ALA: New exemptions to digital copyright law don’t go far enough

New exemptions to the nation’s stringent digital copyright law will allow people to circumvent, without penalty, the technologies that prevent them from accessing certain types of copyright-protected materials–such as an internet filtering company’s list of blocked web sites or the read-aloud feature in electronic books.

Although education advocates applaud these exemptions, most of them are disappointed the Library of Congress did not enact more widespread exemptions for fair use by educators and librarians across all categories of digital works, as proposed during a recent solicitation of public comments on the issue.

The Digital Millennium Copyright Act (DCMA) requires the Library of Congress’s Copyright Office to examine every three years whether individuals are “adversely affected” by the technologies, or “access controls,” installed on copyright-protected digital works.

Normally, the DCMA prohibits people from circumventing access controls used by copyright owners to protect their works. But some limited exemptions–as defined every three years by the Copyright Office–are allowed when individuals can prove they are “adversely affected” by the access controls when trying to make “non-infringing” use of copyright-protected work.

Two old and two new exemptions–now in effect from Oct. 28, 2003 until Oct. 27, 2006–were approved by Librarian of Congress James Billington after a recent rule-making process during which 338 organizations and individuals submitted comments.

Exemptions were made for the following four classes of works:

  • Lists of web sites blocked by internet filters;

  • Computer software that uses malfunctioning, obsolete, or unrepairable “dongles” (exterior key-like devices that are inserted into a computer to gain access to a program);

  • Computer software and games that have become obsolete and require the original hardware to access them; and

  • eBooks with disabled read-aloud functions that prevent blind or visually impaired persons from accessing them.

“[The first] two of these classes of works are very similar to the two classes of works that were exempted three years ago, but they have been modified to take into account the somewhat different cases that were presented … this year,” Billington said. The latter two exemptions are new as a result of this rule-making.

Critics of internet filtering software had argued for a renewal of the exemption that would allow researchers to crack companies’ lists of blocked web sites to evaluate these sites and expose what detractors claim is the software’s propensity to “overblock” sites.

“Unless you have the ability to circumvent the technology protection measures, you don’t even know what’s being blocked. You need to go behind the technology to know what’s blocked,” said Emily Sheketoff, director of the Washington, D.C., office of the American Library Association (ALA).

Filtering companies consider their block lists to be proprietary information and therefore treat them as closely guarded secrets. They argue that customers can determine what is on the lists by using the software to test various web site addresses.

“While providers of filtering software offer some information about the web sites their software blocks, it is too limited to permit comprehensive or meaningful analysis,” Billington concluded in his ruling. “Persons wishing to review, comment on, and criticize this software as part of an ongoing debate on a matter of public interest should be permitted to gain access to the complete lists of blocked web sites.”

However, this exemption does not apply to lists of internet locations blocked by firewalls, antivirus software, or spam-blocking software, Billington ruled.

David Burt, a spokesman for Secure Computing Corp., testified against the block-list exemption earlier this year. Secure Computing recently acquired N2H2, a leading supplier of filtering software to K-12 schools.

“I’m disappointed that [the Copyright Office] didn’t sympathize with our argument,” Burt said. “I thought we made a good argument that there is no need to do this.”

Even with this exemption in place, it will be difficult for someone to gain access to a filtering company’s block list. “We still feel we have a great deal of legal protection,” Burt explained.

First, users would have to prove they were “adversely affected” by not having access to the blocked list. Then, they would have to figure out how to circumvent the access control. They also must accept the filter’s licensing agreement–which generally specifies that users will not try to circumvent the product’s access controls–before they can install the software.

Another DMCA exemption with a direct bearing on schools and libraries now allows users to circumvent the access controls on books published in electronic format to activate the “read-aloud” function built into eBook reader software. Education advocates had argued for this exemption to give visually impaired users meaningful access to literary works distributed in eBook format.

“By using digital rights management tools … publishers of eBooks can disable the read-aloud function of an eBook and may prevent access to a work in eBook form by means of screen reader software,” Billington wrote. “A publisher may avoid subjecting any of its works to this exemption simply by ensuring that for each of its works published in eBook form, an edition exists which is accessible to the blind and visually impaired.”

Although the ALA was pleased with these exemptions, the group said it was disappointed that an exemption for “fair use” by schools and libraries across all classes of digital works was not included.

Such an exemption would allow teachers to circumvent the access controls on commercially available digital video discs (DVDs) to make copies for classroom use, for example.

“We contend that … our population is as well-educated [as it is] because of fair use for education,” Sheketoff said. “By restricting this information and restricting how we can [use it in digital format], we are setting ourselves back.”

In his ruling, Billings explained that granting an exemption to certain types of users is not permitted under the law. The DMCA only allows exemptions for specific classes of works where there is “evidence of adverse affects” as a result of the law, he wrote.

In addition to fair use, several other exemptions were proposed and considered but were not adopted–including circumventing access controls installed on literary works, sound recordings, and audiovisual works when they prevent legitimate research or limit post-sale use of these works.


Library of Congress: Copyright Office

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works

American Library Association: Copyright Issues

FCC approves technology to limit internet piracy of digital TV shows
From eSchool News staff and wire service reports

Federal regulators say broadcasters may embed an electronic marker in high-quality digital television shows to make it harder to copy and distribute the programs over the internet.

The industry applauded the move as necessary to prevent the kind of widespread copying that has hit the music business and to ensure that over-the-air television remains free. But consumer groups say it is a further restriction on viewers’ rights, while others fear it is a step toward regulating the internet.

In approving a “broadcast flag” on Nov. 4, the Federal Communications Commission (FCC) said it was concerned that broadcasters would shift programs from over-the-air free television to pay channels such as Home Box Office if they could not protect programs from illegal copying and widespread distribution.

“The broadcast flag decision is an important step toward preserving the viability of free, over-the-air television,” FCC Chairman Michael Powell said.

Although some people already distribute TV shows and movies to others on line, the practice is limited by the speed of internet connections. It can take hours to transfer high-quality copies.

But as internet connections get faster and broadcasters switch to much clearer digital television, the movie and television industries fear consumers will put high-quality copies of shows and films on the web that others can then download for free. This would reduce the broadcasters’ ability to sell the shows for syndication or overseas.

The music industry saw CD sales fall as free music sharing proliferated on the internet. It has started to sue listeners who illegally distribute songs online.

“Ideally, in the future it will all be digital broadcasting and at the same time we will all have broadband, so the potential for abusing copyright is far greater,” said Craig Hoffman, a spokesman for Warner Bros. Entertainment:

“International sales of television shows are so important. ‘Friends’ is a season or two behind in England. This way, you are not able to make a perfect digital copy of ‘Friends’ and post it on the internet where anyone can download it.”

Broadcast industry officials also praised the FCC’s decision.

“The FCC’s ‘broadcast flag’ adoption represents another advance in the digital transition and ensures that consumers continue receiving the very best in free, over-the-air television programming,” said Edward O. Fritts, president of the National Association of Broadcasters.

Consumer and other public-interest groups, however, were not pleased with the decision.

“Having just given big media companies more control over what consumers can see on their TV sets by lifting media ownership limits, the FCC has now given these same companies more control over what users can do with that content, leaving consumers as two-time losers,” said Gigi Sohn, president of Public Knowledge, a Washington-based advocacy group on technology and copyright issues.

In its order, the FCC told makers of digital television receivers that by July 1, 2005, their models must recognize the flag, an electronic signal that broadcasters can embed in their programs.

The commission said the order applies only to electronics equipment that can receive digital broadcast signals, not to digital VCRs, DVD players, and personal computers without digital tuners.

A broadcast flag in an over-the-air TV signal would tell digital devices to encrypt shows when recording. The encryption does not prevent copying at home, but is intended to hinder online distribution. Under one proposed method, encrypted files would “self-destruct” after traveling a certain distance across the internet.

That means a teacher recording a digital TV transmission at home couldn’t send the file via eMail, file-transfer protocol (FTP), or other online means to a school computer for showing to a class, for example.

Congress already has told the TV industry to switch their broadcasts by 2007 to a digital format, which uses computer language, from the current analog format, which uses radio signals sent as waves.

The five-member commission’s action was unanimous, but both Democrats said they had some reservations. Jonathan Adelstein, for example, said he objected to allowing news and public-affairs shows to carry the broadcast flag.

“I see little threat to content creators from a parent eMailing to family and friends a local television news clip of a son or daughter receiving a community service award,” Adelstein said.


Federal Communications Commission

National Association of Broadcasters

eSchool News Staff

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