January 19, 2006 | By Aaron Jue

DMCA Reply Comments: The Rootkit Exemption

The U.S. Copyright Office received 74 comments proposing exemptions to the DMCA's anti-circumvention provision as part of its triennial DMCA rulemaking proceeding. In this and subsequent posts, we will summarize the key exemption proposals made in this first round of comments. If you can offer specific factual or legal arguments in support of these proposals, we urge you to file a reply with the Copyright Office before the February 2, 2006 deadline. For a helpful guide to filing replies, see Seth Finkelstein's Winning (DMCA) Exemptions, The Next Round.

An Exemption for CDs with Rootkit-like Protection Measures

Boalt Hall's Samuelson Law, Technology & Public Policy Clinic filed a comment on behalf of Princeton's Professor Ed Felten and J. Alex Halderman requesting an exemption for the circumvention of "sound recordings and audiovisual works distributed in compact disc format and protected by technological measures that impede access to lawfully purchased works by creating or exploiting security vulnerabilities that compromise the security of personal computers." In essence, this proposal would permit security researchers like Felten and Halderman to remove, disable, or bypass CD protection measures - like Sony BMG's rootkit - that create security vulnerabilities. The exemption would eliminate the threat of DMCA liability for these researchers, allowing them to expose the threats posed by these protection measures more quickly.

But the exemption proposed by Felten and Halderman benefits not only the research community, but music fans as well. DMCA exemptions are defined in reference to a class of copyrighted works rather than a particular use of those works. Consumers, therefore, would also be free to remove software installed on their machines that posed security risks, allowing them to enjoy their lawfully purchased CDs on the playback device of their choice without risking potentially crippling security vulnerabilities.

Comments filed by the Computer and Communication Industry Association and Open Source and Industry Alliance and the Library Copyright Alliance and Music Library Association addressed similar concerns.

Again, if you support the exemptions proposed by these parties and can provide additional factual or legal arguments in their support, we suggest you consider filing a reply comment with the Copyright Office.

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