Comments On The DMCA

November 19, 2002 6:51 AM

Let your voice be heard. The Copyright Office is Taking Comments On The DMCA, starting today. You can read the law as a PDF Here. They are requesting written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public, in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works.
posted by Blake (26 comments total)

If I knew what that meant, I would surely comment.
posted by cowboy at 7:00 AM on November 19, 2002

You can also see the legislation on THOMAS, with links to Congressional Record references, legislative history, a (relatively understandable) summary, and the text.
posted by MrMoonPie at 7:09 AM on November 19, 2002

This is quite serious, so I'd encourage anyone who does want to comment to actually read everything in MrMoonPie's links as well as the submission requirements before firing off an email. Hundreds of "d00d, the DMCA suX0rs" emails is not going to make a difference, but well thought-out, persuasive reasoning may.
posted by yhbc at 7:15 AM on November 19, 2002

You can also see the legislation on THOMAS

It's also possible to download it from Kazaa, WinMx et al.
posted by matteo at 7:26 AM on November 19, 2002

Let me second yhbc's comment. The site makes it pretty clear that they are looking for informed and specific comments on categories of media that should be exempted, along with some significant evidence/rationalization for such claims. It is NOT an opportunity for behaving like a pack of howler monkeys.

As much as I am opposed to the DMCA in principle, I am willing to admit that I don't have the legal or academic chops to meaningfully contribute to this site and will instead continue to offer my support to groups like EFF that can devote resources to those efforts.
posted by briank at 7:28 AM on November 19, 2002

Briank ( or anyone else ), may I ask what you are opposed to in this law? I'm at work and can't sift through 94 pages of text :-(

Any links for the pros and cons about this, pretty please?
posted by remlapm at 7:41 AM on November 19, 2002

Comments are being taken regarding the exemption of certain classes of works (i.e. types or subsets of protected works, which are: literary works [including software code]; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works) from the prohibition against circumvention of technological measures that control access to copyrighted works.

"Proponents of an exemption must provide evidence either that actual harm exists or that it is 'likely' to occur in the ensuing 3-year period. 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."

An example might include corrupt CDs that prevent one from copying music for personal use or from playing the CD on computerized devices (computers, DVD players, game consoles, MP3 players, consumer CD duplicators, high-end stereo equipment and car CD players). These fair use rights (i.e. you bought the music you should be able to listen to it in any manner you desire) are being infringed. Further, when a consumer circumvents the "protection" schemes they are likely subject to possible criminal prosecution for a violation of the DMCA. This process offers a legitimate chance to take back our fair use rights.

We might not have the legal or academic chops to meaningfully contribute, but we should be able to provide numerous examples of our infringed rights that can be referenced and utilized by those who do plan on contributing.
posted by ajr at 7:41 AM on November 19, 2002

remlapm and others...
a very brief summary of the DMCA and the EFF (Electronic Frontier Foundation) position. Sample cases include Felten v. RIAA and US v. Skylarov. The DMCA is in short a threat to scientific research and fair use, among other things. More cases and effects can be found by searching eff.org, metafilter, and slashdot.org archives. (These are all relatively short and graphics free - and the brief summary is only 119 words).
posted by whatzit at 8:32 AM on November 19, 2002

Was it the DMCA that is preventing DVD playback on Linux?

I think that it kind of sums up how stupid the law is - you can't create/publish any system that decodes DVD playback... even to playback DVDs.

Hmmm...

(insert obligatory anti MS/RIAA/etc comments here)
posted by twine42 at 9:01 AM on November 19, 2002

The legal situation here in Canada is a little different. A few years ago, we instituted a special tax on digital recording media (such as CD-Rs, flash memory cards, hard drives, etc), with the intention to distribute this extra revenue to musical artists to offset lost revenue due to copying music files. (Of the $2 mil collected since then, it's all gone to lawyer fees, of course). Opponents have been pointing out to its unfair nature (my company uses CDs for achival storage, so why should we subsidize musical artists, for example), but lately they've taken a different attitude.

Since we're technically paying royalties on music when we buy blank CDs, we're therefore allowed to copy our music with impunity. Sure, the intention was the opposite, to discourage copying by making it more expensive to do, but the end result may be a better solution. Would you be willing to pay a little extra for blank CDs if it meant you could copy whatever you wanted? Blank CDs still cost less than $1 here (that's about 55-60 cents US), for comparison.
posted by GhostintheMachine at 9:16 AM on November 19, 2002

whatzit: Could you - or someone else - explain the "threat to scientific research" part? The link you provided is subscription-only. Thanks.
posted by risenc at 9:39 AM on November 19, 2002

risenc: Sorry about that, I don't notice when it logs the IP instantly from the Institvte. I put the article up here (PDF), rather than color it with my own summary.

twine42: Yes, the DMCA is what they used against Johansen, who wrote the script to get Linux to play DVDs. Goodie, hm?

And I'm sure someone later will want to comment that they don't care, they're lucky to live in Europe/Australia/elsewhere. Don't forget the unfortunate pressure the US can exert on these countries, some of which are already following suit.
posted by whatzit at 9:58 AM on November 19, 2002

whatzit: Thanks!
posted by risenc at 10:14 AM on November 19, 2002

whatzit: still thanks, but the link to the PDF isn't working.
posted by risenc at 10:16 AM on November 19, 2002

working pdf link
posted by MrMoonPie at 10:36 AM on November 19, 2002

I suspect this will be as effective as the first public offering on the DMCA and public comment on the Microsoft anti-trust suit. In other words, unless you have deep pockets and can prove beyond a doubt that somehow problems *will* occur, the DMCA will stand as is.

How can you prove that society and culture will be harmed? How do you put a dollar amount on it? That's what the Copyright Office wants to see.

Its all about the BOGU today folks. Time to reboot.
posted by infowar at 10:36 AM on November 19, 2002

Thanks Mr Moon Pie. I can spell, really. Shouldn't have hand-typed that...
Meanwhile, looking for additional links on residency/citizenship requirements for elsewhere *sigh*.
posted by whatzit at 11:00 AM on November 19, 2002

This really is a great opportunity for proponents of fair use, because the rulemaking by the Library of Congress is of the "notice and comment" variety (N&C rulemaking is triggered whenever rules must be made pursuant to a hearing "on the record" as in Sec. 1201(a)(C) of the DMCA). This means that the government has a fairly significant legal obligation to consider and respond to the comments submitted. That doesn't mean they have to follow your suggestions of course (or even respond directly to the nuances of your particular arguments), but they do have to explain why they failed to follow the suggestions made in the public comments.

**on preview**
infowar, I'm not sure what type of hearings were involved in the other two cases you mention, but I can assure you that notice and comment rulemaking is about as good as it gets in terms of procedural requirements designed to give the public a voice in agency decisionmaking. Again, it doesn't mean they will follow your suggestions, but they do have to respond to them (assuming they are reasonably intelligent and/or are echoed by a fair number of other commenters). If the agency fails to respond, they can be challenged in court and forced to start over from scratch. If they agency provides really lame responses to the suggestions, then the first person to be prosecuted on the rules can use the those lame responses to argue in court that the rules are arbitrary and unreasonable and ought to be struck down. So, on the spectrum of things you can do to have an impact on this law, its pretty high up there.l
posted by boltman at 11:05 AM on November 19, 2002

Also, I would strongly encourage people concerned about fair use to submit a comment, even if you know little about the details of copyright law. In-depth comments are certainly more likely to have an impact, but never underestimate the power of volume when it comes to decisions by politically accountable bodies. This page on EFF's site has some good background about the problems of the DMCA provision at issue (scroll down a ways for the most helpful stuff), although note that they are talking about a totally different request for public comments than the one that we are talking about in this thread.
posted by boltman at 11:19 AM on November 19, 2002

Boltman, you're right to an extent that volume can be helpful, but believe me when I say that volumes of uninformed comment that does not address the issues at hand really isn't helpful, and will just have the decisionmakers laughing at you and cursing that they had to waste their time reading uninformed tripe. This rulemaking is not about the DMCA in general. It is just about whether any exemptions to the anticircumvention provisions are warranted. In a nutshell:

The DMCA made it illegal "to circumvent a technological measure that effectively controls access" to a copyrighted work -- so, it is illegal to get around CSS, for example, by using DeCSS on your linux box. Congress also gave the Copyright Office the ability to make a determination that for certain classes of works, this provision should not apply. Factors that the Copyright Office is supposed to take into account include the availability of works, particularly of their availability for use for nonprofit archival, preservation, or educational purposes, the use of the works for teaching, comment or criticism, etc., and the effect an exception would have on the market for the work. Generally, the academic and library communities have the biggest incentive to try to get works on the exceptions list, so that they can perform archival and teaching functions.

Just saying "the DMCA is bad" won't get very far in this rulemaking. Saying "A,B,C works should be exempted because X,Y,Z" will.
posted by IPLawyer at 12:53 PM on November 19, 2002

EFF's Unintended Consequences of the DMCA paper gives a good explanation of some of the problems caused by this troublesome law - not too much legalese and chock full 'o links
posted by KatlaDragon at 1:07 PM on November 19, 2002

Just saying "the DMCA is bad" won't get very far in this rulemaking.

I agree that attacking the DMCA as a whole is not helpful. However, I do think if the agency gets 70,000 comments (not an unlikely figure at all) saying something to the effect of: "I am concerned that the anti-circumvention provision will punish many lawful users of digital media wishing to copy protected content for personal non-commercial use. Please protect these users to the maximum extent allowable under the DMCA", it could conceivably cause them to carve out slightly larger exceptions than they otherwise might if they felt that the public didn't care one way or the other.
posted by boltman at 1:56 PM on November 19, 2002

In previous rulemakings, when the Copyright Office has gotten random e-mails from people that are only tangentially on point, those e-mails are not even made available online, as the rest of the comments have. They just say "and by the way, we got some wacky e-mails that basically say X, here's a sample." (See this, for example). Such comments are generally not given any serious weight. I am not trying to discourage participation in the process -- participation is vital to the process, and ordinary citizens can often bring much to the table that the "big guys" overlook -- but firing off an e-mail for the sake of an e-mail truly isn't going to get very far. There are very specific criteria that must be followed, and just saying "be expansive in following these critera" isn't particularly helpful or swaying. And 70,000 probably is an unrealistic figure; the last time they did a rulemaking on this they had 235 comments and 129 reply comments. If you want to submit comments that actually make a difference, read some of the comments written by the major players from the previous links, and read the Librarian's previous determination on this issue. It will give you a good idea of where the dialog is heading this time around.

Look, I am not trying to be a pain in the ass. I work a lot with these people, and I know what they look for. I am just trying to say that if you are going to take the time to say something, take the time to address the actual questions being asked. They are likely not even going to look at comments that don't follow the format requested in the notice of inquiry, and that means your comments "must identify the particular class of works for which an exemption is proposed, must follow this identification with a summary of the argument, and must then provide the factual and legal argument that supports this proposal of a particular class." That is the best way to have your comments taken seriously.
posted by IPLawyer at 2:34 PM on November 19, 2002

An opinion of the MS anti-trust settlement comments and the justficiation for dismissal by the Department of Justice. You can also go direct to the source.

Comments on the DMCA from August 1999. Be sure to read the Business Software Alliance's take on the encryption provisions of the DMCA. They're an influential player and obviously are listened to by Congress.

Comment on the DMCA if you want. I think it is a waste of time. It is far better to challenge it in court (although that hasn't gone well for challengers so far) or support the Digital Choice and Freedom Act of 2002 if it ever makes it to a vote. Also check out digitalconsumer.org (I am a citizen and customer, not a consumer darn it) for more up to date info on the shenaggians of the IP industry. The EFF has a somewhat dated blog as well.

Good luck.
posted by infowar at 6:32 PM on November 19, 2002

the last time they did a rulemaking on this they had 235 comments and 129 reply comments.

How sad. I was just reading about a couple of notice and comment rulemakings related to organic farming and checking account privacy that were conducted online, both of which drew hundreds of thousands of comments. I'm surprised that this would draw so few in comparison. Perhaps no one thinks they will do any good.
posted by boltman at 6:58 PM on November 19, 2002

i went to the comment submission form, thinking maybe i could speak out against it. you need to give a "brief summary of the argument" and just like IPLawyer says, you need to mention legal stuff. i read comments of some of the respondents, like the Libraries' Associations and Software and Information Industry Association, and they get a little too involved for me. i would like to say something, but i think i shoul defer in this case, since i don't have any legal background to comment like they do.
posted by memnock at 9:54 AM on November 21, 2002