Rule posted on DMCA's access prohibition

WASHINGTON - The Library of Congress has posted a rule saying only two types of digitized works are exempt from the 2-year-old Digital Millennium Copyright Act's (DMCA) prohibition against cracking access codes designed to protect movies, software, books and other digitally recorded material from illegal use.

The rule is seen as a victory for the entertainment industry, which uses access codes to protect the copyrights of digital recordings of films and music, but a defeat for software developers who "reverse-engineer" some software code in order to customize it, and for librarians, who say the DMCA prohibition impedes libraries' ability to provide public access to digital works.

The DMCA went into effect in October 1998, outlawing the cracking of a software access code or other technology that protects digitally recorded material from illegal access. But at the same time, Congress asked the Library of Congress, in conjunction with the library's Copyright Office, to examine the prohibition and to determine whether there should be any exemptions to ensure that the rights of users weren't "diminished."

The two exempt "classes of work" are lists of Web sites that are blocked by filtering software, and literary works, including computer programs and databases, that are protected by malfunctioning, damaged or obsolete access controls. Only those two types of materials can be legally accessed by circumventing the access control, according to a statement issued Friday by James Billington, librarian of Congress.

Billington based his statements on the recommendations of the register of copyrights, who was assigned to consider a wide range of possible adverse impacts of the prohibition. The Copyright Office's primary responsibility was to assess whether current technologies that control access to copyrighted works are "diminishing the ability of individuals to use works in lawful, non-infringing ways," Billington said in the statement.

Robert Dizard, staff director of the Copyright Office, said the register of copyrights found that the access controls were adversely affecting people who wanted to access the two exempt classes of work. The register made the recommendation based on public comments showing problems with these two particular classes, Dizard said, adding that the ruling should not be considered a defeat or victory for any particular group.

"We would not characterize this as a rulemaking to select winners and losers," he said. "Congress indicated in the statute that the record had to clearly support an adverse affect" in order to obtain an exemption.

The Library of Congress held five public hearings and accepted comments from a number of organizations and individuals before making the rule, which Billington stressed does not cover technological controls on the copying of digital material. The rule took effect on Friday and will remain in effect for three years.

Billington also said that during the rulemaking process concern arose over the three-year period Congress allowed for monitoring and, when necessary, rewriting the rules that implement the act. He said he would ask Congress to consider shortening the time frame, given the rapid pace of technological change.

The Library of Congress rule follows another victory for the entertainment industry over a copyright issue. A U.S. District Court judge issued an order in August that permanently bars Web sites from linking to other sites that contain De-Content Scrambling System (DeCSS) code when the site offering the link aims to help facilitate dissemination of illegal code. DeCSS is used for disabling encrypted content on DVDs.