December 19, 2005

DMCA 1201 Anti-circumvention rulemaking COMMENTS POSTED

[Scoop? Scoop? Not a news echo! You heard it here first!]

The U.S. Copyright Office - Anticircumvention Rulemaking (for the Digital Millennium Copyright Act) has now posted the Comments on Anticircumvention Exemptions:

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works

The Copyright Office received 74 comments in response to its notice of inquiry in this rulemaking. A significant number of these comments do not adhere to the requirements of the Office's Notice of Inquiry. For example, a number of commenters have failed to propose a "class of works," have proposed broad classes without factual support for such a class, have not identified a causal connection between a noninfringing use and the prohibition on circumvention, or have not identified an access control that would implicate the prohibition of circumvention. While the value of such comments to this statutory inquiry is questionable, the Copyright Office has decided to post these comments.

It should be noted, however, that the reply comment period is an opportunity to be responsive to the initial proposals, and the Office will only consider reply comments that provide additional facts and/or arguments in further support of or in opposition to genuine proposals for exemptions contained in the comments that appear below. The only mechanism for raising new proposed exemptions at this time is the discretionary petition process discussed in the last paragraph of the Notice of Inquiry.

Sigh ...

By Seth Finkelstein | posted in dmca | on December 19, 2005 05:31 PM | (Infothought permalink) | Comments (2)
December 11, 2005

Reminder: "Life Trumps Blogging"


Life trumps blogging. At least it does for most sane, balanced people.

-- Walt Crawford

While this blog is not quite dead (yet?):

Family trumps blogging. Health trumps blogging. Work trumps blogging (unless blogging is your life or work, ...).
As a tool, blogging isn't something "everyone" needs to do, and it isn't something that you need to keep doing even when it no longer meets your needs.

I gained a few readers from the DMCA events recently, many of whom promptly left again (sorry folks). If work and health permit, there are still a few essays I want to write and post. But life/health/work have to trump blogging.

By Seth Finkelstein | posted in cyberblather | on December 11, 2005 11:56 PM | (Infothought permalink) | Comments (5)
December 04, 2005

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.

By Seth Finkelstein | posted in dmca | on December 04, 2005 11:54 PM | (Infothought permalink)