October 28, 2003
Not a whole lot of change. Just two additional exemptions: obsolete formats for computer programs and video games (a narrow version of the Internet Archive’s proposal) and lack of e-books for the disabled. Also, the censorware and damaged “dongle” exemptions have been narrowed a little.
Ernest has got the linkage going. I hope to write some longer analysis later, too, but for now I don’t think I can get through all the docs. Here are my notes as I read the short version and a quick skim of the longer recommendation (198 pages!!!) – I will read them both more closely later:
“These commenters [proposing an exemption for public domain works] have overlooked that if a work that is entirely in the public domain is protected by an access control measure, the prohibition on circumvention will not be applicable. Therefore, no exemption is needed.” The good news: nice clarification about public domain works. I had always thought this was obvious given the language of the statute, but many have asked for clarification just in case. The bad news: this doesn’t affect public domain works bundled with copyrighted works. The weird news: The commenters didn’t “overlook” how public domain works aren’t protected. The EFF specifically advocated that position – they just wanted clarification.
The Register rejects an exemption for obsolete or damaged audiovisual works because “the proponents have not made the case with respect to fragility of DVDs, nor have they shown that the making of backup copies of DVDs is a noninfringing use.” Sigh on both accounts. What more do we have to prove about DVD rot? And now courts and legislators can cite to this for the proposition that backups are infringing, even though the contrary has been asserted.
After the accepted exemptions, the Register’s first positive response to a comment is to Ernest‘s. While the Register agrees that quotation is important, it sides with Reimerdes in stating that all he’s asking for is mere convenience. Shockingly, the Register urges people to use the analog hole and redigitization to make their fair use. Nevermind Macrovision for the moment – can you believe the Register actually advocated creating unencrypted copies using the analog hole? The Register also completely dodged Ernest’s argument about CSS not being an access control.
The Register totally rejects arguments about region coding. Though even DVD-CCA and MPAA weren’t clear about whether multiregion players are circumvention devices, the Register asserted that they are in footnote 213 of the longer recommendation.
The Register also does not agree that “space-shifting” is necessarily a non-infringing uses and thus works “tethered” to certain devices do not require an exemption. The Register also concludes that allowing the creation of a Linux-based DVD player will lead to increased piracy. Apparently, if people need a DVD player, they just shouldn’t use Linux. We can all say goodbye to interop.
What’s really bizarre is that the Register says, “The purpose of tethering is to limit subsequent redistribution.” If that’s the case, then that sounds more like a copy-control, not an access control. The point of an access control tethering has more to do with limiting what devices you can use to play/access the copy, not whether you can copy and redistribute its contents.
There’s an interesting if confusing discussion of copy controls on CDs that sometimes act like access controls becaues of malfunctions – see the EFF’s comment. First, the Register agrees that the copy-protection in these CDs is not an access control – that means you can circumvent some copy-protected CDs. However, in cases that do not involve malfunction, like dual session CDs as merged access and copy controls, the Register didn’t find sufficient harmful effects.
The Register states that webcaster’s don’t need an exemption because they already have one in 17 USC 112(e)(8). Webcasters didn’t want to have to ask for non-encrypted versions first, and the Register balked.
Really interesting note on the Lexmark v. Static Control case. The Register says, “The Register concludes that an existing exemption in section 1201(f)addresses the concerns of remanufacturers, making an exemption under section 1201(a)(1)(D) unnecessary.” Because there’s already an exemption, the Register won’t go any further and will simply let the courts sort it out. The Register used similar reasoning when refusing to grant further exemptions for security testing and encryption research.
Later on, “It would also appear that to the extent that such a file format is unreadable, and to the extent that the file format is the product of a “computer program,” one may be able to utilize the reverse engineering exemption in