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Features: DMCA Harms and CSS as an Access Control Device
Posted by Raul Ruiz on Wednesday, December 18 @ 14:35:49 EST Digital Millennium Copyright Act

One of Lawmeme's editors, Ernest Miller, has submitted comments to the Library of Congress pertaining to the harm that DMCA does to consumers versus the benefits to the media and content industries. The purpose of these comments is to assist in seeking a DMCA excemption for the CSS access control device. If you are not familiar with excemptions under the DMCA, you should read up on Seth Finkelstein's piece, How To Win (DMCA) Exemptions And Influence Policy. If you are not familiar with CSS, then I encourage you to read up at Harvard's OpenLaw: Open DVD site.

Quoting verbatim the conclusion of the submission, "LawMeme therefore submits that in balancing the harms of inhibiting the core First Amendment values of comment and criticism by individuals in lawful possession of DVDs with the nonexistent harms to copyright holder motion picture studios, an exemption is justified in the case of ancillary audiovisual works distributed on Digital Versatile Discs (DVDs) using the Content Scrambling System (CSS) of access control. Alternatively, LawMeme submits that CSS is not an access control device and thus not subject to this rulemaking."

Although the document was primarily written by our Editor-in-Chief, Ernest Miller, thanks go out to those that assisted in creating the document, namely Robert Glushko, James Grimmelmann, Gwen Hinze, Eric Olsen, Paul Szynol, Fred von Lohmann, and the Electronic Frontier Foundation.

Our submission is available in in PDF format by clicking here [PDF]. WARNING: This document is almost 500k.

 
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Related Links
· Seth Finkelstein's
· How To Win (DMCA) Exemptions And Influence Policy
· OpenLaw: Open DVD
· Electronic Frontier Foundation
· here
· More about Digital Millennium Copyright Act
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Re: DMCA Harms and CSS as an Access Control Device (Score: 0)
by Anonymous on Thursday, December 19 @ 16:03:08 EST
The comment is great, but I fear its a trap. The copyright office is part of an article 2 agency (yup, the library of congress is technically in the executive branch, don't ask). and does an executive agency have the power to decide first amendment issues? I'm thinking of the Harjo decision here from the U.S. Patent Office affirmed by the Federal Circuit, which found that an administrative agency lacks the power to find a particular exericse of statutory authority unconstitutional (in that case a trademark law barring registration of scandalous marks).
If the big bad mpaa loses on these first amendment grounds, they'll appeal it to the district court as outside LOC's authority. After all, the copyright office can only exercise its statutory authority and is not an article III court.

I'm wondering whether the best alternative argument, argued indirectly in your comment, would be purely economic: CSS's primary economic purpose (and primary economic impact) is tying, not as a copyright access control for DVDs. As a result, it runs afoul of the statutory balancing test set forth in the DMCA for the Copyright office and, as a result, CSS circumvention should be excepted.

Just a thought.

-dh


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