The chorus of voices criticizing the Digital Millenium Copyright Act (DMCA) has just gotten a bit louder with the addition of a new and authoritative voice: The Library of Congress. In a new report, jointly released with the U.K.'s Joint Information Systems Committee, Australia's Open Access to Knowledge (OAK) Law Project, and the Netherlands' SURFfoundation, the Library of Congress' National Digital Information Infrastructure and Preservation Program points out that the work of preserving, documenting and archiving the nation's intellectual output is made unnecessarily difficult by antiquated copyright law exceptions and limitations, and TPM (technological protection measure) laws designed to restrict the making of digital copies.
ArsTechnica has a review of the report, citing the many absurd paradoxes of trying to make archival copies in a legal environment that views copying as a suspicious and possibly illegal act. The DMCA, for example, bans not just the act of circumventing DRM copy restrictions, but also the sale or trafficking in the software or tools that enable circumvention. And while the Librarian of Congress is authorized to craft exemptions under appropriate circumstances to the DMCA's ban on circumvention, there wouldn't be much of a market for tools to accomplish that circumvention, since only those who fall within an exemption could use them. So even if libraries were granted an exemption from the ban on circumvention for the purposes of digital archiving, they might well be unable to obtain the tools to do so — because they would still generally be illegal.
The report was released the day before a WIPO seminar on Digital Preservation and Copyright issues. In the international context, it is worth noting that some countries have adopted a more forward-looking approach to laws regulating technological protection measures than the inflexible DMCA. One example is New Zealand's recently revised Copyright Law (PDF), which permits libraries and archives to access circumvention tools to circumvent TPMs on behalf of end users if the TPMs interfere with non-copyright infringing uses.
ArsTechnica cites these other examples:
...One big issue is the exemption for published works in a library's collection; these can also be copied three times, but only to "replace a work in their collections that is damaged, deteriorating, lost or stolen or whose format has become obsolete." In other words, librarians can't backup or archive such works until destruction is well under way.
In addition, "obsolete" doesn't mean what you or I might mean by the term; the Library notes that LPs still can't be copied into digital archives because record players remain available on the open market and are therefore not "obsolete."