New Ways to Skirt DMCA – Legally!

(Wired News) Busting open a digital lock to get hold of copyright works normally is forbidden, but the Librarian of Congress ruled Tuesday that there are exceptions. The Digital Millennium Copyright Act, or DMCA, prohibits, among other things, bypassing any technology that controls access to copyright material. This provision is criticized frequently by digital-rights groups because they say it stifles many legitimate activities in the process, including academic research, competition and innovation.

But the controversial law also recognizes that there are certain cases when circumvention should be permitted. Thus, it mandates that every three years, the U.S. Copyright Office and the Librarian of Congress review and grant exceptions to the anti-circumvention provision.

Those who are exempt from the rule are those who are “adversely affected by virtue of such prohibition in their ability to make non-infringing uses of that particular class of works,” according to the DMCA.

Basically, those who have a non-infringing, fair-use reason to circumvent copy protections should be allowed to do so.

On Tuesday, the U.S. Copyright Office released the four “classes of works” exempted from the anti-circumvention rule. People may bypass a digital lock to access lists of websites blocked by commercial filtering companies, circumvent obsolete dongles to access computer programs, access computer programs and video games in obsolete formats, and access e-books where the text-to-speech function has been disabled.

One programmer who testified at the Copyright Office rule-making proceedings in April was jubilant that the filtering exemption was renewed.

“How sweet it is,” said Seth Finkelstein, a programmer and anticensorship activist. “Without the exemption, the DMCA would make it a violation to decrypt the blacklist to find out what (filtering companies) are actually censoring. The actual contents of these blacklists are an important censorship issue.

“The Copyright Office has recognized the importance of fair use in this area affected by the DMCA,” Finkelstein said. “It’s not a blanket declaration of being legal, but it’s an ability to argue fair use.”

Filtering advocates had hoped the exemption would be dropped.

“I’m disappointed because I thought we had made it clear that the exemption is unnecessary to conduct meaningful evaluations of filters,” said David Burt, a spokesman for Secure Computing, which purchased N2H2, a filtering company.

He cited extensive studies from the Henry J. Kaiser Family Foundation, Consumer Reports and the Department of Justice, among others, in his testimony and said that “these methods are adequate for evaluating filters.”

Gwen Hinze, staff attorney at the Electronic Frontier Foundation, said the group was pleased that the Librarian of Congress renewed and granted important exemptions, but was disappointed that exemptions the EFF proposed on behalf of consumers were not granted.

The digital-rights group asked that the Copyright Office allow consumers to do the following:

• defeat copy-protection technology on CDs that do not play in certain devices, like PCs, in order to make them play;
• circumvent region coding on DVDs from outside the United States so they play on U.S. DVD players;
• circumvent Content Scrambling System protection on DVDs to access public-domain motion pictures, and skip advertising on DVDs they own.

“There are millions of Americans who are affected by copy protections in digital media,” Hinze said. “We’re disappointed that those people aren’t going to get any benefits out of this rule-making process.”

“This underscores the need for legislative reform of the DMCA,” she said.