, SecurityFocus 2000-10-25
Exemptions to the Digital Millenium Copyright Act due Friday.
If this is really a problem right now, then people would be hacking through these protections and circumventing these controls.
Under the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA), it will be unlawful for anyone to "circumvent a technological measure that effectively controls access" to a copyrighted work. To do so for commercial advantage or personal profit will be a felony carrying up to five years in prison.
The law contains some exceptions for legitimate computer security work and encryption research.
On Friday, the Librarian of Congress office will make its determination on whether some classes of content should be exempted from the law -- a question that's brought two sharply opposing views to public hearings this year: the content industries oppose any exemptions, while some public interest groups argue that users should be allowed to bypass access controls on media they've purchased, provided it's to legally permitted ends.
"We argued that they should exempt all acts of circumvention for which the underlying use is noninfringing," says Robin Gross, an attorney with the EFF.
Steve Metalitz, partner in the law firm Smith and Metalitz, which filed comments on behalf of the motion picture and recording industries, argues that there is no evidence that any exemptions are needed.
"The law hasn't even gone into effect yet," says Metalitz, "and what the Librarian is supposed to be looking at is whether there's any adverse impact on the ability of people to make noninfringing use of the copyrighted material."
The Library of Congress, Metalitz says, should revisit the issue in a second review three years from now, once the anti-circumvention measure has been in full force. "If you see specific instances when people aren't going to be able to make fair use of it, then you can carve out an exemption for it," Metalitz says.
The DMCA passed in 1998 as an anti-piracy measure, after fierce lobbying from the motion picture and recording industries. Some provisions took effect immediately, but the section outlawing circumvention came with a two-year delay, until October 28, 2000, to allow the Librarian of Congress time to determine what exemptions are needed to protect fair use rights.
Another anti-hacking provision in the law has already seen some action. In August, the Motion Picture Association of America won a case against 2600 Magazine under a provision of the DMCA that makes it illegal to distribute circumvention technology. The lawsuit ended in a judgment barring 2600 from publishing a program that descrambles DVD movies. The EFF funded the defense and is appealing the ruling.
"DVDs are one classic example of how the anti-circumvention provision is adversely impacting people, because people don't have a way to copy DVDs at all," says Gross. "Whether it's a short snippet for academic purposes, an archival backup, or making a copy of a DVD onto VHS. These are capabilities people enjoyed before, but now they will not be able to enjoy the benefits of these fair uses, because it will be illegal." says Gross.
Notwithstanding the 2600 DVD case, Metlitz says the paucity of hacking demonstrates that no one is being hurt by access control technology.
"If this is really a problem right now, then people would be hacking through these protections, and they would be circumventing these controls, because it's not illegal right now," says Metalitz. "That would make their case."