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It's fun to get away from the DMCA

By Rebecca Tushnet

Like Christmas in July (and only a couple of months more overdue), today?s DMCA Rulemaking had a number of good things. Quick reactions: I?m pleased but not terribly surprised about the jailbreaking/using phones on other networks exemptions. The Copyright Office recognized what everyone else does: nothing about the technologies at issue implicates copyright?s purposes; it?s all about contracts and business models.

Obviously what I care about most is the digital video exemptions, which are surprisingly strong. Though K-12 educators and non-media studies students didn?t get an education-focused exemption, the noncommercial remix exemption will pick up most of the slack there. As long as students and teachers at any level are creating their clips in the context of a presentation (PowerPoint, montage, or other new work) and not selling the result, they can be within the scope of the noncommercial exemption. The question of when circumvention is ?necessary? is an interesting one. I found it odd that the Copyright Office insisted that screen capture would often work when the record evidence was to the contrary; but if screen capture won?t work on the particular DVD/system the remixer is using, then by definition it won?t provide the quality necessary to make a commentary.

I also found striking the heavy dose of realpolitik in the Librarian?s approval of the exemption for blind and visually impaired readers despite the Register?s recommendation against such an exemption. Essentially, no one was enough of a jerk to oppose the proposed exemption (contrast the other approved exemptions; traditional print publishers apparently don?t yet have the habit of sending someone to oppose every potentially relevant DMCA exemption the way the MPAA does, but perhaps will develop it), which made it relatively easy to weigh the harm shown by the proponents in favor of an exemption. (I should say that what the Register apparently saw as mild inconvenience? no one format is reliably accessible without circumvention, so you?d apparently have to piece together a bunch of different formats to be relatively certain that you could get an accessible ebook, and you can?t predict which one will work?is pretty much exactly the kind of thing that the ADA targets; it?s an artificial level of difficulty that people without visual impairments don?t have to deal with.) Given our international activism on exemptions for people with visual impairments, it might have been embarrassing to reject a DMCA exemption that no one had even opposed; failure to meet the burden of proof is not always an easy sell.

And, of course, a reminder: ACTA in current form doesn?t require exemptions for its anticircumvention provisions, not even ones as minimal as those the DMCA; the same with Canadian proposals.

Full post as published by 43(B)log on July 27, 2010 (boomark / email).