October 28, 2003

DMCA censorware exemption win!

[How sweet it is ...!]


The Register's recommendation in favor of this exemption is based primarily on the evidence introduced in the comments and testimony by one person, Seth Finkelstein, a non-lawyer participating on his own behalf. In addition to identifying a class of works that related to the specific facts presented, he identified the qualitative nature of the noninfringing uses for which circumvention was necessary and generally identified the technological measure which controlled access to this class. There was no dispute that the lists of Internet locations blocked by filtering software are generally encrypted or otherwise protected by an access control measure. The remedy sought was causally related to the noninfringing uses that are necessary to conduct research, comment and criticism on the filtering software at issue. Mr. Finkelstein also anticipated objections to the exemption and proved that available alternatives to the exemption were insufficient to remedy the adverse effect caused by the prohibition. The insufficiency of alternatives was supported by testimony and demonstrative evidence at the hearing in California by James Tyre. Finally, Mr. Finkelstein's succinct initial comment addressed the statutory requirements and thoughtfully analyzed each of the statutory factors required to be considered in this rulemaking.

The case made by Mr. Finkelstein for this exemption is also instructive for the manner in which it met the requisite showing. The evidence produced did not prove that a substantial number of people have utilized or were likely to utilize an exemption. On the contrary, the evidence tended to prove that very few people have had the motivation or technological ability to circumvent this technological measure, to investigate the lists of blocked sites in filtering software or to report on, comment on or criticize such lists. Although there was little need for an exemption in quantitative terms (i.e., in terms of the number of persons likely to take advantage of it directly), it was the qualitative need for an exemption that was controlling in this case; absent the ability of a few to carry out their noninfringing efforts notwithstanding the prohibition set forth in section 1201, the many would not reap the fruits of such efforts the information, analysis, criticism and comment enabled by the quantitatively small number of acts of circumvention. The fact that the act of circumvention was unlikely to be widespread rebutted copyright owners' concerns of abuse and further supported the conclusion that the potential adverse effects to copyright owners would be minimal. The showing that the particular noninfringing use prevented was a result of the prohibition on circumvention and that these uses were necessary to criticism, comment, news reporting, teaching, scholarship, or research, further strengthened the argument.

By Seth Finkelstein | posted in activism , censorware , dmca | on October 28, 2003 04:30 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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[BTW & FWIW, I did read your previous post, but had nothing to contribute but sympathies and emotional support. Have you tried going to library organizations for funding? They have a stake in the filtering debate and the larger organizations might have some funding you could apply for...]

Posted by: Lis at October 28, 2003 05:15 PM


Posted by: Donna Wentworth at October 28, 2003 05:25 PM

Congratulations! A well deserved victory!

Posted by: Geodog at October 29, 2003 01:57 PM

Congratulations! And on behalf of everyone who wants an open society, thanks!

Posted by: Jonathan at October 29, 2003 03:51 PM

Congratulations Seth!

Not wanting to spoil the party, but are you disappointed that the exemption was so specific? There are many examples, in addition to censorware, where the DMCA can be misapplied. It is a shame that they didn't generalise your arguments beyond the specific example you were talking about.

Posted by: Ian Clarke at November 27, 2003 04:58 AM