[Random-bits] Librarians appalled by Librarian of Congress on fair use rules

[James Love]

Thanks to Jim Warren for this forward.

ALAWON: American Library Association Washington Office Newsline
Volume 9, Number 85
October 26, 2000

In this issue:

NEW DIGITAL COPYRIGHT RULES BAD FOR THE AMERICAN PUBLIC

The Librarian of Congress James Billington has ruled against the
American public and library users by negating fair use in the
digital arena. Billington allowed only two exceptions in the fair
use proceeding involving the 1201 anticircumvention provision of
the Digital Millennium Copyright Act (DMCA).

A preliminary review of the ruling reveals that Billington adopted
recommendations by Marybeth Peters, Register of Copyrights, to
provide exemptions only for malfunctions and to determine which
sites are blocked by filtering software. The exemption related to
circumventing filtering software may be useful although
problematic.

The library community as well as members of Congress, the U.S.
Department of Commerce, the K-12 and higher education communities,
and many others have argued in the 1201 proceeding and elsewhere,
that the longstanding principle of fair use must continue in the
digital era. Because of this decision users of digital information
will have fewer rights and opportunities than users of print
information.  In fact, the pay-for-use scenario that librarians
have feared appears to have now become a reality with this rule.

"The Copyright Office has issued a misguided ruling taking away
from students, researchers, teachers and librarians the long
standing basic right of "fair use" to our Nation's digital
resources,"  said Nancy Kranich, ALA president. "All library users
will be impacted."

ALA, in conjunction with the American Association of Law
Libraries, the Association of Research Libraries, the Medical
Library Association and the Special Libraries, submitted strong
filings and testimony in the proceeding arguing that there should
be exemptions from the Copyright Act's new restrictions against
accessing copyright works that are protected by technological
measures.

Peters' conclusion in her recommendations to the Librarian of
Congress reads as follows:

CONCLUSION
Pursuant to the mandate of 17 U.S.C. 1201 (b) and having
considered the evidence in the record, the contentions of the
parties, and the statutory objectives, the Register of Copyrights
recommends that the Librarian of Congress publish two classes of
copyrighted works where the Register has found that non-infringing
uses by users of such copyrighted works are, or are likely to be,
adversely affected, and the prohibition found in 17 U.S.C., 1201
(a) should not apply to such users with respect to such class of
work for the ensuing 3-year period.  The classes of work so
identified are:

1. Compilations consisting of  lists of Websites blocked by
filtering software applications; and

2. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit
access because of malfunction, damage or obsoleteness.

The Register notes that any exemption of classes of copyrighted
works published by the Librarian will be effective only until
October 28, 2003.  Before the period expires, the Register will
initiate a new rulemaking to consider de novo what classes of
copyright works, if any, should be exempt from 1201 (a)(1)(A)
commencing October 28, 2003.

ALA is reviewing the ruling in great detail.  Options now include
requesting a reconsideration of the ruling as well as litigation.

For background see ALAWON volume 9, number 16:
(http://www.ala.org/washoff/alawon/alwn9016.html)
and volume 9, number 33:
(http://www.ala.org/washoff/alawon/alwn9033.html)
and the ALA Issue Brief:
http://www.ala.org/washoff/Rulemaking.PDF

The Librarian's ruling is expected to be published in the Federal
Register on October 27th or 30th. For information about the
rulemaking process, see the Library of Congress web site:
http://www.loc.gov/copyright/1201/anticirc.html

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-- 
James Love  mailto:love@cptech.org http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 20036
voice 1.202.387.8030  fax  1.202.234.5176