[Ecommerce] Alex Curtis (PK) on DMCA exemptions

[Manon Ress]

Here's an excellent blog by Alex Curtis (PK) re the latest DMCA
rulemaking exercise.  I'm not sure I totally agree with his view that
the new consideration of  =93use/user should be viewed as a double-
edged sword" but it is a good analysis of what we're looking at now.
Bewildering indeed.
manon

DCMA Exemptions 2006: the Good, the Bad, and the Bewildering

Submitted by Alex Curtis on November 27, 2006 - 4:54pm.

http://www.publicknowledge.org/node/734

The Copyright Office dropped their DMCA exemptions, while most of us
were passed out after Thanksgiving supper. You can read about them
yourself here, with the Register of Copyrights=92 full analysis here
[PDF]. These are exemptions to the DCMA=92s prohibition on
circumvention of technological protection measures=97for which the
Copyright Office allows the public to apply every three years. These
exemptions are erased every three years, unless one re-applies for an
exemption and receives it. The prior two exemption rulemakings
yielded two and four exemptions respectively, with each years
exemptions generally consisting of a finer parsing of the previous=92
exemptions. Bill has already written a good analysis of two of the
exemptions, but let=92s take a look at the whole thing, shall we?
Exemptions to be (somewhat) Thankful for:

     * Exemption 1: Clip compilations of digital works for select class

This permits the making of compilations of video clips for digitally
protected audiovisual works; for example: making selections of
digital clips of DVDs.

     * Exemption 2: Archiving of obsolete computer programs/games

This permits the archive of computer programs and games that have
become obsolete, or the hardware to run them is no longer available.

     * Exemption 3: Dongles; Exemption 4: Ebook for the visually
impaired

Essentially the same as the last rulemaking.

     * Exemption 5: Unlock mobile phones

This exemption allows anyone (consumers included) to modify or
=93unlock=94 the software on a mobile phone to allow mobile phone to be
used with another mobile phone carriers service. For example: the
software on a phone purchased for use on Cingular=92s network may
prohibit it from working on T-Mobile=92s network; this exemption would
allow the software to be swapped-out to allow that mobile phone to work.

     * Exemption 6: Rootkit study and removal:

The final exemption permits the study and correcting of technological
protection measures that create security flaws or vulnerabilities
that compromise the security of a personal computer. For example:
Sony Rootkit software that was distributed on copy-controlled music
CDs, that rendered personal computers vulnerable.
Limited Exemptions:

That=92s all fine and good, but there are a few problems with these
exemptions. Exemption 1 is severely limited to the educations
settings of university film or media studies departments, and to
media studies or film professors, for the purposes of making
compilations of portions of works. Not only can professors and
students in different departments not take advantage of these
provisions, but the consumer=92s ability to make excerpts of digitally
protected audiovisual works for criticism or comment is still
prohibited.

Exemption 2 is a more finely diced version of the previous
rulemaking=92s exemption=97it=92s limited so as only to apply to archival
purposes conduced a library or archive. Consumers again are left out
in the cold.

Exemption 5 is limited to allow compatibility between/among networks,
not to allow for additional features on a mobile phone that may be
crippled by a network operator=97such as the use of bluetooth file
transfers or java applications.

Exemption 6 only applies to technological protection measures
distributed on compact discs or CDs=97not DVDs or any other physical
media or delivery method. Six applies only to CD distributions of
sound recordings and audiovisual works associated with those sound
recordings=97meaning, it does not include software distributed on CD
that might contain technological protection measures that might
spread security flaws or create vulnerabilities.
Passed on Exemptions:

So, these new-found exemptions are at best crippled, especially for
consumers. There were a number of other exemptions applied for, but
were rejected by the Copyright Office. One large one was for =93space-
shifting=94 which deals with moving legally obtained digital content
from one device or format to another=97say from a CD to an mp3 player
or from a TiVo to an iPod.

As to the space shifting exemption, the Copyright Office said that
proponents failed to =93cite legal precedent that establishes that such
space-shifting is, in fact, a noninfringing use=94; that =93[c]learly
such conduct infringes the exclusive reproduction right unless some
exemption or defense is applicable=94; and lastly that =93[a]t most, the
commenters have asserted that technological measures have made it
difficult to make copies of musical and audiovisual works for use on
other devices =96 a use that is either infringing, or, even if it were
noninfringing, would be merely a convenience which is insufficient to
support a claim for an exemption.=94

Amazing.
Changing the Rules:

Something was different with the 2006 exemptions, and it was touched
on by Bill in his post:

     This represents a substantial shift in the Copyright Office=92s
interpretation of Section 1201. In 2000 and 2003, they vocally
rejected any and all classes of works that were defined, even in
part, by reference to specific users or intended uses. Classes of
works had to be defined strictly in terms of the qualities of the
works themselves.

=93Particular class of works=94 can now be viewed as to include
particular types of uses and/or users. The Copyright Office=92s
reasoning for now considering =93use/user=94 as part of the exemption
equation is:

     The interpretation of =93particular class of works=94 applied herein
is made in response to new factual situations presented in this
rulemaking proceeding, and thus may represent an evolution from the
approach taken in past rulemakings. Such reexamination is entirely
appropriate in the context of this rulemaking. Indeed, =93Agencies are
free to change course as their expertise and experience may suggest
or require, but when they do so they must provide a =91reasoned
analysis indicating that prior policies and standards are being
deliberately changed, not casually ignored.=92=94 Ramaprakash, v. Federal
Aviation Administration, 346 F.3d 1121, 1124 (D.C. Cir. 2003). The
reasoned analysis establishing that the approach taken in this
rulemaking is the product of careful deliberation, and not =93casual
ignorance=94 of the prior rulemakings, is provided herein.

What this means is that the Copyright Office, despite expressly
forbidding itself for the past six years and despite the objections
of numerous organizations including the NTIA (with which the Office
is statutorily required to consult), has changed its own rules on how
it evaluates and creates an exemption.

Substantively, this new =93use/user=94 consideration should be viewed as
a double-edged sword. The Copyright Office used it in this rulemaking
to pair down the exemptions: limiting #1 to media studies or film
professors; limiting #2 to libraries and archives; limiting #5 for
the purpose of connecting to a mobile network; and limiting #6 to
testing, investigating, or correcting security flaws.

Although, substantively, many may consider it a good thing that the
Copyright Office is seeing the light (especially for professors,
libraries, and archives), procedurally, there=92s a big problem here:
the Copyright Office changed the rules it had played by over the last
six years.

Why did the Copyright Office make the change on its own and not as a
result of the many request on this specific issue? Why now and not
years ago? Do we get to go back and reconsider all the previous
requested exemptions based on this new standard? How does one
challenge these whim-based rule changes of the Copyright Office, or
the Office=92s jurisdiction for this rule making process in general?

Although it=92s a good thing that we ended up with more DMCA exemptions
in this third round of rulemakings, we now have more questions than
answers. It would be useful for Congress to address the question of
the Copyright Office=92s authority and consumers=92 rights and
expectations in the upcoming 110th session.

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology
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