Digital copyright law up for challenge

As the deadline approaches for public comment on the controversial Digital Millennium Copyright Act in the US, experts are offering advice on how to persuade the feds to allow exemptions that change access controls on digital media.

The Copyright Office is accepting comments on the law, which makes it illegal to copy digital entertainment and imposes restrictions that some users say violate their fair-use rights. A comment form is available online and must be submitted by December 18.

The office received 235 comments in 2000 during the first review of the DMCA, says Rob Kasunic, a senior attorney in the Copyright Office. Congress mandated a review process every three years upon approving the law in 1998. However, only two of those hundreds of comments in 2000 resulted in new exemptions, Kasunic says.

Previous Success

Seth Finkelstein, a computer programmer from Massachusetts, wrote one of those successful proposals. He targeted Internet filtering programs that contain secret blacklists of Web sites the software intends to block. US federal law prohibits circumventing the encryption that hides the banned sites, and his request allowed access to the censorware blacklists.

Finkelstein says the Copyright Office is most likely to respond to comments that cite specific lawsuits and applications. "I had an extremely detailed and factual case," he says.

The law says an exemption from the DMCA must be based on proof that users are "adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of measures that protect access."

Finkelstein plans to apply for another exemption during this review, and says his argument this time may be even stronger because he can cite new cases.

"Litigation has exploded," he says. The Electronic Frontier Foundation, an online civil liberties watchdog organization, will review his proposal.

Companies that make Internet filtering programs were caught off guard last time, but they will be watching the challenges in this review period, Finkelstein says. He expects companies like SurfControl PLC and Websense to respond to the proposals during the second round of this comment period, in January.

Comments Urged

Finkelstein encourages individuals and businesses to take advantage of the opportunity to voice their concerns about DMCA provisions. He offers this advice: "You can't argue ideology. The Copyright Office has said over and over that they don't want theoretical arguments." Be specific and stick to the facts, he says.

Officials in the Copyright Office also urge people to follow the format for comments. These public comments will be posted on its Web site after the deadline. In January and February, the office will accept comments that reply to the initial round of public input.

Based on the comments and their evidence, the Copyright Office will provide suggestions to the librarian of Congress, who can accept or reject the requests. Judgments are expected in October 2003.

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