[Fwd: [ALA-WO:823] ALA Joins in Amici Curiae Brief; Libraries Testify atCopyright Office Rulemaking on DMCA]

["Olga Francois" <ofrancois@xxxxxxxx>]

From: "ALAWASH E-MAIL" <ALAWASH@xxxxxxxxxxx>
To: ALA Washington Office Newsline <ala-wo@xxxxxxxxxxxx>

ALAWON: American Library Association Washington Office Newsline
Volume 12, Number 43
May 19, 2003

In This Issue: 
1.  ALA Joins in Amici Curiae Brief in RIAA v. Verizon
2.  Copyright Office Rulemaking on DMCA - Libraries Testify at
Hearings


1.  ALA Joins in Amici Curiae Brief in RIAA v. Verizon
ALA, along with the American Association of Law Libraries and the
Association of Research Libraries, has joined in an amici curiae
("friends of the court") brief in the RIAA v. Verizon case, in support
of Verizon.  RIAA has sued Verizon to compel Verizon to comply with a
subpoena to turn over the identities of Verizon Internet users who RIAA
alleges are engaged in copyright infringement. The case concerns whether
a communications service provider acting as a "mere conduit" under
Section 512(a) of the DMCA must comply with a subpoena issued under
Section 512(h).  Initially, the case focused on statutory construction
-- did 512(h) apply to mere conduits, or did it only apply to providers
of hosting and linking services under Sections 512(c) and (d)? The
district court ruled that 512(h) in fact did apply to mere conduits such
as Verizon.  

When the RIAA served a second subpoena on Verizon, Verizon raised
constitutional issues, which the US District Court judge ordered the
parties to brief.  Verizon argued that the clerk of court lacked the
power under Article III of the Constitution to issue a subpoena unless a
lawsuit had been filed.  Verizon further argued that Section 512(h) as
interpreted by the district court threatened its subscribers' First
Amendment and privacy rights.  

The district court rejected these arguments as well, and the decisions
with respect to both subpoenas are now on appeal to the US Court of
Appeals for the DC Circuit. The argument to the appeals court
essentially is that the DMCA as interpreted by the district court would
allow a private party the power to invoke judicial process (the subpoena
issued by a clerk of the court) to demand identifying information about
another person, without a lawsuit having been filed or even
representation that suit is imminent.  Moreover, under this
interpretation of the DMCA identifying information would have to be
provided by the Internet service provider to the copyright owner without
notice to the subject of the subpoena (the Internet user) or an
opportunity for that person to be heard, and without a federal judge's
oversight.  

The DC Circuit has a strict rule that only one amicus brief can be
filed per side, so ALA is one among 45 amici. The brief, which was filed
on May 16, focuses on the constitutional and privacy issues, not the
statutory construction of the DMCA (which is being addressed by Verizon
in its brief).  The court of appeals has set oral argument for September
16.  

2.  Copyright Office Rulemaking on DMCA - Libraries Testify at
Hearings
On May 9, the U.S. Copyright Office concluded a round of hearings in
Washington, D.C. pursuant to its rulemaking, under the Digital
Millennium Copyright Act of 1998 (DMCA), to determine potential
exemptions to the Section 1201 prohibition on circumvention of
technological measures that control access to copyrighted works.  The
five major U.S. library associations were represented at three of the
Washington hearings by their outside counsel, Jonathan Band, of Morrison
& Foerster, who testified in support of several exemptions that the
libraries have requested through the written comments submitted to the
Copyright Office.  The libraries' written comments to the Copyright
Office and Mr. Band's statements of his testimony can be found on the
ALA Washington Office website. 
http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2/Copyright1/DMCA__The_Digital_Millenium_Copyright_Act/DMCA_Section_1201_-_the_Anti-Circumvention_Rule.htm

The Copyright Office also held hearings in California on May 14 and 15
at the University of California at Los Angeles School of Law. 
Transcripts of the first several hearings are now available on the
Copyright Office web site:  http://www.copyright.gov/1201/

The current exemptions to the anti-circumvention provision of DMCA are
in effect only until October 28, 2003, which is the new date by which
the Copyright Office will announce whether these, and any other
exemptions, should be in effect for the next three years.  The two
existing exemptions are:

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
obsolescence. 

The libraries' filing asked for a renewal of these exemptions, which
were granted in the 2000 Rulemaking, plus an additional exemption for
"literary works, including eBooks, which are protected by technological
measures that fail to permit access, via a 'screen reader' or similar
text-to-speech or text-to-Braille device, by an otherwise authorized
person with a visual or print disability."

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