Some DMCA bits [LWN.net]

The DMCA will be returning to the news as the Elcomsoft trial starts up again on December 2. Thanks to some intervention by the Justice Department, the defendants will actually be able to show up for their trial this time. Elcomsoft will be trying to attack the DMCA and its effects on fair use rights, but the prosecution will do its best to keep fair use issues out of the courtroom altogether. The DMCA, after all, bans "circumvention devices" without care for the preservation of fair use. And Elcomsoft did sell a "circumvention device" in the US. We wish them the best of luck in their trial, but this case is unlikely to be the one that forces large changes in the DMCA.

There is, meanwhile, a mechanism by which small changes can be made in the DMCA. Every three years, the Library of Congress Copyright Office is supposed to look into whether the prohibition on circumvention devices is having an overly adverse effect on any particular type of work. Should such an effect be found, the office can issue a three-year DMCA exemption.

That inquiry is happening now. Seth Finkelstein, who successfully used the exemption process to win immunity for his work looking at censorware blacklists, has posted an article on the EFF site on how to do it. The exemptions are hard to get, and they are very narrow - they do not extend to distribution of circumvention software, for example. Even so, exemptions poke little holes in the DMCA, and can protect certain kinds of work. For example, a certain Linux distributor has made a big show of not distributing information on security-related kernel patches within the U.S.; this company should probably don its colorful headwear and head off to apply for an exemption, and, thus, demonstrate the adverse effect that the DMCA has had in this area. Anybody else who would like to take the time to put in a serious application to highlight an adverse effect of the anti-circumvention provision of the DMCA should seriously consider doing so. The deadline is December 18.

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Some DMCA bits

Posted Nov 27, 2002 16:42 UTC (Wed) by brouhaha (subscriber, #1698) [Link]

The DMCA, after all, bans "circumvention devices" without care for the preservation of fair use

Actually I don't think that's true, although the court chose to interpret it that way in the 2600 case.

In Section 1201 ("Circumvention of copyright protection systems"), part (c) specifically states:

OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

It also provides several other important restrictions:

(2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.

[...]

(4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.

Don't get me wrong, I believe the DMCA is a terrible law. But if the courts will take 1201(c) into acount (unlike what happened in the 2600 case), at least some of the more egregious excesses will be curbed.

Some DMCA bits

Posted Dec 5, 2002 18:04 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

The sections you cite are irrelevant to this discussion, because
copyright infringement is not alleged in either the 2600 case or
the Elcomsoft case.

LWN's statement is that there is nothing in DMCA that says
fair use is a defense to an allegation that you distributed a
circumvention device. That's true.

Remember - the "fair use" law isn't a law that says everybody has the
right to fair use of things -- it's just an exception to copyright
law.