Winning (DMCA) Exemptions, The Next Round

by Seth Finkelstein (EFF 2001 Pioneer Award winner for censorware decryption) [updated for 2006]

Be liberal in what you accept, and conservative in what you send

Jon Postel, RFC-1122

How To Win (DMCA) Exemptions And Influence Policy - The Sequel

The guide How To Win (DMCA) Exemptions And Influence Policy covered the basic background of the Digital Millennium Copyright Act (DMCA), and the process by which an ordinary person could hope to influence government policy by asking for an exemption to one of its prohibitions against "circumvention" (1201(a)(1)). It explains the underlying issues, and should be read as background. This is a supplement guide, concerned with the next round of that policy process.

Again, the key documents involved in this DMCA rulemaking are as follows:

Second chances (and more)

Government rulemaking moves slowly. The initial comments about DMCA exemptions were just the first round of the process, which ended on December 1, 2005. Now there is a second round of replies, a comment period which will end on February 2, 2006. Then the Register of Copyright will have hearings on the anticircumvention rulemaking in March and April of 2006. If you missed the first commenting round, this is another chance to participate, A reply round is where people get to submit comments in opposition, support, amplification or correction to the proposals for exemptions in the initial round.

It's expected of course that all the organizations which would view the proposed DMCA exemptions of the first round as a threat, will submit reply comments. From the MPAA to the RIAA to censorware companies, there will be a parade of horribles put forth as the likely consequence of allowing any circumvention, anywhere.

But comments in this second round can also be written in support of comments in the first round. So while advocates of the DMCA are trying to knock-down proposed circumvention exemptions, DMCA opponents can put forth further support of proposed circumvention exemptions.

Why do it?

Besides the rare ability of an ordinary person to be heard, as originally discussed, this material can form a springboard of support for ongoing DMCA reform efforts. The Register's DMCA rulemaking hearings provide on focal point for opposition to the DMCA. The initial comments and the reply comments will be part the record demonstrating what is wrong with the DMCA. And the better the evidence in that record, the better chance the DMCA opposition will have.

How to do it

In many ways, comments in favor of DMCA exemptions in this second round are much easier to write than those for the first round. A comment supporting a DMCA exemption does not have to carry the full load of defining the relevant "class of works", and then making an extensively justified proposal as to why the proposed DMCA exemption should be granted. Instead, reply comments can just provide additional evidence or an additional argument bolstering the case made in the replied-to comment.

Note, though, this is not a matter of social support, of saying "Me too!". That is, the support is not a matter of showing that people care. Instead, it's a question of assembling "factual and/or legal support" in support of the argument.

In learning about the policy process, I've found there are certain areas where there's "slack" (i.e. ability to be flexible with rules) and places where there's absolutely no slack at all (the rules will be strictly enforced). Aspects of a comment submission such as the argument, or the evidence, will be given generous scope. But certain formatting requirements are not bendable. Even the best will in the world won't permit the acceptance of a comment without a name on it.

Don't laugh (too loud). Just as every tech support person has a tale that the reason a user's machine was not working, was because it was not plugged-in, the reason for rejection of a comment submission, can be the lack of a name on the comment. It can be that simple a problem (and with correspondingly simple a solution).

Some past comments were apparently rejected for just that reason. It's not sufficient to only have the name in the comment form (or a machine's power switch in the 'on' position). The name must also be on the comment document itself (i.e, the machine must be plugged-in). Details such as this have apparently tripped-up people.

The Copyright Office is not looking for reasons to exclude people, quite the opposite. When they reject a comment for formatting problems, it does not mean that they were using those problems as an excuse. Rather, they don't have any choice in the matter. They can be expansive regarding what counts as arguments or evidence, but can't supply required material if it isn't there.

A submission which is not accepted for one reason or another will typically receive a reply indicating a list of problems which might be the cause. Take this reply seriously, it's constructive criticism, not a brush-off. Comments can always be fixed and resubmitted, up to the deadline for the submission process. Note for this reason, it's an excellent idea to submit comments with enough time so that the Copyright Office can notify you of any problem, and so that you have time to repair the problem.

Per the Copyright Office requirements stated on the reply comment submission form your comment must include, (in the comment text itself) :

The copyright office can be liberal regarding what is present in each of these items. But they are required to be conservative in that each item must be present.

An Example


Spartacus Gladius
[possible additional contact information]

Class of Works Being Responded-To

[Pick the relevant class from the list given in the initial comments]

I write in support of a circumvention exemption for the following class described in Comment 6, by "Deirdre Mulligan, Samuelson Law, Technology & Public Policy Clinic":

Sound recordings and audiovisual works distributed in compact disc format and protected by technological measures that impede access to lawfully purchased works by creating or exploiting security vulnerabilities that compromise the security of personal computers. The creation of security vulnerabilities includes running or installing rootkits or other software code that jeopardize the security of a computer or the data it contains. The exploitation of security vulnerabilities includes running or installing software protection measures without conspicuous notice and explicit consent and failing to provide a permanent and complete method of uninstalling or disabling the technological measure.

Summary of the argument

This is mandatory! Don't omit it!

Factual and/or legal support for the argument

Now put in all the relevant evidence and legal cases, without relying on ideology. Remember: "Actual instances of verifiable problems occurring in the marketplace are necessary to satisfy the burden with respect to actual harm and a compelling case will be based on first-hand knowledge of such problems."


Some background information on the details of the DMCA can be found at the Chilling Effects website, particularly the anticircumvention section. And see also the EFF's DMCA archive. It's important to thoroughly read the Copyright Office 2005 notice of inquiry.


With new DMCA cases being reported seemingly every week, the following aphorism says it all

"You can ignore politics, but politics won't ignore you."