title: Commenting on the DMCA , an exercise in frustration

Commenting on the DMCA, an exercise in frustration?

By Scott Bradner

It's been just over seven years since President Clinton signed the Digital Millennium Copyright Act (DMCA) 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 experience over the last seven years have actually shown that the law has done little to truly protect copyright holders but it has put your corporate environment at increased risk from those who would subvert it. For the next month you have a chance to tell the US government how broken the tradeoff inherent in the DMCA is and I urge you to do so even if I expect it to be an exercise in frustration.

There are a lot of things in the DMCA law (http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html), a few things might even be good but there is one very bad part -- the prohibition of the possession of anti-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 of the law basically says that you can not test to see if 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 technologies ranging from printer cartridges to garage door openers. The American Library Association maintains a web site concerning the DMCA. (http://www.ala.org/ala/washoff/WOissues/copyrightb/dmca/Default2515.htm)

Over the years I've written a number of columns about the law and its impacts (See. for example, "Legally mandated stupidity" (http://www.networkworld.com/columnists/2001/0910bradner.html), "Bad law or really bad law?" (http://www.networkworld.com/columnists/2003/0407bradner.html) and "Reach for the stupid juice" (http://www.networkworld.com/columnists/2003/1020bradner.html) )

Part of the law requires the US Copyright Office to review the impact of the anti-circumvention provisions every 3 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. That flaw is the presumption of guilt - mere possession of circumvention tools can be a crime - there is no requirement to show that you had an intent 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 since the Copyright Office does not, in general, seem to have heard of consumers (See "Can anyone down there spell consumer?" (http://www.networkworld.com/columnists/2004/083004bradner.html) In spite of the office's obvious bias there is a chance that it will add some additional exceptions to the short list it has created to date.

So, if you have something serious to suggest you can file your comments on the Copyright Office web page (http://www.copyright.gov/1201/comment_forms/index.html). 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 since they will be seen as non-responsive to the request for comments and thus will be ignored by the Copyright Office.

disclaimer: Unresponsive polemics seems to be a feature of politicians but I did not ask the anyone in the School of Government about this one - thus its just my own.