Fri, 07 Apr 2000 10:21:30 +0200

[Introduction]

    The Electronic Frontier Foundation (EFF) appreciates the opportunity
    to submit reply comments to aid the Copyright Office in its task of
    determining additional classes of works to exempt from the Digital
    Millennium Copyright Act's circumvention ban. Congress acknowledged
    the adverse impact likely upon individual rights from the Act's
    general ban on circumvention, and instructed the Copyright Office to
    exempt further classes in addition to the few exceptions listed in the
    statute in order to achieve balance among interests in the digital
    environment.
    
    Because the DMCA only permits exemption under a narrow set of
    circumstances, it tips copyright's traditional balance overwhelmingly
    in favor of copyright holders at the expense of free expression, fair
    use, and innovation. Rather than outlaw reverse engineering generally
    and then selecting a few specific circumstances in which to permit the
    activity, Congress should have outlawed illegal activity while leaving
    legal reverse engineering intact to remain a primary driver in the
    emerging information economy.
    
   Digital Equivalent of First Sale Rule - "First Access" Rule
   
    In order to restore the delicate balance to copyright law in a digital
    environment, traditional principles such as the First Sale Rule must
    be granted digital equivalents. Under copyright law's First Sale
    Doctrine, copyright holders' right to control what happens to a
    particular copy of a work are cut-off once the author has first placed
    the work into the stream of commerce. The wisdom behind this
    prohibition against perpetual control over a particular work by the
    author continues despite technology's advancement to a state promising
    such perfect control over all works. To grant copyright holders the
    right to control all uses of works treads dangerously upon First
    Amendment principles and will certainly upset copyright's balance.
    
    Because the DMCA grants copyright holders a new right to control
    access to digital works, this right must be similarly limited by a
    "First Access Rule" that prohibits copyright holders from governing
    each and every lawful access, use, and enjoyment of the work once
    initial access has been authorized. Congress never intended, nor would
    the Constitution permit copyright holders to be granted such a broad
    and sweeping right to control all experiencing of creative expression.
    The access right granted to copyright holders in the DMCA must be
    limited to the first lawful accessing of a work and not each
    subsequent lawful accessing and use of that work.
    
    For example, when a DVD is lawfully purchased, it is implied that the
    purchaser is authorized to access the file contained within the
    physical media in order to view it on whatever platform that person
    uses. A copyright holder should not be granted the right to control
    the consumer's lawful experience with the DVD. Allowing copyright
    holders to tie hardware and software together to control the
    experiencing of the work as in the case of copy protection for DVDs,
    eviscerates copyright law's First Sale Rule and years of careful
    judicial endorsement for this limitation to the copyright holders
    exclusive bundle of rights. Balance requires limitations to the
    perfect control desired for by the copyright industries. Cutting off
    the copyright holder's right to control the lawful purchaser's
    accessing of a particular work after the initial authorization is
    granted ensures that balance can be maintained and all interests are
    protected by the DMCA. Therefore, the Copyright Office should define
    the DMCA's access right narrowly, restricted by a First Access Rule.
    
   Right to Make Digital Fair Use
   
    All classes of works should be exempt from the Act's general
    circumvention ban when the purpose for the circumvention is to make a
    fair use or engage in another non-infringing uses. Because technology
    enables copyright holders to dictate and architect the parameters for
    the public's use and enjoyment of a particular work, the need to
    protect society's interests in access and using the work should be
    given considerable attention. Infringing uses of works can be punished
    under existing theories of copyright law; so allowing circumvention
    for the purpose of engaging in a non-infringing fair use would prove
    harmless to the copyright holder, while it preserves the public's
    interest and right to use the copyrighted expression.
    
    Claims by the copyright industry that such broad additional rights
    should be created to combat its alleged vulnerability in a digital
    environment overlook the fact that technology enables copyright
    holders with greater protection over their works than traditional
    space ever did. Authors have never had the ability to program a book
    to delete itself after a particular date or prohibit the printing or
    copying of any particular page within it.
    
    Indeed, technology provides authors with far greater power over their
    works than the law has been willing to grant them. The power of
    perfect control over use has never granted to an author by copyright
    law. Fair use is part of copyright law's intended design. This new
    power can easily be abused without substantial limitations placed upon
    it to ensure that individuals' rights are preserved as well.
    Therefore, the Copyright Office should recognize a broad exemption for
    all classes of works where the circumvention was engaged to make a
    fair use of the work. Fair use rights are as important in the digital
    environment as they are in traditional space and necessary to achieve
    balance in the law.
    
   Response to Copyright Industry Comments
   
    Comments supplied by the copyright industry recommending no
    limitations be placed on the DMCA's circumvention ban undermine
    Congress' express intent in instructing the Copyright Office to
    rectify the danger and adverse impact it foresaw at the Act's
    inception. Particularly, comments supplied by Time Warner, Sony, and
    the MPAA refuse to acknowledge the potential dangers inherent in
    granting such broad rights to control creative expression.
    
    Additionally claims suggesting that copyright holders are unwilling to
    distribute their works in electronic form in the absence of strong
    technological protection measures ignore the numerous authors and
    composers who are currently taking advantage of the popular and
    nonrestrictive MP3 format to achieve super distribution of their works
    and reach new audiences. Many new business models are being created
    that do not rely upon the traditional property model, and the
    imposition of protection measures "required" by the traditional
    copyright industry interfere with the emerging models that rely upon
    super distribution
    
    Time Warner's (commonly mis-used) example that fair use would not
    permit someone to break into a book store to steal a book is a
    misleading and irrelevant example. If a person has already paid for
    the right to view an e-book or DVD when they purchased it, she is not
    breaking into a third-party's property in order to access it, as Time
    Warner's example asserts. Rather, she may need to break through a
    protection measure in order to view that e-book or DVD on her
    particular operating system. A person reverse engineering a DVD that
    she purchased (her property) is not at all analogous to the breaking
    and entering into a third-party's store to access the work - one is
    clearly fair use the other is clearly theft.
    
    Time Warner also points to the Content Scrambling System (CSS) used to
    prevent DVDs from playing on unsanctioned players. Time admits that
    the strategy for CSS protection is to restrict use and exercise
    control even after access is authorized: "Other technological
    measures, such as CSS, carry certain obligations to restrict copying
    and further distribution of content once access is authorized." (Time
    Warner Comment, page 3). But granting such absolute protection is
    dangerous and not within the ambit of copyright's objective. CSS and
    other schemes which attempt to grant copyright holders the right to
    dictate the terms of fair use to the public, hardly seem very fair or
    supportable by copyright law principles.
    
    Time also admits that DVDs are a unique medium and their introduction,
    "provided much information that could not be included in VHS tapes."
    (Time Warner Comment, page 4). Considering the uniqueness and
    unavailability of the works in other formats, an inability to
    circumvent DVDs to make fair use of them renders the privilege
    meaningless, despite the DMCA's explicit language and commitment to
    support fair use rights in an electronic environment. Time assures
    that no "proper uses" will be hampered, but what Time considers
    "proper" is not the same as what a federal judge would consider fair
    and thus legal. Granting the copyright industry the right to determine
    what uses are "proper" and therefore authorized, grants extremely
    broad and unprecedented rights over access and use of information.
    
    Sony's comment warns that any rulemaking exemption to the DMCA's
    prohibition against circumvention will jeopardize the US's obligations
    under the WIPO treaty. However, US copyright law provided for adequate
    protection for copyrighted works prior to its adoption of the WIPO
    treaty using traditional copyright infringement legal theories. In
    actuality, the US had granted among the strongest protection for
    intellectual property in the world prior to WIPO. Recognizing the need
    for additional exemptions will allow the US to maintain strong and
    adequate protection of IP globally, but lead the world in recognizing
    the need for balance and to protect free expression, fair use, and
    continue to fuel innovation.
    
    In summary, the Copyright Office should heed the advice of the library
    associations, the cryptographers, the non-proprietary software
    developers, academics, and the civil liberties groups and construe the
    DMCA narrowly to provide adequate protections for the interests (other
    than the copyright industry) represented in the copyright bargain.
    Therefore, all classes of works must be exempt from the general
    circumvention prohibition when the purpose for the circumvention is to
    engage in a lawful fair use of a work. The copyright holder's right of
    access must also be limited by a First Access Rule guided by the
    wisdom of copyright's traditional First Sale Rule. Copyright's design
    in a digital world must continue to balance the competing interests
    between authors, publishers, and the pubic fairly and in light of
    copyright's stated objectives to promote the progress of arts and
    useful sciences.
    
      Respectfully submitted,
      Robin D. Gross, Esq.
      Staff Attorney, Electronic Frontier Foundation