The DMCA exemption process…



Another entry from the “how do the good guys keep from getting their pants sued off…” files. Freedom-to-tinker has an entry on their application for a DMCA waiver. (The DMCA (among other things) makes it against the law to circumvent copy protection (or to communicate ways of circumvention)) It sounds like the exemption process is slanted towards not issuing exemptions, but they’re trying. There are some interesting notes from their application.


According to freedom-to-tinker they knew about the SONY DRM rootkit about a month before it was publicly announced but were mired in consulting lawyers (their’s/the schools/etc/) to find out what they could say about it.

Researchers like Professor Edward Felten and Alex Halderman waste valuable research time consulting attorneys due to concerns about liability under the DMCA. They must consult not only with their own attorneys but with the general counsel of their academic institutions as well. Unavoidably, the legal uncertainty surrounding their research leads to delays and lost opportunities. In the case of the CDs at issue, Halderman and Felten were aware of problems with the XCP software almost a month before the news became public, but they delayed publication in order to consult with counsel about legal concerns. This delay left millions of consumers at risk for weeks longer than necessary.

This is the kind of chilling effect on security research that many feared from the DMCA. I think the exemption process was supposed to help solve this, but from the sound of it it’s VERY hard to get an exemption….

Many people decided not to submit exemption requests in this round, because of the way previous rounds have been handled. For example, the EFF argues that the process is so strongly tilted against exemptions, and the Copyright Office tries so hard to find excuses not to grant exemptions, that there is no point in asking for one. Even Seth Finkelstein, the only person who has had any real record of success in the process, decided to sit out this round.

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