DMCA Exemption Non-Participation

First, one note: Someone said it wasn't clear if I had in fact not made a DMCA exemption proposal. The die is cast, the deadline passed, I did not submit anything. It breaks my heart, but it also means I won't be (as much of) a target as a point-man, and on the balance, that seems to be the right decision.

On the topic of participation, Ed Felten wrote:

Many people decided not to submit exemption requests in this round, because of the way previous rounds have been handled. For example, the EFF argues that the process is so strongly tilted against exemptions, and the Copyright Office tries so hard to find excuses not to grant exemptions, that there is no point in asking for one. Even Seth Finkelstein, the only person who has had any real record of success in the process, decided to sit out this round. I submitted requests for research-related exemptions in 2000 and 2003; and having seen how those requests were handled, I sympathize with the skeptics' position.

Nevertheless, I think it's worth asking for this exemption, if only to see whether the Copyright Office will acknowledge that copy protection technologies that install spyware or otherwise endanger the security or privacy of citizens are harmful. Is that too much to ask?

Way down in the post's comments, Fred von Lohmann (EFF attorney) explained:

Just a brief clarification: EFF's view is that the DMCA exemption process is broken for the kinds of exemptions consumers are interested in (exemptions needed for lawful uses of CDs and DVDs). With respect to consumer-related uses, the various presumptions erected by the Register of Copyrights makes an exemption effectively impossible to get.

We continue to believe that the process could prove useful for exemptions aimed at non-consumer users (like Ed and Alex). We'll have to wait and see what the Register recommends. I will note, however, that Ed asked in 2003 for a very similar exemption for studying CD copy protection, only to have it rejected for formalistic reasons.

My view concurs with EFF's view, but I approach it from my own unique perspective. There's an unreasonable burden one needs to surmount. Recall this sentence from EFF's report: "Meeting these onerous requirements generally requires the assistance of specialized copyright attorneys, technical experts, researchers, and industry analysts.".

Now, if you are a technical expert, AND have the assistance of specialized copyright attorneys ("We'd like to thank Aaron Perzanowski and Deirdre Mulligan of the Samuelson Clinic at UC Berkeley, whose great work made this possible."), with the reputational protection of a position at a prestigious university, as well as an extensively-read platform for positive publicity, *plus* a substantial fan-base of support - well, GO FOR IT!

Unfortunately, these advantages aren't common.

And more deeply, any process that depends on finding people with such a combination of qualities, as a prerequisite for preserving fair-use rights, simply sets the bar too high. It doesn't do what needs to be done. This is all part of the overall battle of the shifts in the right of fair-use vs the extent of the limited monopoly granted to copyright owners.

That all being said, I'm by no means calling for a boycott of the process (indeed, I was just nominally being supportive of other exemption attempts). And though I hardly speak for EFF, it's safe to say they aren't trying for a boycott either. I've tried to help people where I could, to understand the process and increase their chance of success. But on the other hand, I think there's value in describing the adverse conditions which make a mockery of the idea of a "safety valve" for user's rights.

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)