[IP] EFF says DMCA Rulemaking Process Is Broken, Write Congress
Begin forwarded message:
From: Seth Finkelstein <sethf@xxxxxxxxx>
Date: November 30, 2005 9:23:20 PM EST
To: David Farber <dave@xxxxxxxxxx>, Ip Ip <ip@xxxxxxxxxxxxxx>
Subject: EFF says DMCA Rulemaking Process Is Broken, Write Congress
[For IP - And as one of the few people who has *successfully* gone
through the DMCA rulemaking process, I thoroughly agree with EFF's
sentiments.]
http://www.eff.org/deeplinks/archives/004212.php
Report: http://www.eff.org/IP/DMCA/copyrightoffice/
DMCA_rulemaking_broken.pdf
Congress: http://action.eff.org/site/Advocacy?id=115
DMCA Triennial Rulemaking: Failing Consumers Completely
November 30, 2005
December 1 is the last day to submit proposals (by 5pm EST) to the
Copyright Office seeking a 3-year DMCA exemption for noninfringing
activities that are otherwise squelched by "digital rights
management" (DRM) restrictions.
As we mentioned back in October, Congress has instructed the U.S.
Copyright Office to consider every three years whether we need
temporary exemptions to the DMCA's blanket ban on circumventing
"technological protection measures" (aka DRM) used to lock up
copyrighted works.
EFF has participated in each of the two prior rulemakings (in 2000
and 2003), each time asking the Copyright Office to create
exemptions for perfectly lawful consumer uses for digital media that
are encumbered by DRM restrictions. For example, we asked that DVD
owners be allowed to skip those "unskippable" ads at the beginning
of DVDs. We asked that people who bought copy-protected CDs be
allowed to get them to play on their computer. We asked that
consumers be allowed to bypass region coding to play a DVD purchased
in another part of the world. The Copyright Office rejected all of
these proposals.
This year, we are not submitting any proposals. Where consumer
interests are concerned, the rulemaking process is simply too
broken. For example:
* No Tools. You can get an exemption for acts of circumvention,
but the Copyright Office lacks the power to legalize
circumvention tools. So, unless you are an engineer, a computer
scientists, or can afford to hire them, you're not likely to be
able to take advantage of any exemptions granted.
* Impenetrable Complexity, Impossible Burdens. In order to
effectively participate in the rulemaking, you need to wade
through >200 pages of bureaucratic legalese and have graduate
level understanding of copyright law. You have to persuade the
Copyright Office that your activity is noninfringing and gather
evidence that demonstrates a "substantially adverse effect" on
noninfringing uses beyond mere inconveniences or individual
cases."
* "Mere Inconvenience" = Ignoring Consumers. Where consumers are
concerned, the Copyright Office discounts their concerns as
"mere inconveniences." So region coding is no problem, according
to the Copyright Office, because you could just buy a separate
DVD player from every region. Copy-protected CDs are no problem
because you can play them on CD players, even if they won't work
in your computer. Where the copyright industries are concerned,
in contrast, the Copyright Office presumes that DRM is the only
thing that stands between them and financial ruin.
We have assembled a short report documenting why we believe the
process is so broken that we have decided not to propose any
exemptions this time. (We may support narrower, non-consumer
proposals made by others during the reply period, which closes on
Feb. 2, 2006.)
If you want to see meaningful DMCA reforms intended to protect the
kinds of fair uses that consumers care about, it will have to come
from Congress. Fortunately, the DMCRA, H.R. 1201, is pending before
Congress right now and would go a long way toward fixing the
DMCA/DRM mess (although not all the way, as it fails to address the
ban on circumvention tools). Be sure to write your member of
Congress urging her to cosponsor it!
Posted by Fred von Lohmann at 06:33 AM | Permalink | Technorati
--
Seth Finkelstein Consulting Programmer http://sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php
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