[DMCA-Activists] EFF: DMCA Rulemaking Process Is Broken

[Seth Finkelstein]

[And as one of the few people who has *successfully* gone through the
DMCA rulemaking process, I thoroughly agree with EFF's sentiments! Moreover,
I'm not doing it again for renewal, the personal cost is too high.]

 http://www.eff.org/deeplinks/archives/004212.php
 Report: http://www.eff.org/IP/DMCA/copyrightoffice/DMCA_rulemaking_broken.pdf
 Congress: http://action.eff.org/site/Advocacy?id=115

DMCA Triennial Rulemaking: Failing Consumers Completely

November 30, 2005

  December 1 is the last day to submit proposals (by 5pm 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
      scientists, 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!

  Posted by Fred von Lohmann at 06:33 AM | Permalink | Technorati

-- 
Seth Finkelstein  Consulting Programmer  address@hidden  http://sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php