title: Copyright law:

By Scott Bradner

Every three years the US Copyright Office gets a chance to fix some of the universe of bad things about the Digital Millennium Copyright Act (DMCA). Just like the last two times, the Copyright Office has labored mightily and birthed a mouse where an elephant was needed. Some parts of this mouse look good but one is mostly impressed by what the Office managed not to do.

I've had rather nasty things to say about the DMCA (See Legally mandated stupidity (http://www.sobco.com/nww/2001/bradner-2001-09-10.html), "Bad law or really bad law?" (http://www.networkworld.com/columnists/2003/0407bradner.html), and Reach for the stupid juice (http://www.sobco.com/nww/2003/bradner-2003-10-20.html)). in the past, all of them very well deserved. A particular problem with the DMCA is its almost absolute prohibition of circumventing technology that a vendor can claim is protecting copyrighted material. The prohibition does not take into account any mitigating factors -- for example, a vendor that is using the excuse of copyright protection to keep you from buying printer supplies from a competitor.

The DMCA does provide an escape mechanism. Every three years the US Copyright office takes a look to see if some particular cases can be exempted from the legal prohibition. The office just finished its latest review and has added a few more exemptions to the very short list that came out of the previous reviews.

The new report (http://www.copyright.gov/1201/) exempts six classes of copyrighted works.

o use of audiovisual works in a college or university in making classroom materials if done by media studies of film professors

o archiving computer programs or video games where readers are no longer available

o renewed the exemption for the use of dongle-protected computer programs when the dongles are no longer available

o renewed the exemption for ebook materials that block the use of screen readers (for example for the blind)

o firmware in cell phones for the sole purpose of switching to a new carrier

o systems like the Sony rootkit (see Sony's anti-piracy 'khesterex thath' http://www.networkworld.com/columnists/2005/111405bradner.html) to research the problems and correct security flaws.

These exceptions are all very narrow -- for example limiting the exception for the educational use of audiovisual material to higher ed and to media studies or film professors - what about language studies or political history? But this result was quite predictable (see Commenting on DMCA: A futile exercise? (http://www.networkworld.com/columnists/2005/110705bradner.html)).

Why not just rule that a user can circumvent the protection on any thing that he or she owns where the vendor is no longer manufacturing equipment that can access or enable it (as long as it's for the user's own use)? But I do not expect that sort of thing out of the Copyright office - you see that would be a "principle" rather than a narrow exception and I'm not sure the Office understands the concept of principles. They did get close with the ruling about cell phones - but a real principle would be to enable circumvention whenever some device tried to prevent you from using it with another supplier.

Some of these exceptions are quite useful, even though they are narrow, but at this rate you and I will be dealing with the DMCA blocking good technology and good security until long after we retire.

disclaimer: I'm sure Harvard will outlive the bad effects of the DMCA (I'm not sure I will) but I have not seen any university comment on the Copyright Office (in)action.