This story appeared on Network World at

http://www.networkworld.com/columnists/2005/110705bradner.html

'Net Insider

Commenting on DMCA: A futile exercise?

By Scott Bradner, Network World, 11/07/05

It's been just over seven years since President Clinton signed the Digital Millennium Copyright Act into law. As was clear from the beginning, the DMCA is a total capitulation to those who think that copyright is more important than just about anything else. The experiences of the last seven years have shown that the law has done little to truly protect copyright holders, but it has put the corporate environment at increased risk from those who would subvert it.

For the next month you have a chance to tell the U.S. government how broken the trade-off inherent in the DMCA is, and I urge you to do so, even if I expect making comments will be an exercise in frustration.

There are a lot of things in the DMCA. A few of them might even be good, but there is one very bad part - the prohibition of the possession of circumvention technology. The law prohibits "any technology, product, service, device, component, or part thereof, that . . . is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner."

This provision basically says that you cannot test to see whether the security on a product or service you purchase is any good without being at risk of being sued - and many suits have been threatened or filed over products from printer cartridges to garage-door openers. The American Library Association maintains a Web site concerning the DMCA

Over the years I've written a number of columns about the DMCA and its effects. See, for example, Legally mandated stupidity, Bad law or really bad law? and Reach for the stupid juice .

Part of the DMCA requires the U.S. Copyright Office to review the effect of the law's anti-circumvention provision every three years. In the past two reviews, the office has carved out a few important exceptions but has left in place the basic flaw in the provision prohibiting circumvention technology.

That flaw is the presumption of guilt, because mere possession of circumvention tools can be a crime. There is no requirement to show that you intended to violate someone's copyright protection. There is no reason to think that this round of comments will cause the Copyright Office to fix that flaw, because the Copyright Office does not, in general, seem to have heard of consumers. (See Can anyone down there spell consumer?) In spite of the office's obvious bias, there is a chance that it will add more exceptions to its short list.

So if you have something serious to suggest, you can file your comments on the Copyright Office's Web page . But note that polemics like this one attacking the fundamental provisions of the DMCA or flames against the recording industry are not worth the bits they use up, because they will be seen as nonresponsive to the request for comments and thus will be ignored.

Disclaimer: Nonresponsive polemics seem to be a feature of politicians, but I did not ask anyone in the Kennedy School of Government about this. Thus, it's just my own.