction from consumers will be if it does.

Technological measures are being used increasingly in educational media as well. For example, a student who purchases a "digital textbook" from: WizeUp http://www.WizeUp.com may only use the book on a single computer because the Enigma: http://www.Enigma.com technology protecting it is programmed to find the serial number of the purchaser's CPU and to restrict usage to that piece of hardware. Technology from Enigma and other firms with comparable products is capable of building access controls into digital information based on time or the identity of the user.

It is probably too soon to tell whether such technology will gain a foothold in the market, especially in on-line learning. It may yet turn out that consumers will not buy products that have too many built-in restrictions, similar to what happened to copy-protected software programs in the 1980s. Hackers may prove too adept at cracking the code that secures copyrighted works to allow digital asset management technology to work on a broad scale, although current law has harsh penalties for such "circumvention" activities. There also still remains quite a bit of research to do on the pricing models, standards and infrastructure that will allow widespread use of digital asset management technology.

But it is certainly appropriate and prudent for consumers of digital works to be aware that the technology exists and that it may be employed in ways that unduly restrict their ability to use the works. One problem is that, unlike the more traditional licensing model in which the user is made aware of the applicable terms before using the product, technological measures can be much less apparent to the user. The fine print of a license agreement might notify the user that technological measures protect the work, but it might not. Someone who tries to send an article via e-mail to a friend might not know that he can't until the technological measures kick in and prohibit the transaction. It is this "self-enforcing" potential of the technology that raises the most concern for libraries, educators and other users of digital works.

In fairness, it appears to be the purveyors of digital asset management technology, rather than publishers and other "content owners" who might use them, who have been the more aggressive so far in promoting the power of the technology and encouraging its widespread use. It may turn out that content owners and users can work together to determine whether, for instance, the law should require that some default level of fair use should be built into the technology that protects digital works. Or whether there should be some limitation on technology applied to works used for educational purposes. There is also the opportunity for users to make their case to the Library of Congress that consumers should be allowed to circumvent technological measures applied to certain categories of digital works under the Digital Millennium Copyright Act. In any case, it is particularly important that educators have a seat at the table as the technology evolves and the discussion regarding its use ensues.