Trouble with listen-up

[Janina Sajka]

Hi, Sina:

Sina Bahram writes:
> Hi Janina,
> 
> I forgot to separate out those sentences ... Not been getting a ton of sleep
> lately, sorry.


OK. I understand that. Email can certainly be tough that way--without
the voice inflection, etc.

> 
> Let me rephrase
> 
> Since it's easy enough to crack, if someone does decide to do so, then said
> person distributes binaries, does that violate any laws.


The question is "distribute to who?" In the U.S. at least, the "to who"
part makes all the difference. In other words, the answer might be
"yes," and it might be "no," depending on who the recipient of
distribution is.

Now, I must say again that I'm not a lawyer. However, I have been an
active advocate on this issue during my years with AFB. The recent
Library of Congress decision regarding the DMCA was my advocacy, and it
directly addresses this issue. Let me lay out the essential facts for
you:

In 1976 the U.S. Congress amended U.S. Copyright law. As is customary
various committees of Congress wrote reports during that process. Those
reports help the courts determine exactly what Congress was thinking.
That's important because a House of Representatives committee wrote that
nothing in the new copyright law could be construed to make it illegal
to make a work accessible to a blind person, and that a blind person
could do for themselves, or someone else could do for them the act of
making a book accessible. In 1976 the language was "phonograph
recording," but it's the principle that's important in law, not the
specific medium referred to.

The U.S. Supreme Court relied on exactly this report language in the
famous beta max case in the 1980's. Basically, the movie industry had
tried to make VCR taping of TV shows illegal. The Supreme Court told
them to go fly a kite, and the Court's reasoning relied, in part, on the
House report and the specific paragraph about blind people's
accessibility. Maybe we should remind Blockbuster the next time we need
a project funded--but I diagress.

Now, the 1998 Digital Millenium Copyright Act (DMCA) went further than
any copyright law before. It made the very act of unencrypting something
without permission illegal, and it made the tool you might use to
decrypt illegal. Very nasty. Fortunately, the DMCA requires a review
every three years to make sure that the new rules aren't preventing
people from having legitimate access. During the review period in 2003
AFB argued that there were ebook titles being produced that prevented
blind people's access just because they were encrypted in ways we
weren't being allowed to unlock. One example we presented was a
Microsoft Reader edition of a best seller from the Fifteenth Century. We
presented a screen shot of the message about how you couldn't read this
book with speech, and we pointed out that you actually had to pay money
for this book to even find out whether you would, or would not, be able
to read it with speech.

Therefore, we received a ruling from the Librarian of Congress that
exempts, for three years, blind people from the strictures against
cracking titles--but only if they're not available in another format.

So, is it legal? Possibly? If you crack something for yourself, or for
some blind person that isn't available in accessible format, it's legal.

Can you then distribute this to anyone and everyone? Absolutely not. Can
you generally make it available in a catalog? Only if you're an
nationally recognized organization in business of making such things
generally available. This last point refers to a different piece of
copyright law called the Chafee Amendment and is the law that NLS and
RFBD use to get books out faster. They used to have to ask permission
for every book they produced. Since Chafee they don't need to ask.

Here are some links:

http://www.loc.gov/copyright/1201
http://www.loc.gov/nls/reference/factsheets/copyright.html