[Ecommerce] Exemption to DMCA. a few notes from today and agenda for tomorrow

[Manon Anne Ress]

I just got back from the Hearing for Exemption for literary works/eBooks 
for persons with disabilities (the agenda for tomorrow is at the end of 
this message).  The transcript will be available in a week (April 11 
hearing is up on the LOC).  By October 28, 2003 the librarians will have 
made a decision on whether to have an exemption for persons with 
disabilities for the next 3 years, until the next rulemaking.

There were less than 20 people attending what turned out to be an 
interesting (brutal and witty sometimes)hearing about who would be 
"harmed": the publishers (or their "future market") or... who is harmed 
the blind or visually impaired who cannot use anticircumvention devices 
even to access a lawfully obtain ebook.  The burden of proof is on the 
blind.

Marybeth Peters, David Carson, Steve Tepp, Robert Kasunic and Charlotte 
Douglass listened and questioned Paul Schroeder, American Foundation for 
the Blind, Jonathan Band, American Association of Law Libraries, ALA, 
ARL, MLA, and the SLA, Robert Bolick, McGraw-Hill and Allan Adler, 
Association of American Publishers for 2 hours and a half.  The 
statements were short about 5 to 10 minutes for each speaker.

Paul Schroeder written comments are full of examples and details at #26:
http://www.copyright.gov/1201/2003/comments/index-print.html

You have to read the transcript next week but to give you a few quotes & 
  summary of informal notes:

Paul Schroeder described how ebook has the potential to change the way 
blind and visually impaired people have access to information.  Instead 
of having to wait for access to documents or not ever get them, they can 
have special technologies, software systems, screen readers that convert 
text into (synthetic) speech or Braille or large print.  (I admired his 
calm at many occasions such as having to answer whether blind and 
visually impaired are better off now...thanks to e-books... thanks to 
the DMCA).

Jonathan Band supported the request for a narrow exemption.  The DMCA 
enabled publishers to get profits but there were given with a few 
strings attached...the very few and rare exemptions.  And that's what 
this hearing is about.  Even if only 5% of ebooks are protected in such 
a way that people with disabilities need to circumvent a technology, it 
is justified because some are negatively affected. He was talking about 
non infringing use:  a blind student who buys a book should have the 
right to use a software to 'listen" to it.  Jonathan Band was excellent 
and even funny.

Robert Bollick assured the librarians that McGraw Hill does permit text 
to speech software for their books but understand why other publisher 
would object.  The industry is in its infancy and could be threaten by 
exemption.  If e-book is a 'class of work" with exemption, publishers 
will fear piracy.... It's a market issue, we can address the need 
without exemption...(Let's hope Mc Graw Hill good will is here to stay 
but I can understand why some people do not want to count on this!)

Allan Adler was quite predictable:  giving the exemption "would open a 
wedge", it's "opening the door to fair use" "it's inviting more 
government regulations", the slippery slope (again), it would justify 
tools to circumvent and there are piracy concerns (there's NO first sale 
doctrine for ebook) Also blind and impaired people can buy books, scan 
them and then have the software put it in the speech format....(I am not 
kidding he actually said that they can go do that Allan Adler has 
probably never scanned a page in his life!)
One of his problem is that publishers are divided in the association, 
some are also publishers of audio books and see a competition problem 
(but as Paul Schroeder pointed out synthetic voices are quite different 
from what you get on audio tape).  And of course "some might not invest 
in more e-book if the exemption is granted" etc...

The librarians asked many good questions:
What is the downside of granting this exemption for publishers?
Do we have consensus that the act of converting into speech is not 
infringing and what is the legal analysis? (JB: Private performance is 
not infringing see 106 and fair use = NOT infringing at 2 levels)
Focus on what is particular class of work?
Do people agree on possibility to narrow the exemption?
What is available on the market? the alternatives
Is the default setting on or off?
etc...

http://www.copyright.gov/1201/2003/hearings/schedule.html

May 2
9:30 a.m.
1. Motion pictures and audiovisual works:

DVD tethering/alternative platforms
DVD backups/noninfringing uses
DVD/Video Game Region Coding
	Robert Moore, 321 Studios.com, Inc.
Rubin Safir, New Yorkers for Fair Use
Michael Einhorn, Ph.D., Economist
Phil Gengler
Bruce Turnbull, DVD Copy Control Association
Shira Perlmutter, AOL Time Warner
Fritz Attaway, Motion Picture Association of America
Stevan Mitchell, Interactive Digital Software Association

2. Literary works:

Damaged, malfunctioning, obsolete
Other noninfringing uses
	Joe Montoro, Spectrum Software
Shawn Hernan, CERT Coordination Center
Jonathan Band, American Association of Law Libraries, ALA, ARL, MLA, and 
the SLA
Jay Sultzberger, New Yorkers for Fair Use
Chris Mohr, Reed Elsevier Inc.
Keith Kupferschmid, Sofware Information & Industry Association
Emery Simon, Business Software Alliance
May 9
-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176