Market Effect From Circumvention Tools Argued in Copyright Rulemaking
In reply comments to the Copyright Office in its anticircumvention-exemption rulemaking, content associations sparred with fair-use groups over the market effect of commonly available software and hardware for ripping, burning and sharing movies, music and TV shows. They also argued over whether security issues of copy-protection technologies like the DRM on some Sony BMG CDs make necessary an exemption for security researchers. The Copyright Office is considering adding situations in which “access control technologies,” such as Content Scrambling System (CSS) on DVDs, can be legally bypassed under the Digital Millennium Copyright Act (DMCA).
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The Assn. of American Publishers, Authors Guild, Business Software Alliance, Entertainment Software Assn., MPAA, RIAA, Software & Information Industry Assn. and others filed joint comments, and Time Warner (TW) filed its own. On the other side, the Electronic Frontier Foundation (EFF), Internet Archive and others filed separate comments.
The explosion in online delivery services for music, movies, TV, games and software couldn’t have occurred without access control technologies, sometimes called technological protection measures (TPMs), the content firms said in the joint filing. Groups pressing for more exemptions in their initial comments haven’t “adequately demonstrated sufficient harm” from anticircumvention rules to justify more exemptions, Time Warner said. It asked the Copyright Office to consider “the evolving nature of the TPMs used to protect copyrighted works, and the collaborative ways in which these TPMs are frequently developed and deployed.”
Several Time Warner products and services wouldn’t exist without TPMs, including its new on-demand broadband network In2TV, Web-based game service GameTap, and digital versions of print magazines like Business 2.0, the company said. It’s on the verge of launching “electronic sell-through services” in partnership with Internet companies, to let consumers download DRM-protected Warner Home Video titles to their PCs and mobile devices.
EFF said the market for DVDs had barely been affected by the “widespread availability of DVD ‘ripping’ software” and PC-based burners, and therefore undermined the copyright industries’ argument against a clip-compilation exemption. CSS is an ineffective protection measure that has done little to stop DVD copying by an increasing number of cheap or free software programs -- sometimes sold by major retailers -- and computers that come standard with DVD burners, to say nothing of online piracy, the group said. Yet DVD profits have “proven to be a robust incentive” for making movies and releasing TV programs on DVD since the Office’s last rulemaking in 2003: “Today the motion picture industry’s willingness to release material on DVD is plainly not correlated to any security provided by CSS.” All exemptions sought are for fair-use activities only, the group added. EFF cited congressional guidance to the Office that it should consider the market for copyrighted works in analyzing when circumvention is warranted.
Time Warner contested the initial comments on “clip compilations,” which fair-use groups say is a fair use and should have an exemption. Software is available to let users mark and “navigate seamlessly to certain audio and video segments on a disk,” TW said, and in any case, the Office itself has said “mere inconvenience” can’t justify an exemption. Optical-disk technology in development will let content owners authorize consumers to make secure copies, including clips, the company added.
Security issues from TPMs were broadly disputed between the 2 camps. TW called exemption proposals for security testing “tantamount to outlawing the use of the [protection] technology.” And TPMs don’t affect diverse devices the same: “This could mean that whether or not a security vulnerability exists could vary from device to device.” The content firms’ joint filing said uninstalling copy-protection software alone wasn’t a circumvention, and pointed to Sony BMG’s actions after its DRM was flagged for security issues -- recalling CDs and releasing patches -- as evidence that no new regulation is needed to guard against intrusive TPMs.
EFF said computer security will suffer without such an exemption, citing the Sony case. EFF has been pressing music labels that use DRM on some releases, such as EMI, to assure security researchers they won’t be sued for testing DRM for security issues (WID Jan 6 p1).
The Internet Archive said some computer programs and videogames work only with “obsolete” hardware or software, and are “at risk of being lost unless they can be effectively archived” -- meaning their TPMs must be circumvented. It’s unclear whether such built-in limitations constitute TPMs as defined in the DMCA, and the Office should clear up the ambiguity by granting an exemption, the nonprofit said.
That proposal is misguided, TW said. Contrary to the Internet Archive’s statement that there’s no market for programs and games in “now-obsolete formats,” TW has made a business through GameTap of letting subscribers play original console, PC and arcade games in their original formats. Those games also let TW build new, original content similar to DVD extras through GameTap: “Making games freely available because their original playback equipment is obsolete would remove the economic incentive to develop and distribute such new programming.”
On a broader subject, the Dominican Republic-Central American Free Trade Agreement (DR-CAFTA) has no effect on the Digital Millennium Copyright Act, contrary to some claims, the content firms said. The treaty, which lets signatories recognize exemptions for anticircumvention controls, sets “a floor below which signatories cannot sink, not a ceiling above which they may not rise, in safeguarding” TPMs, they said.