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Only two kinds of digital works are exempt from the two-year-old Digital Millennium Copyright Act, which bans cracking the access codes designed to protect movies, software, books, and other digitally recorded material from illegal use.

The U.S. Library of Congress posted the rule, which is seen as a victory for the entertainment industry, which uses access codes to protect the copyrights of digital recordings. But it's a defeat for software developers who "reverse engineer" some software code in order to customize it, and for librarians, who say the DMCA prohibition impedes libraries' capability to provide public access to digital works.

The only exceptions to the DMCA are lists of Web sites that are blocked by filtering software, and literary works--including computer programs and databases that are protected by malfunctioning, damaged, or obsolete access controls. Only those two types of materials can be legally accessed by circumventing the access control, according to a statement by James H. Billington, librarian of Congress.

The DMCA went into effect in October 1998, outlawing the cracking of a software access code or other technology that protects digitally recorded material from illegal access. But at the same time, Congress asked the Library of Congress, in conjunction with the library's Copyright Office, to examine the prohibition to determine whether there should be any exemptions to ensure that the rights of users weren't "diminished."

Rights of Individuals Considered

Billington based his statements on the recommendations of the register of copyrights, who was assigned to consider a wide range of possible adverse impacts of the prohibition. The Copyright Office's primary responsibility was to assess whether current technologies that control access to copyrighted works are "diminishing the ability of individuals to use works in lawful, non-infringing ways," Billington says in the statement.

Robert Dizard Jr., staff director of the Copyright Office, says the register of copyrights found that the access controls adversely affect people who want to access the two exempt classes of work. The register made the recommendation based on public comments showing problems with these two particular kinds of material, Dizard says. The ruling should not be considered a defeat or victory for any particular group, he adds.

"We would not characterize this as a rulemaking to select winners and losers," he says. "Congress indicated in the statute that the record had to clearly support an adverse affect" in order to obtain an exemption.

The Library of Congress had five public hearings and accepted comments from a number of organizations and individuals before making the rule, which Billington stresses does not cover technological controls on the copying of digital material. It remains in effect for three years.

Billington says he will ask Congress to consider shortening the time frame given the rapid pace of technological change.

The Library of Congress rule follows another victory for the entertainment industry over a copyright issue. A U.S. District Court judge issued an order in August that permanently bars Web sites from linking to other sites that contain De-Content Scrambling System (DeCSS) code when the site offering the link aims to help facilitate dissemination of illegal code. DeCSS is used for disabling encrypted content on DVDs (digital video discs). (See "Descrambling Code Still Under Fire.")

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