The Electronic Frontier Foundation needs help.
We are looking for diverse, real world examples of the ways in which the lives of ordinary fair users are strangled by the anticircumvention provision of the Digital Millennium Copyright Act (DMCA)
According to Judge Kaplan's ruling in the New York DVD Case (where 2600 publisher Eric Corley was ordered to take down DeCSS and any links to DeCSS), the DMCA makes circumventing access controls wrong, regardless of the reason you are circumventing.
If your circumvention intentions are grounded in fair use, good for you. Fair use continues to be constitutionally protected by the First Amendment, but making and providing circumvention tools and even circumventing to do legal fair use is no longer allowed, thanks to Section 1201 of the DMCA.
Applying this rule to videos would mean that although recording David Letterman is constitutionally protected, the use of VCRs and Circuit City's "trafficking" in them are illegal.
We at the EFF feel that following this path will essentially destroy fair use. We foresee countless scenarios where librarians can't create a copy of encrypted material to archive, even if the archiving itself is a lawful use; professors can't use excerpts of encrypted material in classrooms even though the excerpts are a form of protected expression; scholars can't write their own computer programs to analyze the full digitized versions of copyrighted works in all media; and music aficionados can't customize digital searches for thematic research. But what else?
Surely there have got to be more examples, and we need to collect a short but powerful list of them. Tell us your most Draconian visions for a world where circumvention is always criminal even to get to the fair use that's not. Who would lose? And how?
Points will be given for brevity, concreteness and the ability to have your grandmother easily grasp the problem. Demerits applied for overuse of technical jargon, long-winded diatribes and multiple, repetitive messages. The winning scenarios may be discussed in our legal briefs, and, if they're very good, maybe even relied upon in a landmark legal decision throwing the statute out as unconstitutional.
Let's "open source" this problem.
Thanks,
EFF
Contact:
Lauren Gelman
Public Policy Director
gelman@eff.org