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Has Copyright Law Met Its Match?
Access by the disabled provides challenge to controversial DMCA.
Elsa Wenzel, Medill News Service
Monday, May 19, 2003
Electronic books should be the easiest books for the blind to "read."
Software can
instantly translate the digital files into sound or Braille.
So why can't the 10 million Americans who are blind "read" the latest
Michael Crichton
thriller or George Pelecanos mystery?
A copyright law glitch, thanks to the
Digital Millennium Copyright Act
, is the culprit. But fixing it could also be the key to changing the law's
restrictions
on using digital material.
A battle has been joined, pitting consumers like the blind and their
advocates against
the publishing and entertainment industries. On the one side, people with
disabilities
and digital rights advocates say the law is too broad, by limiting access to
content
and not accommodating advances in technology. On the other side are book
publishers
who argue the DMCA actually promoted the growth of e-books by protecting
copyright.
And some say the controversy illustrates why the DMCA should never have
become law
in the first place.
Limited Access
The DMCA punishes people with disabilities, say some experts in law and
technology.
They contend it clashes with existing copyright laws and even the
Constitution.
"This law has to be reformed," says Robin Gross, an attorney and executive
director
of
IP Justice
, an international civil liberties organization.
"Freedom of speech guarantees of the Constitution explicitly require that
copyright
holders do not have total control over" how someone experiences their work,
Gross
says. But she contends the DMCA reverses that right by allowing
copyright-holders
to lock a PC from giving voice to e-books.
Between 60 and 90 percent of the estimated 50,000
e-books available
 lock out text-to-speech software, advocates for the disabled say. Many of
those
are recent bestsellers, but even literature in the public domain for
hundreds of
years is locked under some e-book implementations.
If the e-books weren't locked, text-to-speech software could easily and
quickly make
the works available to sightless readers.
"It just is a tragedy," says George Kerscher, a senior officer at
Recording for the Blind & Dyslexic
, a nonprofit organization that converts written texts into audio books.
"How stupid are we when the information exists in a digital form and we've
got to
go through the time-consuming, laborious, expensive, error-prone process of
having
somebody scan it or re-key it?" Kerscher says.
Appealing for Change
Advocates for the blind are working their way through channels with their
complaints
about DMCA.
Easy access to e-books would be "like water in the desert" for the blind
community,
says Paul Schroeder, head of government affairs at the
American Foundation for the Blind
. "We want the opportunity to do what you take for granted."
Schroeder, who is blind, recently testified before the Copyright Office,
urging an
exemption to the DMCA. His organization and others want a way around the
digital
rights locks that prevent text-to-speech software from working.
The American Foundation for the Blind is asking the U.S. Copyright Office to
exempt
all e-books from DMCA regulations. The organization formally made the
request during
the
regular review
 of the law, conducted every three years by the Library of Congress.
"Congress did not intend to undo fair use, but until the industry figures
out how
to support fair use, the DMCA should not apply," says Janina Sajka, a
technology
director at the American Foundation for the Blind.
Congress only intended the DMCA to prevent digital piracy, but the law is
behind
the technological curve and didn't anticipate the practical uses of digital
content,
she says. And at the time, the groups now seeking change didn't realize what
impact
the DMCA would have.
The entertainment industry and computer consumers wrangled over the
definition of
fair use when the DMCA passed in 1998. But its passage gave legal clout to
the entertainment
industry's use of digital rights management tools, such as encryption and
digital
signatures.
E-Publishers Defend Policy
DMCA supporters say there is no need to change the law or make exemptions,
because
U.S. copyright law allows nonprofit organizations--but not individuals--to
copy literature
so people with visual impairments can listen to or read it using Braille.
"The vast amount of material" is available this way, said Allan Robert
Adler, vice
president of legal and government affairs at the
Association of American Publishers
. He testified before the Copyright Office against the e-book exemptions.
The DMCA helped the infant e-book industry blossom because it encouraged
publishers
to put out literature without fearing digital piracy, Adler says.
But critics of the law say corporations are defending the DMCA out of greed,
and
that fear of piracy is not the real issue.
Ultimately, publishers decide whether to lock e-books, says Shafath Syed,
product
manager for electronic publishing at Adobe Systems. Adobe Acrobat and
Microsoft Reader
are the two most popular programs with the text-to-speech feature.
"We provide the technology but we don't control how it's used," Syed says.
Some publishers
"think if they turn on the read aloud feature that somehow that turns it
into an
audiobook. It's kind of a stretch."
Proponents of the exemptions say a computer reading an e-book out loud is
the same
fair use of a work as a friend reading a printed book to someone who is
blind.
The market, not the government, should solve the issue, according to Adler.
But advocates
of e-book exemptions say they are trying to unravel what the government has
already
over-regulated.
The Copyright Office is expected to rule in October on the latest batch of
requested
exemptions to the DMCA.
But even if the Copyright Office exempts e-books from the law, that will
only go
halfway to helping the blind hear e-books on their PCs, IP Justice attorney
Gross
says. People could still not create or give someone a tool to crack the
e-book code
without breaking the law.
"It basically would serve the blind hacker community only," Gross says.
People could
unlock the e-books only if they knew how to crack the protection code
themselves,
she says.
But someone who cracks the digital lock on an e-book for a friend could be
fined
$2500--and up to $25,000 for doing it three or more times. A code cracker
who made
money for such a project could get up to ten years in prison and $1 million
in fines.
Gross said the "absurd" law exists because there was insufficient public
debate before
its passage. Digital and disability rights advocates agree they didn't
expect the
DMCA to have such dire results for the blind community.
"It's another example of Congress not having thought through the effects of
the law
when it was passed," agrees Pamela Samuelson, a professor at the University
of California
and codirector for the Berkeley Center for Law and Technology. "It allows a
slow
constriction of the public domain."
Congress Tries Again
Several bills pending in Congress take a stab at trying to resolve fair use
issues,
including those pertaining to e-books, especially for people with vision
impairments.
The House of Representatives is considering a bill that aims to make
educational
content more accessible for people who are blind. The Institutional
Materials Accessibility
Bill (H.R.490) would require publishers to make books easily translatable
for people
with disabilities. It has 97 cosponsors and is now in the House Subcommittee
on Education
Reform.
Virginia Rep. Rick Boucher, a Democrat, recently proposed a bill that would
allow
people to duplicate copyrighted materials for personal use. The Digital
Media Consumers
Rights Act (HR 107) would overturn parts of the 1998 DMCA law that prohibit
duplicating
copyrighted products such as DVDs, but would not directly amend it. The
DMCRA would
amend the Federal Trade Commission Act of 1914, which aims to protect
consumers from
commercial fraud.
Boucher says it is particularly important for people with disabilities to be
able
to bypass technical protection measures." The current law really does punish
the
innocent," he says.
Major electronics companies including Intel and Gateway, as well as consumer
groups,
support Boucher's bill, but it faces opposition from heavy-hitters in the
entertainment
industry, such as the Motion Picture Association of America and the
Recording Industry
Association of America. The DMCRA has been in the House Subcommittee on
Courts, the
Internet, and Intellectual Property since March and has 11 cosponsors.
The Improving Education Results for Children With Disabilities Act, now in a
Senate
committee after passing the House on April 30, would spur access to
educational books
by students with disabilities, according to Schroeder. The bill does not
directly
amend the DMCA.
Legal Options
Only a future court challenge or amendment to the DMCA would make
text-to-speech
conversion legal for all e-books, according to Gross.
Some legal experts believe that since the DMCA allows criminal penalties for
people
who violate it, someone might have to go to jail for cracking software code
to draw
attention to the issue.
Attorney Samuelson points to
one pending case
 that she contends is another example of the DMCA being abused, but which
could set
a dangerous precedent. Printer manufacturer Lexmark is charging a
third-party manufacturer
with violating the DMCA by circumventing Lexmark's protection technology in
its ink
cartridges in order to manufacture compatible cartridges.
"Something introduced as a way to protect content is being misused in many
ways,"
Samuelson says.
The only completed legal challenge to the DMCA was the case of Russian
computer scientist
Dmitry Sklyarov, who works for a company that developed and markets a
program that
breaks copy protection on Adobe's e-books--and is legal in Russia.
Sklyarov spent three weeks in jail after he demonstrated and distributed the
software
at the DefCon hacker conference in 2001. Sklyarov agreed to testify for the
government
in its case against his employer. The company
was acquitted
 by a federal grand jury in December 2002.


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