librarian of congress – Techdirt (original) (raw)

Stories filed under: "librarian of congress"

Medical Device Makers Sue Library Of Congress For Allowing People To Fix Their Own Medical Devices

from the so-much-nonsense dept

For many years we’ve discussed the sheer ridiculousness of the “triennial review” process of Section 1201 of the DMCA. If you’re lucky, and don’t spend that much time deep in the weeds of semi-obscure copyright law, Section 1201 of the DMCA is the “anti-circumvention” part of the law, that was initially designed to outlaw breaking digital rights management (DRM) tools. Of course, 1201 was written broadly, saying that basically any attempt to “circumvent a technological measure” (even just talking about ways to circumvent a technological measure) would itself be considered copyright infringement even if the underlying purpose for which you were circumventing the technological measure had nothing whatsoever to do with copyright.

This was a bizarrely structured law for so many reasons, and even the drafters of it at the time realized that this would likely lead to all sorts of perfectly reasonable and normal activity being declared “infringing” of copyrights. Indeed, lots of companies almost immediately moved to take advantage of this in order to block people from using “unauthorized” ink cartridges in printers, or unauthorized garage door openers, among other things.

So, the drafters of the DMCA added in this ridiculously weird safety valve: every three years, people could apply to the Librarian of Congress to “exempt” certain classes of items from the law for a three year period. The process itself is ridiculous. People need to apply for the exemption, then there’s a public comment period, followed by recommendations from the director of the Copyright Office, before the Librarian of Congress comes down from the mountain and blesses certain types of circumvention as non-infringing for the next three years.

No sane system would ever do things this way. A reasonable legislature would realize that if you have to apply for exemptions every three years, perhaps the underlying law itself is problematic. But, no, every three years we go through this ridiculous song and dance. Sometimes it leads to truly wacky outcomes, like the time, a decade ago, when the Librarian of Congress refused to renew the phone unlocking exemption, forcing Congress to grandstand about how they should fix things (something that never actually happened).

Anyway… last year was the latest three year cycle, and it’s gotten to the point that it’s barely even worth reporting on the results, which the Librarian of Congress adopted last fall. One of them was an expansion of an earlier exemption (from six years prior) exempting the circumvention of technological protection measures (TPMs) on medical devices in order to access the data on those devices. For the 2021 round, petitioners sought to expand that exemption somewhat, getting rid of the part of the original exemption that limited it to “wholly or partially implanted” devices, arguing that it should apply to any type of medical device.

The Copyright Office recommended allowing this broader exemption and the Librarian of Congress agreed:

For the reasons detailed in the Register’s Recommendation, the Register concluded that accessing medical data outputs likely qualifies as a fair use and that expanding the exemption to include non-implanted medical devices and non-passive monitoring would not alter the fair use analysis. Additionally, the Register concluded that proponents set forth sufficient evidence that the ‘‘wholly or partially implanted’’ language and the passive monitoring limitation are causing, or are likely to cause, adverse effects on these noninfringing uses. The Register also recommended expanding the exemption to permit circumvention ‘‘by or on behalf of a patient.’’ After consultation with the U.S. Food and Drug Administration, the Register recommended removing the language requiring compliance with other laws, and replacing it with a statement that eligibility for the exemption does not preclude liability from other applicable laws.

Basically, in the midst of a pandemic, where locked down medical devices had represented a real problem, the Copyright Office and the Librarian of Congress reasonably decided that both users of medical devices, and their medical care professionals, ought to be able to circumvent various technological protection measures in order to access their own data.

All of this should be relatively uncontroversial. But… that’s not how any of this works. Earlier this year, some medical device company trade associations decided to sue the Librarian of Congress over this exemption. They’re using the standard administrative law argument that the exemption was “arbitrary and capricious.” The complaint has a lot of overwrought language:

The Exemption is manifestly unlawful. By issuing a rule that enables unregulated, for-profit service providers to piggyback off the creative efforts and intellectual property of medical device manufacturers, it not only thwarts the purpose of the Copyright Act, but also puts patient safety, device integrity, and device cybersecurity at risk. What is more, the process by which the Exemption was adopted was infected with major procedural errors, including a failure to address many of the significant legal concerns raised by plaintiffs and other opponents.

In the course of the rulemaking at issue here, moreover, the Library of Congress was acting as an executive agency and is therefore subject to the strictures of, and judicial review under, the Administrative Procedure Act (APA). Because the Exemption is not in accordance with law and was adopted without observance of required procedures, it should be set aside. Alternatively, if the Library of Congress did not assume the character of an executive agency within the meaning of the APA, the Exemption violates separation-of-power principles twice over. Either way, it should be vacated.

Then, before the government was able to respond to the lawsuit, the medical device makers moved for summary judgment. A big part of their argument is that because this exemption might will allow third party companies to service medical devices (at a cheaper rate than the manufacturers themselves) that it serves a purpose unrelated to copyright and thus is not allowed as an exemption:

But the exemption is for a manifestly infringing use. It was granted at the behest—and solely for the commercial benefit—of two so-called independent service operators, or ISOs, which are unregulated third-party service providers who freeride on the creative labors of device manufacturers. And the Librarian readily admitted the true reason for her decision: Allowing ISO circumvention would reduce the cost of machine servicing contracts and thus serve a separate executive-branch policy. But the DMCA does not grant the Librarian free-ranging policymaking authority untethered to copyright law. In approving the exemption, moreover, the Library failed to address numerous substantial comments that called into question the underlying fair-use analysis. The exemption is thus unlawful many times over: It is contrary to the statutory text, it is arbitrary and capricious, and it was promulgated without observance of procedure required by law

So, to some extent, I find this absolutely hilarious. Because the reason medical device manufacturers lock down these devices with TPMs and then rely on the DMCA to block competitive service providers is also wholly unrelated to copyright law. So, they are actually the ones abusing copyright law to lock out competition — and then when they’re effectively called on it by the Librarian of Congress, they whine that the Librarian of Congress can’t use the triennial review process to exempt their abuse of copyright law, because… it goes beyond the intention of copyright law!

The government has responded, asking for a chance to actually file a motion to dismiss before it has to deal with the summary judgment demand and noting the somewhat bizarre rush by the medical device manufacturers for summary judgment when they waited many months before filing the lawsuit in the first place.

Either way, this really appears to be little more than an extremely cynical move by the device manufacturers. Hopefully the court sees through it, but should it succeed, I imagine we’ll see many other similar lawsuits filed on behalf of other industries where exemptions were granted, potentially taking us back to an even worse world, in which companies can abuse the 1201 anti-circumvention rules to block out all sorts of competition.

Filed Under: carla hayden, competition, copyright, copyright office, dmca 1201, librarian of congress, library of congress, medical devices, triennial review
Companies: advamed, medical imaging technology alliance, mita

The Museum Of Art And Digital Entertainment Calls For Anti-Circumvention Exemptions To Be Extended To Online Game Archives

from the preserve-and-protect dept

Now that we’ve covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it’s as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA’s anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.

But what do you do if you’re looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don’t last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.

Well, one non-profit in California, The Museum of Art and Digital Entertainment, wants anti-circumvention exemptions for running servers for these games to keep them alive as well.

“Although the Current Exemption does not cover it, preservation of online video games is now critical,” MADE writes in its comment to the Copyright Office. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”

“Today, however, local multiplayer options are increasingly rare, and many games no longer support LAN connected multiplayer capability,” MADE counters, adding that nowadays even some single-player games require an online connection. “More troubling still to archivists, many video games rely on server connectivity to function in single-player mode and become unplayable when servers shut down.”

Due to that, MADE is asking the Copyright Office (and the Librarian of Congress) to allow libraries and museums exemptions to run their own servers to display these games as well. Frankly, it’s difficult to conjure an argument against the request. If games are art, and they are, then they ought to be preserved. The Copyright Office has already agreed with this line of thinking for the category of games that don’t require an online connection, so it’s difficult to see how it could punt on the issue of online games.

And, yet, we have examples of fan-run servers of abandoned games, or versions of games, getting bullied by companies like Blizzard. These fan-servers are essentially filling the same role that groups like MADE would like to do: preserving old gaming content that has been made otherwise unavailable by companies that have turned down online game servers.

It’s enough to make one wonder why a group of fans of a game shouldn’t get the same protections afforded to a library or museum, if the end result is nearly identical.

Filed Under: anti-circumvention, archiving, copyright office, dmca, dmca 1201, drm, librarian of congress, museums, triennial review, video games
Companies: made, museum of art and digital entertainment

from the well,-this-should-be-interesting dept

As you may have heard, last Friday, the brand new Librarian of Congress, Carla Hayden, removed the head of the Copyright Office, Maria Pallante, from her job. The press release from the Library of Congress tries to spin this as a “new appointment” for Pallante, to advise Hayden on digitization projects at the Library, but pretty much everyone sees this as Pallante being fired rather abruptly (Update: And Eriq Gardner at the Hollywood Reporter has Pallante’s resignation letter, saying she will not accept the new job). From the Billboard article linked above:

U.S. Register of Copyrights Maria Pallante was removed from her job Friday morning (Oct. 21) by the Librarian of Congress, Carla Hayden, who has authority over the Copyright Office. Officially, Pallante has been appointed as a senior adviser for digital strategy for the Library of Congress, although it?s clear she was asked to step down. Karyn Temple Claggett, currently associate register of copyrights, has been appointed the acting register.

Pallante was locked out of the Library of Congress computer system this morning, according to two sources who spoke with Library employees. Earlier, Hayden had called several members of Congress to tell them about her decision. Later, she called the heads of several media business trade organizations to give them the news, according to one who received such a call.

There are all sorts of rumors flying about this. Pallante has, apparently, been advocating strongly for moving the Copyright Office out of the Library of Congress, and either making it an independent agency or linking it up with the Patent & Trademark Office under the Commerce Department. That would be a big mistake, frankly, because copyright is not supposed to be about “commerce” and “industry” but about benefiting the public. That’s why it makes sense to leave it as part of the Library of Congress.

Still, when Hayden was first announced, basically all of the copyright maximalist front groups put out statements vaguely suggesting that they’d support Hayden if she promises to leave the Copyright Office alone. It would appear that Hayden has decided not to take that advice. Of course, there are some concerns about what Pallante will do in advising on digitization at the Library of Congress (see update above, noting she is not accepting the position), but it does seem odd that at basically the same time this news leaked, I received notice that the the Library of Congress was going to start archiving Techdirt (yes, this is 100% a coincidence, but a funny one):

That said, the Copyright Office really could use new leadership. As we’ve been discussing, the Copyright Office has a pretty long history basically acting as a lobbying arm for Hollywood, which seems highly questionable. Pallante’s legacy is definitely marred by the fact that she came out as a strong supporter of SOPA early on. And this year, the Copyright Office seems focused on pushing a bunch of bad ideas on copyright reform, including a nefarious plan to strip many websites of their DMCA safe harbors. We’re also still completely perplexed as to why the Copyright Office flat out misrepresented copyright law to the FCC concerning its set-top box plan. The Copyright Office simply lied about how fair use works. That’s scary.

That said, I should admit that I don’t think Pallante herself was as bad as some critics made her out to be (though she did surround herself with a lot of people with really bad ideas). She at least seemed marginally better than some of the previous heads of the Copyright Office, and was actually at least slightly open to some good ideas on copyright reform (and plenty of bad ones). But it does seem like today’s Copyright Office needs someone who isn’t just representing Hollywood’s viewpoint and recognizes that copyright itself is supposed to benefit the public first and foremost — something Pallante denies.

Pallante’s temporary replacement, Karyn Temple Claggett, is unlikely to change very much. Beyond it just being an interim position, Claggett came to the Copyright Office after working for many years at the RIAA, where she helped in the litigation against Grokster, Limewire, XM and Usenet.com. This is not exactly someone who recognizes the changing nature of the internet and says “let’s embrace it.”

So now the big question is really what happens next. Lots of people are gearing up for a fight over who will take over the Copyright Office on a permanent basis. Is it going to be someone who comes from that world where copyright is supposed to only benefit the big copyright gatekeepers? Or will it be someone with a more nuanced view on how copyright works, how it’s supposed to benefit the public by providing tools for creators. Either way, it seems like the fight over this is going to get messy. You already have lobbyists whispering to the press about how awful all of this is:

That executive, and others who represent creators and media businesses in Washington, D.C., expressed surprise and dismay that Pallante, who had the job since 2011, had been removed. ?The people in the creative community are furious about the fact that this was done,? says a lawyer who works for organizations that support strong copyright laws, ?but especially about the way it was done.?

Wait just a second here. How the hell can the RIAA/MPAA’s of the world claim that they represent “the creative community”? That’s bullshit. They represent a few large gatekeepers, who have a long history of screwing over the actual creative community any chance they get. More and more of the actual creative community these days have found that the internet is a wonderful tool for creating, promoting, distributing and monetizing their works — and they recognize that the legacy industries and overly oppressive copyright laws get in the way of that, rather than helping. But, no matter what, you can bet that when a new Copyright Register is announced, we’ll see more of this kind of misleading language and attacks — and it will be something of a preview for the eventual fight over actual copyright reform bills that are expected to show up in the relatively near future.

Filed Under: carla hayden, copyright, copyright office, copyright reform, karyn temple claggett, librarian of congress, library of congress, maria pallante

Good News: Carla Hayden Easily Approved As The New Librarian Of Congress

from the yippee dept

Here’s some good news. After decades of ridiculously bad management, it appears that the Library of Congress has a real leader. Dr. Carla Hayden has been approved by the Senate as our new Librarian of Congress by a wide margin, 74 to 18. And that’s despite a last minute push by the ridiculous Heritage Foundation to argue that the Librarian of Congress should not be a librarian (and one with tremendous administrative experience). Heritage Foundation’s alerts can often sway Republican Senators, so the fact that only 18 still voted against her is quite something. Hayden was also able to get past ridiculous claims that she was pro-obscenity or pro-piracy based on people who just didn’t like the idea of an actually qualified person in the position.

She’s an exceptionally qualified librarian with administrative and leadership experience. And while I’m sure I won’t agree with everything she does, it seems like a massive improvement on the previous librarian, James Billington, who famously resisted any kind of modernization efforts, and who the Government Accountability Office had to call out multiple times for his leadership failings. Billington was so bad that when he resigned, the Washington Post was able to get people to go on the record celebrating.

The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.

?There is a general sense of relief, hope and renewal, all rolled into one feeling,? said one staffer who spoke on the condition of anonymity for fear of reprisal. ?Like a great weight has been lifted from our shoulders.?

Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.

?It?s a great day for the library. The man has had 27 years to do good things, and he hasn?t,? she said.

It’s a low bar, but Hayden will almost certainly be better than that — and hopefully a lot better as well. She’s shown in the past a willingness to stand up and fight against government surveillance and for freedom of speech and access to information. Her positions on copyright are less clear, but as she’s now in charge of the Copyright Office, hopefully she’ll bring some much needed balance to that office, and a greater recognition, as a librarian, of the importance of access to information, rather than locking up all info.

Of course, given all that, I can pretty much guarantee that Hollywood and other legacy copyright industries are going to pump up their fight to move the Copyright Office out of the Library of Congress, and either set it up as its own agency, or dump it into the Dept. of Commerce, perhaps as part of the Patent and Trademark Office. Expect to see a big push on that very soon, including all sorts of bullshit arguments in favor of it. But remember, copyright was designed to benefit the public, and not as some sort of commercial tool that belongs in the Dept. of Commerce.

Filed Under: carla hayden, congress, copyright office, librarian of congress, senate

Think Tank: The Library Of Congress Has Too Many Librarians, So We Should Reject New Nominee To Run It

from the are-you-fucking-crazy? dept

We were both surprised and happy when President Obama nominated the obviously well qualified Carla Hayden to be the new Librarian of Congress to succeed James Billington, whose tenure was considered such a disaster that staffers literally celebrated when he left:

The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.

?There is a general sense of relief, hope and renewal, all rolled into one feeling,? said one staffer who spoke on the condition of anonymity for fear of reprisal. ?Like a great weight has been lifted from our shoulders.?

Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.

?It?s a great day for the library. The man has had 27 years to do good things, and he hasn?t,? she said.

When you get quotes like that — especially on the record — for someone retiring from a longstanding job, you know things were bad. And Hayden appears by almost any measure to be perfect for the job. She’s run large libraries, showing that she has the knowledge and administrative skills to run the Library of Congress. She’s also got experience dealing with a variety of policy issues, including ones around surveillance and access to information. I’ve spoken to many people who either know or have worked with Hayden, and I can’t recall ever hearing such levels of praise about anyone.

But, of course, some are unhappy about this. But with such a supremely qualified nominee, the attacks have been weird and getting weirder. We recently wrote about a laughable complaint that Hayden was “pro-obscenity” because she fought against mandatory porn filters on all computers in libraries. And now someone has pointed out a complaint from Hans von Spakovsky from the Heritage Foundation, claiming that Hayden is unqualified for the position… because she’s a librarian. Really.

But the library?s enormous staff (3,244) already numbers countless credentialed librarians — the institution is hardly in need of another. That?s why the post of librarian of Congress has long been filled not by librarians, but by first-rank scholars and historians of national reputation. The librarian of Congress is in effect the nation?s ?scholar-in-chief.?

First of all, for someone advocating for a “scholar in chief” — it seems rather ironic that they insist the number of librarians in the Library of Congress is “countless” when he’s already given us the upper bound of employees at the Library (3,244). Now I’m no math expert, but surely this means that the number of librarians must be somewhat less than 3,244? And, last I checked, a number less than 3,244 remains… well… countable.

But, more to the point: WTF? To argue that a librarian shouldn’t lead the Library of Congress seems… ridiculous. And it’s not as if Hayden is being shifted from the checkout desk of a small regional library to the Librarian of Congress position. She’s been running the Enoch Pratt Free Library in Baltimore as its CEO and helped modernize and totally refresh that library. Meanwhile, von Spakovsky goes on to praise Billington as a scholar, despite the fact that basically everyone at the library despised him, and multiple reports had found that he basically ignored his job to focus on hobnobbing with the rich and famous. The Government Accountability Office put out a report noting that there was a massive leadership vacuum at the Library of Congress under Billington. And this is the guy that von Spakovsky praises as “a scholar”? If that’s what a scholar does, give me the librarian with actual administrative experience any day.

Of course, the real whining from von Spakovsky is what’s pretty blatantly stated in his post: he’s upset that President Obama pointed out the fact that Hayden would be the first woman or first African American to hold the post of Librarian of Congress. From that, he twists that statement into pretending it means those details are a part of her qualifications, or perhaps, her only qualifications.

Yet according to the president, among the chief qualifications for the office of Librarian of Congress — the chief administrator of the world?s largest library — are color and gender.

Except that’s bullshit. Nowhere did the President suggest any such thing. This is blatant dog whistle politics where the Heritage Foundation wants to pretend that this nomination is somehow an act of “affirmative action,” rather than an eminently qualified individual, who also happens to be female and black. The fact that the President pointed this out was not because it spoke to her qualifications, but because it’s a fact that the Librarian has always been a white male. It’s a noteworthy point, not a qualification.

Really, if these are the best “attacks” that anyone can come up with regarding Hayden, I’m fairly confident that she’s clearly ready for the job. No one can find anything legitimate against her, so they go with this kind of crap.

Filed Under: carla hayden, hans von spakovsky, james billington, librarian of congress, librarians, scholars
Companies: heritage foundation

President Obama Nominates New Librarian Of Congress Who Supports Open Access, Fights Against Surveillance

from the this-looks-good dept

So here’s a pleasant surprise. President Obama has nominated Carla Hayden as the new Librarian of Congress, and at a first glance, she looks perfect for the job. The job is super important for a whole variety of reasons, including that the Librarian of Congress controls the Copyright Office (more on that in a bit…). The former Librarian of Congress, James Billington, was really bad. He apparently was mostly focused on hobnobbing with rich people in fancy places around the globe than doing anything useful. A report by the Government Accountability Office found a massive leadership vacuum with Billington when it came to technology issues, noting that he basically ignored technology entirely. When Billington announced he was retiring, the Washington Post reported that employees were absolutely elated:

The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.

?There is a general sense of relief, hope and renewal, all rolled into one feeling,? said one staffer who spoke on the condition of anonymity for fear of reprisal. ?Like a great weight has been lifted from our shoulders.?

Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.

?It?s a great day for the library. The man has had 27 years to do good things, and he hasn?t,? she said.

That line is great: The man has had 27 years to do good things, and he hasn’t. But, right after that, that same Maureen Moore noted what many people feared: what if the replacement was worse and didn’t actually understand the key issues of the day: “But the ecstasy is tempered by worry that Obama will appoint someone else who isn?t a librarian, someone who doesn?t have management experience or another megalomaniac.”

There had been a lot of speculation about who might be nominated, but it seemed tough to find people with the right qualifications. Someone who actually was a librarian, who had real management experience with a large organization and someone who actually understood the issues.

And at a first glance, Hayden seems perfect. For a while now, she’s been CEO of the Enoch Pratt Free Library in Balitmore, and by all accounts has done an amazing job modernizing that system. It’s also good to see that the President’s announcement directly calls out her support of open access to information:

Her understanding of the pivotal role that emerging technologies play in libraries will be essential in leading the Library of Congress as it continues to modernize its infrastructure and promote open access and full participation in today’s digital world.

The video that comes with the announcement also focuses quite a bit on free and open access to information and the role of the Library of Congress in encouraging that:

Today, I'm nominating Dr. Carla Hayden to be our 14th Librarian of Congress. Michelle and I have known Carla since her days working at the Chicago Public Library, and her dedication to learning and education is unparalleled. More recently, she's been hard at work revitalizing Baltimore?s struggling library system as the CEO of Enoch Pratt Free Library. Last year, during the unrest in Baltimore, Dr. Hayden kept the doors of the Pratt open as a beacon for the community. Her understanding of the pivotal role that emerging technologies play in libraries will be essential in leading the Library of Congress as it continues to modernize its infrastructure and promote open access and full participation in today's digital world. Finally, Dr. Hayden will be the first woman and the first African-American to hold this position in its 214 year history ? both of which are long overdue.I hope you'll take a couple minutes to watch this video and meet Carla for yourself. I have no doubt she'll make a fantastic Librarian of Congress.

Posted by President Obama on Wednesday, February 24, 2016

Beyond that, Hayden was one of the leading voices speaking out against surveillance. As President of the American Library Association at the time when the PATRIOT Act was being debated, she was vocal in opposition, especially to Section 215, which was used to create the phone metadata program that Ed Snowden revealed. What many people forget is that it was the librarians who were most vocal about Section 215 when it was first proposed, as many people thought it would be used to demand things like library records to see what was being checked out — and librarians are big supporters of privacy.

She’s also spoken out for years about the value of free access to information. Here’s a 2003 profile of Hayden in Ms. Magazine (where she was named Woman of the Year) in which she notes:

?Libraries are a cornerstone of democracy?where information is free and equally available to everyone. People tend to take that for granted,? says Hayden. ?And they don?t realize what is at stake when that is put at risk.?

From that same profile:

Hayden?s stance against the PATRIOT Act is part and parcel of her vision of the library as an integral element of democracy. ?We serve the underserved,? Hayden says. ?When libraries fight against the PATRIOT Act, or against [mandatory Internet filters], we?re fighting for the public. Most of the people who use public libraries don?t have the opportunity to buy books at a bookstore or on Amazon.com. What the library does is protect the rights of all people to fully and freely access information and to pursue knowledge, without fear of repercussion.?

Of course, the best recommendation may be the fear already coming out of the RIAA, who put out a fairly ridiculous statement in response:

?It is worth noting that the Library of Congress and the U.S. Copyright Office have been mutually respectful of each other?s areas of expertise. We would hope that the new Librarian would continue to demonstrate that respect for the Copyright Office?s expertise in copyright policy and recommendations to Congress.?

In other words “don’t mess with the Copyright Office.” Of course, what this really is about is the current and ongoing fight over what to do to “modernize” the Copyright Office. There’s a big push from the MPAA and the RIAA to move the Copyright Office out of the Library of Congress and either merge it into the US Patent and Trademark Office, or make it a stand alone agency. That’s all part of the decades-long whitewashing of the history of copyright, to pretend that it’s not about benefiting the public with more access to information, but rather about protecting a particular industry. That fight will only take on more prominence as a result of this nomination.

Of course, there’s also the question of whether or not the Senate will approve the nomination. Obviously, there are different stakes involved, but everyone lately has been talking about whether or not the Senate will even hold hearings on President Obama’s expected Supreme Court nomination. And the (totally bullshit) argument against it is “well, this is an election year, and we should let the public decide who the President will be, and then let that President choose a nominee.” That’s silly for a whole bunch of reasons, and without the SCOTUS backdrop no one would think twice about considering the LOC nominee. However, given all the statements being made, I could see some in the Senate argue that they can’t consider any nominees for anything, just to appear to remain consistent.

And, of course, some are actually wondering if her vocal opposition to the PATRIOT Act will somehow get in the way of her appointment. I guess that’s possible, but if so, it would be crazy, because she was absolutely right, and Congress itself has now updated Section 215 after Ed Snowden revealed how it was being abused.

Either way, this appears to be a fantastic nomination and I hope it does go smoothly, and that it leads to not just a modernized Library of Congress, but a modernized Copyright Office as well –and by that I mean one that doesn’t just focus on doing the bidding of a few legacy industry players, but actually on serving the public interest.

Filed Under: carla hayden, copyright, copyright office, librarian of congress, librarians, open access, patriot act, privacy, public benefit, section 215, surveillance

from the wrong-tool,-guys dept

As we noted earlier this year, as the Copyright Office and the Librarian of Congress consider the requested “exemptions” from Section 1201 of the DMCA, General Motors has come out strongly against allowing you to modify the software in the car that you (thought you) bought from the company. If you’re new to this fight, Section 1201 of the DMCA is the “anti-circumvention” clause that says that it’s copyright infringement if you “circumvent” any “technological protection method” (TPM) — even if that circumvention has absolutely nothing to do with copyright infringement. Yes, this is insane. It’s so insane that Congress even realized it would lead to ridiculous situations. But, rather than fixing the damn law, Congress instead decided to duct tape on an even more ridiculous “solution.” That is that every three years (the so-called “triennial review”), people could beg and plead with the Copyright Office and the Librarian of Congress to issue special “exemptions” for classes of work where Section 1201 wouldn’t apply. Yes, that’s right, you have a law, but Congress knew the law made no sense in some cases, and so it just gave the Librarian of Congress (the guy who currently can’t keep his website online) the power to anoint certain classes of technology immune from the law.

Anyway, as mentioned, General Motors and others car makers (and also tractor maker John Deere) have been lobbying against the change, arguing all sorts of damage might occur should people be able to hack their own cars legally. And, to be fair, there is a legitimate point that someone messing with their own car’s software could potentially do some damage. But, there are some pretty easy responses to that. First off, that’s not copyright’s job. If you want to ban tinkering with the software in cars, pass a damn law that is specifically about tinkering with software in cars, so that there can be a real public debate about it. Second, lots of perfectly legal tinkering with the mechanical parts of automobiles can also lead to dangers on the road, but we don’t ban it because people are allowed to tinker with things they own.

Either way, the Copyright Office reached out to the EPA about this issue, and in a just published letter (even though it was sent months ago), it’s revealed that the EPA is asking for the exemption to be denied because it’s “concerned” that these exemptions would “slow or reverse gains made under the Clean Air Act.” It also argues that allowing the right to modify your own software would “hinder its ability to enforce… tampering prohibition[s]” that are in existing law already:

EPA is also concerned that the exemptions would hinder its ability to enforce the tampering prohibition. Under section 203(a), the Agency has taken enforcement action against third-party vendors who sell or install equipment that can “bypass, defeat, or render inoperative” software designed to enable vehicles to comply with CFAA regulations. EPA can curb this practice more effectively if circumventing TPMs remains prohibited under the DMCA

First of all, this shows that there’s already another law in place for dealing with people who are doing things that will impact the environment. Second, who cares if it makes the EPA’s job easier, that’s not the role of copyright. That the EPA would so casually argue that it’s okay for it to be abusing copyright law, just because it makes the EPA’s job easier is patently ridiculous.

Following that, the EPA then mocks the idea that anyone would have a legitimate reason to tinker with the software in their own cars:

The Agency also questions whether there is a real need for the exemptions. Car makers are already required to provide access for lawful diagnosis and repair. In EPA’s view, whether or not they are designed for this purpose, the TPMs prevent unlawful tampering of important motor vehicle software.

Again, that’s not the job of copyright, and supporting the abuse of copyright for this purpose is ridiculous. Furthermore, now that we’re living in an age of connected cars, where we’re already discovering that car software is a security nightmare it’s actually more important than ever that people be able to tinker with the software in their cars, to probe for security weaknesses and to improve that software where possible. The EPA has every right to go after those who do so in a manner that violates environmental laws, but it shouldn’t support abusing copyright law just because it makes the EPA’s job easier. And, it shouldn’t just assume that there are no legitimate reasons for wanting to modify the software in your car just because EPA staffers are too simple-minded to understand what those reasons might be.

Whatever you might think of the EPA and its mission, the idea that it would advocate abusing copyright laws is a disgrace.

Filed Under: 1201, anti-circumvention, copyright, copyright office, dmca, environment, epa, librarian of congress, triennial review
Companies: gm

from the time-to-fix-it dept

Back in March, the Government Accountability Office (GAO), which tends to do really great work, came out with an absolutely scathing report on the disaster that is the Library of Congress, and didn’t beat around the bush in blaming the Librarian of Congress James Billington for being technologically illiterate and out of touch, leading to gross mismanagement. The report noted that the Library of Congress appeared to have no leadership or strategic plan in place to address technology issues. Just a few months later, Billington — who had served in the job for 27 years — announced his retirement. And apparently things were so bad at the Library of Congress, that rather than the usual bland platitudes, people working there were immediately willing to run to the press about how excited they were to be rid of Billington:

The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.

?There is a general sense of relief, hope and renewal, all rolled into one feeling,? said one staffer who spoke on the condition of anonymity for fear of reprisal. ?Like a great weight has been lifted from our shoulders.?

Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.

?It?s a great day for the library. The man has had 27 years to do good things, and he hasn?t,? she said.

Ouch.

Anyway, given all that, it should be no surprise that the Copyright Office which is (rightfully) a part of the Library of Congress, is apparently experiencing a bit of technical difficulty these days:

The U.S. Copyright Office?s electronic registration system has been down since Friday, costing the office an estimated $650,000 in lost fees and causing headaches for approximately 12,000 customers.

The outage is part of a bigger computer failure at the Library of Congress, the federal agency that oversees the national library, provides Congress with research advice and operates the Copyright Office, a major player in the global digital economy.

Scheduled maintenance on the library?s James Madison Building resulted in buildingwide power outages, officials said. The library?s information technology office is trying to restore the systems, but officials can?t say when service will return.

Double ouch. Yes, yes, we all know that government computing is a total mess. But this is pretty disgraceful, especially for areas (both the Library of Congress and the Copyright Office) that are so closely associated with the technology world these days. Getting new management into the Library of Congress — in particular someone who understands technology and innovation — can’t come fast enough.

Filed Under: computer system, copyright office, gao, james billington, librarian of congress

from the archiving-history-is-great dept

If you weren’t under a social media-less rock a few weeks ago, you hopefully heard about the Internet Archive releasing over 2,000 MS-DOS video games, playable in the browser. As I noted to someone on Twitter, it was like half of my childhood on the screen. What I found truly amazing was that with every excited Twitter or Facebook comment I saw, it was about a different game. For me, it was things like Oregon Trail, Pole Position, Lode Runner and Championship Baseball (and also some college memories of avoiding studying by playing Scorched Earth — hey, at least it sorta felt like I was learning physics). But for others it was something entirely different. Each person seemed to latch onto their own moment in history (and a new chance to procrastinate or waste time by reliving that experience).

This, of course, was only the latest in an ongoing effort by the Internet Archive, led by Jason Scott (who has been involved in all sorts of archival efforts of internet content and video games and made a documentary about text adventure games called Get Lamp). Andy Baio has a great post up discussing this work and how important it is that it’s being done by the Internet Archive, rather than a giant corporation. As he notes, while Google used to really focus on similar archival projects, in the recent past, it seems to have let that focus fade, which is quite disappointing.

Of course, in discussing the possible reasons why Google’s archival efforts have stagnated, Baio tosses out a few suggested reasons, including the lack of profitability, but also, the potential legal liability. After all, Google is still fighting in court about the Google book scanning project, and the focus of that project seems much more about pushing people to buy books, rather than being able to do useful searches through that huge corpus of knowledge.

Baio is (quite reasonably) thrilled that the Internet Archive has been willing and able to step up, and notes that the video game archive shows how Archive.org is a lot more than just saving old websites: it’s about preserving our cultural history.

But, other than that one offhand mention of the risk of legal liability to explain Google’s dropping the ball on similar stuff, Baio leaves out the related issue of copyright and the DMCA (which he knows about all too well from personal experience). This isn’t a fault of Baio’s article, he’s just focused on something else. But the copyright aspect is really important — especially right now.

That’s because the main reason why the Internet Archive is allowed to do this kind of thing is because it was lucky enough to get one of the semi-arbitrary DMCA triennial review exemptions that lets them break old DRM for the purpose of archiving vintage software. But, even then, it’s not entirely clear that what the Internet Archive is doing is fully protected today. Furthermore, as we saw a few years ago with unlocking mobile phones, the Librarian of Congress can simply delete those exemptions on a whim.

And, right now, we’re in the middle of the DMCA exemption process yet again, with a bunch of requests on tap — including an important one from the EFF [pdf] to allow such activities:

Proposed Class: Literary works in the form of computer programs, where circumvention is undertaken for the purpose of restoring access to single-player or multiplayer video gaming on consoles, personal computers or personal handheld gaming devices when the developer and its agents have ceased to support such gaming.

Baio’s article talks about how projects like the one at the Internet Archive are magical in preserving history and giving us access to “all of computing history… accessible from a single click.” This is incredibly important — but copyright law is standing in its way. This isn’t about “piracy” in any real sense. The games and software being discussed are not being sold anywhere. The hardware that it worked on is long gone. This is about preserving our cultural history — something that industry appears to have no interest in doing, in part because copyright law itself makes it so risky.

If you think things like this are important too, I also suggest heading over to the Digital Right to Repair site where they’ve made a really easy form for you to share your thoughts with the Copyright Office as it considers the latest exemption requests. The Copyright Office also has its own form, but it’s government-level cumbersome. The Digital Right to Repair site is much easier to use. It has some pre-selected text for the various exemptions being debated, but also (very easily) allows you to write your own thoughts (which you should).

One of the key factors in the decision over what to exempt and what not to exempt is a demonstrated “market need” and you can help make the case by sharing your story with the Copyright Office.

Filed Under: 1201, anti-circumvention, archives, archiving, copyright, copyright office, dmca, dmca 1201, drm, exemptions, jason scott, librarian of congress, libraries, triennial review, video games
Companies: internet archive

Latest EFF DMCA Exemption Requests Include The Right to Tinker With and Maintain Unsupported Video Games

from the game-not-over dept

Wed, Nov 5th 2014 04:21am - Karl Bode

As we’ve noted more than a few times, we live in an era where the products you think you own can be disabled, crippled or held hostage on a whim. That’s been particularly apparent when it comes to video game consoles and software, with an increasing array of titles relying on server connectivity not only for multi-player content, but also for DRM authentication in order to play single player titles. The former was an issue earlier this year when Nintendo announced that the company would be killing online functionality for a wide variety of Wii and DS titles, some of which were only a year or two old. The latter was an issue with Blizzard’s Diablo 3, EA’s latest incarnation of SimCity, and a growing number of other games.

When these servers for older titles get shut down, often gaming communities are left trying to cobble together functionality with little to no support from the companies that made them, and/or with concern they’d be violating section 1201. In their latest list of six DMCA exemption requests, the Electronic Frontier Foundation includes the right to tinker with older games. Not just for the enjoyment of keeping these gaming communities afloat, argues the EFF, but because as games become an increasingly integral part of our culture as entertainment and art, they need to be preserved for historians. That’s obviously something you can no longer do if the games are utterly unusable:

“The inability to play older games (because the necessary servers have been shut down) inhibits scholarship and research as well ? it is much more difficult for game scholars to access older works due to a lack of playable archival copies, and archivists have less incentive to preserve games that are unplayable or only partially playable. Jerome McDonough, a professor who specializes in digital preservation, put it simply. ?Digital media are inherently fragile and the ability to migrate games to new hardware/media is critical to any preservation activity we might take, whether through migration or emulation. [The] DMCA?s technological protection measure language takes the difficult case of software preservation and transforms it into a fundamentally impossible case.” In the case of multi-player games, it can be impossible for scholars to replicate the experience of playing the game, since player communities often die when servers are deactivated.

As the petition notes, the exemption would not apply to persistent online worlds and MMORPGs, where online functionality is all there is. Among the EFF’s five other DMCA exemption requests includes two governing the right to bypass automobile DRM for repair and testing, two protecting the remixing of DVD and various online video sources, as well as the renewal and expansion of cell phone and tablet unlocking exemptions. As usual, the EFF expresses justifiable disdain at having to jump through “burdensome and confusing” hoops every three years simply to defend common sense under the dysfunctional mess that is the U.S. Copyright Office’s DMCA exemption request process.

Filed Under: copyright, dmca, exemptions, freedom to tinker, librarian of congress, triennial review, video games
Companies: eff