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Berkman Team Submits Follow-Up to DMCA Exemption Request

Berkman Student Fellow Christopher Soghoian, assisted by Harvard Law School’s Cyberlaw Clinic, recently submitted  responses to questions from the U.S. Copyright Office regarding his Digital Millenium Copyright Act (DMCA) §1201 Exemption request. 

 The original request, submitted in December 2008 by Chris and the Cyberlaw Clinic, asked 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. 

In May 2008 Chris testifiedat a Copyright Office hearing in Washington, DC in support of the exemption requests.  After the hearing, the Copyright Office sent written follow-up questions to those who testified, seeking reactions to several proposed limitations on the second (researcher) exemption request.  The questions appeared to be motivated by a concern that hackers might try to abuse the exemption and break DRM schemes even where DRM servers were never shut down or where the content provider gave full refunds.

Chris’s response to the Copyright Office’s questions explained that the wording of its proposed limitations would be unworkable in practice because they are based on things that companies and users might do or not do in the future, long after a researcher has engaged in studying and documenting a DRM system.  For example, a researcher could lose the benefit of the exemption and risk DMCA liability if, years after her study, the DRM scheme failed but the company decided to offer refunds.  Because these are the sorts of things that no researcher could ever know or predict in advance, they cannot provide a practical standard for limiting the research exemption.  

Instead, Chris’s response argued, limits on the exemption, if any in fact are needed, should focus on the good faith intentions and objectives of the researcher at the time he engaged in the research.  A good faith requirement, which is used in other parts of the DMCA, would ensure that the exemption is not abused while still preventing unwarranted legal attacks that would chill legitimate research.

The response also described a significant new development that occurred in June 2008, after the Copyright Office hearings.  Chris’s original request was prompted in part by announcements made by Yahoo! Music, Microsoft's MSN Music Store and Wal-Mart's Music Store in 2008 that they each intended to shut down their authentication servers, thereby depriving their users of the continued full enjoyment of the music they had lawfully purchased.  After great public outcry, each of those music providers either decided to forestall the shutdown of the server or provide customers with a full refund for their purchases.  After the May, 2009 hearing, however, Wal-Mart announced it would again shut down its DRM servers and would not give customers a refund or other access. Chris had explained at the hearing that the exemption was needed because it was only a matter of time before a music, movie or software provider left its users high and dry in this fashion. His response letter to the Copyright Office demonstrated that this prediction had now -- and quickly -- come true. Far from a speculative or hypothetical concern, the worry about consumers losing access to lawfully purchased content without the requested exemption is quite real.

 Chris submitted his response with the assistance of Phil Malone, Clinical Professor of Law and the Director of Harvard’s Cyberlaw Clinic, and Rachel Gozhansky, a Cyberlaw Clinic summer intern.

 For more details, see the original exemption request, and the July 10 response letter.

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