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 (DMCA) 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 DMCA 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 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 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 allows 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 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 the exemption in place, it will be difficult for someone to gain access to a filtering company’s block list. 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 even installing 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 … 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 commerically 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.

See these related links:

Library of Congress’ Copyright Office
http://www.copyright.gov

American Library Association: Copyright Issues
http://www.ala.org/copyright