I must be on a list of troublemakers that’s being passed around between the alphabet soup of the RIAA, DoD, DoJ, DHS, and the GOP. Add the MPAA to my enemy list, I guess. That’s because I am now officially cited as a source in a complaint to the Copyright Office of the Library of Congress to exempt certain provisions of the DMCA per the request of BlogCritics. (See Blogcritics: Poking Holes in the DMCA.)
The Digital Millenium Copyright Act of 1998 purports to protect artists from having their works ripped off and sold for 75-cents in China. Unfortunately, there’s this tiny little section in it that prohibits a person from circumventing any technological barriers to access or copy the work that the copyright holder chooses to use. That’s where things get ugly. The MPAA is suing on several fronts to stop people not only from using DeCSS but also from just inventing and distributing such software in the first place.
The impact of the Digital Millennium Copyright Act stretches far beyond Linux, the Open Source movement and DVD. All three could disappear from the earth tomorrow, and this set of laws would continue to affect your life.
Congress never meant for copyright law to grant absolute power to anyone. This is in effect what Section 1201(a)(2) does by banning circumvention technologies without any real exceptions, while at the same time separating this ban from any question of copyright infringement. In effect, 17 U.S.C. 106, which defines the exclusive rights of copyright owners, becomes moot – the copyright owner now has the legal power to technologically enforce any “rights” they wish, and it is illegal to bypass the technological measures enforcing those “rights.”
In short, fair use stops being a de facto right and becomes a gift from the copyright owner; in reality, absolute power is given to the copyright owner.
The upcoming court trials will be an important test for the DMCA. If the MPAA wins this case, a court precedent will be set, and that precedent can and will be used to contract consumer rights in all forms of copyrighted digital media. It is precisely that there are seemingly no limits to how far this could go that makes this such an important issue.
Well, anyway, LawMeme and the Electronic Frontier Foundation have been working hard in support of the defendants of the MPAA lawsuits. One of the other things they are doing is presenting to the Copyright Office petitions as to the DMCA harms and CSS as an access control device. As Seth Finkelstein (one of the few that has succeeded in this quest) writes in his How to Win Exemptions and Influence Policy:
One of the few parts of the DMCA which even attempts to moderate its far-reaching restrictions is a provision which directs the Copyright Office of the Library of Congress to make an inquiry regarding adverse effects of one of the DMCA’s prohibition on circumvention. If adverse effects are established, this office then has the power to “exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works.”
These Library of Congress DMCA proceeding are to be done every three years. The last round took place in 2000. The upcoming round is the next one, for results in 2003. The schedule is that “Written comments are due by December 18, 2002”, and in response to those comments “Reply comments are due by February 19, 2003.” These comments are intended to be evaluated in hearings “in the spring of 2003”, and depending on the results, there may then be a request for more comments.
But these things must be done delicately… “No ranting from any Libertarian Book-Of-Rand. No repetitions of ‘I own it and I can do whatever I want with it,'” as Finkelstein says. The rulemakers just want to know what ya wanna do, why ya can’t do it, and that what yer trying to do is legal.
So, BlogCritics decided to seek an exemption on the grounds that its readers are missing out on complete reviews of DVD media, since its reviewers are not allowed to use clips and other materials found only on the DVD. Several contributors (including yours truly*) submitted opinions that the inability to utilize these special features has indeed hampered the value of their criticisms. The exemption request was wonderfully done by LawMeme’s Ernest Miller, and it has been forwarded to the Librarian of Congress. Now, we wait until February for a first response. It’s good to be a troublemaker.
*OK, so mine was pretty lame. I didn’t realize I was going to be so deeply involved. Sue me. Oh, wait, that’s coming soon, isn’t it?