It sounds very strange, but I really did find myself laughing as I read a long notice from the Copyright Office in volume 75, number 15 (Jan. 25, 2010) of the Federal Register. Admittedly, some background is necessary to acquit me of the suspicion of insanity.
The Copyright Office notice details a interim rule that makes an interesting change in Office policy. Essentially, the Office is now giving itself the right to ask for mandatory deposit of a certain class of online-only publications. Deposit is mandatory for all published works, although failure to comply with this rule does not impact the availability of copyright protection itself. But until now the Office has exempted online-only publications and, indeed, has not taken a position on whether or not such works are actually “published.” In this notice they do acknowledge, based on several court rulings, that online material is published, and they extend the mandatory deposit requirement to a circumscribed class of online-only works — essentially formal periodicals that are published online without a print equivalent. The requirement of deposit is not automatic even for these works; it will be triggered only if the Copyright Office makes a demand. And the notice is careful to exclude things like blog posts, although this blogger wonders how successful that effort really is.
For me the real humor in this dry Federal Register notice concerns the issue of Digital Rights Management, or DRM — the technological protections used by many rights holders to control access to their works. Such protection measures are fiercely protected by the copyright law itself; the Digital Millennium Copyright Act added provisions that make it illegal to circumvent these electronic locks even for otherwise legal purposes. Some courts have even held, in spite of plain language in the statute, that fair use of a work can be prevented if the user would have to break though a digital lock.
So the irony that made me laugh out loud was the discovery that the Copyright Office will require that DRM be removed from the copy of an online publication that is deposited subject to this new rule. Why? Because “copies of works submitted to the Copyright Office under this interim rule must be accessible to the Office, the Library, and the Library’s users.” In order to insure this accessibility, the interim rule makes part of the definition of the “best edition” that must be deposited the criterion that “technological measures that control access to or use of the work should be removed” (see page 3867 of the Register, column 3, for these quotes).
As if to soften the blow to publishers from this rule, the Copyright Office goes on to detail the special security measures that will be taken regarding use of these deposited copies. Users will have to be in a Library of Congress facility, and only two users at a time will be given access, over a secure network. Yet the notice goes on to say that “Authorized users may print from electronic works to the extent allowed by the fair use provisions of the copyright law . . . as is the case with traditional publications.”
Here is the problem. DRM systems prevent users from exercising their rights under the Copyright law; we often cannot print from DRM-protected works even “to the extent allowed by law.” If we disable technological protections to do so, we may be subject to draconian penalties. No other library in the world has the power to exempt its users from these burdens. The Library of Congress seems to recognize the unfair restriction placed on users by DRM and is using its unique position to mitigate that problem. But what about the rest of us?
Of course, the Library of Congress does have the authority to relieve the rest of us of some of the burden created by the anti-circumvention rules. The Library is given rule-making authority by the DMCA to declare exceptions to these rules. Unfortunately, when the new exceptions were due in late 2009, the Library punted, issuing an indefinite extension of the old, inadequate exceptions and promising new rules in “no more than a few weeks.” The new exceptions have still not been announced, three months later. With the Library’s clear recognition in last week’s rule that DRM protected works are not acceptable to meet the needs of library users, we can only hope that these long-delayed exceptions, when announced, will recognize the widespread harm done by DRM and will declare broad exceptions — like the one the Library has given itself — to help the rest of us.