Tuesday, November 08, 2005

DMCA article accepted

The Cardozo Arts and Entertainment Law Journal has agreed to publish a paper I wrote with Oscar Gandy.

The paper, Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings, argues that the triennial rulemaking to determine exemptions to the ban against hacking technological protection measures is an ineffectual excuse for a "failsafe".

The media industry wanted stricter copyright law, and they got it in the form of 17 USC ยง 1201. As one of three bans the law enacts, it is now illegal to circumvent technological protection measures (TPMs) that protect access to copyrighted works. This basic ban is subject to triennial review by the Register of Copyrights, Marybeth Peters. If Peters finds that noninfringing users are unfairly denied access by the TPMs protecting a given class of media works, she can grant them the right to circumvent those TPMs for a 3-year period.

After an extensive legislative history, we conclude that the rulemaking was not constructed to preserve the public's ability to access works in otherwise noninfringing ways. Rather, it provided a mechanism for Congress to take power away from the courts (which would have been somewhat likely to apply traditional copyright defenses such as fair use) and give it to an historically copyright-friendly body with no chance of appeal. This delegation also allows Congress to refer those who are adversely effected to the exemption rulemaking, but the poorly written law allows Peters to refer them back to Congress. It's a real catch-22.

In considering the input of the first two rulemakings, we conclude that, while the Register is somewhat constrained by the law, she takes an unnecessarily narrow view of her powers to exempt classes of works. Further, we note that those who oppose exemptions readily leap onto any jurisdictional bandwagon they can find in an effort to oppose any and all exemptions. Peters buys into this time and again, rejecting nearly 6 times as many proposals as she accepts.

Perhaps most disappointing among Peters' rejected classes is Ernest Miller's proposal for exempting ancillary materials on DVDs--e.g., trailers, outtakes, etc. Peters acknowledges that people are actually prohibited from engaging in noninfringing uses (e.g., criticism), but she insists that the threat of widespread piracy outweighs.

The only way this denial makes sense is if there are a substantial number of people who are willing to disobey copyright law generally but not Section 1201 specifically, and that only by denying the exemption to noninfringing users of DVDs can we prevent this substantial mass of would-be infringers from posting all their movies online. It's a pretty silly claim, and she doesn't make it explicitly, but the legal maneuvers she does make to get around this preposterousness are pretty nimble. (She also just ignores some arguments, including powerful First Amendment claims.)

This is just one example, but I could go on and on. It's time to get behind Rick Boucher's amendment, H.R. 1201.

There's more to it, of course--88 pages in all! Once again, download the paper, Catch 1201, if you're interested.


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