PC World.com

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.

Related Topics:
Proposed Laws
DMCA Challenge Continues

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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