November 19, 2002

DMCA Rulemaking - GroundHog Day

Today is the DMCA Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works day, which is the day we can start to apply for DMCA exemptions.

This is akin to a cross between Groundhog Day (the movie), and a leap year. That is, this day comes around every three years, but we have to go through everything we went through three years ago in terms of DMCA exemptions. I mean this part of the procedure (emphasis added):

There is a presumption that the prohibition will apply to any and all classes of works, including those as to which an exemption of applicability was previously in effect, unless a new showing is made that an exemption is warranted. ... Exemptions are reviewed de novo and prior exemptions will expire unless the case is made in the rulemaking proceeding that the prohibition has or will more likely than not have an adverse effect on noninfringing uses. A prior argument that resulted in an exemption may be less persuasive within the context of the marketplace in the next 3-year period.

But here if the Library of Congress doesn't see a shadow ("cannot be based on speculation alone"), we get more winter (as in chilling effects).