We have not been alone in our repeated criticisms of the Digital Millennium Copyright Act. The DMCA, which outlaws the circumvention of copy protection mechanism, is widely recognized as one of the greatest frauds ever perpetrated on US consumers. Starting on November 2, you can let the Copyright Office know how you feel about it.

One of the provisions of the DMCA requires the US Copyright Office to conduct a review every three years to determine if it should make any exemptions for "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." Part of the review process involves accepting comments from the public, and the window is open between November 2 and December 1, 2005.

After its last look at the DMCA, the Copyright Office in 2003 issued a handful of exemptions to the law. Those included software protected by dongle in cases where the dongle was broken or obsolete along with video games "distributed in formats that have become obsolete and which require the original media or hardware as a condition of access." Nice, but extremely limited.

In order for an exemption to be granted, it must be demonstrated that there is a cause-and-effect relationship between the prohibition on circumventing copy-protection and inability to use the protected item in a noninfringing manner. However, the Copyright Office has set the bar high, meaning that consumers must demonstrate a "substantial adverse effect on noninfringing uses." It also leaves itself an out just in case creating an exemption would harm the value of copyrighted works.

Whatever label one uses, proponents of an exemption bear the burden of providing sufficient evidence under the foregoing standards to support an exemption. How much evidence is sufficient will vary with the factual context of the alleged harm. Further, proof of harm is never the only consideration in the rulemaking process, and therefore the sufficiency of the harm will always be relative to other considerations, such as, the availability of the affected works for use, the availability of the works for nonprofit archival, preservation, and educational purposes, the impact that the prohibition has on criticism, comment, news reporting, teaching, scholarship, or research, the effect of circumvention on the market for or value of copyrighted works, and any other relevant factors.

So it won't be enough to just write in and complain about not being able to make a backup of your DVD movie collection. On the other hand, it is a chance to present the Federal government with well-reasoned arguments about how the DMCA is detrimental to the interests in consumers, and how creating a some reasonable Fair Use exemptions will not harm the economic interests of the content creators. Chances of meaningful change coming from the review, especially when it comes to Fair Use, are slim. But this is the time and means by which to give the Federal government feedback on some bad legislation, so make the most of it. And since you'll be contacting the .gov anyway, why not drop a message to your senators and congressional representatives asking them to support the Digital Media Consumers' Rights Act?

written by Eric Bangeman
found on arstechnica.com