DMCA IS THREAT TO FAIR USE AND CYBERSECURITY, COPYRIGHT OFFICE TOLD

IP Justice Exec. Dir. Robin Gross proposed 6 exemptions, which if adopted essentially would gut DMCA. First 3 would permit evasion of tethering, specifically on literary works in e- book format, copy-protected CDs, DVDs. Gross would allow consumers to space-shift content. That issue pertaining to e- books was part of debate in recent Elcomsoft case. With DVDs, Gross would permit evasion of Regional Coding and other protections. Her final 3 would permit evasion for other “noninfringing uses,” including dual-use technology. That has been goal of House Internet Caucus Co-Chmn. Boucher (D-Va.), who introduced similar bill at end of the 107th Congress, but it’s considered dangerous notion to content community because it relies on consumers to use content only in good faith, and those uses have yet to be defined formally.

Computer & Communications Industry Assn. (CCIA) said all sound recordings and motion pictures should be exempted from DMCA, essentially gutting vast majority of content act was designed to protect. CCIA has emerged as one of leading defenders of liberal use of content online, and Pres. Ed Black was vocal in describing bill in Congress by House Judiciary Courts, Internet & Intellectual Property Subcommittee ranking Democrat Berman (Cal.), designed to enable self-help measures by copyright holders, as promoting hacking of consumer PCs. CCIA Gen. Counsel Jason Mahler told Copyright Office that “dominant copyright holders have been empowered to employ professed rights under the DMCA to harm competition and impair consumers’ rights.”

DMCA can interfere with cybersecurity, said Daniel McEnnis, echoing a recent speech by White House cybersecurity czar Richard Clarke. McEnnis said source code should be exempt from DMCA because keeping it hidden from computer security officers who needed to prepare for and deal with cyberattacks would affect “efforts to secure the U.S.’s Internet infrastructure against hostile attacks by terrorists and rogue states by preventing the legal dissemination of the knowledge needed to defend against these attacks.”

CERT Coordination Center (CERT/CC), cybersecurity center that’s partnered with Electronic Industries Alliance (EIA) in Internet Security Alliance, made similar argument. “Access control mechanisms that fail to provide adequate security to the works they are intended to protect are also likely to expose the authorized user of a computer, computer system or network to damage or loss, including the loss of privacy.” CERT/CC wrote: “The presence of these flawed mechanisms exposes other protected works on related computers, computer systems and networks to unauthorized access.” CERT/CC said DMCA exemptions should be extended to content properly owned by user, as well as access to compilations of Web sites blocked by filters. That argument also was cited by Samuel Greenfeld, recent engineering graduate in N.J.

Assn. of American Universities, American Council of Education and National Assn. of State Universities and Land-Grant Colleges all said Copyright Office failed in 2000 by not significantly exempting per-se use of materials for academic purposes, and hoped triennial review would be different. “We believe that the legal standards recommended by the Copyright Office and adopted by the Librarian [of Congress] in the 2000 rulemaking are inconsistent with the statute and legislative history and create a ‘Catch-22’ for copyright users virtually assuring that no meaningful exemptions ever will be adopted,” they said. Requiring potential users to demonstrate likely harm “simply is not practical for most institutions (particularly large, public institutions such as universities and libraries),” they said, and as result most institutions accept copy restrictions “rather than suffer the ’substantial adverse effects’ of foregoing such access.”

Buena Software Pres. Darrin Cardani said his work as musician made him value intellectual property protection, but said DMCA anticircumvention provisions shouldn’t restrict devices designed for one’s use and then later capable of being able to evade anticopy technology developed after device. Rares Marian and Marcia Wilbur of Center for Electronic Law said requirement for contacting copyright holder for password access was overly burdensome for noninfringing use, and circumvention should be permitted when timely response from copyright owner wasn’t possible in those scenarios.

Brock Manville, self-published, -distributed and -promoted musician, said there was audience for that sort of content and said musical works broadcast by small Internet Webcasters should be exempt. He said royalties were putting many of those outlets out of business, threatening vital distribution vehicle for self- promoted artists. Michael Rolenz, self-described “private citizen” who is frequent participant in debate against DMCA, said public domain works such as Robert Louis Stevenson’s Treasure Island were subject to copy-protection measures in e-book format even though there was no copyright protection for those works, and thus, public domain works should be exempted. Paul Schroeder, of American Foundation for the Blind, made similar argument, calling for “literary” works to be exempted from DMCA protections.