-Caveat Lector- From Wired News, available online at: http://www.wired.com/news/print/0,1294,39330,00.html Fear of a Pay-Per-Use World by Oscar S. Cisneros 3:00 a.m. Oct. 9, 2000 PDT Critics of the Digital Millennium Copyright Act are asking the librarian of Congress to preserve traditional fair-use and free-speech rights by carving out exceptions to the law. Unless some exceptions are created, they argue, the entertainment industry will have more control than the Constitution allows. One concern is that this could lead to a pay-per-use world where consumers don't truly own the books, movies and music they purchase. Enacted in 1998, the DMCA bans the circumvention of technical protection measures -- like password or encryption systems -- designed to prevent access to copyrighted works. But because Congress feared the potentially adverse effects of giving copyright owners lock-and-key rights to their works, it delayed the effective implementation date of this portion of the DMCA by two years and mandated a study period by the librarian of Congress and the Copyright Office. The two years are up, and on Oct. 28, the librarian of Congress will announce new rules governing the access provisions of the DMCA. The new rules could carve out exceptions to the access provisions for certain classes of copyrighted works. These exceptions would only occur if the librarian of Congress determines that the public's ability to make non-infringing uses of those works has been adversely affected. "The future of fair use and other traditional copyright defenses will be determined, in significant part, by the outcome of the current rule-making," wrote law professor Peter Jaszi, who wrote on behalf of the Digital Future Coalition, an online civil liberties organization composed of nonprofits and Internet companies. "The librarian should exempt from (the DMCA's access provisions) 'works embodied in copies which have been lawfully acquired by users who subsequently seek to make non-infringing uses thereof.'" For instance, a DVD sold in Japan will not play on a DVD player sold in the United States because of technical protection measures employed by the motion picture industry. Under the Digital Future Coalition's proposal, a user could legally bypass the access protections on the DVD. "As it stands, (the DMCA) provides content owners with the legal infrastructure required to implement a ubiquitous system of 'pay-per-use' electronic commerce," Jaszi said. Region controlling is only one example of access control. The motion picture industry could take it a step further and create controls where consumers would be obligated to pay each time they watched a particular copyrighted work. E-book and music publishers could do the same. "Access controls could be employed to prevent consumers from ... viewing the ... products they had purchased," Jaszi said. "Unless, of course, they were willing to pay again and again for the privilege!" Starting on Oct. 28, it will be illegal for consumers to circumvent access-control measures under the DMCA -- unless the librarian of Congress creates an exception. Jaszi's comments came as part of hearings held earlier this year by the U.S. Copyright Office on the DMCA's anti-circumvention provisions. Not everyone thinks society needs exemptions to the access-control provisions. The Motion Picture Association of America and other content producers have filed opposing comments with the Copyright Office. The MPAA argues that it needs access controls to prevent piracy of its copyrighted works. The legal backing of technical protections will lead to more works for consumers to enjoy, wrote Fritz Attaway, senior vice president of government relations for the MPAA. "We believe this impact is likely to be overwhelmingly positive," he wrote. "We do not believe that the users of any class of works are likely to be adversely affected, in their ability to make non-infringing uses of those works, by the coming into force of (the access provisions). "To the contrary, the use of technological measures in general, and of access-control technologies in particular, has already greatly increased the availability of a wide range of copyrighted materials to members of the public." Legal scholars, librarians, free-speech advocates and computer industry groups disagree. While the MPAA talks about the potential for piracy, opponents say the real issue is whether the DMCA will curb uses of lawfully acquired materials traditionally sanctioned by the law. "There is a strong likelihood that the increasing use of persistent access-control technologies will sharply curtail the access privileges that individuals have enjoyed under the fair-use doctrine and other limitations on copyright scope," wrote law professor Julie Cohen in her comments to the Copyright Office. Although fair use is a defense to copyright infringement, fair use is not a defense to the DMCA. Therefore, a person who circumvents an access control in a work he has already purchased has violated the DMCA, Cohen wrote. Copyright law survives First Amendment scrutiny by allowing a person to make fair use of another's copyrighted works, Cohen wrote. "For this reason alone, the librarian should conclude that the need for circumvention privileges extends broadly across any 'class of works' that may lend value to the research and educational process, and which is not otherwise available without technological gateways," Cohen wrote. Librarians also fear the effect of the DMCA's access-control provisions on fair use. "Any rollback to preserving fair use to the digital information that libraries lawfully acquire will drastically diminish non-infringing uses of copyrighted works and further increase the digital divide," wrote Sara Wiant on behalf of the American Association of Law Libraries. "The technological measures, which may be as simple as a password, place restrictions on who can use the digital information and often disenfranchise the public. Whereas the public may use the same print resources in a law library, in the digital arena law libraries are no longer able to provide equal access to all users." Wiant also expressed concern about the ability of libraries to archive digital works. With access-protection systems in place, backing up a commercial database may not be possible -- a dire problem given that legal-information vendors sometimes close their doors with no warning, she wrote. Other groups are calling for similar exemptions. The Electronic Frontier Foundation has asked the librarian of Congress for a limited exemption for DVDs or a more expansive exemption covering any use traditionally considered fair use under copyright law. For its part, the Copyright Office is keeping mum on what recommendations its attorneys will make to the librarian of Congress, who will ultimately decide what exemptions, if any, will be created. "We received a lot of views on all sides of the issue," said Rob Kasunic, senior attorney in the General Counsel's Office of the Copyright Office. Beyond the war of ideas waged by commentators, the Copyright Office must also struggle with basic definitional problems in its mandate, he said. The librarian is authorized to create an exemption for a "class of works," but "class of works" is not defined in the statute or the legislative history of the DMCA. "That's one of the biggest problems in the rulemaking proceeding," Kasunic said, adding that many of the comments submitted were driven by the underlying use of a copyrighted work, not the type or class of copyrighted work. These legal headaches will likely be re-occurring. The DMCA requires the librarian of Congress to revisit this issue every three years and determine if new rules or exemptions are needed. "Even if we exempt something, it's not that the technology is going to disappear," Kasunic said. "It's just that they can't take you to court for circumventing it." In addition, the DMCA's ban on the trafficking of tools that allow the circumvention of technical protection measures may also make moot any exemptions created, Cohen wrote. Few people have the know-how to create the software tools to bypass access controls even if such an act were legal. Related Wired Links: Webcaster Goes Intellectual Oct. 9, 2000 Legislating Property of the Mind Oct. 4, 2000 Napster CEO Gets Intellectual Oct. 2, 2000 Congress Next in Copyright Tiffs Sep. 12, 2000 Only News That's Fit to Link Aug. 23, 2000 Studios Score DeCSS Victory Aug. 17, 2000 Tuning Up Digital Copyright Law May. 16, 2000 Webcasting's Defining Moment Apr. 19, 2000 Streaming Audio Ruling a Win-Win Jan. 19, 2000 Digital Copyright Law on Trial Jan. 18, 2000 Real Keeps Up Copyright Fight Jan. 10, 2000 Real Screaming over Streaming Jan. 6, 2000 Copyright 1994-2000 Wired Digital Inc. 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