No Exemptions for Copy-Protection? Huh?

Am I having a braino or is this assertion (from this Wired article) incorrect?

“But the DMCA has no provision allowing exemptions in cases where software was designed with copy controls, such as encryption.

Even if the Copyright Office grants the Internet Archive’s request [for an access control exemption], under current circumstances archivists would only be able to back up software that had no built-in copy protections.”

The DMCA has no such exemption because there is no ban on circumvention of copy-protections. There is a ban on trafficking, but not on circumvention.

So what’s the problem with circumventing copy controls to archive?

Update: BTW, I’m not saying that they don’t need an exemption. They do, but for access controls. Wired’s assertion is bogus because they’re saying there’s no way you can get an exemption for circumvention copy controls, when you don’t even need one. But, do see Ernest’s comment about the conflation of access and copy controls.

2 Responses to “No Exemptions for Copy-Protection? Huh?”

  1. Ernest Miller
    October 14th, 2003 | 12:02 pm

    You are correct, the WIRED article is not. However, there does remain a problem for archivists with regard to the ban on the circumvention of access controls. The way most courts have interpreted the DMCA, virtually all copy control (and certainly the most common types of digital copy control) are also access control devices. Thus is you circumvent copy control, you are also circumventing access control. Thus, in order to backup a copy legally, you need an exemption to access control from the Copyright Office.

  2. Ravi Nanavati
    October 14th, 2003 | 5:03 pm

    A second point is that most archivists are not technical wizards. Therefore they will not be able to develop the circumvention tools they need for archival purposes without help from a technical expert. But no technical expert will help becauea they would be guilty of trafficking in a circumvention device.