Anti-Circumvention Rule Making Completed
On October 27, 2000, the Librarian of Congress issued rules on anti-circumvention  as required in the Digital Millennium Copyright Act. Much to the disappointment of the library community, the rules do not provide the protection for fair use in the digital environment that libraries and educational institutions advocated. Section 1201 (a) (1)A) of the DMCA prohibits the circumvention of controls that copyright owners use to prevent access or copying of their works. Even in this legislation, however, Congress recognized that a blanket prohibition on circumvention might interfere with the fair use of copyrighted works on which a publisher had used a technological control such as scrambling, encryption, or requiring passwords. So, in 1998, all that was prohibited was the manufacture, importation or trafficking in anti-circumvention devices that might be used to gain access to works. According to the statutes, these devices might include "products, services, device, component, or part thereof, if such device h as only limited use except for circumvention." The section prohibits both conduct of circumventing and trafficking in products or services that circumvent. Conduct, however, would not be punishable under the Act pending this rulemaking.
In section 1201 (1) (C) the statute calls for the study two years after the effective date of the DMCA, October 28, 1998. The Librarian of Congress was directed to consult with the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce in order to determine "whether persons who are users of a copyrighted work are, or are likely to be in the succeeding three-year period, adversely affected by the prohibition.., in their ability to make noninfringing uses.., of a particular class of copyrighted work." Considerations were to include the availability of copyrighted works for use, the availability for use for nonprofit archival, preservation and educational purposes, and the impact that circumvention technologies will have on fair use and on the market value of such works.
Librarians and educators had high hopes that this rule-making procedure would result in exemptions for libraries and educational institutions and their users, at least for some types of works. The Register held two hearings, one in Washington, DC, and one in Palo Alto, California, in the spring of 2000 where representatives of library and educational associations testified along with representatives of publisher and producer organizations. Because of the short time period between the enactment of the DMCA and the hearings, and because so few publishers and producers had actually implemented technological controls other than passwords, librarians and others were unable to present much evidence of current harm. Testimony about the likelihood of harm seems to have been rejected.
The announced rule details only two classes of works that are exempted from the anti-circumvention prohibition. (1) "Compilations consisting of lists of web sites blocked by filtering software applications, and (2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness." While there is nothing wrong per se with exempting these classes, the complaint is that the exemptions are so narrow as to be almost meaningless. …