Monday, June 06, 2005

Bill Corrects a Yale Law Grad

I've just finished an excessively long comment on Ernest Miller's blog. I've linked to Miller's post (rather than my comment) to provide some context. To be fair, it's more like "Bill Nitpicks a Yale Law Grad," but the distinction is important.

I'm surprised more people aren't fired up about the difference between access control technologies and use control technologies. It's illegal to hack through the Lexis-Nexis password protection (an access control), but it's not illegal to hack into the technology that keeps you from copying certain CDs. (Of course, it's illegal to develop or distribute the tools to do either.)

Yet access controls are defined quite broadly, and very few protection measures are purely use-control technologies. If it's a dual-purpose technology--if it controls both access and use--one cannot circumvent it for any purpose, even to make fair use. (Who loves the DMCA? WE DO!)

All is not totally lost; the Copyright Office holds toothless triennial hearings to determine very narrow exemptions. For more details, see the Copyright Office's 1201 website. (In particular, see the Register of Copyrights' 2003 recommendations to the Librarian of Congress. Unfortunately, the PDF is seriously flawed right now; I've written them and asked for them to put up a better version that isn't missing dozens of pages.)


At 9:05 PM, Blogger Ernest Miller said...


Thanks for reading and commenting, but I would like to point out that I am well aware of the distinction between 1201(a) and 1201(b). I've actually written extensively about it and submitted comments to the Copyright Office as part of the triennial review. For one brief example, please see here: Misleading DMCA Article

At 1:34 PM, Blogger Bill Herman said...


Well stated; why didn't you just say that (or at least link to it) in your original post?


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