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FW: EFFector 13.11: Fair Use Rights Harmed by DMCA; Pioneer Award s CFN

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  • Chen Shapira
    To all of you who still didn t subscribe to the EFF, here s the monthly Your E-Rights update. ...
    Message 1 of 1 , Dec 17, 2000
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      To all of you who still didn't subscribe to the EFF, here's the monthly
      "Your E-Rights" update.

      > -----Original Message-----
      > From: editor@... [mailto:editor@...]
      > Sent: Thursday, December 14, 2000 5:06 AM
      > Subject: EFFector 13.11: Fair Use Rights Harmed by DMCA;
      > Pioneer Awards
      > CFN
      >
      >
      >
      > EFFector Vol. 13, No. 11 Dec. 13, 2000
      > editor@...
      >
      > A Publication of the Electronic Frontier Foundation
      > ISSN 1062-9424
      >
      > IN THE 159th ISSUE OF EFFECTOR (now with over 25,900 subscribers!):
      >
      > * DMCA Takes Full Effect - Millions of Americans Become Criminals
      > * Call for Nominations: The Tenth Annual International
      > EFF Pioneer
      > Awards
      > + Intro
      > + The 2001 Awards
      > + How to Nominate Someone
      > + Past Pioneers of the Electronic Frontier
      > + About EFF
      > * Administrivia
      >
      > For more information on EFF activities & alerts: http://www.eff.org
      > _________________________________________________________________
      >
      > DMCA Takes Full Effect - Millions of Americans Become Criminals
      >
      > By Robin D. Gross, November 2000
      >
      > Librarian of Congress Unable to Preserve Fair Use in Digital Age
      >
      > On October 28, 2000 the controversial Digital Millennium
      > Copyright Act
      > (DMCA) took full effect, criminalizing the act of
      > circumvention of a
      > technological protection system put in place by a
      > copyright holder --
      > even if one has a fair use right to access that
      > information. Maximum
      > penalties allow up to 10 years in prison or $1 million fine for
      > willful violators of the new law. This dramatic change in
      > copyright
      > law should serve as a wake-up call for all Americans that
      > their First
      > Amendment rights are rapidly eroding in the digital realm.
      > Ignited by
      > the copyright industry, this legislative trend is spreading through
      > national legislative bodies around the world like wild fire.
      >
      > The DMCA outlawed making or providing tools that could be used to
      > circumvent technological protection systems when the
      > legislation was
      > first enacted in 1998. Another provision of the DMCA
      > banned the act
      > of circumvention, although it did not take effect until two-years
      > later. Congress directed the Register of Copyrights to conduct a
      > rulemaking procedure during the interim and recommend to
      > the Librarian
      > of Congress classes of works that should be exempted from
      > the general
      > ban against circumvention because people were likely to be
      > adversely
      > affected in their ability to make lawful uses of works.
      >
      > During the course of its proceeding the Copyright Office
      > received an
      > incredible 392 written comments from the public and heard testimony
      > from 34 witnesses on the subject. Despite the repeated
      > requests for
      > exemptions from those who need to circumvent in order to exercise
      > their legal fair use rights such as library, educational, and civil
      > liberties groups, the Librarian's final rule only exempted
      > two narrow
      > circumstances in which one will be allowed to circumvent.
      > This leaves
      > the vast majority of the public's fears unaddressed with
      > little choice
      > but to seek help from Congress or the courts.
      >
      > In making its determination, Congress directed the
      > Register to consult
      > with the Assistant Secretary for Communications and
      > Information in the
      > Department of Commerce. The Assistant Secretary recommended an
      > exemption analogous to fair use based upon a factual examination of
      > the uses to which works are put. In a letter to the Register
      > presenting his views, the Assistant Secretary stated that his
      > principal concern is to ensure that the Librarian will
      > preserve fair
      > use principles in this new digital age. He echoed the fears of the
      > Commerce Committee that a legal framework may be
      > developing that would
      > "inexorably create a pay-per-use society." He stated that
      > the "right"
      > to prohibit circumvention should be qualified in order to
      > maintain a
      > balance between the interests of content creators and information
      > users, by means of carefully drawn exemptions. Despite
      > the Assistant
      > Secretary's recommendation for a use-based exemption, the Copyright
      > Office ultimately rejected it as "beyond the scope of the
      > Librarian's
      > authority."
      >
      > Librarian's Two Narrow Exemptions Ignore Majority of
      > Public's Concerns
      >
      > On the recommendation of the Register of Copyrights, the
      > Librarian of
      > Congress James Billington announced two narrow classes of works
      > exempted from the DMCA's prohibition on circumvention of
      > technological
      > measures that control access to copyrighted works.
      >
      > 1. Compilations consisting of lists of Web sites blocked
      > by filtering
      > software applications.
      >
      > The first exemption, while narrow in scope, addresses one real and
      > specific danger created by the DMCA's blanket ban on circumvention:
      > the criminalization of decrypting lists of Web sites blocked by
      > content filtering software. The ruling stated that the
      > reproduction
      > or display of the lists for the purpose of criticizing them could
      > constitute fair use. Citing the controversial injunction issued in
      > Microsystems Software, Inc. v. Scandinavia Online AB, No.
      > 00-1503 (1st
      > Cir. Sept. 27, 2000) ("Cyber Patrol case") the Librarian recognized
      > the public's legitimate interest in accessing the lists of
      > Web sites
      > in order to critique, comment and criticize them. According to the
      > Librarian:
      >
      > "A persuasive case was made that the existence of access control
      > measures has had an adverse effect on criticism and comment, and
      > most likely news reporting, and that the prohibition on
      > circumvention of access control measures will have an adverse
      > effect ... on noninfringing users since persons who wish to
      > criticize and comment on them cannot ascertain which sites are
      > contained in the lists unless they circumvent."
      >
      > The public has a significant First Amendment interest in
      > exploring the
      > scope and reliability of content filtering software. The Librarian
      > should be commended for crafting an exemption that addresses this
      > particular danger caused by the DMCA. Unfortunately, this
      > exemption
      > only covers a tiny fraction of the public's needs to
      > circumvent while
      > the vast majority of legitimate fair uses remain criminalized.
      >
      > 2. Literary works, including computer programs and databases,
      > protected by access control mechanisms that fail to permit access
      > because of malfunction, damage or obsolescence.
      >
      > The Librarian recognized the adverse impact from the DMCA's general
      > ban on circumvention "in cases where legitimate users are unable to
      > access works because of damaged, malfunctioning, or obsolete access
      > controls." Explaining the rationale for the second exemption, the
      > Librarian stated, "the access controls are not furthering
      > the purpose
      > of protecting the work from unauthorized users. Rather, they are
      > preventing authorized users from getting the access to
      > which they are
      > entitled." This prevents non-infringing uses that could
      > otherwise be
      > made. The Librarian found "this situation is particularly
      > troubling
      > in the context of libraries and educational institutions."
      >
      > The Librarian's second exemption is intended to exempt users of
      > software, databases, and other literary works in digital
      > formats who
      > are prevented from accessing such works because the access control
      > protections "are not functioning in the way that they were
      > intended."
      > A 'dongle' or hardware lock attached to a computer that prevents
      > unauthorized access to software is an example of the type of access
      > control that can be circumvented under the ruling. Access controls
      > may only be considered obsolete where a machine necessary
      > to perceive
      > a work is no longer made or commercial available.
      >
      > While attempting to correct failures in the statute's broad
      > prohibition, this final exemption is only applicable in a
      > few narrow
      > circumstances and ultimately falls far short of adequately
      > protecting
      > the public's interests. The Librarian's impotence in issuing
      > exemptions is particularly disturbing since he declared that this
      > exemption is "probably the outer limits of a permissible
      > definition of
      > 'class'."
      >
      > Librarian Asks Congress For Clarification on DVDs
      >
      > The Librarian rejected all other requests for exemptions from the
      > public seeking relief from the DMCA's harsh penalties.
      > Most notably
      > absent was an exemption for DVDs, which would have allowed
      > Linux users
      > (among others) to view their DVDs on non-standard machines without
      > fear of criminal prosecution. According to the Librarian, "More
      > comments and testimony were submitted on the subject of motion
      > pictures on DVDs and the technological measures employed on DVDs,
      > primarily Content Scrambling System (CSS), than on any
      > other subject
      > in this rulemaking."
      >
      > During the course of the proceeding, the Electronic Frontier
      > Foundation submitted official Comments (initial, reply, and
      > post-hearing) and testified at the public hearings
      > requesting that the
      > Librarian exempt DVD movies protected by CSS from the DMCA's
      > circumvention ban. Even though Congress banned
      > circumventing access
      > controls, it did not intend to prevent circumvention for legal use.
      > DVDs protected by CSS bypass Congress' intent by merging the access
      > and use control together into one technological protection
      > system that
      > prevents fair use altogether. To its credit, the
      > Librarian recognized
      > the "significant concern" presented by the "merger of
      > access and use
      > controls" that CSS represents:
      >
      > "The merger of technological measures that protect access and
      > copying does not appear to have been anticipated by Congress.
      > Congress did create a distinction between the conduct of
      > circumvention of access controls and the conduct of circumvention
      > of use controls by prohibiting the former while permitting the
      > latter, but neither the language of section 1201 nor the
      > legislative history addresses the possibility of access controls
      > that also restrict use. It is unclear how a court might address
      > this issue. It would be helpful if Congress were to clarify its
      > intent, since the implementation of merged technological measures
      > arguably would undermine Congress's decision to offer disparate
      > treatment for access controls and use controls in section 1201."
      >
      > Despite this recognition of a significant problem, the Librarian
      > meagerly tossed the ball back to Congress to fix the mess
      > it created
      > by the sloppy statute. Although charged with primarily
      > ensuring the
      > public's fair use rights continue in the digital realm,
      > the Librarian
      > acquiesced to the demands of the copyright industry who repeatedly
      > threatened that it would not 'create' if its conditions for control
      > over the architecture were not met and who's only objective is to
      > maximize revenue from creative expression by creating a pay-per-use
      > society. Consequently, the DMCA has deformed copyright law to only
      > advance the narrow interests of a few corporations at the
      > expense of
      > the broader public good.
      >
      > The Librarian mis-characterized the lack of an open source
      > Linux DVD
      > player in the marketplace as a "problem of preference and
      > inconvenience" not warranting an exemption. The public is under no
      > legal obligation to view DVDs only on machines pre-approved by the
      > movie studios or according to the viewing restrictions of a CSS
      > license. Moreover, the entire open source development
      > model, which is
      > currently fueling the bulk of technological innovation, is
      > dependent
      > upon having the ability to adapt software to customize for
      > one's own
      > specific needs. In dismissing the DVD exemption, the Librarian
      > stated: "While it does not appear that Congress anticipated that
      > persons who legitimately acquired copies of works should
      > be denied the
      > ability to access these works, there is no unqualified
      > right to access
      > works on any particular machine or device of the user's choosing."
      >
      > What the Librarian fails to recognize, however, is the distinction
      > between an "unqualified right" to access a work on another machine,
      > and the DMCA's criminalization of the act of building a new device
      > that allows access to a work that one legally owns. "That which is
      > not prohibited is generally allowed." Consequently, the
      > public will
      > have fewer rights in the digital realm than it enjoyed in
      > traditional
      > space to use and access information. Additionally, the
      > statute paves
      > the way for stifling innovation, restricting competition, and
      > fostering a breeding ground for monopolistic business
      > practices in the
      > market for DVD players and other devices.
      >
      > One of most popular reasons cited as needing to circumvent
      > DVDs was in
      > order to bypass the restrictive region-coding scheme
      > incorporated in
      > CSS where DVDs purchased in one part of the world will not
      > play on DVD
      > players manufactured in another part of the world. Despite the
      > extraordinary public outcry, the Librarian dismissed this
      > concern as
      > merely an "inconvenience" not warranting an exemption.
      > Astonishingly,
      > the fact that the region coding restrictions correlate
      > with the movie
      > studios' contractual divisions of the world was cited as a
      > "legitimate
      > purpose" served by legally enforcing the restrictions.
      > The degree of
      > deference given to the business plans of a select few multinational
      > corporations when writing legislation to govern how
      > information may be
      > accessed in a democracy is frightening.
      >
      > Congress and Courts Must Intercede to Preserve Fair Use
      > and Free Expression
      >
      > The implementation of technological protections that deny
      > society its
      > due in the copyright right bargain combined with the DMCA's
      > criminalization of attempts to bypass those restrictions prevents
      > copyright from ever achieving its Constitutional
      > objectives to promote
      > the progress of science and useful arts. The balance
      > continues to tip
      > even further in favor of the movie and record companies at
      > the expense
      > of individuals' rights and freedom of expression. Now that the
      > Copyright Office has punted, Congress and the courts will
      > be forced to
      > repair the imbalance in the law created by the DMCA and its
      > criminalization of exercising media rights in the digital realm.
      >
      > RELATED LINKS:
      >
      > Librarian of Congress and Copyright Office Final Report
      > (October 28,
      > 2000):
      >
      > http://www.loc.gov/copyright/fedreg/65fr64555.html
      >
      > Letter from Assistant Secretary of Commerce for Communications and
      > Information, conveying the views of the National Telecommunications
      > and Information Administration on DMCA Rule-making (September 29,
      > 2000)
      >
      > http://www.loc.gov/copyright/1201/commerce.pdf
      >
      > American Library Association Statement on Copyright Office Ruling:
      > "Fair use in the digital age reduced to nothing more than a hollow
      > promise..."
      >
      > http://www.ala.org/washoff/dmca.html
      >
      > Statement of U.S. Rep. Rick Boucher on Copyright Office Ruling and
      > Fair Use Rights:
      >
      > http://www.house.gov/boucher/docs/payperuse.htm
      >
      > EFF's Initial Comments to U.S. Copyright Office on DMCA
      > (February 17,
      > 2000):
      >
      > http://www.eff.org/IP/DMCA/20000217_eff_dmca_comments.html
      >
      > EFF's Reply Comments to U.S. Copyright Office on DMCA (March 31,
      > 2000):
      >
      > http://www.eff.org/IP/DMCA/20000331_eff_dmca_reply_comments.html
      >
      > EFF's Testimony Before U.S. Copyright Office on DMCA (May
      > 19, 2000):
      >
      > http://www.virtualrecordings.com/EFFtestimony.htm
      >
      > EFF's Post-Hearing Comments to U.S. Copyright Office on
      > DMCA (June 23,
      > 2000):
      >
      > http://www.eff.org/IP/DMCA/20000623_eff_dmca_dvd_comments.html
      >
      > _________________________________________________________________
      >
      > Seeking Pioneers of the Electronic Frontier
      >
      > Call for Nominations:
      > The Tenth Annual International EFF Pioneer Awards
      >
      > Please redistribute this notice in appropriate fora.
      >
      > Intro
      >
      > In every field of human endeavor, there are those dedicated to
      > expanding knowledge, freedom, efficiency, and utility.
      > Many of today's
      > brightest innovators are working along the electronic frontier. To
      > recognize these leaders, the Electronic Frontier Foundation
      > established the Pioneer Awards for deserving individuals and
      > organizations.
      >
      > The Pioneer Awards are international and nominations are
      > open to all.
      > The deadline for nominations this year is Feb. 1, 2001
      > (see nomination
      > criteria and instructions below).
      >
      > The 2001 Awards
      >
      > The Tenth Annual EFF Pioneer Awards will be presented in Toronto,
      > Canada, at the 11th Conference on Computers, Freedom, and
      > Privacy (see
      > http://www.cfp2001.org ), Boston, MA. The ceremony will be
      > held on the
      > evening of Thu., March 8, 2001, at the Boston Aquarium. All
      > nominations will be reviewed by a panel of judges chosen for their
      > knowledge of the technical, legal, and social issues
      > associated with
      > information technology, some of them Pioneer Award recipients
      > themselves.
      >
      > This year's EFF Pioneer Awards judges are:
      > * Herb Brody (Senior Editor, Technology Review)
      > * Moira Gunn (Host, "Tech Nation", National Public Radio)
      > * Donna L. Hoffman (Associate Professor of Management, Vanderbilt
      > University)
      > * Peter G. Neumann (Principal Scientist, SRI Intl.; Moderator,
      > ACM Risks Forum)
      > * Drazen Pantic (Media & Tech. Director, NYU Center for
      > War, Peace,
      > & the News Media)
      > * Barbara Simons (President, Association for Computing Machinery)
      > * Karen G. Schneider (Technical Director, Shenendehowa Public
      > Library, NY)
      >
      > How to Nominate Someone
      >
      > There are no specific categories for the EFF Pioneer
      > Awards, but the
      > following guidelines apply:
      > 1. The nominees must have made a substantial contribution to the
      > generation, growth, accessibility, and/or freedom of
      > computer-based communications.
      > 2. The contribution may be technical, social, economic,
      > or cultural.
      > 3. Nominations may be of individuals, teams, systems, or
      > organizations in the private or public sectors.
      > 4. Nominations are open to all, and you may nominate more than one
      > recipient. You may nominate yourself or your organization.
      > 5. All nominations, to be valid, must contain your
      > reasons, however
      > brief, for nominating the individual or organization,
      > along with a
      > means of contacting the nominee, and your own contact
      > information.
      > Anonymous nominations will be allowed, but we prefer
      > to be able to
      > contact the nominating parties in the event that we
      > need further
      > information about the nominee.
      > 6. Any entity is eligible for an EFF Pioneer Award, with the
      > exceptions of current EFF staff and board members,
      > current Pioneer
      > Award judges, and previous Pioneer Award recipients (unless
      > nominated for something new and different.)
      > 7. Honorees (or representatives of honoree organizations)
      > receiving
      > an EFF Pioneer Award will be invited to attend the
      > ceremony at the
      > Foundation's expense.
      >
      > You may send as many nominations as you wish, but please use one
      > e-mail per nomination. (This is not a vote or a popularity
      > contest, so
      > you do not need to campaign, or send multiple nominations
      > for the same
      > nominee.) Submit all entries to: pioneer@...
      >
      > Just tell us:
      > 1. the name of the nominee;
      > 2. a phone number or e-mail address at which the nominee can be
      > reached; and, most importantly,
      > 3. why you feel the nominee deserves the award.
      >
      > You may attach supporting documentation in plain text, or Microsoft
      > Word or other common binary formats. URLs to documentation
      > elsewhere
      > may also be helpful.
      >
      > Past Pioneers of the Electronic Frontier
      >
      > 1992: Douglas C. Engelbart, Robert Kahn, Jim Warren, Tom
      > Jennings, and
      > Andrzej Smereczynski; 1993: Paul Baran, Vinton Cerf, Ward
      > Christensen,
      > Dave Hughes and the USENET software developers, represented by the
      > software's originators Tom Truscott and Jim Ellis; 1994: Ivan
      > Sutherland, Whitfield Diffie and Martin Hellman, Murray Turoff and
      > Starr Roxanne Hiltz, Lee Felsenstein, Bill Atkinson, and the WELL;
      > 1995: Philip Zimmermann, Anita Borg, and Willis Ware; 1996: Robert
      > Metcalfe, Peter Neumann, Shabbir Safdar and Matthew Blaze;
      > 1997: Marc
      > Rotenberg, Johan "Julf" Helsingius, and (special honorees)
      > Hedy Lamarr
      > and George Antheil; 1998: Richard Stallman, Linus Torvalds, and
      > Barbara Simons; 1999: Jon Postel, Drazen Pantic, and Simon Davies;
      > 2000: Tim Berners Lee, Phil Agre, and librarians everywhere,
      > represented by librarian Karen G. Schneider.
      >
      > See http://www.eff.org/awards for further information.
      >
      > About EFF
      >
      > The Electronic Frontier Foundation ( http://www.eff.org )
      > is a global
      > nonprofit organization linking technical architectures with legal
      > frameworks to support the rights of individuals in an open society.
      > Founded in 1990, EFF actively encourages and challenges
      > industry and
      > government to support free expression, privacy, and openness in the
      > information society. EFF is a member-supported organization and
      > maintains one of the most-linked-to Web sites in the world.
      >
      > _________________________________________________________________
      >
      > Administrivia
      >
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