The DMCA (which added chaff to the Copyright Act of 1976) includes a new Chapter 12 regarding “technological protection measures” which is another name for digital rights management (DRM). The law says that it is a violation to circumvent (=hack) DRM that has been used by the rights holder to protect access to digital content. One cannot break a passcode that protects access to an online newspaper without being a subscriber, for example.
Here’s the problem: Sometimes DRM gets in the way of actions that are not infringements of copyright. Let’s say you have lawful access to an e-book (you bought the book, fair and square), but you are a person with a print disability, and you need to circumvent to enable text-to-speech (TTS) functionality which has been disabled by DRM. This is a violation of the circumvention provision. One would think that this kind of circumvention is reasonable, because it simply entails making a book accessible to the person that purchased it. Reading isn’t illegal (in the United States).
Because Congress thought lawful uses of protected content may be blocked by technology, it included in the DMCA a process to determine when circumvention should be allowed- the 1201 rulemaking. Every three years, the Copyright Office accepts comments from people who want to circumvent technology for lawful purposes. These people must submit a legal analysis of why an exemption should be allowed, and provide evidence that a technological impediment exists. The Copyright Office reviews the requests, considers if any requests bear scrutiny, holds public hearings, reads reply comments, writes a report, and makes a recommendation to the Librarian of Congress who then determines if any of the proposals are warranted. (The whole rigmarole takes 5-6 months). An exemption allows people with print disabilities to circumvent DRM to enable TTS for 3 years. After that length of time, the exemption expires, and the entire process starts over again. It is time consuming and costly, requires the collection of evidence, and legal counsel. The several days of public hearings are surreal. Attendees shake their heads in disbelief. Everyone moans and groans, including the Copyright Office staff. I am not exaggerating.
One would think that rights holders would just say “sure, go ahead and circumvent e-books for TTS, we don’t care.” But they do care. Some rights holders think allowing TTS will cut into their audiobook market. Some rights holders think that TTS is an unauthorized public performance and therefore an infringement of copyright. Some authors do not want their books read aloud by a computer, feeling it degrades their creative work. This madness can be stopped if Congress eliminates, or at least amends, this DMCA provision. Why not make exemptions permanent?
In the meantime…
The Library Copyright Alliance (LCA), of which ALA is a member, participates in the triennial rulemaking. Call us crazy. We ask, “What DRM needs to be circumvented this time around?” This question is hard to answer because it is difficult to know what library users can’t do that is a lawful act because DRM is blocking something. We solicit feedback from the library community, but response is usually meager because the question requires proving a negative.
For the last couple of rulemaking cycles, LCA focused on an exemption for educators (and students in media arts programs) that must circumvent DRM on DVDs in order to extract film clips for teaching, research and close study. To be successful, we need many examples of faculty and teachers who circumvent DRM to meet pedagogical goals or for research purposes. Right now, this circumvention allows educators to exercise fair use. BUT this fair use will no longer be possible if we cannot prove it is necessary.
For those librarians and staff who work with faculty, we ask for examples! We want to extend the exemption to K-12 teachers, so school librarians: we need to hear from you as well. Heed this call! Take a moment to help us survive this miserable experience on behalf of educators and learners.
NOTE: Ideally, we would like examples on or before January 15th, 2015, but will accept examples through January 28th, 2015
Contact Carrie Russell at ALA’s Office for Information Technology Policy at firstname.lastname@example.org. Or call 800.941.8478.