November 29, 2005

Note: DMCA Rulemaking Exemptions Must Be Renewed Every Three Years

I was just talking to Jay Sulzberger (a Linux and Fair Use activist) about the upcoming DMCA Exemptions proceeding, where there's a rulemaking for special exemptions for the Digital Millennium Copyright Act's prohibition against (only) circumvention. He was interested in my thoughts regarding an idea of his, a broader, user-focused, security-based exemption, as illustrated by the issue of the infamous Sony "rootkit". I gave him some advice on drafting a proposal. The conversation then turned to what I planned to do - or not to do! - with the DMCA censorware exemption. I was surprised to learn that he did not realize that any DMCA rulemaking exemptions only last three years, and then have have to be re-argued all over again, from scratch. Per the Notice of inquiry:

There is a presumption that the Sec. 1201 prohibition will apply to any and all classes of works, including previously exempted classes, unless a new showing is made that an exemption is warranted. Final Reg. 2000, at 64558. Exemptions are reviewed de novo and prior exemptions will expire unless sufficient new evidence is presented in each rulemaking that the prohibition has or is likely to have an adverse effect on noninfringing uses. The facts and argument that supported an exemption during any given 3-year period may be insufficient within the context of the marketplace in a different 3-year period. Similarly, proposals that were not found to warrant an exemption in any particular rulemaking could find factual support in the context of another rulemaking.

This part of our conversation was disheartening to me, on many levels (n.b. he gave me his permission to write about it). Jay isn't a lawyer, but he's been an activist for many years, and in fact testified himself in the previous DMCA exemption proceedings. It was disheartening since my deep unhappiness is based on not wanting to go through that grinder all over again, with the prospect of an outcome even worse for me personally this time than last time. Abstractly, this strikes me as a thoroughly reasonable point of view (i.e., give all the stress and flaming I went through once, subjecting myself to it again, probably worse, is an unbearable burden). Now, when I explained to Jay about the expiration, and that I'd have to go through everything I went through before, plus whatever further attacks were heaped on me, he had a much better understanding of why I felt the way I did. But seeing how little this background was commonly understood, and so how likely I was to get even more negative reputation-points because people just didn't grasp the reasons - that was a very gloomy experience.

By Seth Finkelstein | posted in activism | on November 29, 2005 11:59 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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Hey, I already submitted a request for a security exemption and gave the rootkit as an example!

I followed the link from your blog, but I didn't see your guide, so I just followed Copyright Office instructions.

Posted by: Anonymous at November 30, 2005 01:36 PM