So What DMCA Exemption Requests Got Rejected?

Copyright

from the the-flipside dept

Like many others yesterday, we covered the news that (surprisingly) the US Copyright Office and the Librarian of Congress granted some consumer friendly DMCA anti-circumvention exemptions for things like jailbreaking smartphones. But, very little coverage has been paid to what exemptions were requested and rejected. First up?

Subscription based services that offer DRMprotected streaming video where the provider has only made available players for a limited number of platforms, effectively creating an access control that requires a specific operating system version and/or set of hardware to view purchased material; and Motion pictures protected by antiaccess measures, such that access to the motion picture content requires use of a certain platform.

Specifically, this involved someone who asked for an exemption to, say, watch Netflix streaming, with a legit Netflix member account, on a non-approved platform, such as Linux. This was lumped in with another proposal to not just watch streaming content on Linux, but DVDs on Linux, where there might not be a CSS-licensed video player. Such requests have been tried in the past, and basically, the rulemaking effort here said “been there, rejected that,” followed up with a “if you want to view the content, buy a “reasonably priced alternative” technology platform. How nice of them.

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, when such authenticating servers cease functioning because the store fails or for other reasons; and

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 servers for technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function.

This seems like it should be a no-brainer for exemption. There are so many stories of various online music stores that had DRM that required “phoning home.” These services died, and eventually the DRM servers were turned off leaving consumers blocked from accessing music they had legally purchased.

But, no… The Copyright Office shot that one down by saying that, Chris Soghoian, who made this request, failed to show “that the prohibition on circumvention of access controls either has produced, or is likely to produce, any adverse effects on noninfringing uses of the proposed class of works.” Basically, the Copyright Office notes that, so far, in the cases where such servers have been shut down, the companies offered “full refunds” to buyers, so no harm, no foul. Of course, it brushes over the fact that it took enormous consumer backlash to force this response. So, because a bunch of complaining consumers get companies to pay up if they want to turn off their DRM servers, no circumvention should be allowed? That seems backwards.

Software and information recorded, produced, stored, manipulated or delivered by the software, that a forensic investigator seeks to copy, activate, or reverse engineer in order to obtain evidence in a court proceeding.

This, again, seems like a reasonable request. Forensic investigators may need to access and review data or software that is locked down with DRM or other technical protection methods. Making it infringement just to get around those protection measures, even for legal forensic investigations doesn’t make much sense. But, of course, to the Copyright Office it’s perfectly reasonable. Basically, the Copyright Office says “well, there’s no evidence that this has ever been a problem, so why worry?”

Audiovisual works delivered by digital television (DTV) transmission intended for free, overtheair reception by anyone, which are marked with a broadcast flag indicator that prevents, restricts, or inhibits the ability of recipients to access the work at a time of the recipient’s choosing and subsequent to the time of transmission, or using a machine owned by the recipient but which is not the same machine that originally acquired the transmission.

Here, again, the Copyright Office basically says, “hey, there’s no broadcast flag mandate, so why worry?” It claims that it’s “highly speculative” as to whether or not broadcasters and copyright holders would look to use broadcast flags to restrict content. Of course, this ignores that various attempts have been used to do that, and now with things like Selectable Output Control, it’s likely to happen again.

Audiovisual works embedded in a physical medium (such as Bluray discs) which are marked for downconversion or downresolutioning (such as by the presence of an Image Constraint Token ICT) when the work is to be conveyed through any of a playback machine’s existing audio or visual output connectors, and therefore restricts the literal quantity of the embedded work available to the user (measured by visual resolution, temporal resolution, and color fidelity).

Again, the Copyright Office is quick to recommend against including this, noting that there’s no clear adverse impact on users or a clear “noninfringing use.”

As mentioned in the original post, the Copyright Office also wanted to reject allowing ebooks to be read aloud for the blind, but the Librarian of Congress overruled the Copyright Office on that one point.

And, there you go. Many of the rejections were basically over situations where the Copyright Office said there was no real evidence of an actual problem, so nothing to worry about. Still, just the fact that many of these situations had to be proposed and were rejected shows how ridiculous copyright law is today. The fact that we have to go begging to the Copyright Office every three years for simple exemptions like this, which can (and often are) rejected, is not how modern society should work. Technology is changing how people can and do interact with content. This whole process (even the fact that it only happens every three years) has the whole thing backwards. We shouldn’t have to ask for permission to use technology to do what it allows.

Filed Under: circumvention, dmca, exemption