Hear me out—last week's hearings from the Library of Congress' Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works were terrifically interesting to observe. Sure, they might sound as fascinating as last week's meatloaf, but where else can you hear lawyers don the mantle of outrage and take on Big Content with screeds like this:

Why are they so reflexively confrontational? They know that the uses we seek will not harm their market in any way. They know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement. They should welcome our use of their content in our classrooms. They should make our legal use as easy as possible. We shouldn't even have to apply for the exemption. They should proactively declare that they won't bring DMCA actions against higher ed institutions for assembling film compilations. Instead, they insult us by treating us as potential infringers who can’t be trusted to use a technology any 12-year old can download from the Internet.

Yowza. That was attorney Jonathan Band, brandishing his rhetorical sword in defense of American libraries. The last time this issue came up, college libraries won an exemption for film studies professors to rip DVD clips for use in the classroom, something that is generally illegal under the Digital Millennium Copyright Act. Nearly all "circumventions" of DRM are banned by the 1998 law, though every three years the Library of Congress can create narrow exemptions.

This time around, the libraries are reaching for more; they want to extend the DVD clips exemption to all university professors. Radical, we know, but even such small changes worry rightsholders, since they chip away at DMCA protections and set increasingly broad precedent for DRM cracking. Film companies are fine with professors using clips in classes—that's not the issue—but they would really prefer that people do it without cracking the CSS DRM that has already failed so spectacularly to stop the copying of DVDs. So rightsholders proposed a few alternatives, showing that cracking DRM wasn't needed.

Law professor Rebecca Tushnet, arguing for expanded circumvention rights when amateur videographers want to remix or critique movie clips, said that the DMCA's restrictions were a "digital literacy test" and that having to buy expensive camcording gear was a "digital poll tax."

The movie industry said (again) that camcording a film off the TV screen was a pretty good solution (and they should know, since they have plenty of experience busting camcorder-wielding pirates). In fact, a lawyer for the industry showed a video last week of how this could work and what incredible quality the camcorded version could have.

This led attorney Band to say, "If camcording can produce high-quality copies, why does the motion picture industry bother using CSS? Why does the industry support the DMCA, and why are we in this hearing? We should all go across the street together and ask Congress to repeal the DMCA because it is completely irrelevant."

Other suggestions (using screen recorder software, asking a movie studio for written permission each time a new clip would be used in class) would waste an untold number of hours of US professorial time and might not even work. Time Warner, for instance, said it be glad to offer permission to professors... so long as they also received publicity rights approval from the Screen Actors Guild. And Vista makes screen rips of DVDs more difficult.

But rightsholders at the meeting were determined not to give ground if possible. If some other solution to circumvention exists, it must be used instead.

Law professor Rebecca Tushnet, arguing for expanded circumvention rights when amateur videographers want to remix or critique movie clips, said that the DMCA's restrictions were a "digital literacy test" and that having to buy expensive camcording gear was a "digital poll tax."

One attorney for content owners even reminded the panel of government lawyers chairing the meetings, "The fact that you might have to spend something to take advantage of the alternative" doesn't matter; so long as some alternative can be dreamed up without cracking DRM, an exemption should not be granted.

Not just DVDs

Not all the action related to DVDs. Cell phone unlocking—which was granted the last time around—was on the table once more. Even though it has been legal, wireless trade groups still oppose the exemption. According to Public Knowledge's Rashi Rangnath, "Mr. Bruce Joseph, representing CTIA, the wireless industry association, maintained that cell phone unlocking might expose other copyrighted works such as games and ring tones contained on cell phones to infringement. However, other than in the case of Virgin mobile, he conceded that he did not know if software that locked cell phones also locked other content."

Copyright attorney Wendy Seltzer was also at the hearings, which she characterizes as a "perfect theater of the absurd. First, the [Library of Congress] is authorized to exempt non-infringing users of 'classes of works' from the circumvention prohibition, but not to legalize the tools needed to circumvent access controls (which are prohibited by 1201(a)(2)). That leaves all participants dancing around the question of how users are to exercise their rights, if granted—'surreal,' as Jon Band put it. Likewise, we all ignore the ready availability of DeCSS and the near-instant posting of DRM-free versions of anything issued in 'protected' format."

Marybeth Peters, the Register of Copyrights, will make her recommendations to the Librarian of Congress over the next few months. Any exemptions that the Librarian chooses to grant will go into effect on October 28 and will last for three years—at which point, the process begins all over again. DRM geeks can now listen to the sessions at the Copyright Office website.

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