Wednesday, March 20, 2013

Reid on How the DMCA Makes Digital Media Inaccessible

See this interesting Slate piece by Blake Reid.  Excerpts:
Making creative works accessible often involves transforming content from one medium to another—such as adapting the audio of a television show to closed captions to make it accessible to people who are deaf or hard of hearing. Copyright law ordinarily vests authors of creative works with the exclusive right to create adaptations, such as translations to foreign languages. But making works accessible to people with disabilities is arguably exempt from copyright law under the fair use doctrine and other laws like the Chafee Amendment to the Copyright Act. Congress, federal courts, the U.S. Copyright Office, and even the World Intellectual Property Organization have begun to recognize that it’s bad policy to block efforts to create accessible versions of copyrighted works. 
At least, that’s the case with physical and analog media. But publishers, video programmers, and other copyright owners lock down digital content with digital rights management technology designed to limit users’ ability to access, copy, and adapt copyrighted works to specific circumstances. And copyright owners frequently fail to account for the need to adapt DRM-encumbered works to make them accessible to people with disabilities. For example, e-books often include DRM technology that preventspeople who are blind or visually impaired from running e-books that they have lawfully purchased through a text-to-speech converter that reads the books aloud. Similarly, Internet-distributed video and DVD and Blu-ray discs include DRM features that prevent researchers from developing advanced closed captioning and video description technologies that make movies and television shows accessible. (For example, some Internet-delivered videos don't include closed captions at all, and subtitles on DVD and Blu-ray discs can be incomplete, riddled with errors, or so badly formatted that they can't be read.)

Bypassing this DRM technology is often trivial from a technical perspective. But the DMCA makes it illegal—even if the person bypassing DRM is doing so for a noninfringing use like making it accessible to people with disabilities. If you want to get around the DMCA, there is no fair use; instead, you must petition the librarian of Congress for a special exemption to circumvent a class of works, such as e-books. The proceeding to consider exemption petitions, known as the “triennial review,” takes place only once every three years and requires petitioners to navigate a complex bureaucratic process, satisfy an incredibly high burden of proof, invest months of effort, and overcome opposition from copyright lobbying groups with nearly bottomless resources. It’s no wonder the vast majority of exemption petitions are denied.



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