May 15, 2003

1. Request for Exemption Copy Protected CDs

• Tether the recording to a specific device or platform, thereby preventing a lawful possessor from using the work on an unsupported system in a non-infringing way.
• Limit lawful access to and post-sale uses of the work, where circumvention of the technology allows a lawful possessor to use the work in a non-infringing way.

IP Justice welcomes this opportunity to testify to the U.S. Copyright Office about the adverse impacts users are experiencing in their ability enjoy CDs in non-infringing ways. The cause of this adverse impact is the copy protection technology currently being applied, with increasing regularity to CDs, by the record industry. The magnitude of this harm warrants the declaration by the U.S. Copyright Office of the exemptions proposed by IP Justice in its submitted comments.

Before speaking to substantive reasons for our proposed exemptions, IP Justice wishes to highlight four important procedural issues in relation to this rulemaking.

First, the Librarian’s responsibility in this rulemaking is to users and not copyright owners. In the first rulemaking in 2000, the Librarian gave undue preference to the interests of copyright owners. By doing so, the Librarian duplicated Congress’ deference to the interests of copyright owners when Congress first enacted the anti-circumvention measures in 1998. The role of the Copyright Office in this proceeding is not to determine that technological restrictions benefit the public, but to look for ways in which the public is harmed by them and act to preserve the public’s rights under traditional copyright.

Congress introduced the anti-circumvention measures to encourage copyright owners to make their works available digitally – or in the words of the last rulemaking, the measures are designed to be ‘use facilitating’. The responsibility of the Librarian in this rulemaking is not to repeat Congress’ logic but to protect users and ensure access – not availability – of protected works such as CDs.

Second, the structure of this rulemaking, as interpreted by the Librarian, effectively precludes it from achieving its purpose. The Librarian insists that exemptions be defined according to ‘class of work’. Adequate protection of user rights requires that exemptions be drafted with reference to the type of user and circumstances of use. For example, if a person listens to a CD at home, they are not infringing the copyright owner’s public performance right but when they play the CD in a discotheque, they might be. As scholars and civil liberties experts have noted, “Architecture is Policy” and the structure of this proceeding makes it extremely difficult to obtain consumer protections.

Third, the Librarian has set an impossibly high evidentiary standard given the nature of the harm it is supposed to protect against. The Librarian requires evidence of substantial harm or likelihood of harm, but without guidance as to how to meet these thresholds. However, the adverse effects experienced by users are likely, of their very nature, to be individual and personal – difficult to measure and quantify. This does not detract from the existence of such harm. It does mean that Librarian should accept as sufficient evidence news reports and principled analyses of likely harm, which takes account of the interaction of the anti-circumvention measures with the limitations and exceptions for users under traditional copyright principles.

Fourth and finally, IP Justice urges the U.S. Copyright Office to be mindful, in conducting this second rulemaking of two important facts. Firstly, the first rulemaking was conducted when the prohibition on access circumvention had not yet taken effect. Three years later, the trend of ‘digital lock-up’ is more apparent. Thus, the extent of the impact on users must be greater because the anti-circumvention measures are broader than copyright. The second important factor is that the impact of any exemption will necessarily be limited. This is something which the Librarian failed to take account of in the first rulemaking. Acts of circumvention of access controls are, by their nature, inherently noncommercial and personal. Anyone who seeks to take advantage of an exempted act of access circumvention must be highly technical literate. Even where exemptions to the general ban are granted, a person still cannot acquire a circumvention device or service from a third party nor make it available to someone else because to do so will infringe the anti-trafficking prohibitions of section 1201. This means that only a limited number of people are likely to be able to avail themselves of any of the exemptions. Thus the impact on the copyright owner of any exemption will be substantially limited.

Turning now to our substantive comments in support for our proposed exemptions for copy protected CDs, IP Justice would like to make two comments.

First, CD copy protection technology is functioning as access restriction technology. The technology restricts the ability of users to play a CD on certain types of technology. This is a clear interference with access, and CD owners are forbidden from bypassing the access control technology. Users are unable to simply enjoy a CD in the privacy of their own home, office, or car, on the platform of their choosing. Instead, the copyright owner dictates a user’s personal experience of music – something well beyond the ambit of section 106 of the Copyright Act. The focus on section 106 is on public uses of music. That which falls outside the public sphere - the private enjoyment of music – should likewise fall outside the reach of copyright owners. CD copy protection enable copyright owners to usurp a user’s private performance right through the use of technological access controls that “double” as use and copy controls.

Second, CD copy protection technology chills innovative personal uses of music. Digital technology enables people to access their music collection in unprecedented new ways – without being a ‘pirate’. Purchasers of CDs can “space-shift” or “place-shift” their music from one device to another, for example, to their MP3 player to go jogging. Or from their home to their car or office. CD copy protection technology prevents this from occurring. It treats all users as copyright infringers.

The trend of legitimate music purchasers being unable to access copy protected CDs is well established and will only continue. Surely the several hundred comments supplied by individuals complaining of this surreptitious practice during these proceedings establish this substantial harm. IP Justice urges the U.S. Copyright Office, mindful of the limitations of this rulemaking and its duty to users, to declare our proposed exemptions enabling the lawful enjoyment of music, and restoring consumer freedoms.

Thank you.

IP Justice testimony before U.S. Copyright Office in DMCA Hearings:
    1. Recommend Exempting Copy Protected CDs
    2. Recommend Exempting DVD Tethering
    3. Recommend Exempting DVD Region Coding