Consumer Groups Challenge Copy Controls

WASHINGTON -- Public comment on the controversial Digital Millennium Copyright Act has closed for now, but next the federal government must answer the complaints--including a call to end copy restrictions on consumer DVDs and CDs.

The Electronic Frontier Foundation and Public Knowledge, the latter a public-interest advocacy organization, want the U.S. Copyright Office to allow an exemption to the DMCA so that end users can make backup copies of DVDs and CDs.

Their request is 1 of just 50 comments the office received this round, according to Rob Kasunic, senior attorney. The law orders the librarian of Congress to review requests for exemptions from the DMCA every three years. The exemptions would relieve certain classes of works from the act's "prohibition against circumvention of technological measures that control access to copyrighted works."

Comments will be posted on the Copyright Office site on Friday. Responses and follow-up hearings will be posted there as well.

DMCA Loses First Test

When Congress passed the law in 1998, artists, writers, and programmers considered it protection for their digital work. But members of the tech industry question its provisions and say that the act challenges the fair-use rights of consumers.

In the first criminal case involving the law, a jury this week found Russian software company ElcomSoft not guilty of violating the DMCA by selling software that circumvents the copy-protection on Adobe's EBook file format. Criminal charges were dropped against employee Dmitry Sklyarov for his testimony. The company would have faced up to $2.5 million in fines if it had been convicted.

"While this jury had the good judgment not to convict ElcomSoft for advancing a technology that could be used in lawful ways, a future jury in another, similar case may reach a different decision," says Representative Rick Boucher (D-Virginia).

Boucher and Representative John Doolittle (R-California) plan to reintroduce in January a bill that amends the DMCA to protect the rights of consumers who want to make copies legally. The bill would require labeling on copy-protected CDs.

Legal Copying Sought

Four types of digital media would be exempt from DMCA rules under the request by the EFF and Public Knowledge.

The groups target music on copy-protected CDs, movies on DVDs with regional-coding restrictions that prevent playback on U.S. players, movies on DVDs that prevent skipping of commercials, and movies in the public domain released on DVD. Copying those four types of digital media should not be subject to prosecution under the DMCA, says Fred von Lohmann, EFF general counsel.

"The Copyright Office is interpreting its power very narrowly," von Lohmann says. "They may say they don't have the authority to grant these exemptions."

He encourages consumers who have encountered problems to participate in the next phase of the DMCA's review.

"We're asking anyone who bought a copy-protected CD that was unplayable to write to the Copyright Office and tell them," von Lohmann says.

Next: Hearings, Debate

The first DMCA review, in 2000, generated 235 comments in the opening round, says Kasunic of the Copyright Office. With fewer comments to consider, this latest assessment will be more focused, he adds.

"The scope is spelled out in the statute ... to determine whether there are any present or likely adverse affects on users that are the result of circumvention," says Kasunic. "We have no latitude beyond that."

The reply period will open January 21 and end February 19, Kasunic says. The office also plans to schedule public hearings in the spring.

Based on the information it collects throughout the process, the Copyright Office will make suggestions to the librarian of Congress, who can accept or reject the proposals. These decisions are expected in October 2003.

But EFF's fight will not stop at the Copyright Office. If the office is unwilling to fix the problems, the consumer-rights organization will turn to Congress to make the change, von Lohmann says.