A Disability-Rights Critique of the Digital Millenium Copyright Act

Over at Slate, Blake Reid has written "The Digital Millenium Copyright Act Is Even Worse Than You Think," which argues that the DMCA keeps e-books, online video, and other material inaccessible to people with disabilities. Here are some excerpts:

The [cell-phone] unlocking furor is just the latest example of popular opposition to the DMCA’s
dreaded anti-circumvention measures. The Electronic Frontier Foundation
recently issued a report arguing that over the last 15 years, the DMCA has
impeded scientific research, innovation, fair use, and more. But
among the DMCA’s many flaws is a significant one of which most people aren’t aware:
For more than a decade, the act has imposed a barrier to access for people
with disabilities. It hinders access to books, movies, and television shows by
making the development, distribution, and use of cutting-edge
accessibility technology illegal.

creative works accessible often involves transforming content from one medium
to another—such as adapting the audio of a television show to closed
captions to make it accessible to people who are deaf or hard of hearing.
Copyright law ordinarily vests authors of creative works with the
exclusive right to create adaptations, such as translations to foreign
languages. But making works accessible to people with disabilities
is arguably exempt from copyright law under the fair use doctrine and
other laws like the Chafee Amendment to the Copyright Act. Congress,
federal courts, the U.S. Copyright Office, and even the World Intellectual
Property Organization have begun to recognize that it’s bad
policy to block efforts to create accessible versions of
copyrighted works.

At least, that’s the case with physical and analog media. But publishers,
video programmers, and other copyright owners lock down digital content
with digital rights management technology designed to limit users’ ability
to access, copy, and adapt copyrighted works to specific circumstances.
And copyright owners frequently fail to account for the need to adapt
DRM-encumbered works to make them accessible to people with disabilities.
For example, e-books often include DRM technology that preventspeople
who are blind or visually impaired from running e-books that they have lawfully
purchased through a text-to-speech converter that reads the books aloud.
Similarly, Internet-distributed video and DVD and Blu-ray discs include
DRM features that prevent researchers from developing
advanced closed captioning and video description technologies that make
movies and television shows accessible. (For example, some
Internet-delivered videos don't include closed captions at all, and subtitles
on DVD and Blu-ray discs can be incomplete, riddled with errors, or so
badly formatted that they can't be read.)

Bypassing this DRM technology is often trivial from a
technical perspective. But the DMCA makes it illegal—even if the person
bypassing DRM is doing so for a noninfringing use like making it accessible to
people with disabilities. If you want to get around the DMCA, there is no
fair use; instead, you must petition the librarian of Congress for a
special exemption to circumvent a class of works, such as e-books. The
proceeding to consider exemption petitions, known as the
“triennial review,” takes place only once every three years and
requires petitioners to navigate a complex bureaucratic process, satisfy an
incredibly high burden of proof, invest months of effort, and overcome
opposition from copyright lobbying groups with nearly bottomless
resources. It’s no wonder the vast majority of exemption petitions are


Requiring nonprofit disability groups to ask permission from the
government every three years and navigate a complex legal minefield to
implement urgently needed accessibility technology is not compatible
with progressive, conservative, or libertarian values; the goal of equal
access for people with disabilities; or common sense. Even the
librarian admitted in 2010 that the DMCA exemption process “is at best ill-suited to address the larger challenges of access.”


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