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One of the touchiest subjects in IP law today is the Digital Millennium Copyright Act. As an effort to update copyright law in light of the latest electronic technology, the DMCA has been a work in progress. For insight into the ongoing debate, Legal Times’ IP chatted via e-mail with Jonathan Band, a partner in the D.C. office of Morrison & Foerster who recently testified before the U.S. Copyright Office in favor of additional exemptions to the DMCA. Q. No one would argue that the DMCA is not a critical piece of legislation, but from there opinions diverge. Are you generally thumbs up or thumbs down on the law? A. It depends on what part of the DMCA you’re asking about. Title II, which creates safe harbors for Internet service providers, has worked relatively well over the past five years. On the whole, it has given service and content providers a fair degree of certainty and predictability. Some of its provisions have engendered litigation. Verizon and the RIAA [Recording Industry Association of America], for example, are fighting over the scope of the subpoena provisions. Still, thumbs up for Title II. Title I, on the other hand, is much more problematic. It prohibits the circumvention of technological measures that bar access to copyrighted materials. It also prevents the manufacture and distribution of circumvention devices. The basic problem with Title I is its rigidity. It has broad prohibitions and only very narrow exceptions. As a result, legitimate activities are either prohibited outright or substantially chilled. For example, very little academic research in encryption and cybersecurity is being conducted in the United States. It has moved off-shore to Europe. So thumbs down on Title I. Q. The DMCA was passed in 1998. Why was the Copyright Office holding hearings this spring? A. In 1998, some members of Congress recognized the overbreadth and rigidity of Title I. They persuaded their colleagues to include a rule-making procedure to adopt exemptions when users are “adversely affected” by the DMCA in their ability to make noninfringing uses of copyrighted works. By statute, the Copyright Office must conduct the rule-making proceeding every three years. The current proceeding is the second one — the first occurred in 2000. Q. What happens in these Copyright Office proceedings? A. First, there are two rounds of written comments. Most of the comments in the opening round are from entities proposing exemptions. The Copyright Office posts the comments on its Web site. The second round consists of reply comments that either support or oppose the exemptions proposed in the opening round. Then, the Copyright Office holds a series of public hearings. This past April and May, hearings were held in both D.C. and L.A. They’re relatively informal. First, each witness supporting the exemption under discussion makes a brief opening statement. This is followed by rebuttal statements from the witnesses opposing the exemption. Next, the panel, consisting of five Copyright Office employees (including the register of copyrights, Marybeth Peters, and the general counsel, David Carson), asks questions. After the hearing, the Copyright Office sends follow-up questions, to which the witnesses respond in writing. The office also consults with the National Telecommunications and Information Administration of the Commerce Department. Then it makes recommendations to the librarian of Congress. He’s expected to issue exemptions this fall. Q. Specifically, what kinds of exemptions are being discussed now? Who’s arguing for them, and why? A. Dozens of exemptions have been proposed. The American Foundation for the Blind, for example, has requested an exemption to permit the use of screen readers with eBooks. “Screen readers” read aloud in a synthesized voice what’s on the computer screen. They permit visually impaired people to access the Internet and text files. Many eBook titles are screen reader enabled, but a significant number have software that locks out screen readers. Secure Control Components is seeking an exemption to allow its toner cartridges to operate on Lexmark laser printers. This request is an outgrowth of ongoing litigation between the two companies. The software in Lexmark printers lets the printers operate only with Lexmark toner cartridges. But SCC designed a chip to embed in less expensive cartridges that mimics the signature of the Lexmark cartridge. Lexmark claims that the chip violates the DMCA by circumventing Lexmark’s access control system. Several groups want an exemption that will allow users to circumvent regional encoding controls. Developers of digital products often embed bits of code that prevent a product purchased in Asia or Europe from running on a computer or DVD player in the United States. They do this to prevent people from buying the product abroad, where it is cheaper, and importing it into the United States. Consumer groups want to enable products lawfully purchased abroad to function in the United States — they want U.S. consumers to benefit from those lower prices. Q. What about the exemptions that the Copyright Office allowed in 2000? Should they be repeated? A. In 2000, the librarian of Congress granted an exemption with respect to lists of Web sites blocked by “censorware.” He also granted an exemption for circumvention of technological protection measures that are malfunctioning or are obsolete. These exemptions expire automatically and should be renewed. The Supreme Court’s decision last month in United States v. American Library Association makes the need for the censorware exemption all the more compelling. In that case, the Court upheld the federal statute that mandates the use of filtering software in computers in public libraries. About 10 percent of Americans access the Internet from public libraries. They should have the ability to learn what Web sites the filters are blocking. But the complete list of blocked sites can be obtained only by circumventing the technological protections placed on the list. And the need for an exemption for malfunctioning or obsolete technological measures is obvious. Without an exemption, vast amounts of material will be inaccessible to people who paid for the material. Q. You didn’t mention your own testimony. What kind of exemption were you arguing for? A. On behalf of the major library associations, I argued for three of the exemptions mentioned here. I testified in favor of the existing exemptions for censorware and obsolete or malfunctioning protection measures. I also testified for the exemption to permit visually impaired people to use screen readers with eBooks. Q. So every three years, the Copyright Office pokes a few more holes in Title I of the DMCA. The merits of particular exemptions aside, won’t this lead to disjointed, even illogical copyright law? A. Well, the basic illogic is created by the DMCA, not its narrow exceptions. The Copyright Act itself contains many exceptions and limitations, but the vast majority of these are not recognized by the DMCA. This means that the DMCA prohibits the means — sometimes the only practical means — of reaching legal, noninfringing ends. Q. The natural next question is: Are there any congressional efforts to amend the DMCA? A. Yes, two bills that would permit circumvention for noninfringing purposes have been introduced. Congressmen [Rick] Boucher (D-Va.) and [John] Doolittle (R-Calif.) have taken one approach in their bill, and Congresswoman [Zoe] Lofgren (D-Calif.) has taken a slightly different approach in hers. Both bills have the same objective: amending the DMCA to preserve the Copyright Act’s existing exceptions and limitations. Q. The United States passed the DMCA to comply with certain treaty obligations. Have other countries taken a similar path? A. Australia and Japan have both implemented the [World Intellectual Property Organization] treaties. Their laws prohibit the trafficking in circumvention devices, but don’t appear to prevent the development or use of such a device. Thus, a computer scientist in Australia or Japan can engage in cybersecurity research without worrying about violating the circumvention law. In 2001, the European Union adopted a Copyright Directive, which contains a provision prohibiting both circumvention acts and devices. However, the provision permits member states to take unspecified appropriate measures to ensure that users can benefit from many of the exceptions to copyright set forth in the directive. The directive, therefore, seems to be significantly more flexible than the DMCA. EU member states are now in the process of implementing the Copyright Directive in their national laws. So, it remains to be seen how they will accommodate the copyright exceptions. Q. For DMCA critics, it can’t be good news that so-called super-DMCA legislation is proceeding in several states. Do these laws raise the same concerns? A. In many respects, the state DMCAs are even worse than the federal DMCA. They include none of the narrow exceptions present in the federal law nor the rule-making mechanism. Not only are they inconsistent with the federal DMCA, they’re inconsistent with one another. This inconsistency places high-tech companies in a very difficult position. Fortunately, the governor of Colorado recently vetoed the super-DMCA passed by the state legislature. Unfortunately, the well-known governor of Florida just signed the Florida version of the super-DMCA into law.

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