[DMCA-Activists] Re: Ideas for DMCA Exemption Classes of Works

[Seth Finkelstein]

>> Date: Mon, 25 Nov 2002 21:28:39 -0800 (PST)
>> From: Bryan Taylor <address@hidden>
>
> I'm starting to brainstorm on my submission to the Copyright
> Office for exemptions to the 1201(a) anticircumvention ban.
>
> The EFF has a nice howto on making submissions that might
> actually influence things. It's quite valuable:
> http://www.eff.org/IP/DMCA/dmca_comments_howto.html

        Thanks! :-) (I'm the author :-) )

> Anyway, here are some of my ideas of classes of works to be
> exempted. THoughts and feedback are welcome.
> ...
> class of works 4: data sets, lists, databases, or other
> collections whose individual elements are public domain
> facts, not the original expression of the data set creator
> or licensing contributor thereto, or otherwise not
> copyrightable by the data set creator. Examples: the CDDB
> thing, the recent price list thing

        For this, it's critical to read what's been said before, and
to understand how the Librarian is viewing it. This came up
previously, in the 2002 rulemaking, and was rejected. I'm not saying
it can't be done. Rather, my point is that I believe the best chances
of success are in thoroughly understanding the framework used, and
putting forth the case within that reasoning. This isn't hard, but it
does mean sitting down and RTFM, taking care to write to the spec.

        Look at the 2000 rulemaking results, there's pages on this.
http://www.copyright.gov/fedreg/65fr64555.html

"    In applying the four factors in Section (a)(1)(C), the impact of
access control technologies on the availability of works in general,
and their impact on the library and educational communities in
particular, must be evaluated. In general, it appears that the advent
of access control protections has increased the availability of
databases and compilations. Access controls provide an increased
incentive for database producers to create and maintain databases.
Often, the most valuable commodity of a database producer is access to
the database itself. If a database producer could not control access,
it would be difficult to profit from exploitation of the database.
Fewer databases would be created, resulting in diminished availability
for use. If there were evidence that technological access protections
made access to these works prohibitively expensive or burdensome, it
would weigh against increased availability. However, as discussed
above, such evidence has not been presented in this proceeding. Nor
       ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
has there been a showing of any significant adverse impact thus far on
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
nonprofit archival, preservation and educational activities or on
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
criticism, comment, news reporting, teaching, scholarship or research.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
There is no evidence that the use of technological measures that
control access to ``thin copyright'' works has made those works less
accessible for such purposes than they were prior to the introduction
of such measures. Finally, in assessing the effect of circumvention on
the market for or value of the works, it appears likely that if
circumvention were permitted, the ability of database producers to
protect their investment would be seriously undermined and the market
would be harmed."

> class of works 5: a work or compilations containing a work
> whose copyright has expired Examples: DVD's of the really
> old movies

        Similarly:

"    Proponents of such an exemption make two related arguments. First,
some commenters argue that using Section 1201(a)(1) to prohibit
circumvention of access controls on works that are primarily factual,
or in the public domain, bootstraps protection for material that
otherwise would be outside the scope of protection. It would, in
effect, create legal protection for even the uncopyrightable elements
of the database, and go beyond the scope of what Section 1201(a)(1) was
meant to cover. An exemption for these kinds of works, proponents
argue, is necessary to preserve an essential element of the copyright
balance `` that copyright does not protect facts, U.S. government
works, or other works in the public domain. Without such an exemption,
users will be legally prevented from circumventing access controls to,
and subsequently making noninfringing uses of, material unprotected by
copyright."
[Later]
"    Second, the fear that 1201(a)(1)(A) will disadvantage users by
``locking up'' uncopyrightable material, while understandable, does not
seem to be borne out in the record of this proceeding. Commenters have
not provided evidence that uncopyrightable material is becoming more
expensive or difficult to access since the enactment of Section 1201,
nor have they shown that works of minimal copyright authorship"

        I'm saying, build on this. They've rejected it before, now
we have to come back with a better-constructed case.

-- 
Seth Finkelstein  Consulting Programmer  address@hidden  http://sethf.com
Anticensorware Investigations - http://sethf.com/anticensorware/
Seth Finkelstein's Infothought blog - http://sethf.com/infothought/blog/