The DMCA hearings bring out outrageous arguments against fair use and consumer rights
The DMCA hearings bring out outrageous arguments against fair use and consumer rights
The DMCA hearings bring out outrageous arguments against fair use and consumer rights

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    This past week the Copyright Office held public hearings in Washington D.C. and Palo Alto, California, as part of its fourth section 1201 rule making proceeding. The Digital Millennium Copyright Act (DMCA) requires the Copyright Office to conduct these proceedings once every three years to exempt from the DMCAs prohibition on circumvention of technological protection measures (TPMs) those lawful uses that are adversely affected. I attended the last two days of the D.C. hearings and came away not only with a renewed understanding of how the DMCA is killing consumer rights especially fair use but also how much content owners are afraid of fair use. The hearing also reaffirmed something we have said always: the DMCA is used more to lock out competition than to protect copyrighted works. Here are some of the arguments that stood out:

    The fair use exemption for documentary filmmakers and vidders:

    The most forceful advocates for fair use were Prof. Rebecca Tushnet, professor at Georgetown University and a board member of the Organization for Transformative Works, Ms. Francesca Coppa, also of the Organization for Transformative Works, and Ms.Tisha Turk, a remix video artist and teacher at the University of Minnesota, Morris. Tushnet, Coppa, and Turk were asking the Copyright Office to grant an exemption that would allow creators of fan generated videos also called vids to circumvent CSS on DVDs so that they could use clips from DVDs in their vids. They explained that a vast majority of vids critiqued popular television shows and movies. For example, Coppa explained how the vid “How Much is the Geisha in the Window” commented on the television show Firefly's appropriation of Asian arts and culture without featuring a single Asian artists with a speaking role.

    They also pointed out the absurdity of the alternative suggested by the MPAA in Wednesday's hearing – pointing a camcorder at a television screen playing a movie to capture video and then excerpt clips. I wish I could have been at the Copyright Office on Wednesday to watch that demonstration. Anyway, for me and the rest of you who were not there, here is a video of the demonstration. Tushnet pointed out how expensive this method could be – $900 for the digital camera used to capture the video and $300 for the tripod – not to mention the difficulty of finding a room one could make completely dark. Besides, Coppa and Turk argued that the quality of the original was vital to the creation of vids. Turk noted that many vidders did not use the original video clip; rather they slowed clips down, changed color to represent a different mood, or cropped clips. As Coppa put it, the purpose of the vid was to bring to light to what was treated as obscure in the original, i.e to “bring the background to the foreground”. A low quality original simply would not allow these details to be captured.

    Documentary film-makers also testified on the same panel as the vidders seeking a similar exemption. The main difference was that they wanted the exemption limited to documentary film-makers or students. The reason: this community was well educated about fair use and would know how to use the exemption. Tushnet responded that society would be losing uncounseled fair use by prescribing who could make it.

    Of course the filmmakers request for an exemption did not go unchallenged. Steve Metalitz, of the law firm Mitchell Silverberg and Knupp, representing most of the major copyright industries, including the publishers, motion picture studios, and the recording industry, claimed that granting the exemption sought by film-makers or vidders was beyond the Copyright Office's power. The Office could only grant exemptions for uses that were clearly non-infringing and because fair use is a case-by-case analysis, there was no way of predicting that every use under the exemption would be fair. What is more, the copyright owners fear that allowing documentarians and vidders to make clips would lead to a slippery slope. One day, every one would be able to circumvent TPMs and make clips for fair uses and that was not Congresses intent in enacting the DMCA!

    This line, repeated often throughout the proceedings brought home the point that major copyright holders are out to stop not only “piracy” but any uncontrolled use, including fair use.

    The Copyright Office, which has interpreted section 1201 to require anyone seeking an exemption to prove that a TPM is adversely affecting them, asked several questions to determine if this requirement had been met. Although we don't read the statute to impose this burden on users, that is a debate for another day. One of the questions was whether documentary filmmakers had asked permission to circumvent before making fair use. Mr. Bruce Turnbull representing the DVD Copy Control Association (CCA) even suggested that they would consider licensing their technology to anyone who asked to circumvent for a lawful purpose. Since when is fair use dependent on seeking permission from the copyright owner or any one else? A permission requirement would silence criticism, commentary, and other forms of free speech fair use is designed to foster.

    Cell phone unlocking:

    During the last rule making in 2006, the Copyright Office had granted an exemption permitting people to unlock their cell phones in order to switch carriers. The same exemption is up for renewal this time. The reason for the 2006 exemption was that cell phone locks, are a TPM which might be construed as protecting the cell phone's operating system, a copyrighted work. Therefore, unlocking might be a circumvention and expose those who unlock to liability. Yet the Office had recognized the tenuous relationship between cell phone unlocking and protecting a copyrighted work, by observing that the purpose of unlocking was to operate on any wireless network and not to access a copyrighted work. Mr. Rob Kasunic, Principal Legal Advisor in the General Counsel's Office at the Copyright Office expressed the same sentiment during Friday's hearing. Yet in opposition to granting the exemption, Mr. Bruce Joseph, representing CTIA, the wireless industry association, maintained that cell phone unlocking might expose other copyrighted works such as games and ring tones contained on cell phones to infringement. However, other than in the case of Virgin mobile, he conceded that he did not know if software the locked cell phones also locked other content.

    Furthermore, Joseph argued, granting an exemption would provide an incentive to unlawful services. By way of background, the DMCA permits the Copyright Office to exempt certain lawful uses from the prohibition on circumvention. But the scope of the exemption does not extend to tools necessary to accomplish circumvention. In addition, the law forbids individuals or companies from distributing these tools. Thus, only those who can make these tools themselves can avail themselves of the benefit of an exemption. So, Joseph's' argument was that if you grant the exemption you encourage people to traffic in these tools illegally! As Kasunic rightly pointed out, if that were the case, the Office could grant no exemptions at all.

    In addition to the filmmakers makers and those desiring to unlock cell phones, other requests for exemption were also debated. The blind renewed their request for an exemption to unlock eBooks so that they could access these using independent software and hardware devices. Prof. Alex Halderman asked for a renewal and expansion of the exemption to circumvent TPMs to research security threats caused by TPMs to personal computers (think Sony Rootkit and Spore's SecuROM). Mr. Joseph Montoro of Spectrum Software Inc., sought a renewal of the exemption that permitted circumvention of TPMs on dongles that prevent access to computer programs. Ms. Megan Carney asked that consumers be permitted to circumvent TPMs that effectively prevented them from accessing subscription streaming video services on platforms of their choice.

    The Copyright Office is going to examine these requests for exemptions and submit its recommendations to the Librarian of Congress who has to make his determination by October 28 of this year. We will report on the Librarian's recommendations. Stay tuned.