Copyright Office Opens DMCA Anticirumvention Rulemaking Proceedings

by Lee Hollaar

The Copyright Office of the U.S. Library of Congress has announced the start of proceedings to determine if additional exemptions to the prohibition against circumventing an access control mechanism are necessary. Enacted in 200, the Digital Millennium Copyright Act (DMCA) directs the Copyright Office to revisit the matter every three years as a fail-safe mechanism to determine whether whether non-infringing uses of certain classes of works are, or are likely to be, adversely affected by prohibition on the circumvention of technological measures that control access to copyrighted works.

Initial comments are due on 1 December 2005. The notice from the Copyright Office, found at www.copyright.gov/fedreg/2005/70fr57526.html, contains specific requirements for submitting initial comments that must be followed for your submission to be considered. Previous anticircumvention rulemakings took place in 2000 and 2003.

In particular, the Copyright Office is only concerned with the prohibition on circumventing measures that control access to copyrighted works. Under the statute, the Copyright Office cannot consider the prohibition on circumventing technological measures that protect the rights of the copyright owner — to reproduce, adapt, distribute, publicly perform or publicly display a work.

Exemptions are granted only for a particular class of protected work. Classes of works are based upon attributes of the works themselves and not by reference to some external criteria, such as intended use or users of the works. Classes of works share common attributes that relate to the nature of authorship. Thus, a class of works is a narrow and focused subset of the broad categories of works of authorship — literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. In 2003, the Librarian of Congress decided that four classes of works should be exempted:

1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, Web sites or portions of Web sites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or a computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.
    
2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
    
3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
    
4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

The Copyright Office will not consider general comments about copy protection, or how it is used in broad categories of works, so those comments should be avoided.

You will need to make an initial case for a proposed exemption, including three critical points:

1. Attempt to identify the specific technological measure that is the causal source of the alleged problem, and show why that technological measure effectively controls access to a copyrighted work.
    
2. Specifically explain what non-infringing activity the prohibition is adversely affecting.
    
3. Establish that the prevented activity is, in fact, a non-infringing use under current law.

For each particular class of works that you propose for exemption, you should first identify that class, followed by a summary of the argument for exempting that proposed class. You should follow the summary with specific facts and evidence providing a basis for this exemption. Lastly, you should state any legal arguments in support of the exemption. Follow this class/summary/facts/ argument format for each class of work you propose for exemption.

The Copyright Office is less willing to grant exemptions for works which are also available in an unprotected form, or where the access control method supports a distribution model that may provide a “user-facilitating” business model, such as time-limited access to the work at a lower cost.

Following the receipt of the initial proposals, the Copyright Office will first organize them and then make them available to the public. It will then schedule a period for reply comments on the proposals, and hold public hearings in the Spring of 2006.

IEEE-USA's Intellectual Property Committee will be reviewing the submissions and will be submitting reply comments, if appropriate. More information about the current and the previous two proceedings can be found at www.copyright.gov/1201.

Lee Hollaar is a professor of computer science at the University of Utah. He is a registered patent agent, holds patents on software and hardware systems, and has been an expert witness in a number of patent and antitrust cases. He is also author of Legal Protection of Digital Information. He is an IEEE Senior Member and a member and former chair of IEEE-USA's Intellectual Property Committee. For more information, visit http://digital-law-online.info. Comments may be submitted to todaysengineer@ieee.org.