Deadline nears for DMCA exemptions

Wednesday's the deadline for you to make a small difference to the draconian DMCA, the Digital Millenium Copyright Act.

One of the quirks of the Act is that the Library of Congress provides administrative oversight. A strange decision, since this is a job usually left to the courts. But every three years the Librarian gets to review requests and decide which cases are causing serious harm.

And small but significant progress has been made in very selective areas. Seth Finkelstein scored a victory two years ago by persuading the Librarian that censorware blacklists could be examined, and small portions of them published, as fair use.

Finkelstein is urging people affected to see if they can make a case, too. But with only one part of the DMCA affected, he has no illusions about the extent of the opportunity.

"This is a small victory we can have - but it can be achieved at even smaller costs," he told us. "I'm not being blindly optimistic but here is a specific task where victory is not certain, but it is possible."

What's at stake?

"She wants to hear a factual case for harm caused by the law," explains Finkelstein.

There are three specific parts to section 1201 devoted to circumvention in terms of access and technology. For two of these, the Librarian can do nothing:- it will remain a violation to make and distribute tools for circumventing access to a work, or making tools that alter rights access.

"This rulemaking CANNOT make distributing DeCSS code, or eBook access programs, into an exempt act," he writes.

But simple circumvention is being examined, and this can still make an enormous difference to a lot of us. Ironically, however, Finkelstein says tub-thumping populism is exactly what isn't needed. The Librarian needs specific examples"showing that the prohibition has a substantial adverse effect on noninfringing uses of a particular class of works." So diatribes about the evils of capitalism, or the tyranny of government will go straight in the wastebasket. As will, alas, very broad arguments for fair use which might be valuable in another context. They don't help here.

Quality, not quantity is what counts, and he says logical, empirical argument will be welcomed provided it can be justified that the exemption won't cause "more harm than good".

But small victories are possible as Finkelstein himself proves.

We asked if Seth thought that the once fiercely libertarian climate was warming to such civic activism:-

"Lawrence Lessig has done a great service here. You can't ignore politics, because politics won't ignore you."

And you don't even have to sell your soul to make a difference. Read more at the EFF's site here. His homepage, with his blog and lots of fine reading, is here.®