Wednesday, June 24, 2009

DMCA Questions from the Copyright Office

Are you a copyright geek (preferably a lawyer) and interested in helping me (pro bono) with my reply to the Copyright Office? I can do the writing by myself, I just need help with strategy/legal questions. If so, please get in touch.

As many of my regular readers know, late last year, I (and the fantastic Berkman cyberlaw clinic) submitted a request for an exemption to the Digital Millennium Copyright Act. One month ago, I testified in person to argue in support of my request.

We originally requested two exemptions. The Copyright Office has now sent us some follow up questions with regard to the second exemption.

The second exemption text was for:
Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, prior to the failure of the authenticating servers for technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function.

The Copyright Office has asked us to:
Please provide your reaction to the following limitation: "...when the information obtained by the technologists and researchers is used only to provide access to works protected by the technological measures that depend on the continued availability of an authenticating server when [1] access is provided only to persons to whom access had been provided by the authentication server prior to its failure, [2] the authentication server has permanently ceased functioning, and [3] the provider of the service has neither made alternatives means of access to the works available nor provided a refund for the loss of access to the purchased copies of the works.

Would it be appropriate to limit the persons who would be eligible to invoke the exemption? Why? If you believe it would be appropriate to limit the persons eligible for the exemption, what criteria could be used?

Are there any other appropriate ways to properly tailor the scope of the exemption

I still haven't had much time to think about this in depth. Our reply is due on July 10th.

My plan is to try and come up with a rough draft in the next week or so, and then put it online in a wiki for people from the Internet to comment on and edit.


sewa mobil said...

interesting post

ginsu said...

[1] Purpose of this limitation might seem to be to limit access to legitimate researchers. But the limitation isn't sensible at all - new research interests might arise at any time, and having prior access has no relation to new research interest. Further, system failure itself may be a significant motivator of new research.

[2] A serious problem with this limitation is that the judgment of "permanently ceased functioning" is likely entirely in the hands of the authentication server operator. Misuse of that judgment, intentional or not, would lead to manipulation of access restriction.

[3] "Alternative means of access" provides another judgment call opportunity where the server operator can make self-serving judgments.

In summary, the first limitation perversely restricts access at the time of potential great interest in system access by researchers. The other two limitations only provide fertile ground for dispute and accusation regarding self-serving judgment calls by authentication server operators.

Rick Damiani said...

The response doesn't seem related to the request. You seem to be asking for an exemption to allow study of an active DRM system before it becomes inactive. The proposed limits to the exemption would have the effect of limiting research to cases where the researcher owns a piece of DRMd media, the DRM server is gone forever, and the company that the researcher bought it from hasn't offered the researcher a refund or work-around.