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[dvd-discuss] Re: What does "availability for use" mean?

	Roughly, the Copyright Office is asking, is the overall effect
of the DMCA on this "class of works", that there are more works
available, for more use, or not? The kicker to remember is that as
long as non-encrypted formats are available, they've tended to find
that encrypted formats are a bonus or extra, and so the restrictions
are beneficial.

	Search for the word "availability" in the 2000 rulemaking results

" ... the Committee was concerned that
``marketplace realities may someday dictate a different outcome,
resulting in less access, rather than more, to copyrighted materials
that are important to education, scholarship, and other socially vital
endeavors.'' Id. at 36. Possible measures that might lead to
such an outcome included the elimination of print or other hard-copy
versions, permanent encryption of all electronic copies and adoption of
business models that restrict distribution and availability of works.
The Committee concluded that ``[i]n this scenario, it could be
appropriate to modify the flat prohibition against the circumvention of
effective technological measures that control access to copyrighted
materials, in order to ensure that access for lawful purposes is not
unjustifiably diminished.'' Id.
    In order to address such possible developments, the Commerce
Committee proposed a modification of section 1201 which it
characterized as a `` `fail-safe' mechanism.'' Id. As the Committee
Report describes it, ``This mechanism would monitor developments in the
marketplace for copyrighted materials, and allow the enforceability of
the prohibition against the act of circumvention to be selectively
waived, for limited time periods, if necessary to prevent a diminution
in the availability to individual users of a particular category of
copyrighted materials.''


    In assessing the impact of the implementation of technological
measures, and of the law against their circumvention, the rule-
making proceedings should consider the positive as well as the
adverse effects of these technologies on the availability of
copyrighted materials. The technological measures--such as
encryption, scrambling, and electronic envelopes--that this bill
protects can be deployed, not only to prevent piracy and other
economically harmful unauthorized uses of copyrighted materials, but
also to support new ways of disseminating copyrighted materials to
users, and to safeguard the availability of legitimate uses of those
materials by individuals.
House Manager's Report, at 6.
    Another mitigating factor may arise when a work as to which the
copyright owner has instituted a technological control is also
available in formats that are not subject to technological protections.
For example, a work may be available in electronic format only in
encrypted form, but may also be available in traditional hard copy
format which has no such technological restrictions on access. The
availability without restriction in the latter format may alleviate any
adverse effect that would otherwise result from the technological
controls utilized in the electronic format. The availability of works
in such other formats is to be considered when exemptions are
fashioned. Id. at 7.

Seth Finkelstein  Consulting Programmer  sethf@sethf.com  http://sethf.com
Anticensorware Investigations - http://sethf.com/anticensorware/
Seth Finkelstein's Infothought blog - http://sethf.com/infothought/blog/
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