Wednesday, October 26, 2005

Copyright office restarts DMCA rulemaking

Every 3 years, the Copyright Office, headed by Marybeth Peters, conducts a rulemaking to determine exemptions to 17 U.S.C Sec 1201(a)(1), which prohibits the circumvention of access-controlling technological protection measures (TPMs).

Most commentators believe that TPMs, aka Digital Rights Management (DRM), reduce the general public's ability to make otherwise noninfringing uses (e.g., fair use, as encoded at 17 U.S.C. Sec. 107) by leaving it up to content creators to set the terms of access and use.

Despite this widespread criticism, Peters has constructed the Office's powers in this matter so narrowly as to be utterly ineffectual.

For instance, she ruled in 2003 that, to make fair use of a DVD, instead of using your computer alone (which would still be quite difficult), you also have to buy a standalone DVD player and an analog-to-digital converter that does not recognize Macrovision.

Which converters allow you to import video despite the Macrovision flag? It's hard to say, since Section 1201 makes it illegal to manufacture devices exclusively for that purpose or to advertise any otherwise legitimate device's capability to do so.

Why do you have to pay hundreds extra to exercise your free speech rights? Because Jack Valenti's pals want to make more money.

If you think this blog post is long, wait til you see the forthcoming law review article documenting the stomach-churning policy developments that got us here.

In any case, feel free to submit your horror stories about how TPMs keep you from engaging in otherwise lawful uses. Please do; it makes the push for reform so much more powerful! But expect to be disappointed by Peters' ruling in the end.


At 10:54 AM, Blogger Arbitrary Thinker said...

This comment has been removed by a blog administrator.

At 10:57 AM, Blogger Arbitrary Thinker said...

In addition to the fair use question regarding anti-circumvention what about public domain content that is stored on encrypted media? No one is talking about this. Is this not discussed because copyright lasts effectively forever and there is little expectation of new work ever entering the public domain?
See my longer comments at

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