EFF Bows Out of Broken Process

San Francisco - The Electronic Frontier Foundation (EFF) today released a report entitled "DMCA Triennial Rulemaking: Failing the Digital Consumer," describing why the third triennial DMCA rulemaking, currently underway before the U.S. Copyright Office, does not effectively address the concerns of American digital media consumers. In light of the shortcomings of the DMCA rulemaking procedure, EFF will not propose any DMCA exemptions for the 2006-2009 triennial rulemaking period.

Digital media consumers are finding themselves increasingly hemmed in by "digital rights management" (DRM) restrictions on digital music, movies, video games, and software. The Digital Millennium Copyright Act of 1998 (DMCA) generally prohibits consumers from circumventing DRM mechanisms that control access to DVDs, CDs, and other digital media products. In an effort to ensure that these DRM mechanisms would not impede lawful uses of copyrighted works, however, Congress included what it described as a "fail-safe" mechanism in the DMCA rulemaking proceeding to be held every three years by the Copyright Office. The law delegates to the Copyright Office and Librarian of Congress the power to grant three-year exemptions to the DMCA's prohibition on circumventing DRM restrictions where the restrictions would otherwise encroach on lawful uses of copyrighted works.

Today is the last day to submit proposals for DMCA exemptions to the Copyright Office as part of the latest triennial rulemaking. 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. The Copyright Office has rejected all of EFF's previous proposals.

Based on its prior experience with the rulemaking procedure, as well as the increasing pervasiveness of DRM restrictions on digital media products, EFF has concluded that the triennial rulemaking does not effectively address the concerns of digital media consumers. Instead, EFF's report calls on Congress to take legislative action to reform and repair the DMCA rulemaking process.

"When the Copyright Office is unwilling to grant a DMCA exemption that would allow consumers to play copy-protected CDs on their computers, you know the rulemaking process is failing digital media consumers," said Fred von Lohmann, Senior Staff Attorney with EFF. "In the wake of the Sony BMG DRM debacle, it's time for Congress get involved on behalf of American consumers."

"DMCA Triennial Rulemaking: Failing Consumers Completely":

For more on why EFF won't participate:

For more on DMCA rulemaking:


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

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