Slightly good news re:DMCA Exceptions

Feds grant DMCA exceptions
Last modified: October 28, 2003, 6:16 PM PST
By John Borland
Staff Writer, CNET

The U.S. Library of Congress created on Tuesday four narrow exemptions to a controversial digital-piracy statute but was criticized by free-speech activists, who had hoped for more exceptions.

As part of a regular process of reviewing the Digital Millennium Copyright Act, regulators created four new instances in which it is legal to crack digital copyright protections. Such protections can now be broken to access

• Lists of sites blocked by commercial Internet filtering software, but not spam-fighting lists
• Computer programs protected by hardware dongles that are broken or obsolete
• Computer programs or video games that use obsolete formats or hardware
• E-books that prevent read-aloud or other handicapped access formats from functioning

Some DMCA critics had asked for far more sweeping exemptions, such as the ability to break through copy or usage restrictions on DVDs and CDs in order to use the content in different devices and mediums.

“It’s disappointing that the U.S. Copyright Office and the Librarian (of Congress) continue to relinquish their power to protect the rights of American consumers to lawfully use their own property,” said Robin Gross, executive director of IP Justice, a digital rights activist group.

In a statement accompanying the ruling, Librarian of Congress James Billington said he did not have the power to go as far as critics wanted and many of the most expansive proposals for exemptions had been put forward by people who misunderstood the law.

Some participants “sought exemptions that would permit them to circumvent access controls on all works when they are engaging in particular noninfringing uses of those works,” Billington wrote in his statement. “The law does not give me that power.”

The exemptions will be in effect for three years, after which time regulators will examine the law again.

Wow ! So we will be able to legally download old unsupported games ?

And what about arcade ROMs for MAME etc. ?


Wow ! So we will be able to legally download old unsupported games ?

And what about arcade ROMs for MAME etc. ?[/quote]

I don’t read the decision that way. What I read is that if you are in legal posession of such a copyrighted material, it is legal for you to access and utilize it. That doesn’t invalidate the existing copyright.

So, it means if you actually have a Sinistar machine lying around, you couldn’t be sued for running Sinistar on your MAME cabinet. You could still be sued for hosting a Sinistar ROM.

I thought you were already allowed to do something like that if you owned the actual hardware?

You were, in a general, not particularly legally conclusive, way; but upon becoming legislation, the DMCA restricted your ability to “subvert” any kind of copy protection. So while you might still technically have had the right to play your ROM regardless of media, if you bypassed any kind of built-in copy protection to get it, you could still be charged under the DMCA. That now appears to be protected.

This doesn’t affect the copyright in any way, or the legality (or illegality) of downloading ROMS. They are completely separate issues.

FWIW, I do some work with the Internet Archive, and was one of the people behind the application that got the game-related exceptions passed. Here’s an information page at the Archive that talks about it a little:

The particular application to the Copyright Office which explains the argument is probably:

…although, beware, much legalese hiding in there.

The basic problem is this - there are amazing collections of old software and games out there, even in institutional hands, such as the Cabrinety Collection at Stanford:

[that’s a very partial list, there’s actually >20,000 items in the Cabrinety Collection, many uncataloged as of yet.]

What we’d love to see is a massive institutional collection of games like that, with all the original physical artifacts (the box, manual, discs) stored in a safe place, and a digital database with copies of the data on the disc, stored for safekeeping.

For each game in the collection, you’d have a perfect digital copy of it, so that when the floppy disc stops being readable, there’s a copy of the data around for posterity, and for when copyright (finally!) runs out and the program becomes public domain. Right now, the Cabrinety Collection is just sitting in the Stanford archives waiting for the floppies to corrupt.

I know there are copies of a lot of this stuff floating around online, but they’re always in some danger of being stamped out by piracy crackdowns, and at some point, having institutional collections with actual digital data seems like a must - especially for particularly rare titles.

The problem seems to be that, even if you’re an institution (Stanford, the Library Of Congress, whoever), the DMCA could have made it a felony for you to do important archival work. This exemption goes some way to remedying the problem, but I think there’s still some major problems lurking in there - the replies from the Copyright Office made some mention that there’s very special cases under which copy protection can be circumvented for archival purposes. But it’s getting noticed, and that’s the important thing. There’s going to be a roundtable at GDC 2004 about software preservation, so it’ll be discussed more then.

I’m not sure what the exception means for hobbyists - note that there’s a difference between access protection and copy protection, and copy protection controls may still apply. This difference is very blurred in the case of software. Whatever happens, games are under copyright, so you can’t just pass abandonware ROMs around legally.


ps - ohyeah, I Am Not A Lawyer :)

pps - some of the point i’m trying to make is that there should be special institutional dispensation to make digital archives, not necessarily that it should be open to all - tho that’s possible too if it can be done so that everyone is happy.