Re: Technology prohibiting copying by VCRs, etc.

On Wed, 28 Oct 1998, Shelly Warwick <swarwick[_at_]sprynet.com> wrote:
>
> How does all this copy control technology mesh with the library
> exemption for making archival or preservation copies? It seems
> that the right is useless is the means are removed.

(1) the provision in the DMCA for mandatory response is limited to only certain formats and models of consumer analog VCRs

(2) there's an exemption for professional models

(3) assuming that, technologically, everything gets locked up nevertheless, you have a very good point. That's why it was important that the "No Mandate" clause got added [1201(c)(3)], stipulating that device manufacturers are not obliged to design products to respond to technological measures (other than re point 1 above).

But where active efforts to defeat the technical measure would be required for the purpose you cite, the issue is up in the air. The "archive" exception [1201(d)] applies just for evaluation purposes. The main determination as to whether there should be any such archival, etc., fair use exemption to the "anticircumvention" provision will occur under the Register of Copyrights/Dept. of Commerce regulatory procedure set forth at 1201(a)(1)(C). But even if you win there, the ability to find a device to engage in active circumvention to vindicate your right will depend on whether the device survives challenge as a "circumvention" device under 1201(a)(2) or (b). And for purposes of such lawsuits, the outcome of any 1201(a)(1)(C) proceeding may not "be used as a defense."

So, if 1201(a)(2) and (b) are narrowly construed to outlaw only the sorts of "black boxes" advertised in the backs of magazines, the limitation on availability of devices may not be severe. But if it is construed more broadly,to keep the sort of devices you would need off the market, you may indeed have a right but no way to vindicate it. See generally the Digital Future Coalition site, www.DFC.org.

Bob Schwartz
<shebam[_at_]access.digex.net> Received on Thu Oct 29 1998 - 13:50:20 GMT