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11/27/2006
01:29 PM
Mitch Wagner
Mitch Wagner
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DMCA Exemptions Leave Most Consumers Out In The Cold

Late last Wednesday, while the rest of us were out shopping for last-minute Thanksgiving essentials, the U.S. Copyright Office let fly with a list of exemptions from the Digital Millennium Copyright Act (DMCA). The exemptions provide much-needed relief for libraries, the disabled, researchers, and price-conscious cell phone users, but they are framed in excessively narrow terms, and they don't address the chief problems that the DMCA creates for most consumers.

Late last Wednesday, while the rest of us were out shopping for last-minute Thanksgiving essentials, the U.S. Copyright Office let fly with a list of exemptions from the Digital Millennium Copyright Act (DMCA). The exemptions provide much-needed relief for libraries, the disabled, researchers, and price-conscious cell phone users, but they are framed in excessively narrow terms, and they don't address the chief problems that the DMCA creates for most consumers.

For the past 10 years, the DMCA has placed unreasonable restrictions on the right of people to copy and alter digital materials. The DMCA makes it illegal to do things online that are perfectly legal under other copyright law. For instance, the DMCA makes it illegal to rip legally purchased CDs and copy them to your iPod, and makes it illegal to back up your digital media. And you can't hack the "region codes" on DVDs -- if you bought a DVD in Europe, you need the copyright-holder's permission to watch it in the U.S.

So what do the revisions do? The Electronic Frontier Foundation has the rundown. The new ruling creates exemptions in the DMCA to protect educators, libraries, the visually disabled, and people using programs that rely on obsolete hardware dongles to run. They also let consumers break firmware on cell phones for the purpose of switching cell phone service providers.

A couple of the exemptions are framed in excessively narrow terms. If you have a program that uses obsolete formatting or hardware, you can break copy-protection on that program -- but only for archiving purposes, or if your program requires a dongle to run. If your software's only problem is that it's just plain old, and needs a little tweaking to get running on up-to-date machines, you're stuck.

The exemptions still leave security researchers hobbled in their ability to do their essential work. According to the DMCA, reverse-engineering code for the purposes of finding security flaws is illegal. The new exemptions provide a loophole, but the loophole appears to be narrowly tailored to address last year's incident where Sony put a rootkit on its audio CDs in a misguided attempt to prevent distributing bootlegs. The rootkit could have allowed attackers to take control of target PCs.

TechDirt explains: "Back when the Sony rootkit was big news, some people pointed out that removing it, technically violated the anti-circumvention rule of the DMCA -- but the Copyright Office, in their infinite wisdom, has now said that (thank goodness), you're allowed to circumvent copyright protection if it's on a CD and if it's for audio works and if that copy protection introduces security vulnerabilities, but only to test, investigate or correct the security flaw."

Derek Slater, at A Copyfighter's Musings, notes a Catch-22: "The exemptions also don't make it lawful to provide circumvention tools - so media professors have the right to circumvent CSS, but technically no one is allowed to provide them with the tools to do so."

The EFF says:

Unfortunately, just as we predicted, all the proposed exemptions that would benefit consumers were denied (space-shifting, region coding, backing up DVDs). So, while we're pleased that film professors, archivists, cellphone recyclers, and security researchers were able to successfully navigate the exemption process, it appears that digital consumers still have no choice but to get Congress to amend the DMCA. We look forward to Rep. Rick Boucher reintroducing his DMCA reform bill, H.R. 1201, in the new Congress next year."

The Boucher bill "would give citizens the right to circumvent copy-protection measures as long as what they're doing is otherwise legal. For example, it would make sure that when you buy a CD, whether it is copy-protected or not, you can record it onto your computer and move the songs to an MP3 player," the EFF says.

Ed Felten, at Freedom to Tinker, notes: that the timing of the copyright office's decision is "interesting: releasing news in the afternoon of the day before Thanksgiving is a near-optimal strategy if you want that news to escape notice and coverage in the U.S."

Felten, who helped disclose the Sony rootkit fiasco and who's run afoul of the DMCA himself, says: "As usual, the Copyright Office pretended not to know what everybody else seems to know, e.g. that digital media are fragile and need to be backed up."

And our own David DeJean adds his $0.02.

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