USA: Creators must censor their content-Wendy Seltzer

May 9, 2009

[FACT comments: We haven’t reported on the Byzantine American legal lanyrinth known as the Digital Millennium Copyright Act for awhile. Here’s what it takes for a creator to get an exemption from using copyright protection

Theater of the DMCA Anticircumvention Hearings

Wendy Seltzer: May 8, 2009

Every three years, as mandated by Congress in Sec. 1201(a)(1)(C) of the Digital Millennium Copyright Act, the Librarian of Congress and Register of Copyrights conduct a rulemaking on exemptions from the DMCA’s prohibition on circumvention of access controls protecting copyrighted works. This year’s revival opened in Stanford, then moved here to Washington DC for a three-day run.

Now Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works may not sound like a Broadway hit, but there was plenty of drama (for the copyright geek, at least). I live-tweeted and the hearings, and offer a few highlights from the show here:

As at past runs (2000, ‘03, and ‘06), DVD’s CSS technological protections were the star attraction. Film and media educators, librarians, filmmakers, and creators of transformative works argued that they should be permitted to circumvent CSS to take DVD clips for fair and non-infringing purposes: film studies, media literacy, classroom teaching of the law or medical ethics, creation of commentary in the videographic “language” of the works to which they respond.

Rebecca Tushnet, law professor and founder of the Organization for Transformative Works called the anticircumvention rule a modern-day literacy test or poll tax: law-abiding creators are chilled by the welter of rules seemingly designed to privilege some users over others. Francesca Coppa and Tisha Turk showed the direct impact of the circumvention rule on women and minority creators offering alternative readings of mainstream culture, while educators noted that a too-narrow exemption might let teachers make art with media clips but forbid students from using the same techniques after graduation.

The hearings’ setup is a perfect theater of the absurd: First, the LOC is authorized to exempt non-infringing users of “classes of works” from the circumvention prohibition, but not to legalize the tools needed to circumvent access controls (which are prohibited by 1201(a)(2)). That leaves all participants dancing around the question of how users are to exercise their rights, if granted — “surreal,” as Jon Band put it. Likewise, we all ignore the ready availability of DeCSS and the near-instant posting of DRM-free versions of anything issued in “protected” format.

Then Steve Metalitz, representing a Group of 9 copyright industries, argued that the proponents of an exemption were taking the law too seriously if they were being chilled by the remote threat of an anticircumvention lawsuit. Was he really advocating that we disregard the law??

The proceedings jumped the line to farce when Fritz Attaway and a colleague from the MPAA pulled out a cinematic demonstration of just how to camcord a movie from your television screen. (You start with a $900 HD video camera, a tripod, a flat-screen television, and a room that can be completely darkened.) Tim Vollmer captured the whole scene on a video of his own. Mind you, this is the same industry that has lobbied to make a crime of camcording in movie theaters, telling us how to frame shots properly from the television. (As Fred Benenson notes, they’re also demonstrating DRM’s impossibility of closing the “analog hole.”)

Finally, Bruce Turnbull, representing DVD CSS-licensing body, DVD-CCA, said we were all in the wrong place (LOC, rather than Congress) talking about the wrong subject. 1201 isn’t a copyright protection, but a technology protection, aimed at protecting the “commercial viability of the technological protection measure.” This may be operationally true, but it would sure surprise many in Congress who put anticircumvention into Title 17.

Other acts in the drama included Chris Soghoian’s argument for access to media after authentication servers go defunct; and Alex Halderman and Blake Reid’s arguments that security researchers should be able to investigate the hazards of DRM to personal computer security. Up today: eBooks, dongles, and cell phones.

Other reviews: Pat Aufderheide, Rebecca Tushnet, and Temple’s Media Education Lab live twitter-stream


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