Every three years, the Library of Congress puts out a public call for comments to determine whether certain classes of copyrighted works should be exempt from 17 U.S.C. §1201(a), which penalizes circumvention of copyright protection technology.
The LoC asks the public specific questions relating to the types of copyright protection technology currently in effect and the types of copyrighted works that are affected by the technology. They further ask how non-infringing uses of certain copyrighted works are hindered by the anti-circumvention laws. Bear in mind that 17 U.S.C. §1201(a) (and the exemptions considered) concern only circumvention of technology that controls access to copyrighted works. Specific copyright violations for unauthorized reproduction and distribution are still covered under 17 U.S.C. §106, and the importation, sale, or distribution of circumvention tools is regulated by 17 U.S.C. §1201(b).
This raises a few questions. First, is this an effective rule-making device considering the rapid advancements in copyright protection technologies? Next, what "non-infringing uses" does this rule-making process consider? The language of the Act is fairly vague on this point:
"(i) the availability for use of copyrighted works;
(ii) the availability for use of works for nonprofit archival, preservation, and educational purposes;
(iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
(iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and
(v) such other factors as the Librarian considers appropriate." – 17 U.S.C. §1201(a)(1)(C)
The major point of contention with Chapter 12 of the DMCA is that it doesn't protected copyrighted works—it protects copyright protection technology. On the one hand it permits certain types of reverse engineering for computer software, while on the other it prohibits enabling interoperability for all other classes of works. One point I've alluded to repeatedly is that current technology and the supporting DMCA law enables copyright owners to sell access to content as opposed to "copies". Yet we see time and time again how these laws and technologies are abused in a manner that hinders lawful, non-infringing uses. This also hinders the ongoing effort to promote interoperability in the entertainment sector. As a result, piracy thrives and consumers remain disgruntled. Companies and content provider associations use litigation as a "deterrent" instead of taking advantage of the opportunities made available by technology.
Is the law itself flawed? Does the provision for exceptions assist in mitigating the often far-reaching and damaging effect the law has on technological advancement? Is the law even necessary, considering its premise of prohibiting copyright infringement, which is already protected under §106?
