November 30, 2005 | By Fred von Lohmann

DMCA Triennial Rulemaking: Failing Consumers Completely

December 1 is the last day to submit proposals (by 5p EST) to the Copyright Office seeking a 3-year DMCA exemption for noninfringing activities that are otherwise squelched by "digital rights management" (DRM) restrictions.

As we mentioned back in October, Congress has instructed the U.S. Copyright Office to consider every three years whether we need temporary exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka DRM) used to lock up copyrighted works.

EFF has participated in each of the two prior rulemakings (in 2000 and 2003), each time asking the Copyright Office to create exemptions for perfectly lawful consumer uses for digital media that are encumbered by DRM restrictions. For example, we asked that DVD owners be allowed to skip those "unskippable" ads at the beginning of DVDs. We asked that people who bought copy-protected CDs be allowed to get them to play on their computer. We asked that consumers be allowed to bypass region coding to play a DVD purchased in another part of the world. The Copyright Office rejected all of these proposals.

This year, we are not submitting any proposals. Where consumer interests are concerned, the rulemaking process is simply too broken. For example:

  • No Tools. You can get an exemption for acts of circumvention, but the Copyright Office lacks the power to legalize circumvention tools. So, unless you are an engineer, a computer scientist, or can afford to hire them, you're not likely to be able to take advantage of any exemptions granted.
  • Impenetrable Complexity, Impossible Burdens. In order to effectively participate in the rulemaking, you need to wade through >200 pages of bureaucratic legalese and have graduate level understanding of copyright law. You have to persuade the Copyright Office that your activity is noninfringing and gather evidence that demonstrates a "substantially adverse effect" on noninfringing uses beyond "mere inconveniences or individual cases."
  • "Mere Inconvenience" = Ignoring Consumers. Where consumers are concerned, the Copyright Office discounts their concerns as "mere inconveniences." So region coding is no problem, according to the Copyright Office, because you could just buy a separate DVD player from every region. Copy-protected CDs are no problem because you can play them on CD players, even if they won't work in your computer. Where the copyright industries are concerned, in contrast, the Copyright Office presumes that DRM is the only thing that stands between them and financial ruin.

We have assembled a short report documenting why we believe the process is so broken that we have decided not to propose any exemptions this time. (We may support narrower, non-consumer proposals made by others during the reply period, which closes on Feb. 2, 2006.)

If you want to see meaningful DMCA reforms intended to protect the kinds of fair uses that consumers care about, it will have to come from Congress. Fortunately, the DMCRA, H.R. 1201, is pending before Congress right now and would go a long way toward fixing the DMCA/DRM mess (although not all the way, as it fails to address the ban on circumvention tools). Be sure to write your member of Congress urging her to cosponsor it!

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