Digital Copyrights Challenged

WASHINGTON -- Consumers are demanding the Copyright Office unlock the gates of copy-protected entertainment, in its periodic review of the Digital Millennium Copyright Act.

They're particularly unhappy that some DVDs bought abroad won't play on U.S. machines--the subject of about half of the 270 the comments during the legally mandated evaluation of the controversial copyright law. Also, 55 people are protesting DVDs that won't let you skip the advertising--many of them specifically citing Disney products.

Every three years, the federal Copyright Office considers requests for exemptions to the 1998 DMCA.

The current round of requests are now posted on the Copyright Office's site. Opposing most of the requests are film and music companies, which fear increased access will exacerbate digital piracy.

Steven Metalitz and Eric Schwartz, lawyers representing a number of film and recording industry associations, have filed a 58-page rebuttal to the requested exemptions. They call the submissions "a broad-gauge attack on the DVD-related access control technology," and say many of the complaints represent "inconveniences" rather than the proof of "actual or likely harm" that is required to win an access exemption.

Programmers and civil rights groups point out that the bar is set high with respect to access exemptions. In its first review of the DMCA, the Copyright Office granted only two exemptions after receiving 235 comments.

Seth Finkelstein, a freelance computer programmer from Cambridge, Massachusetts, wrote one of the successful proposals. He shares his experience in two reports on how to win copyright exemptions. Finkelstein fears the Copyright Office will punt on the more controversial issues.

"I think there are extremely sound policy arguments against the DMCA. The question is whether the copyright office is going to want the responsibility of making those decisions," Finkelstein says. "Nobody wants to face the wrath of copyright protection companies."

Adam Thierer, a policy analyst at CATO, a libertarian think tank, calls the DMCA a "pre-emptive, prophylactic form of regulation." He says copyright protection issues should be handled by Congress and the courts.

"[The Copyright Office has] never liked to get involved to this degree in these sort of cat fights between various interest groups," Thierer says. "If we really want to get at this and not have this fight come up every couple years, we ought to just eliminate the DMCA altogether."

Meanwhile, lawmakers on Capitol Hill are trying to clear up DMCA static for good.

Representative Rick Boucher (D-Virginia), has reintroduced a bill that makes it illegal for a company to advertise or sell a copy-protected CD or DVD not labeled as such.

Earlier this week, Silicon Valley Representative Zoe Lofgren (D-California), also reintroduced a bill to amend the DMCA. Her proposal, the Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE Act), would let consumers make backup copies and play digital works on devices of their choice. It would prohibit non-negotiable, "shrink-wrap" licenses that "limit consumer rights," according to Lofgren's office. Under the bill, consumers could bypass copy protection schemes if the technologies "impede" their fair-use rights under copyright law.

"[Piracy] is something that needs to be stopped, but individual consumers are being denied their legitimate rights in the digital age," Lofgren says. "We can solve this problem, but lawsuits and locking down content are not the solutions."

Her office acknowledges the bill faces an uphill fight. Its initial version didn't even get a hearing last session. And the Business Software Alliance and Motion Picture Association of America have opposed her efforts.

Meanwhile, the Copyright Office continues to reconsider the DMCA. Within the next few weeks, it will set dates for public hearings on the proposed exemptions for digital media access controls.

As part of its required three-year review process, the office must decide by year's end which, if any, access immunities will be granted.

The Copyright Office will not analyze the comments until after the hearings, says Rob Kasunic, senior attorney.

"For us, they're all hot issues; we're going to be looking at everything that's proposed," Kasunic said.

Grant Gross of the IDG News Service contributed to this report.