Want to Take a Bite Out of the DMCA? Now's the Time
As part of the Digital Millennium Copyright Act (DMCA), Congress instructed the U.S. Copyright Office to consider every three years whether we need exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka Digital Rights Management or DRM) used to lock up copyrighted works. So if you want to make a legitimate use of a piece of media, but have been turned back by DRM and the DMCA, now is your chance to take your case to the Copyright Office and try to make the world a happier and safer place for the next three years. As two-time-successful-exemption-requester Seth Finkelstein says: "The lawsuit you prevent may be your own."
Read on for more info about the process, pitfalls and deadlines.
The Copyright Office is soliciting exemption proposals for the next three-year period, 2006-2009. Proposals must be submitted to the Copyright Office by no later than December 1, 2005.
Keep in mind that -- as in the two previous rule-makings -- you'll have to overcome some obstacles to convince the Copyright Office and Librarian of Congress to grant you an exemption. These include:
1. The Copyright Office can recommend exemptions only to the DMCA's ban on acts of circumvention, not to the ban on trafficking in tools of circumvention. So if you are interested in an exemption that would allow you to distribute circumvention tools (like DVD back-up software), you're out of luck.
2. You have to prove that your intended activity is not otherwise an infringement of copyright law and specifically identify the DRM technology that is getting in your way.
3. You have to identify a "class" of copyrighted works to which your exemption would apply. The Copyright Office requires that you do this by defining a subset of works of authorship. You are not allowed to frame the class by reference to particular non-infringing uses of those works, or by attributes of the users. For example, the Copyright Office has rejected past requests for exemptions for "classroom uses" of DVDs, while granting exemptions for computer programs protected by malfunctioning copy-protection dongles.
These are just a few of the sometimes bewildering array of limitations on the Copyright Office's willingness to entertain exemption proposals. The best way to understand the requirements is to read: (1) Seth Finkelstein's excellent account of what it takes to get an exemption (he's succeeded twice); (2) the official Federal Register notice for this rule-making; (3) the October 2003 report of the Copyright Office summarizing its decisions for the last rule-making; and (4) the final determination of the Librarian of Congress, which sets out the four exemptions granted in the October 2003 rule-making.
If, after reviewing these, you think you might have something that qualifies, EFF would like to hear from you. Please email exemption class proposals to dmca2006-proposals AT eff DOT org by November 24, 2005.