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EFFector - Volume 13, Issue 11 - DMCA Takes Full Effect - Millions of Americans Become Criminals

   
             EFFector       Vol. 13, No. 11       Dec. 13, 2000
                               editor@eff.org
                                      
   A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
                                      
  IN THE 159th ISSUE OF EFFECTOR (now with over 25,900 subscribers!):
  
     * DMCA Takes Full Effect - Millions of Americans Become Criminals
     * Call for Nominations: The Tenth Annual International EFF Pioneer
       Awards
          + Intro
          + The 2001 Awards
          + How to Nominate Someone
          + Past Pioneers of the Electronic Frontier
          + About EFF
     * Administrivia
       
   For more information on EFF activities & alerts: http://www.eff.org
     _________________________________________________________________
   
DMCA Takes Full Effect - Millions of Americans Become Criminals

     By Robin D. Gross, November 2000
   
    Librarian of Congress Unable to Preserve Fair Use in Digital Age
    
   On October 28, 2000 the controversial Digital Millennium Copyright Act
   (DMCA) took full effect, criminalizing the act of circumvention of a
   technological protection system put in place by a copyright holder --
   even if one has a fair use right to access that information.  Maximum
   penalties allow up to 10 years in prison or $1 million fine for
   willful violators of the new law.  This dramatic change in copyright
   law should serve as a wake-up call for all Americans that their First
   Amendment rights are rapidly eroding in the digital realm. Ignited by
   the copyright industry, this legislative trend is spreading through
   national legislative bodies around the world like wild fire.
   
   The DMCA outlawed making or providing tools that could be used to
   circumvent technological protection systems when the legislation was
   first enacted in 1998.  Another provision of the DMCA banned the act
   of circumvention, although it did not take effect until two-years
   later.  Congress directed the Register of Copyrights to conduct a
   rulemaking procedure during the interim and recommend to the Librarian
   of Congress classes of works that should be exempted from the general
   ban against circumvention because people were likely to be adversely
   affected in their ability to make lawful uses of works.
   
   During the course of its proceeding the Copyright Office received an
   incredible 392 written comments from the public and heard testimony
   from 34 witnesses on the subject.  Despite the repeated requests for
   exemptions from those who need to circumvent in order to exercise
   their legal fair use rights such as library, educational, and civil
   liberties groups, the Librarian's final rule only exempted two narrow
   circumstances in which one will be allowed to circumvent.  This leaves
   the vast majority of the public's fears unaddressed with little choice
   but to seek help from Congress or the courts.
   
   In making its determination, Congress directed the Register to consult
   with the Assistant Secretary for Communications and Information in the
   Department of Commerce.  The Assistant Secretary recommended an
   exemption analogous to fair use based upon a factual examination of
   the uses to which works are put.  In a letter to the Register
   presenting his views, the Assistant Secretary stated that his
   principal concern is to ensure that the Librarian will preserve fair
   use principles in this new digital age.  He echoed the fears of the
   Commerce Committee that a legal framework may be developing that would
   "inexorably create a pay-per-use society."  He stated that the "right"
   to prohibit circumvention should be qualified in order to maintain a
   balance between the interests of content creators and information
   users, by means of carefully drawn exemptions.  Despite the Assistant
   Secretary's recommendation for a use-based exemption, the Copyright
   Office ultimately rejected it as "beyond the scope of the Librarian's
   authority."
   
    Librarian's Two Narrow Exemptions Ignore Majority of Public's Concerns
    
   On the recommendation of the Register of Copyrights, the Librarian of
   Congress James Billington announced two narrow classes of works
   exempted from the DMCA's prohibition on circumvention of technological
   measures that control access to copyrighted works.
   
   1.  Compilations consisting of lists of Web sites blocked by filtering
   software applications.
   
   The first exemption, while narrow in scope, addresses one real and
   specific danger created by the DMCA's blanket ban on circumvention:
   the criminalization of decrypting lists of Web sites blocked by
   content filtering software.  The ruling stated that the reproduction
   or display of the lists for the purpose of criticizing them could
   constitute fair use.  Citing the controversial injunction issued in
   Microsystems Software, Inc. v. Scandinavia Online AB, No. 00-1503 (1st
   Cir. Sept. 27, 2000) ("Cyber Patrol case") the Librarian recognized
   the public's legitimate interest in accessing the lists of Web sites
   in order to critique, comment and criticize them.  According to the
   Librarian:
   
     "A persuasive case was made that the existence of access control
     measures has had an adverse effect on criticism and comment, and
     most likely news reporting, and that the prohibition on
     circumvention of access control measures will have an adverse
     effect ... on noninfringing users since persons who wish to
     criticize and comment on them cannot ascertain which sites are
     contained in the lists unless they circumvent."
     
   The public has a significant First Amendment interest in exploring the
   scope and reliability of content filtering software.  The Librarian
   should be commended for crafting an exemption that addresses this
   particular danger caused by the DMCA.  Unfortunately, this exemption
   only covers a tiny fraction of the public's needs to circumvent while
   the vast majority of legitimate fair uses remain criminalized.
   
   2.  Literary works, including computer programs and databases,
   protected by access control mechanisms that fail to permit access
   because of malfunction, damage or obsolescence.
   
   The Librarian recognized the adverse impact from the DMCA's general
   ban on circumvention "in cases where legitimate users are unable to
   access works because of damaged, malfunctioning, or obsolete access
   controls."  Explaining the rationale for the second exemption, the
   Librarian stated, "the access controls are not furthering the purpose
   of protecting the work from unauthorized users.  Rather, they are
   preventing authorized users from getting the access to which they are
   entitled."  This prevents non-infringing uses that could otherwise be
   made.  The Librarian found "this situation is particularly troubling
   in the context of libraries and educational institutions."
   
   The Librarian's second exemption is intended to exempt users of
   software, databases, and other literary works in digital formats who
   are prevented from accessing such works because the access control
   protections "are not functioning in the way that they were intended."
   A 'dongle' or hardware lock attached to a computer that prevents
   unauthorized access to software is an example of the type of access
   control that can be circumvented under the ruling.  Access controls
   may only be considered obsolete where a machine necessary to perceive
   a work is no longer made or commercial available.
   
   While attempting to correct failures in the statute's broad
   prohibition, this final exemption is only applicable in a few narrow
   circumstances and ultimately falls far short of adequately protecting
   the public's interests.  The Librarian's impotence in issuing
   exemptions is particularly disturbing since he declared that this
   exemption is "probably the outer limits of a permissible definition of
   'class'."
   
    Librarian Asks Congress For Clarification on DVDs
    
   The Librarian rejected all other requests for exemptions from the
   public seeking relief from the DMCA's harsh penalties.  Most notably
   absent was an exemption for DVDs, which would have allowed Linux users
   (among others) to view their DVDs on non-standard machines without
   fear of criminal prosecution.  According to the Librarian, "More
   comments and testimony were submitted on the subject of motion
   pictures on DVDs and the technological measures employed on DVDs,
   primarily Content Scrambling System (CSS), than on any other subject
   in this rulemaking."
   
   During the course of the proceeding, the Electronic Frontier
   Foundation submitted official Comments (initial, reply, and
   post-hearing) and testified at the public hearings requesting that the
   Librarian exempt DVD movies protected by CSS from the DMCA's
   circumvention ban.  Even though Congress banned circumventing access
   controls, it did not intend to prevent circumvention for legal use.
   DVDs protected by CSS bypass Congress' intent by merging the access
   and use control together into one technological protection system that
   prevents fair use altogether.  To its credit, the Librarian recognized
   the "significant concern" presented by the "merger of access and use
   controls" that CSS represents:
   
     "The merger of technological measures that protect access and
     copying does not appear to have been anticipated by Congress.
     Congress did create a distinction between the conduct of
     circumvention of access controls and the conduct of circumvention
     of use controls by prohibiting the former while permitting the
     latter, but neither the language of section 1201 nor the
     legislative history addresses the possibility of access controls
     that also restrict use. It is unclear how a court might address
     this issue. It would be helpful if Congress were to clarify its
     intent, since the implementation of merged technological measures
     arguably would undermine Congress's decision to offer disparate
     treatment for access controls and use controls in section 1201."
     
   Despite this recognition of a significant problem, the Librarian
   meagerly tossed the ball back to Congress to fix the mess it created
   by the sloppy statute.  Although charged with primarily ensuring the
   public's fair use rights continue in the digital realm, the Librarian
   acquiesced to the demands of the copyright industry who repeatedly
   threatened that it would not 'create' if its conditions for control
   over the architecture were not met and who's only objective is to
   maximize revenue from creative expression by creating a pay-per-use
   society.  Consequently, the DMCA has deformed copyright law to only
   advance the narrow interests of a few corporations at the expense of
   the broader public good.
   
   The Librarian mis-characterized the lack of an open source Linux DVD
   player in the marketplace as a "problem of preference and
   inconvenience" not warranting an exemption.  The public is under no
   legal obligation to view DVDs only on machines pre-approved by the
   movie studios or according to the viewing restrictions of a CSS
   license.  Moreover, the entire open source development model, which is
   currently fueling the bulk of technological innovation, is dependent
   upon having the ability to adapt software to customize for one's own
   specific needs.  In dismissing the DVD exemption, the Librarian
   stated: "While it does not appear that Congress anticipated that
   persons who legitimately acquired copies of works should be denied the
   ability to access these works, there is no unqualified right to access
   works on any particular machine or device of the user's choosing."
   
   What the Librarian fails to recognize, however, is the distinction
   between an "unqualified right" to access a work on another machine,
   and the DMCA's criminalization of the act of building a new device
   that allows access to a work that one legally owns.  "That which is
   not prohibited is generally allowed."  Consequently, the public will
   have fewer rights in the digital realm than it enjoyed in traditional
   space to use and access information.  Additionally, the statute paves
   the way for stifling innovation, restricting competition, and
   fostering a breeding ground for monopolistic business practices in the
   market for DVD players and other devices.
   
   One of most popular reasons cited as needing to circumvent DVDs was in
   order to bypass the restrictive region-coding scheme incorporated in
   CSS where DVDs purchased in one part of the world will not play on DVD
   players manufactured in another part of the world.  Despite the
   extraordinary public outcry, the Librarian dismissed this concern as
   merely an "inconvenience" not warranting an exemption.  Astonishingly,
   the fact that the region coding restrictions correlate with the movie
   studios' contractual divisions of the world was cited as a "legitimate
   purpose" served by legally enforcing the restrictions.  The degree of
   deference given to the business plans of a select few multinational
   corporations when writing legislation to govern how information may be
   accessed in a democracy is frightening.
   
    Congress and Courts Must Intercede to Preserve Fair Use and Free Expression
    
   The implementation of technological protections that deny society its
   due in the copyright right bargain combined with the DMCA's
   criminalization of attempts to bypass those restrictions prevents
   copyright from ever achieving its Constitutional objectives to promote
   the progress of science and useful arts.  The balance continues to tip
   even further in favor of the movie and record companies at the expense
   of individuals' rights and freedom of expression.  Now that the
   Copyright Office has punted, Congress and the courts will be forced to
   repair the imbalance in the law created by the DMCA and its
   criminalization of exercising media rights in the digital realm.
   
    RELATED LINKS:
    
   Librarian of Congress and Copyright Office Final Report (October 28,
   2000):
   
     http://www.loc.gov/copyright/fedreg/65fr64555.html
     
   Letter from Assistant Secretary of Commerce for Communications and
   Information, conveying the views of the National Telecommunications
   and Information Administration on DMCA Rule-making (September 29,
   2000)
   
     http://www.loc.gov/copyright/1201/commerce.pdf
     
   American Library Association Statement on Copyright Office Ruling:
   "Fair use in the digital age reduced to nothing more than a hollow
   promise..."
   
     http://www.ala.org/washoff/dmca.html
     
   Statement of U.S. Rep. Rick Boucher on Copyright Office Ruling and
   Fair Use Rights:
   
     http://www.house.gov/boucher/docs/payperuse.htm
     
   EFF's Initial Comments to U.S. Copyright Office on DMCA (February 17,
   2000):
   
     http://www.eff.org/IP/DMCA/20000217_eff_dmca_comments.html
     
   EFF's Reply Comments to U.S. Copyright Office on DMCA (March 31,
   2000): 
   
     http://www.eff.org/IP/DMCA/20000331_eff_dmca_reply_comments.html
     
   EFF's Testimony Before U.S. Copyright Office on DMCA (May 19, 2000):
   
     http://www.virtualrecordings.com/EFFtestimony.htm
     
   EFF's Post-Hearing Comments to U.S. Copyright Office on DMCA (June 23,
   2000):
   
     http://www.eff.org/IP/DMCA/20000623_eff_dmca_dvd_comments.html
     
     _________________________________________________________________
   
Seeking Pioneers of the Electronic Frontier

  Call for Nominations:
  The Tenth Annual International EFF Pioneer Awards
  
   Please redistribute this notice in appropriate fora.
   
    Intro
    
   In every field of human endeavor, there are those dedicated to
   expanding knowledge, freedom, efficiency, and utility. Many of today's
   brightest innovators are working along the electronic frontier. To
   recognize these leaders, the Electronic Frontier Foundation
   established the Pioneer Awards for deserving individuals and
   organizations.
   
   The Pioneer Awards are international and nominations are open to all.
   The deadline for nominations this year is Feb. 1, 2001 (see nomination
   criteria and instructions below).
   
    The 2001 Awards
    
   The Tenth Annual EFF Pioneer Awards will be presented in Toronto,
   Canada, at the 11th Conference on Computers, Freedom, and Privacy (see
   http://www.cfp2001.org ), Boston, MA. The ceremony will be held on the
   evening of Thu., March 8, 2001, at the Boston Aquarium. All
   nominations will be reviewed by a panel of judges chosen for their
   knowledge of the technical, legal, and social issues associated with
   information technology, some of them Pioneer Award recipients
   themselves.
   
   This year's EFF Pioneer Awards judges are:
     * Herb Brody (Senior Editor, Technology Review)
     * Moira Gunn (Host, "Tech Nation", National Public Radio)
     * Donna L. Hoffman (Associate Professor of Management, Vanderbilt
       University)
     * Peter G. Neumann (Principal Scientist, SRI Intl.; Moderator,
       ACM Risks Forum)
     * Drazen Pantic (Media & Tech. Director, NYU Center for War, Peace,
       & the News Media)
     * Barbara Simons (past President, Association for Computing
       Machinery, & U.C. Berkeley Distinguished Alumnus)
     * Karen G. Schneider (Technical Director, Shenendehowa Public
       Library, NY)
       
    How to Nominate Someone
    
   There are no specific categories for the EFF Pioneer Awards, but the
   following guidelines apply:
    1. The nominees must have made a substantial contribution to the
       generation, growth, accessibility, and/or freedom of
       computer-based communications.
    2. The contribution may be technical, social, economic, or cultural.
    3. Nominations may be of individuals, teams, systems, or
       organizations in the private or public sectors.
    4. Nominations are open to all, and you may nominate more than one
       recipient. You may nominate yourself or your organization.
    5. All nominations, to be valid, must contain your reasons, however
       brief, for nominating the individual or organization, along with a
       means of contacting the nominee, and your own contact information.
       Anonymous nominations will be allowed, but we prefer to be able to
       contact the nominating parties in the event that we need further
       information about the nominee.
    6. Any entity is eligible for an EFF Pioneer Award, with the
       exceptions of current EFF staff and board members, current Pioneer
       Award judges, and previous Pioneer Award recipients (unless
       nominated for something new and different.)
    7. Honorees (or representatives of honoree organizations) receiving
       an EFF Pioneer Award will be invited to attend the ceremony at the
       Foundation's expense.
       
   You may send as many nominations as you wish, but please use one
   e-mail per nomination. (This is not a vote or a popularity contest, so
   you do not need to campaign, or send multiple nominations for the same
   nominee.) Submit all entries to: pioneer@eff.org
   
   Just tell us:
    1. the name of the nominee;
    2. a phone number or e-mail address at which the nominee can be
       reached; and, most importantly,
    3. why you feel the nominee deserves the award.
       
   You may attach supporting documentation in plain text, or Microsoft
   Word or other common binary formats. URLs to documentation elsewhere
   may also be helpful.
   
    Past Pioneers of the Electronic Frontier
    
   1992: Douglas C. Engelbart, Robert Kahn, Jim Warren, Tom Jennings, and
   Andrzej Smereczynski; 1993: Paul Baran, Vinton Cerf, Ward Christensen,
   Dave Hughes and the USENET software developers, represented by the
   software's originators Tom Truscott and Jim Ellis; 1994: Ivan
   Sutherland, Whitfield Diffie and Martin Hellman, Murray Turoff and
   Starr Roxanne Hiltz, Lee Felsenstein, Bill Atkinson, and the WELL;
   1995: Philip Zimmermann, Anita Borg, and Willis Ware; 1996: Robert
   Metcalfe, Peter Neumann, Shabbir Safdar and Matthew Blaze; 1997: Marc
   Rotenberg, Johan "Julf" Helsingius, and (special honorees) Hedy Lamarr
   and George Antheil; 1998: Richard Stallman, Linus Torvalds, and
   Barbara Simons; 1999: Jon Postel, Drazen Pantic, and Simon Davies;
   2000: Tim Berners Lee, Phil Agre, and librarians everywhere,
   represented by librarian Karen G. Schneider.
   
   See http://www.eff.org/awards for further information.
   
    About EFF
    
   The Electronic Frontier Foundation ( http://www.eff.org ) is a global
   nonprofit organization linking technical architectures with legal
   frameworks to support the rights of individuals in an open society.
   Founded in 1990, EFF actively encourages and challenges industry and
   government to support free expression, privacy, and openness in the
   information society. EFF is a member-supported organization and
   maintains one of the most-linked-to Web sites in the world.
   
     _________________________________________________________________
   
                                 Administrivia
                                       
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