Consumers Still Unable to Make Lawful Use of Digital Media

Today the US Librarian of Congress issued its Ruling in the triennial proceedings pursuant to the US Digital Millennium Copyright Act (DMCA) to determine possible exemptions to the DMCA’s general ban on circumvention of technological restrictions controlling copyrighted works. Unfortunately, the ruling leaves the vast majority of consumers unable to access their own property, such as skipping commercials on DVDs, playing CDs in their PCs, and reading eBooks on PDA’s without violating the DMCA.

The Librarian’s ruling is based upon the recommendation of the US Copyright Office after conducting its public study on the adverse impact on the ability to make fair use and other lawful uses of digital media.

The US Librarian of Congress has created the following four narrow exemptions from the DMCA’s general ban on circumvention for the next three-years:

1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.

2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format

The first two exemptions are very similar to the original two exemptions granted by the Librarian in the first DMCA Rulemaking in 2000. While the two new exemptions will be useful to a small handful of consumers, the Librarian’s ruling still leaves the vast majority of legitimate consumer uses of digital media illegal under the DMCA.

During the Rulemaking, IP Justice requested the Librarian issue exemptions to permit consumers to access their DVDs, CDs, and ebooks on the devices of their choosing and in the manner of their choosing.

“Its disappointing that the US Copyright Office and Librarian continue to relinquish their power to protect the rights of American consumers to lawfully use their own property as Congress had intended when it created this rulemaking proceeding in 1998,” said IP Justice Executive Director Robin Gross, who testified in both the 2000 and 2003 US Copyright Office Hearings.

Even though the Librarian’s ruling creating exemptions to the DMCA’s general ban on circumvention under 1201 (a)(1), all the tools that are necessary to practically carry out that exemption are still forbidden under 1201(a)(2).

In the 2000 US Copyright Office DMCA Rulemaking, two exemptions were issued to the general ban on circumvention.

Compilations consisting of lists of Web sites blocked by filtering software applications.
Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.

US Copyright Office Ruling of Oct. 28, 2003:

http://www.copyright.gov/1201/

The Recommendation of the Register of Copyrights:

http://www.copyright.gov/1201/docs/registers-recommendation.pdf

Statement of the Librarian of Congress:

http://www.copyright.gov/1201/docs/librarian_statement_01.html

Determination of the Librarian of Congress and Text of Regulation:

http://www.copyright.gov/1201/docs/fedreg-notice-final.pdf

See IP Justice’s participation in the 2003 US Copyright Office DMCA Proceedings:

IP Justice Comments Filed Dec. 17, 2002 Requesting Exemptions for DVDs, CDs, and eBooks:

http://www.ipjustice.org/IPJ_1201_Comments.shtml

IP Justice Testimony of May 2003: