In its triennial rulemaking proceeding regarding possible exemptions by the Librarian of Congress of certain classes of works from the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works, the Copyright Office received 19 comments for 25 classes of works to be subject to exemptions.  Some of the proposed exemptions include exemptions that would allow:  (i) Linux users to circumvent the CSS system (that protects DVDs from being played on unauthorized devices) to decrypt and extract the contents of DVDs they purchase, and to convert them to a video format accessible via the Linux system, (ii) users to circumvent DRMs when they purchased DRM-protected music and other media from online stores that have gone out of business, and (iii) forensic investigations for purposes of conducting a civil or criminal investigation.  Others also supported renewal of the existing exemption for unlocking mobile telephones, for dongles, for access to literary works by the visually impaired, and for educational library of a college or university’s film or media studies department to compile clips from DVDs for their classes.  The Office published a notice of proposed rulemaking announcing the proposed exemptions and seeks comments from members of the public who support or oppose any of the proposed exemptions.  The purpose of the 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.   Comments in support or in opposition to the proposed exceptions can be submitted to the Copyright by the February 2nd deadline.   

A recent dispute involving Amazon.com and some Dutch media students highlights the danger of overestimating the power of fair use to defend against claims of on-line infringement.  About two weeks ago, two students from the Piet Zwart Institute of the Willem de Kooning Academy  Hogeschool, located in Rotterdam, created a tool that allowed Amazon.com customers to download pirate copies of the books, movies and music they were seeking from the Amazon.com site. The tool was a Firefox plug-in that created an official-looking button next to Amazon’s listing for each item that said “Download 4 Free.”  Rather than making legitimate, authorized purchases from Amazon.com, however, the customers using the tool were instead directed by hyperlinks to the Pirate Bay, an unauthorized BitTorrent site, and a BitTorrent client would be started up to initiate the unlawful download. The students called their project “Pirates of the Amazon.” 

  
The students’ tool and corresponding website were taken down after Amazon.com filed a DMCA notice, and in most similar situations that would have been the end of the matter.   In this case, however, the students issued a ringing defense of their activities under the fair use doctrine, which is codified at 17 U.S.C. 107.  Fair use can provide a complete defense to a wide variety of unauthorized uses, and has been applied particularly expansively in connection with parody, as in Campbell v. Acuff-Rose, the well-known 1994 Supreme Court decision involving a rap parody of Roy Orbison’s “Oh Pretty Woman.”  Accordingly, the creators of “Pirates of  the Amazon” posted an explanation in which they claimed that the project was “an experiment in interface design, information access and currently debated issues in media culture.” In a follow-up e-mail reported by the New York Times (Dec. 8, 2008 at B6), the students posited that Amazon.com and the Pirate Bay “might look like opposites, but are actually quite similar in regards to the mainstream media content they provide . . . Our product demonstrated this practically.  So it’s a parody of any kind of media consumerism, whether corporate or subcultural.” More...