Has it been three years already?

The US Copyright Office is again hearing arguments for exceptions for, as the December 29 Federal Register notice puts it, “certain classes of works from the prohibition against
circumvention of technological measures that control access to copyrighted works. The purpose of this
rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.”

In other words, when is OK to ignore the Digital Millennium Copyright Act and hack DRM? (You’ll find information on how to participate in this democratic process at the end of this post.)

This is, I believe, the Office’s fourth triennial review, and in each previous review exceptions have been issued, although never as many as some, such as EFF, would like. (EFF’s Fred von Lohmann has submitted two petitions, it seems, even though he has called the process broken and hinted that he would no longer participate.)

Criticism of the triennial process always comes, of course, from those who would rather the DMCA go away, or at least the anti-circumvention provision (I think they like the notice-and-takedown provision in which sites like YouTube disguise themselves as ISPs and encourage massive infringement).

Reporters eat up the colorful quotes of von Lohmann and others without recognizing that if the US Copyright Office were to actually satisfy their full demands, the DMCA anti-circumvention provision would cease to exist. It is not the job of the US Copyright Office to make its own laws, it is the job of the US Copyright Office — an arm of the US Congress — to exercise the tasks set before it by Congress and the US copyright law.

If critics don’t like the way triennials are conducted, their beef is with Congress, not the Office.

I think the US Copyright Office is to be commended for the way they have handled these reviews. Never once have they failed to issue exceptions, but never once have they caused a market disruption in the role DRM has played in facilitating new business models delivering in multiple ways legal creative works to eager consumers.

The Office has posted nineteen comments it has received for the latest triennial. I am still not done reviewing them thoroughly. I plan to read each with an open mind. It will surprise no one that I feel the anti-circumvention provision is working, that it is enabling copyright owners to produce and distribute works, and that consumers through the power of the purse can dictate when DRM works and when a copyright owner might consider other approaches. (That power of the purse should be through not purchasing said works. It should not be through taking works through unauthorized means elsewhere. Theft never enabled any legal business model.)

So no crises come to mind requiring new exceptions, but that isn’t to say there aren’t worthy candidates. I will review the comments with that in mind, and I encourage my readers to review them too.

If you’d like to respond to any, you have until February 2nd to do so. As is the case now, the Office prefers electronic comments. As of January 2, there will be a form posted on the Office web site (www.copyright.gov) that anyone can use to submit a comment. Following the comment period there will be hearings and ultimately rulings on the petitions.

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This entry was posted on Tuesday, December 30th, 2008 at 11:34 am by Patrick Ross and is filed under US Copyright Office, capitol hill, copyright law, copyright opponents, drm, fair use, market forces. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.