US Copyright Office Releases DMCA Advisory Report

snogwozzle writes: "The US Copyright Office's congressionally-mandated advisory report on the effect of the DMCA is in, and at first glance it doesn't look too good. They're against undoing the definition of temporary RAM buffer copies as possibly infringing (which Jessica Litman in Digital Copyright pegged as perhaps the central dirty trick in the DMCA as it opens the door to technical access control by publishers) is turned down, so is a first sale doctrine for digitally distributed works, and the DMCA's effect on fair use is called out of scope for the report. On the other hand, they think everyone should have a backup right for media bought in digital form, like we have for software." Keep in mind that this is only looking at the DMCA's effect on the "first sale doctrine" (once a work is sold to you, the copyright holder can't stop you from re-selling it) and on the legal right to make backup copies of a computer program.

Comments

Bad news can be good news

[YIAAL]

This may actually be good news. There's a building sentiment that DMCA is horrible and should be repealed or reworked. The worst thing we could get would be a workaround that would be good enough to save DMCA as it is, but without fixing the main problems.

Clueless or Evil???

[JohnDenver]

They argue that the requirement to view DVDs on non-licensed devices is akin to requiring VHS tapes to be watched on Beta machines. The analogy is so poor and revealing of how clueless the Copyright Office is to the issue that it makes me despair.

If I was evil, I'd use the exact same analogy to the anti-DMCA sentiment come off as petty liberal sticklers.

I appreciate anything that vindicates my apathy for your petty little freedom to write compatable software. Who are you to tell me what you can do with my copyrighted material? It's my right to be able to securly distribute my copyrighted material without the fear it's going to be Napsterized.

Try playing the Devil's advocate and see how easy it is to not give a shit about details when you're trying to manipulate the public.

Re:Lots of items out of scope... convenient...

[Sawbones]

I thought that was odd too, this is the letter I wrote to my congression representatives (all three). It was actually a letter too. I typed it, but it cost me 33 cents of my hard earned money to get it to each of them. Somehow that seems to make worlds of difference over email letters. Anywhow, I hope everyone else will take the time to do it too. Letters don't have to be long or eliquent (as mine surely isn't) but hopefully it'll get the point across.
------------

Dear Senator Murray,

I am writing to you today to voice my concern over the Digital Millennium Copyright Act (DMCA). I am concerned that the central issue with the DMCA - my "fair use" access rights to information I have purchased - was deemed "out of scope" in the governmental report DMCA Section 104 Report released by the US Copyright Office in August 2001. As a user of the Linux operating system I have grown accustomed to using tools created by others, or creating my own, when no corporation has deemed it worthwhile to provide those tools for me - namely a means for watching DVD videos on my computer. Under the DMCA those tools, and my possession or others' creation of them has been deemed illegal. Likewise it is now illegal for me to make a safe backup of information or computer software - for my own use - if that backup should require a tool to access the information locked away by a company's copy protection scheme. I cannot count the hundreds to thousands of dollars in software I have lost because I was unable to make a safe backup copy of the discs I purchased only to have those discs corrupted or damage. As you can see this law unfairly infringes on my rights to legal access to information I have purchased. The DMCA also infringes on our scientists ability to do research as you can see by the actions taken against Princeton's professor Felton. Professor Felton has barred from presenting research on the nature of cryptography because the DMCA had rendered his actions while conducting research illegal.

Ben Franklin said the price of freedom is eternal vigilance; I have no wish to stand by and watch as my rights are trampled on. I hope that I can count on your support to strike down or seriously amend this unjust and unlawful piece of legislation. If you have any questions for me or would like to know more about the public's stance on this law please feel free to contact me.

Thank you.

Your Constituent,

CSS and first sale.

[bperkins]

The first sale doctrine codified in section 109 limits an author s distribution right so that subsequent disposition of a particular copy by its owner is not an infringement of copyright. The first sale doctrine does not guarantee the existence of a secondary market or a certain price for copies of copyrighted works. If fewer people may wish to purchase a used DVD, or if they would pay less for it due to CSS, that would not equate to interference with the operation of section 109. Many circumstances in the marketplace may affect the resale market for copies of works improvements in technology, introduction of new formats, and the quality and cultural durability of the content of the work. None of these factors can properly be said to interfere with the operation of section 109, even though they could reduce the resale market for a work or even render it nonexistent.

This argument makes no sense, and makes me believe it was written by a shill. Although circumstances can cause a piece of media to become worthless, the causes are mostly out of the distributors control. What we are talking about is equipment manufacturers and media conglomerates (who are often one and the same) _colluding_ to control the distribution of media.

Taken to the extreme ,if I bought a DVD and found that I could only sell the DVD to people who lived within 5 miles of me due to the whims of the DVD consortium, this would almost certainly limit the market which I could sell it, and be an undefendible practice. The author might have tried to make the argument that since DVD regions are large, the market is not severely limted by region encoding, but they chose not to. Even this argument is not really supported by the facts, since there is clearly an nonzero demand for imported DVDs due to pricing descrepencies between the different regions.

The author of this text is presenting the view that the intent of the distributor doesn't matter, which may or may not be the case with regard to copyright law, but is not true on the face of it. Whether DVD encoding is illegally limiting first sale doctrine is something needs to be worked out by looking closely at the law and certainly isn't an argument that is "without merit"

Educating our congressmen

[Otto-matic]

It is apparent to me that we are witnessing the effects of answering to a legislature unversed in and unused to the current state of our technological culture. Sure, they understand the effects of technology's cultural advancements on their supporter's bottom lines, but they don't understand the effects of those advancements on the end user. THEY have never really been the end user.

Now, in an atmosphere of self-serving corruption led by gargantuan special interest groups, they are scrambling to pick up pieces and make laws that put this technology in a perspective they can understand. It makes sense that these laws support the big corporations and associations that will benefit most from the regulation. Afterall, who is educating our congressmen? The MPAA, RIAA, Microsoft, etc. These conglomerates have an immeasurable headstart on us, because they've had their foot in the door and hands down the pants of the House and Senate for decades! Anyone you help educate is going to learn what YOU teach them. Imagine what happens when you have a legislature sorely lacking in technological education being educated by people whose agenda includes technological regulation for the sake of their bottom-line?

The question we have to answer is relatively simple: Which of us is going to stand up and begin educating our congressmen as to the REALITY of the cultural advancements of technology? Who is going to teach them what it means to be an end user? I don't think that writing individual letters to our congressmen is the answer. I think that each one of us writing a letter expressing our individual views will water down the message that this kind of regulation is WRONG. It will beget the same reaction as each of us writing to legalize marijuana, LSD, cocaine, etc.

What we need is a single concerted effort--the only way any dissention has ever resulted in success. Imagine if Martin Luther King, Jr. had asked each and every black person in the US to just write a letter to his/her congressman asking for an end to segregation... Sometime soon, all of these voices protesting the immorality of the DMCA must gather together and approach congress in an organized fashion. Begin holding educational workshops for your legislators, giving speeches on the effects of such draconian regulation on end-user's rights, the unconstitionality of the DMCA and its like.

I fear, as do many of you, that unless such an effort is made, we will soon see ourselves fighting this battle beneath an already well-established DMCA.

Otto

Re:Obviously, we didn't care

[dachshund]

It said Index of Initial Comments

Yes, this cleared everything up for me.... ??

Isn't there a good chance that there are more comments? Did anyone stop to think that the comments/list itself might be moderated?

I think every single person who's thought about it has considered this possibility. Hence the disbelief at the tiny number of comments, when so many people must have posted.

Any idea how this list was moderated? Provide some information and I'll love you for it.

Re:Automatic Democracy - An Idea

[aozilla]

I don't like this idea at all. Too many of the 5 posts are complete crap which know not what they're talking about. Take the Dmitry case for instance. I've seen far too many 5, Insightful, posts about how it's so horrible that he was arrested for giving a speech. Of course anyone actually following the case knows that the speech had nothing to do with the indictment. The proper way to get insightful posts to the proper people is A) for the person who wrote them to also write to the appropriate people and B) for others with the same viewpoint to read those posts and incorporate them into their comments.

Forcing people to post in PDF format was a good thing. It helped separate those who actually had insight into the situation from those "click me if you disagree with the DMCA and I'll automatically send a letter to congress for you". The U.S. was set up to avoid democracy where every person is expected to give their vote on every opinion. Congress is there to hear the facts and to make their own opinions, and the voice of the people comes at election time.

If you have facts, by all means present them to your congresscritters. But spamming them with "Me Too" letters does nothing more than decrease the signal/noise ratio and keep them from making the right decisions. If they cared about your opinion they'd look at polls, or start their own.

The law that should have been

[epsalon]

Pondering about the subject of the DMCA, I have reached an interesting insight.

The legislators of the DMCA saw a strange situation. Mega-Corporations are producing digital content, gaurded with various kinds of "protection" systems to prevent certain uses of thier content, and to allegedly enforce their copyrights. Then, "hackers" come and circumvent this protection, publicly posting their results. This situation of cat-and-mouse race sounds unreasonable. Either the rights of the copyright owners should be protected and it should be illegal to circument them (as the DMCA suggests), or (and this is what should have been decided) that the "protection" mecahnisms themselves are unethical and bypass the fair-use rights and the expiration of copyright.

The answer therefore is that they passed the wrong law. It's not illegal to circumvent the "protection" mecanisms. The mecanisms themselves contradict the fair-use rights that have been established.

The law that should have been passed, is one preventing use of any mechanism that prevents exercising of fair-use rights by legitimate owners. If the court decided I'm entitled to fair use rights, Mega Company X cannot deny me of those rights.

Right?