December 1, 2005

EFF abstains from DMCA rulemaking, denouncing Copyright Office

Author: Nathan Willis

In a sharp change of public standpoint, the Electronic Frontier Foundation announced Wednesday that it has declined to submit comments in the US Copyright Office's DMCA rulemaking proceeding, denouncing the process as "too broken" with respect to consumers, and issuing a report that charges the Copyright Office with overstepping its legal authority.

A public comment period and rulemaking is required by the Digital Millennium Copyright Act every three years. The Copyright Office solicited interested parties to propose exemptions to the "prohibition on circumvention of access control measures" clause of the DMCA. As reported here in October, December 1 is the deadline for submitting comments, after which time all will be made publicly available at the Copyright Office Web site.

In the 2000 and 2003 rulemakings, the EFF both submitted comments to the Copyright Office and assisted members of the public in drafting their own. In yesterday's announcement, however, they point out that every exemption they proposed in these previous rulemakings was rejected. Assessing the situation, they believe that the rulemaking process is so slanted against consumer rights that it is irrelevant, and attention should be turned to passing legislation that amends the flaws in the DMCA instead.

Senior Intellectual Property Attorney Fred von Lohmann says that the EFF will file reply comments in support of exemptions proposed by other groups. Reply comments are due by February 2, 2006.

Accompanying the EFF announcement is an eight-page report (in PDF format only) detailing what led to the decision not to participate in the rulemaking. In it, the EFF delineates the flaws of the rulemaking process that render it fruitless.

The reasons cited include the scope of the proceeding itself (which is limited to proposing exemptions to the anti-circumvention clause and does not address other important areas of the law), the language and legal requirements of the official notice of inquiry and behavior on the part of the Copyright Office itself.

Page four of the report details what the EFF considers a double standard applied to pro-consumer and pro-industry comments, noting that in the 2003 rulemaking, they were asked to

identify (1) the number and volume of all copy-protected audio CDs available in the United States, in support of a request for circumvention to enable playback of malfunctioning copy-protected CDs, and (2) all public domain motion pictures released either alone or bundled with other copyrighted works, on DVDs protected by Content Scramble System (CSS) encryption, and which were not available on VHS cassette, in support of an exemption to access public domain works.

while at the same time, music and movie industry representatives were burdened with no such requirements.

The report goes on to criticize the Copyright Office for appointing itself the arbiter of what constitutes "fair use" under copyright law, despite the fact that that role is delegated by Congress to the court system, where it was executed prior to the DMCA.

Finally, the report advocates four specific reforms to the rulemaking process, including revisions to the existing procedure and solicitation of an independent fact-finding report. In the meantime, Von Lohmann urges interested consumers to lobby their Congressional representatives in support of copyright reform legislation.

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