Copyright Office Once Again Preparing To Throw Citizens A Fair Use Bone
from the please-sir,-may-I-have-some-rights dept
A few weeks ago, I was talking with one of my friends about copyright law and just what is legal for us and consumers to do with the movies, games, music and software we own. In that conversation, the topic of copying a movie from a DVD to her computer for use on her family’s computers and tablets came up. I had the pleasure, or more accurately the displeasure, of trying to explain the nuances of copyright law and why making a copy of a DVD may not be legal. While it is generally accepted that copying a CD for home use is considered a fair use, the ability to do the same with a DVD has not been legally tested. For the most part, it remains illegal because the DMCA’s anti-circumvention clause makes bypassing DRM, whether that DRM is effective or not, illegal. With the DMCA in place, it doesn’t matter is you are copying that DVD for personal use, it is still illegal.
In response to public concerns over this portion of the DMCA, Congress added a process to the DMCA that allows citizens to petition the Copyright Office to seek an exemption. Every three years the Library of Congress and the Copyright Office team up to request, review and grant exemptions to the DMCA’s anti-circumvention clause. Every three years, the American citizens get the chance to beg the government to re-grant rights they should have if it had not been for that clause in the DMCA. Every three years the Copyright Office gets to tell American citizens just what rights they are allowed to exercise and which they can’t. We have already expressed why we think this process is completely bogus. So this year isn’t really any different. But it is important to take a look at just what exemptions are being requested this year.
One of the most active consumer groups in this process is the EFF. They have requested exemptions all but one year in the process. The year it didn’t submit a request was spent in protest over the insanity of the process. However, it has since won some important exemptions, specifically the right to jailbreak a legally purchased iPhone. This year, the EFF has decided to take it up a notch and request an exemption to jailbreak not only the iPhone, but also other smartphones, tablet computers and game consoles. It also seeks to have exemptions made for the breaking of DVD’s CSS encryption for the purpose of extracting clips to be used in non-commercial videos.
Following suit on the idea of bypassing CSS encryption, we have both Public Knowledge requesting an exemption for space shifting of DVDs for home use and the Association of Research Libraries requesting an exemption for educational use of copied DVDs. Three requests for bypassing CSS encryption. Perhaps there is something there. The ability to bypass CSS encryption and copy DVDs to computers has existed for pretty much the entire life of DVDs, yet it is still illegal to do so.
Now remember, just because these requests are being made, it does not mean we are guaranteed to get these exceptions. Companies interested in blocking these requests can still add their own submissions in response. We can certainly expect the MPAA to object to any kind of exemption for bypassing CSS encryption that doesn’t involve a video camera recording the TV. We can also expect objections from Sony and Nintendo who both hate the idea of people jailbreaking their consoles even for fair uses.
Regardless of what happens in the next few months (or two years if the last process was anything to go by), US citizens will be thrown a bone and given the semblance of fair use rights again, at least for the following three years when this whole process starts over. That is the biggest problem with this whole process. If something is worth making a temporary exemption, is it not also worth making that exemption permanent?