p2pnet - rss feed: DMCA exemption: last day
p2p news / p2pnet: Today (December 1 @ 5:00PM EST) is the last day to submit proposals to the US Copyright Office for a three-year DMCA exemption for noninfringing activities that are otherwise squelched by ‘digital rights management" (DRM) restrictions,’ writes the EFF’s (Electronic Frontier Foundation) Fred von Lohmann. >>>>>>>>>>>>>>>>>>>>>>
DMCA Triennial Rulemaking: Failing Consumers Completely
By Fred von Lohmann - Deep Links
As we mentioned back in October, Congress has instructed the U.S. Copyright Office to consider every three years whether we need temporary exemptions to the DMCA’s blanket ban on circumventing "technological protection measures" (aka DRM) used to lock up copyrighted works.
EFF has participated in each of the two prior rulemakings (in 2000 and 2003), each time asking the Copyright Office to create exemptions for perfectly lawful consumer uses for digital media that are encumbered by DRM restrictions. For example, we asked that DVD owners be allowed to skip those "unskippable" ads at the beginning of DVDs. We asked that people who bought copy-protected CDs be allowed to get them to play on their computer. We asked that consumers be allowed to bypass region coding to play a DVD purchased in another part of the world. The Copyright Office rejected all of these proposals.
This year, we are not submitting any proposals. Where consumer interests are concerned, the rulemaking process is simply too broken. For example:
* No Tools. You can get an exemption for acts of circumvention, but the Copyright Office lacks the power to legalize circumvention tools. So, unless you are an engineer, a computer scientists, or can afford to hire them, you’re not likely to be able to take advantage of any exemptions granted.
* Impenetrable Complexity, Impossible Burdens. In order to effectively participate in the rulemaking, you need to wade through >200 pages of bureaucratic legalese and have graduate level understanding of copyright law. You have to persuade the Copyright Office that your activity is noninfringing and gather evidence that demonstrates a "substantially adverse effect" on noninfringing uses beyond “mere inconveniences or individual cases."
* "Mere Inconvenience" = Ignoring Consumers. Where consumers are concerned, the Copyright Office discounts their concerns as "mere inconveniences." So region coding is no problem, according to the Copyright Office, because you could just buy a separate DVD player from every region. Copy-protected CDs are no problem because you can play them on CD players, even if they won’t work in your computer. Where the copyright industries are concerned, in contrast, the Copyright Office presumes that DRM is the only thing that stands between them and financial ruin.
We have assembled a short report documenting why we believe the process is so broken that we have decided not to propose any exemptions this time. (We may support narrower, non-consumer proposals made by others during the reply period, which closes on Feb. 2, 2006.)
If you want to see meaningful DMCA reforms intended to protect the kinds of fair uses that consumers care about, it will have to come from Congress. Fortunately, the DMCRA, H.R. 1201, is pending before Congress right now and would go a long way toward fixing the DMCA/DRM mess (although not all the way, as it fails to address the ban on circumvention tools). Be sure to write your member of Congress urging her to cosponsor it!
December 1st, 2005 at 4:11 pm
The Democratic-Republican Party is still going strong in the P.S.A. This party is ruled almost entirely by corporate interests. The courts are also ruled by high priced lawyers. The protection of law or the courts are simply out of the range of the average person. Getting a temporary patch, favorable ruling, or an exemption only means that an activity will be protected until some congressthing manages to slip the corporate version as a rider on to some other pressing bill. In order to have real change, we need to throw out most members of the Democratic-Republican Party either by ballot or popular uprising. Until citizens of the P.S.A. do this, we must excercise our fair use rights unter threat of adverse government action.
December 1st, 2005 at 7:00 pm
“In order to effectively participate in the rulemaking, you need to wade through >200 pages of bureaucratic legalese and have graduate level understanding of copyright law.”
This is the same trick that has been used fot the so called “termination rights” that allegedly authors have to get back the rights they may have been tricked into giving away to publishers and others, in the USA.
To execersise the right you also have to go through much bureaucratic legalese and have graduate level understanding of copyright law and have perfect timing from frequently unknown (such as the date a song was actually published) dates. As a result an author that gave rights to a publisher and the publisher does nothing with the author’s work, cannot, in effect, get his/her rights back to try to exploit his/her work somehow.
The rules for terminating rights to publishers are included below, for the benefit of the legally inclined who is not bored by legalese crap. See the LEGALESE CRAP below.
Shame on legislators who have become tricksters to favor the other tricksters, the publishers and the record companies.
Rafael Venegas
http://www.gvenegas.com
LEGALESE CRAP (From Copyright Act, Title 17)
Sec. 203. Termination of transfers and licenses granted by the author
(a) Conditions for Termination. -
In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:
(1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest.
(2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows:
(A) the widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest;
(B) the author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them;
(C) the rights of the author’s children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author’s children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (FOOTNOTE 1)
(FOOTNOTE 1) So in original. The period probably should be a semicolon.
(D) In (FOOTNOTE 2) the event that the author’s widow or widower, children, and grandchildren are not living, the author’s executor, administrator, personal representative, or trustee shall own the author’s entire termination interest.
(FOOTNOTE 2) So in original. Probably should not be capitalized.
(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
(4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.
(A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.
(B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.
(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.
(b) Effect of Termination. -
Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations:
(1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.
(2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a).
(3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person’s legal representatives, legatees, or heirs at law represent him or her for purposes of this clause.
(4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a).
(5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.
(6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title.
December 2nd, 2005 at 4:17 am
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Digital Media Consumers’ Rights Act of 2005 (Introduced in House)
HR 1201 IH
109th CONGRESS
1st Session
H. R. 1201
To amend the Federal Trade Commission Act to provide that the advertising or sale of a mislabeled copy-protected music disc is an unfair method of competition and an unfair and deceptive act or practice, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 9, 2005
Mr. BOUCHER (for himself, Mr. DOOLITTLE, and Mr. BARTON of Texas) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the Federal Trade Commission Act to provide that the advertising or sale of a mislabeled copy-protected music disc is an unfair method of competition and an unfair and deceptive act or practice, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Digital Media Consumers’ Rights Act of 2005′.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The limited introduction into commerce of `copy-protected compact discs’ has caused consumer confusion and placed increased, unwarranted burdens on retailers, consumer electronics manufacturers, and personal computer manufacturers responding to consumer complaints, conditions which will worsen as larger numbers of such discs are introduced into commerce.
(2) Recording companies introducing new forms of copy protection should have the freedom to innovate, but should also be responsible for providing adequate notice to consumers about restrictions on the playability and recordability of `copy-protected compact discs’.
(3) The Federal Trade Commission should be empowered and directed to ensure the adequate labeling of prerecorded digital music disc products.
SEC. 3. INADEQUATELY LABELED COPY-PROTECTED COMPACT DISCS.
The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended by inserting after section 24 the following new section:
`SEC. 24A. INADEQUATELY LABELED COPY-PROTECTED COMPACT DISCS.
`(a) Definitions- In this section:
`(1) The term `Commission’ means the Federal Trade Commission.
`(2) The term `audio compact disc’ means a substrate packaged as a commercial prerecorded audio product, containing a sound recording or recordings, that conforms to all specifications and requirements for Red Book Audio and bears a duly licensed and authorized `Compact disc Digital Audio’ logo.
`(3) The term `prerecorded digital music disc product’ means a commercial audio product comprised of a substrate in the form of a disc in which is recorded a sound recording or sound recordings generally in accordance with Red Book Audio specifications but that does not conform to all licensed requirements for Red Book Audio: Provided, That a substrate containing a prerecorded sound recording that conforms to the licensing requirements applicable to a DVD-Audio disc or a Super Audio Compact Disc is not a prerecorded digital music disc product.
`(4) The term `Red Book Audio’ means audio data digitized at 44,100 samples per second (44.1 kHz) with a range of 65,536 possible values as defined in the `Compact Disc-Digital Audio System Description’ (first published in 1980 by Philips N.V. and Sony Corporation, as updated from time to time).
`(b) Prohibited Acts-
`(1) The introduction into commerce, sale, offering for sale, or advertising for sale of a prerecorded digital music disc product which is mislabeled or falsely or deceptively advertised or invoiced, within the meaning of this section or any rules or regulations prescribed by the Commission pursuant to subsection (d), is unlawful and shall be deemed an unfair method of competition and an unfair and deceptive act or practice in commerce under section 5(a)(1).
`(2) Prior to the time a prerecorded digital music disc product is sold and delivered to the ultimate consumer, it shall be unlawful to remove or mutilate, or cause or participate in the removal or mutilation of, any label required by this section or any rules or regulations prescribed by the Commission pursuant to subsection (d) to be affixed to such prerecorded digital music disc product. Any person violating this subsection shall be deemed to have engaged in an unfair method of competition and an unfair and deceptive act or practice in commerce under this Act.
`(c) Mislabeled Discs- For purposes of this section, a prerecorded digital music disc product shall be considered to be mislabeled if it–
`(1) bears any logo or marking which, in accordance with common practice, identifies it as an audio compact disc;
`(2) fails to bear a label on the packaging in which it is sold at retail in words that are prominent and plainly legible on the front of the packaging that–
`(A) it is not an audio compact disc;
`(B) it might not play properly in all devices capable of playing an audio compact disc; and
`(C) it might not be recordable on a personal computer or other device capable of recording content from an audio compact disc; or
`(3) fails to provide the following information on the packaging in which it is sold at retail in words that are prominent and plainly legible–
`(A) any minimum recommended software requirements for playback or recordability on a personal computer;
`(B) any restrictions on the number of times song files may be downloaded to the hard drive of a personal computer; and
`(C) the applicable return policy for consumers who find that the prerecorded digital music disc product does not play properly in a device capable of playing an audio compact disc.
`(d) Rulemaking- (1) The Commission may develop such rules and regulations as it deems appropriate to prevent the prohibited acts set forth in subsection (b) and to require the proper labeling of prerecorded digital music disc products under subsection (c).
`(2)(A) The Commission may develop such additional rules and regulations as it deems necessary to establish appropriate labeling requirements applicable to new audio discs, using new playback formats (including DVD-Audio discs and Super Audio Compact Discs), if the Commission finds, with respect to a particular type of disc, that
`(i) the manner in which the discs are displayed at retail, packaged, or marketed results in substantial consumer confusion about the playability and recordability of such discs;
`(ii) the discs are not appropriately labeled with respect to their playability on standard audio compact disc playback devices; and
`(iii)(I) the discs are not recordable on a personal computer; or
`(II) if the discs are recordable, a recording made from such a disc is bound to a particular device.
`(B) To the maximum extent practicable, the Commission shall seek to ensure that any rules and regulations developed under this paragraph impose labeling requirements comparable to the requirements imposed under the rules and regulations developed under paragraph (1).’.
SEC. 4. REPORT TO CONGRESS.
Not later than 2 years after the date of enactment of this Act, the Federal Trade Commission shall submit to Congress a report detailing the following:
(1) The extent to which prerecorded digital music disc products (as defined in section 24A of the Federal Trade Commission Act, as added by section 3 of this Act) have entered the market over the preceding 2 years.
(2) The extent to which the Commission has received complaints from consumers about the implementation of return policies for consumers who find that a prerecorded digital music disc product does not play properly in a device capable of playing an audio compact disc (as defined in section 24A of such Act).
(3) The extent to which manufacturers and retailers have been burdened by consumer returns of devices unable to play prerecorded digital music disc products.
(4) The number of enforcement actions taken by the Commission pursuant to section 24A of such Act.
(5) The number of convictions or settlements achieved as a result of enforcement actions taken by the Commission pursuant to section 24A of such Act.
(6) Any proposed changes to this Act, with respect to prerecorded digital music disc products, that the Commission believes would enhance enforcement, eliminate consumer confusion, or otherwise address concerns raised by consumers with the Commission.
SEC. 5. FAIR USE AMENDMENTS.
(a) Scientific Research- Subsections (a)(2)(A) and (b)(1)(A) of section 1201 of title 17, United States Code, are each amended by inserting after `title’ in subsection (a)(2)(A) and after `thereof’ in subsection (b)(1)(A) the following: `unless the person is acting solely in furtherance of scientific research into technological measures’.
(b) Fair Use Restoration- Section 1201 (c) of title 17, United States Code, is amended–
(1) in paragraph (1), by inserting before the period at the end the following: `and it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work’; and
(2) by adding at the end the following new paragraph:
`(5) Except in instances of direct infringement, it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial noninfringing uses.’.
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H.R.1201
Title: To amend the Federal Trade Commission Act to provide that the advertising or sale of a mislabeled copy-protected music disc is an unfair method of competition and an unfair and deceptive act or practice, and for other purposes.
Sponsor: Rep Boucher, Rick [VA-9] (introduced 3/9/2005) Cosponsors (13)
Latest Major Action: 3/22/2005 Referred to House subcommittee. Status: Referred to the Subcommittee on Commerce, Trade and Consumer Protection.
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