COPYRIGHT CORNER
ANTI-CIRCUMVENTION RULING
For February 2004
The anti-circumvention provisions of the Copyright Act contain a requirement that the Librarian of Congress conduct a triennial rule-making proceeding to determine whether the implementation of access controls reduces the ability of individuals to use the copyrighted works in lawful ways. The statute requires the Librarian of Congress to consult with the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce in order to determine “whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition …. in their ability to make noninfringing uses …. of a particular class of copyrighted work.” Considerations were to include the availability of copyrighted works for use, the availability for use for nonprofit archival, preservation and educational purposes, and the impact that circumvention technologies will have on fair use and on the market value of such works.[1] This regular rule making was considered a “fail safe” mechanism that would monitor marketplace developments for copyrighted works and would permit the waiving of the anti-circumvention prohibition for limited times if necessary in order to prevent a diminishment in the ability of individual users to use a particular category of work.
The first of these was held in 2000 and was the subject of an earlier column. The second of these, concluded in October 2003, resulted in the addition of two additional classes of works being added to the list. The 2000 proceeding exempted two classes of works from the anti-circumvention provision. (1) “Compilations consisting of lists of websites blocked by filtering software applications, and (2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.”
The more recent rule making proceeding was conducted in a similar manner with written testimony, hearings and reply testimony. Library associations once again hoped that the result of the rule-making would exempt broad classes for which fair uses would be made, but again the announced classes are quite narrow. Moreover, the same burden of proof was required: a showing by a preponderance of the evidence that there either has been or is likely to be a substantial adverse effect on noninfringing uses by users of copyrighted works. Each triennium, evidence must be presented anew to continue the exemption of a class of works. According to the Librarian of Congress, the “particular class of works” to be exempted must be judged upon the attributes of the works themselves.
The 2000 categories were continued but have been amended somewhat. The first category is now defined as “compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites.”[2] This category does not include lists of Internet locations blocked by software that operate exclusively to protect against damage to computers or networks, firewalls or spam. The class does not prevent access by persons wishing to review, comment on or criticize this software as a matter of public interest.
The second class was also continued and it consists of “computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.” This represents a limitation of the second category from 2000 to cover only hardware locks that control access to a program. If the dongle is damaged or malfunctions so that an authorized user of the software cannot gain access to the software, the exemption applies. This is similar to the section 108(c) exemption that permits libraries to reproduce a work for which the equipment for viewing or hearing the work has become obsolete. “This exemption emphasizes the adverse effects on noninfringing uses by users of the software.”[3]
The third category is entirely new. It consists of “computer programs and video games distributed in formats that have become obsolete which require the original media or hardware as a condition of access.” This category was proposed by the Internet Archive which stated that sometimes works distributed originally in digital form on physical media such as a floppy disk were accompanied by “original only” access controls that allowed copies to be made but which prevented those copies from running. The problem is exacerbated when the physical format in which the work was distributed has become obsolete. Libraries are already permitted to copy such obsolete works under section 108(c). The definition of obsolete is found in that same section: “A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.” This class is thus limited to software and videogames distributed in now obsolete formats.
The fourth category is based on a recommendation by the American Foundation for the Blind and five major library associations. This class consists of literary works distributed in ebook format when all existing ebook editions contain access controls that prevent the enabling of either the ebook’s read aloud function or enabling a screen reader to convert the text into a specialized format such as Braille. This category offers accessibility to the blind and visually impaired that is otherwise not available from a print version. By using digital rights management tools that incorporate access controls, publishers of ebooks may prevent access by visually impaired individuals. A publisher may avoid subjecting its works to this exemption by simply ensuring that each of its works in ebook form also has an edition that is accessible to the blind and visually impaired in either read aloud or screen reader format.
While the new exemptions are quite useful although narrow, library associations hoped for the approval of exemptions that would permit users of digital works, computer databases and software to make fair uses of these works. These exemptions go part way, not all of the way. In 2006 library associations will again have the opportunity to present proof to the Librarian of Congress that additional classes of works should be exempted from the anti-circumvention provisions.