Submit DMCA comments for 2006 rulemaking (make sure removal of Sony junk is allowed)

The Copyright Office is conducting a rulemaking proceeding mandated by the Digital Millennium Copyright Act, which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of measures that protect access.

The scope of this rulemaking does not include technological measures that prevent “copying” or that protect other section 106 rights of the copyright owner. Nothing in Section 1201 prohibits the conduct of circumventing “copy” protection measures. While the activity following the circumvention of copy protection measures may or may not be actionable under traditional copyright infringement principles, all of the traditional limitations on the copyright owners exclusive rights, e.g., fair use, etc., would be available. The prohibition on circumvention contained in section 1201(a)(1) is limited to prohibiting the circumvention of technological measures that protect “access” to copyrighted works. Similarly, the scope of this rulemaking is limited, by statute, to the examination of evidence of any adverse effects of the prohibition on circumvention of measures that protect “access” to copyrighted works, e.g., passwords, encryption, etc.

My own comment (not yet submitted--any suggested improvements?)

[abstract]

Under a broad reading of the DCMA, it is illegal to remove "protection software" installed by a media company, even if such software interferes with uses of the computer completely unrelated to the media company's content, and even if the owner of the computer has no desire to use that computer to view any more of the content in question. Unless this is corrected, media companies will effectively be allowed to cripple anyone's computer and the owner will be forbidden from doing anything to make their computer usable.

COMMENT SUBMISSION FOR DCMA RULEMAKING

Recently, a number of companies have started including on audio CDs software which self-installs on people's computers without their informed consent and will then forever more attempt to monitor the person's actions and break anything that it doesn't like. Such software consumes memory and CPU time, and can often cause interfere with a system's stability and security, sometimes even rendering the machine unusable.

For example, a piece of "copy-protection" software that was packaged on some recent Sony compact disks was constructed so as to provide a "cloaking" facility that would hide software a user might not want on his machine. This cloaking facility has been used by the some malware authors to hide their nasty software from view.

Under a broad reading of the DCMA, any effort to remove such software from a machine would be forbidden, even if the purpose of such removal was not to listen to the protected content, but merely make the machine useful for other purposes having nothing whatsoever to do with the protected content or its copyright owner, and over which the media's copyright owner has no legitimate authority. Further, tools for the purpose of detecting and removing such software would also be forbidden.

This is patently unreasonable. The possible application of the DCMA here is akin to telling a homeowner that he is forbidden from removing graffiti on his property, because the paint is the property of the vandal. Further, the fact that DCMA even might be applicable here has discouraged manufacturers of anti-virus and similar utilities from providing any assistance in cleaning up the results of such vandalism.

There needs to be an excemption in the rules to make clear that the removal of unwanted software from a computer shall not constitute a "circumvention" of access-control measures. The exemption should apply in at least two cases:

The software in question performs in a fashion to which the owner of the machine never consented, or...
The user wishes to remove from the computer all software and media associated with a particular media product, because he no longer wishes to use the computer to access the media in question.

The exception could be written quite broadly without affecting the ability of media companies to restrict access to their content. For example, if a media company wants to use a system monitoring program to ensure that the user isn't capturing audio output while running its player, it can construct the player so that it will not work if the monitoring software is absent. The user would have the legal right to remove the monitoring software if he decided that its presence was more objectionable to him than the loss of access to the media it was designed to protect.

As it now stands, some media companies are using the DMCA as a shield to protect their acts of wanton vandalism on people's computers. Exemptions need to be put in place to allow such vandals to be stopped, and the damage they cause, repaired. If this situation is not corrected, many people will be unwilling to use their computer to access any protected media at all, for fear of what the media companies might do to it.

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