[conspire] (forw) Re: [Hangout-NYLXS] UPDATE: U.S. Copyright Office requiring proprietary software for DMCA anti-circumvention comments

[Rick Moen]

Gosh, I wish FSF would allocate its resources a bit better.

----- Forwarded message from Rick Moen <rick at linuxmafia.com> -----

Date: Fri, 26 Feb 2016 20:53:03 -0800
From: Rick Moen <rick at linuxmafia.com>
To: hangout at nylxs.com
Subject: Re: [Hangout-NYLXS] UPDATE: U.S. Copyright Office requiring
	proprietary software for DMCA anti-circumvention comments
Organization: If you lived here, you'd be $HOME already.

Quoting Free Software Foundation (info at fsf.org):

>    Last week, working with our Defective By Design team, [2]we asked
>    people to co-sign a comment that we, the Free Software Foundation
>    (FSF), will be submitting to the U.S. Copyright Office for their study
>    of the anti-circumvention provisions of the DMCA (17 U.S.C. 1201). Our
>    comment sends a simple and clear message: the DMCA's anti-circumvention
>    provisions, including the triennial exemption granting process, are
>    broken beyond repair and the only way to fix this law is to repeal it
>    altogether. The Copyright Office has extended the comment period, and
>    so our [3]comment is now open for public co-signing until noon EST (5pm
>    UTC) on March 2nd.
> [...]
>   Joshua Gay & Donald Robertson
>   FSF Licensing Team

Comment'[3]' is a hyperlink to
https://my.fsf.org/civicrm/profile/create?gid=439&reset=1, where you can
see the text of FSF's proposed filing with U.S. Copyright Office, which
indeed is a comment that DMCA anti-circumvention provisions should be
repealed, and the triennial process to enact exemptions (to the
prohibition against circumvention of technological measures that control
access to copyrighted works) ended.

Anyone else see the fatal problem?  Anyone?  Anyone?  Bueller?


U.S. Copyright Office has delegated authority to pass _regulations_
permitting exceptions to anti-circumvention law because Congress told it
to do that -- that power and responsibility having been enacted by the
DMCA.[1]

DMCA was an example of _enabling legislation_ (aka primary law).  

Federal Executive Branch agencies and departments get empowered by
enabling legislation to pass _regulations_ within the confines of what
Congress permits them to do.  Copyright Office's anti-circumvention
rule-findings are thus regulatory law.  

The point:  FSF's comment asks Copyright Office to revise enabling
legislation.  They can't.  They have no authority to do so.  Congress
does.


Sadly, this has the effect of making the FSF Licensing Team look a bit
foolish.  Petitioning _Congress_ to end these proceedings would be at
least asking in the correct place.


[1] 17 U.S.C. 1201.  Primary law gets recorded in the United States Code
('U.S.C.').  Regulatory law gets recorded in the Code of Federal
Regulations ('C.F.R.').  The latter is subordinate to the former.

-- 
Cheers,
Rick ('civics: not just a good idea; it's the law') Moen
rick at linuxmafia.com
McQ!  (4x80)
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----- End forwarded message -----