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DMCA Challenge Continues

The Copyright Office is expected to rule in October on the latest batch of requested exemptions to the DMCA.

But even if the Copyright Office exempts e-books from the law, that will only go halfway to helping the blind hear e-books on their PCs, IP Justice attorney Gross says. People could still not create or give someone a tool to crack the e-book code without breaking the law.

"It basically would serve the blind hacker community only," Gross says. People could unlock the e-books only if they knew how to crack the protection code themselves, she says.

But someone who cracks the digital lock on an e-book for a friend could be fined $2500--and up to $25,000 for doing it three or more times. A code cracker who made money for such a project could get up to ten years in prison and $1 million in fines.

Gross said the "absurd" law exists because there was insufficient public debate before its passage. Digital and disability rights advocates agree they didn't expect the DMCA to have such dire results for the blind community.

"It's another example of Congress not having thought through the effects of the law when it was passed," agrees Pamela Samuelson, a professor at the University of California and codirector for the Berkeley Center for Law and Technology. "It allows a slow constriction of the public domain."

Congress Tries Again

Several bills pending in Congress take a stab at trying to resolve fair use issues, including those pertaining to e-books, especially for people with vision impairments.

The House of Representatives is considering a bill that aims to make educational content more accessible for people who are blind. The Institutional Materials Accessibility Bill (H.R.490) would require publishers to make books easily translatable for people with disabilities. It has 97 cosponsors and is now in the House Subcommittee on Education Reform.

Virginia Rep. Rick Boucher, a Democrat, recently proposed a bill that would allow people to duplicate copyrighted materials for personal use. The Digital Media Consumers Rights Act (HR 107) would overturn parts of the 1998 DMCA law that prohibit duplicating copyrighted products such as DVDs, but would not directly amend it. The DMCRA would amend the Federal Trade Commission Act of 1914, which aims to protect consumers from commercial fraud.

Boucher says it is particularly important for people with disabilities to be able to bypass technical protection measures." The current law really does punish the innocent," he says.

Major electronics companies including Intel and Gateway, as well as consumer groups, support Boucher's bill, but it faces opposition from heavy-hitters in the entertainment industry, such as the Motion Picture Association of America and the Recording Industry Association of America. The DMCRA has been in the House Subcommittee on Courts, the Internet, and Intellectual Property since March and has 11 cosponsors.

The Improving Education Results for Children With Disabilities Act, now in a Senate committee after passing the House on April 30, would spur access to educational books by students with disabilities, according to Schroeder. The bill does not directly amend the DMCA.

Legal Options

Only a future court challenge or amendment to the DMCA would make text-to-speech conversion legal for all e-books, according to Gross.

Some legal experts believe that since the DMCA allows criminal penalties for people who violate it, someone might have to go to jail for cracking software code to draw attention to the issue.

Attorney Samuelson points to one pending case that she contends is another example of the DMCA being abused, but which could set a dangerous precedent. Printer manufacturer Lexmark is charging a third-party manufacturer with violating the DMCA by circumventing Lexmark's protection technology in its ink cartridges in order to manufacture compatible cartridges.

"Something introduced as a way to protect content is being misused in many ways," Samuelson says.

The only completed legal challenge to the DMCA was the case of Russian computer scientist Dmitry Sklyarov, who works for a company that developed and markets a program that breaks copy protection on Adobe's e-books--and is legal in Russia.

Sklyarov spent three weeks in jail after he demonstrated and distributed the software at the DefCon hacker conference in 2001. Sklyarov agreed to testify for the government in its case against his employer. The company was acquitted by a federal grand jury in December 2002.

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