High-Tech Groups Bow Out of ‘Broken’ Rulemaking Process
Time has run out to submit proposals for exemption of noninfringing activities otherwise squelched by the Digital Millennium Copyright Act’s (DMCA) DRM restrictions. Several major high-tech groups that sounded off in 2 prior rulemakings didn’t make their voices heard this year. Some said they'd given up because their efforts had been ignored. But the content industry welcomed the start of the triennial rulemaking.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The Electronic Frontier Foundation (EFF) didn’t file by the Thurs. deadline because “where consumer interests are concerned, the rulemaking process is simply too broken,” staff attorney Fred von Lohmann said. There’s an exemption for acts of circumvention, but the agency lacks the power to legalize circumvention tools, he argued. The govt. also sets “impossible burdens” to effectively participate in the rulemaking and discounts consumer- oriented concerns as “mere inconveniences,” von Lohmann said.
In past years, EFF asked the agency to create exemptions for lawful consumer uses of digital media encumbered by DRM restrictions. EFF asked that DVD owners be allowed to skip ads before movies and that buyers of copy-protected CDs be allowed to play them on their PCs. Consumers should also have the right to bypass region coding to play a DVD purchased in another part of the world, EFF said. The Copyright Office rejected all the proposals, von Lohmann said. He said EFF may support narrower proposals by others.
Civil liberties group IP Justice also decided not to file, after participating in the last 2 proceedings. “It’s an enormous waste of time and energy to participate. The U.S. Copyright Office has stacked the deck against American consumers,” Exec. Dir. Robin Gross told Washington Internet Daily. She charged that Register of Copyrights Marybeth Peters had made clear twice before that “the problems of thousands of ordinary consumers will never rise to the level that will convince the office to issue meaningful exemptions.” Congress created the rulemaking so the Copyright Office could protect consumers from DMCA abuses, but the agency’s only goal is to “give Hollywood executives maximum control over a consumer’s use of her own DVDs, CDs and other personal property,” Gross said.
While a few exemptions were issued in the 2003 rulemaking, they were “so narrow that they only impact a few dozen people in the entire country,” Gross alleged. “It’s truly sad that officials at the U.S. Copyright Office have long forgotten who pays their salaries and in who’s interest they are entrusted to protect.” Two years ago, exemptions for 4 classes of works were announced: (1) Compilations of lists of Web sites blocked by filtering software. (2) Computer programs protected by dongles (a hardware device that can render software unusable) that prevent access due to damage or are obsolete. (3) Computer programs and videogames in obsolete formats. (4) E-books that block access to read-aloud functions for the visually impaired.
Meaningful DMCA reforms to protect fair uses that consumers care about must come from Congress, von Lohmann said. His group supports HR-1201, a bill introduced by Rep. Boucher (R-Va.) that “would go a long way toward fixing the DMCA/DRM mess.” The legislation would take property “from a bunch of A’s and give it to a bunch of B’s, only without paying a cent to the A’s,” Progress & Freedom Foundation’s Jim DeLong said in an Oct. paper.
The bill “relies on a test composed of sanctimonious verbiage that could be failed only by the deeply stupid,” DeLong said. The DMCA made it illegal to crack encryption measures and distribute code-cracking tools but HR-1201 would “repeal this ban insofar as the code cracker or the toolsmith wanted to obtain, or help others obtain, access for purposes of making ‘noninfringing use’ of a work,” DeLong wrote (WID Oct 20 p8). PFF and other high-tech policy groups, like the Digital Media Assn., Public Knowledge, Center for Democracy & Technology and Harvard U.’s Berkman Center for Internet & Society also didn’t file -- but didn’t tell us why they opted out.
The Assn. of American Publishers, Business Software Alliance, Entertainment Software Assn., MPAA and National Music Publishers Assn. issued a joint statement that said the groups “look forward to reviewing these proposals and responding to them” during the reply period, which closes on Feb. 2. “We believe that the outcome Congress hoped for when it enacted the DMCA is being realized today. The copyright law continues to provide strong incentives for the creation and dissemination of new works,” they said: “The DMCA’s legal back-up for the technologies that are used to manage this dissemination and to build markets for new media is an indispensable ingredient for the success of these efforts.”