April 24, 2014

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DMCA Exemptions Granted, Problems Remain

The U.S. Copyright Office has issued its report, creating exemptions to the DMCA’s anti-circumvention provisions for the next three years. The exemptions allow people to circumvent access control technologies under certain closely constrained conditions. The exemption rulemaking, which happens every three years, was created by Congress as a kind of safety valve, intended to keep the DMCA from stifling fair use too severely.

This time around, exemptions were granted for (1) access to the “block-lists” of censorware products, and (2) works protected by various types of broken or obsolete access control mechanisms.

My own exemption request, asking for exemptions for information security researchers, was denied as expected.

It is abundantly clear by now that the DMCA has had a chilling effect on legitimate research related to access control technologies. When researchers ask Washington for a solution to this problem, they have so far gotten a Catch-22 answer. When we ask Congress do to something, we are told to seek an exemption in the Copyright Office rulemaking. But when we petitioned the Copyright Office for an exemption in the 2000 rulemaking, we were told that the Copyright Office did not have the power to grant the kind of exemption we had requested.

So this time, I wrote an exemption request that was designed to end the Catch-22 – to entice the Copyright Office to either (a) grant an exemption for researchers, or (b) state flatly that Congress had not given it the power to grant any kind of useful research exemption. As I read the Copyright Office’s findings (see pages 14-15 of the short version, or pages 86-89 of the extended dance version; they designate my request as number 3), they have essentially said (b) – exemptions of the type I requested “cannot be considered.”

Comments

  1. Seaan says:

    Reading the “long version” is enough to really get my blood boiling. It is kind of like watching people living in a fantasy land. They use the slightest possible chance of something being able to happen as an excuse to do nothing. On the opposite side, any negative effects brought to their attention will only be considered if there is immense proof of immediate harm.

    On the bright side, it appears that the Copyright office has endorsed the position that people can create their own DVD player — won’t the CSS and DVD consortium just love that! I guess all those crack-downs on region-less players don’t have any legal backing, at least in the USA .

    In several spots they have clearly stated that it is a non-infringing activity to bypass controls on region-coding and fast-forwarding. Of course since their is no DVD player that actually does the fast forwarding bypass (that I know of), and the DVD association actively tries to prevent DVD players that ignore the region encoding; how is a consumer supposed to get this magical DVD player except by creating one themselves?

    How typical of this report to ignore actual evidence of harm (for example: my harm is not great, but I’ve lost about $150 on VHS and DVD that were destroyed because they could not be backed up), while using the excuse that people in theory could possibly modify the DVD players themselves as an excuse to do nothing about the problem! Of course ignoring the other legal obstacles that would prevent or greatly hinder those types of features being offered in a DVD player.

    I also note that they continue to endorse both the concept that fair-use does not have to be easy, while ignoring the continual attempts to pass laws that would make fair-use even harder (Broadcast Flag, Fitz-Chip, etc.). What hypocrites!

  2. Tim Hare says:

    In your opinion, do the restrictions now allow us to make copies of “obsolete” computer software such as 6502-based (Apple, Atari) programs in order to reverse engineer the software or to use it with an emulator? The gaming crowd will be happy, but this might also allow researchers access to some otherwise unreadable data (of course, finding something capable of reading the media is another issue).

  3. Tom Poe says:

    Just want to alert you to a related effort on the international level. Control of information is important, and academic researchers need to understand that personal freedoms need to be set aside in the interest of the “Big Picture”. You can contact James Love for pointers to his full message, or check the cni-copyright archives.

    Academic researchers are really getting the shaft, first from the universities looking over their shoulders with the censor stamp in hand, and then the copyright office representing the U.S. government, then Bruce Lehman and Gang, at the WIPO. What’s with this total disregard for personal freedoms, anyway?

    Forwarded Message

    > From: James Love
    > To: CNI-COPYRIGHT — Copyright & Intellectual Property
    > Subject: [CNI-(C)] Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and Webcasters
    > Date: 29 Oct 2003 13:10:29 -0500
    >
    > Note on the Proposed WIPO Treaty for Broadcasters, Cablecasters and
    > Webcasters
    > James Love, CPTech*
    > October 29, 2003
    >
    > From November 3 to 5, the World Intellectual Property Organization
    > (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will
    > meet in Geneva to decide how to proceed on proposals for a new global
    > intellectual property treaty. The proposed treaty concerns a system of
    > ownership for material transmitted over wireless means such as
    > television, radio and satellite, as well as wired communications over
    > cable networks, and also over Internet computer networks.
    >
    > This proposal expands or gives new rights to transmitters of
    > information, even if they are not the creators of that information.
    > Rights that are normally reserved to creators and performers would be
    > afforded to organizations that merely transmit creations and
    > performances — even if those works are in the public domain, even if
    > those works’ authors wish to have the works distributed without restriction.