Has Copyright Law Met Its Match?

Access by the disabled provides challenge to controversial DMCA.

Elsa Wenzel, Medill News Service

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.

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.