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Harvard Team Advocates for DRM Exemption at Copyright Office DMCA Hearing

Harvard Team Advocates for DRM Exemption at Copyright Office DMCA Hearing

Berkman Center Student Fellow Christopher Soghoian testified yesterday at a Copyright Office hearing in Washington, DC in support of his requests for exemptions from the Digital Millennium Copyright Act (DMCA) §1201's prohibition against circumventing technological measures that control access to copyrighted works.  Chris was represented at the hearing by Harvard third-year Cyberlaw Clinic student Arjun Mehra (pictured), who prepared and submitted the exemption requests with Chris in December 2008.  Chris's testimony urged the Copyright Office to grant exemptions from §1201's anti-circumvention prohibitions in two cases:  one for lawfully purchased audio and video files protected by digital rights management (DRM) technology when the online stores and authentication servers that allow access to such files cease to operate, and another for researchers to document how the authentication servers that enable various currently-existing DRM schemes function in order to allow users to take advantage of the first exemption in case a particular scheme fails.

Arjun Mehra attended the hearing and prepared this first hand report:

Yesterday's hearing was part of the Copyright Office's triennial rulemaking to determine whether certain classes of copyrighted works should be exempted from the Digital Millennium Copyright Act (DMCA) §1201's prohibition against circumventing technological measures that control access to copyrighted works.  The purpose of this rulemaking is to identify and exempt particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.  In December 2008, a team composed of me, Chris, and Phil Malone, director of the Cyberlaw Clinic at the Berkman Center, submitted a request for the two exemptions.  Interested parties that oppose these exemptions were given the opportunity to submit response comments in February 2009 and, if they did so, were also allowed to participate in the current hearings.

During yesterday's first hearing session in Washington, D.C., a panel consisting of the Register of Copyrights, Marybeth Peters, and four other counsel from the Copyright Office heard arguments in favor of these proposed exemptions from Soghoian as well as opposing arguments from two attorneys representing the interests of Time Warner and a joint coalition of copyright owners.  Soghoian argued that the harm done in the absence of the first exemption is not theoretical and is likely within the next three years. In the last few years, several DRM-based services have failed, and while they have mostly offered remedies to their customers (albeit only after negative media reports and customer backlash), there is no guarantee that services that fail in the future will be willing or even able to afford such restitution.  And while the end user agreements of the various online media stores contain provisions that allow them to cease their services and revoke the licenses granted with purchased content at any time and for any reason, users almost universally do not read these voluminous and complicated agreements nor do they expect to re-purchase their entire collection when the service that they patronized fails.  Indeed, Soghoian argued, such restrictions might actually push otherwise law-abiding consumers to turn to piracy in order to ensure continued access to their media collection.  As for the second requested exemption, Soghoian pointed out that the creation, manufacture, and distribution of circumvention tools, which is illegal under a separate part of the DMCA §1201, has always been "the elephant in the room" in these rulemaking proceedings.  Even if an exemption to a certain access control technology is granted, ordinary users do not have the technical knowledge and skills necessary to accomplish circumvention on their own and therefore must resort to tools.  The Copyright Office has never officially recognized this legal discrepancy, and Soghoian asserted that this time, it should do so.

The attorneys for the media interests countered Soghoian's first requested exemption by arguing that there is no real evidence of any current or future adverse effect on noninfringing use resulting from failed DRM-based services.  Companies that have closed their DRM operations have offered consumers remedies in the past and are likely to continue to do so in the future.  And even if they do not offer any remedies, consumers are legally bound by the companies' end user agreements that universally warn and disclaim responsibility for any future service failure.  Furthermore, the attorneys argued, any given copyrighted work, whether music or video, is available through various alternative sources for re-purchase in case one source ceases to operate.  As for the issue of consumers not reading end user agreements, that issue is currently before the FTC in a separate proceeding and should not be considered here because this rulemaking focuses on noninfringing use, and any use of content in violation of the end user agreements is automatically not noninfringing.  Regarding the researcher exemption, the attorneys pointed out that DRM allows media companies to offer content in a variety of innovative formats and test out new markets using emerging technologies, and therefore, such an exemption, which sends the message that any new scheme is hackable from day one, will deter innovation.  Further, this proceeding was intended by Congress only to address exemptions to circumvention, not the creation or manufacture of circumvention tools, which is categorically forbidden by the law.

While the panel questioned whether Soghoian had adduced evidence of any imminent harm resulting from failed DRM services and whether these exemptions, if granted, would be perpetual or near-perpetual as long as authentication server-based DRM exists in some form, they appeared at least equally troubled by the positions being taken by the copyright owner interests.  Several panel members seemed doubtful about whether there was any harm to copyright holders from granting the first exemption, since it would be limited to users who had already lawfully purchased the content whose protections would be circumvented.  At least one panel member admitted to not reading the end user agreement for iTunes before purchasing music from that store, and several others appeared troubled by the content owners' suggestion that consumers re-purchasing their entire media collection in case of a DRM service's failure is a reasonable alternative to granting the first exemption.  One panel member also doubtfully questioned the media attorneys on how they expected regular users to circumvent DRM on their own without the use of the second exemption if the first one were granted.

The Copyright Office will continue to hold hearings until May 8, 2009 and plans to release its recommendations for exemptions on October 28, 2009.

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