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DMCA comment to the Copyright Office  Peter Suber
 Dec 18, 2002 09:25 PST 
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[The U.S. Copyright Office has been seeking public comment on classes of
works that ought to be exempt from the DMCA anti-circumvention clause. The
comments are due at 5:00 pm EST today at
<http://www.copyright.gov/1201/comment_forms/>. I just submitted the
comment below. Note that the Copyright Office is not seeking comments on
general revisions to the DMCA, but only exemptions to the
anti-circumvention clause and only for the purpose of access rather than
e.g. copying. The format of the comments is also dictated by the Copyright
Office. --Peter.]

----------

To the U.S. Copyright Office

From Peter Suber
Professor of Philosophy
Earlham College
Richmond, Indiana 47374

December 18, 2002

-----

Class of works to be exempt: copyrighted content that the copyright holder
consents to publish or distribute without payment. A slightly broader way
to describe this class: copyrighted content for which the copyright holder
consents to provide *open access*, when "open access" is defined as access
permitting the unrestricted reading, downloading, copying, sharing,
storing, printing, searching, linking, and crawling of some body of work.

The most important works in this class are scientific and scholarly journal
articles, at least when the copyright is retained by the author or
transferred to an open-access journal. (When the author's copyright is
transferred to a traditional journal, the new copyright holder will
virtually never consent to open access, so we're not talking about that
case.)

Scientific and scholarly journal articles are in this class because
scholarly authors are not paid for journal articles and do not expect
payment. They are paid by their employers and share their research
articles freely for the sake of advancing knowledge. They write for impact
and not for money. When they retain copyright, or transfer it to an
open-access journal, then the copyright holder will typically consent to
open access. Access-blocking DRM would frustrate this intention.

For the purpose of this rule-making, it shouldn't matter whether
copyright-holder consent to open access is rare or frequent (hence, whether
this class is small or large). In fact, the class is small but growing
larger every day. The exemption is needed on the merits and in order to
give this class a better chance of growing larger.

-----

The argument: When copyright holders consent to relinquish revenue, or
consent to open access, then the copyright statute should not stand in
their way. Copyright holders have a right to waive their rights, just as
much as they have a right to enforce them. When authors sacrifice revenue
in order to reach a larger audience, or in order to share and advance
knowledge, then readers ought to get the benefit of the author's
sacrifice. At the very least, access-blocking DRM will thwart, not serve,
this class of copyright holders.

For this class of works, an exceptionless anti-circumvention clause
threatens readers with criminal penalties for gaining the kind of access
that the copyright holder desires to make available. When authors consent
to open access, then all use is non-infringing use. Preventing readers
from taking advantage of this gift from authors not only frustrates
copyright holders who wish to make this gift, but negates their sacrifice
in relinquishing revenue, obstructs the free exchange of scientific ideas,
and impedes research.

For these reasons, most works in this class will be published in
open-access archives or open-access journals, without DRM, and consequently
circumvention will never be an issue. But the exemption is needed for the
occasional works of this class for which user access is hindered by DRM
barriers. Here are some examples:

1. A scholar makes a point of publishing her research in an open-access
journal. But several years later, the journal is sold to a publisher who
changes the business model of the journal, and makes back issues accessible
only to paying customers. The copyright holder's consent to provide open
access has not changed.

2. A scholar's work is published online by an open-access journal. But
that journal is indexed by a search engine that also indexes many priced
and access-restricted journals. Rather than discriminate and give free
access to the free articles and priced access to the priced articles, it
charges for full-text access to any article that comes up in response to a
search.

3. A government agency decides to outsource its publishing, bypassing the
GPO and its open-access policies. The private-sector publisher makes the
(public-domain) papers and other documents of the agency available only to
paying customers.

The general principle behind this request for an exemption was also
asserted in a public statement by France's Académie des Sciences on
December 6, 2001. The French Académie called on the European Commission
not to apply ordinary copyright rules to scientific publications for which
the authors seek no payment.
http://www-mathdoc.ujf-grenoble.fr/DA/

For more on open access, see the Budapest Open Access Initiative. (For
example, the BOAI makes clear that many authors consenting to open access
wish to retain copyright rather than put their works into the public domain.)
http://www.soros.org/openaccess/

-----



----------
Peter Suber, Professor of Philosophy
Earlham College, Richmond, Indiana, 47374
Email pet-@earlham.edu
Web http://www.earlham.edu/~peters

Editor, Free Online Scholarship Newsletter
http://www.earlham.edu/~peters/fos/
Editor, FOS News blog
http://www.earlham.edu/~peters/fos/fosblog.html



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<html><div>[The U.S. Copyright Office has been seeking public comment on
classes of works that ought to be exempt from the DMCA anti-circumvention
clause.  The comments are due at 5:00 pm EST today at
<<a href="http://www.copyright.gov/1201/comment_forms/" EUDORA=AUTOURL>http://www.copyright.gov/1201/comment_forms/</a>>. 
I just submitted the comment below.  Note that the Copyright Office
is not seeking comments on general revisions to the DMCA, but only
exemptions to the anti-circumvention clause and only for the purpose of
access rather than e.g. copying.  The format of the comments is also
dictated by the Copyright Office.  --Peter.]</div>
<br>
<div>----------</div>
<br>
<div>To the U.S. Copyright Office</div>
<br>
<div> From Peter Suber</div>
<div>Professor of Philosophy</div>
<div>Earlham College</div>
<div>Richmond, Indiana  47374</div>
<br>
<div>December 18, 2002</div>
<br>
<div>-----</div>
<br>
<div>Class of works to be exempt:  copyrighted content that the
copyright holder consents to publish or distribute without payment. 
A slightly broader way to describe this class:  copyrighted content
for which the copyright holder consents to provide *open access*, when
"open access" is defined as access permitting the unrestricted
reading, downloading, copying, sharing, storing, printing, searching,
linking, and crawling of some body of work. </div>
<br>
<div>The most important works in this class are scientific and scholarly
journal articles, at least when the copyright is retained by the author
or transferred to an open-access journal.  (When the author's
copyright is transferred to a traditional journal, the new copyright
holder will virtually never consent to open access, so we're not talking
about that case.)  </div>
<br>
<div>Scientific and scholarly journal articles are in this class because
scholarly authors are not paid for journal articles and do not expect
payment.  They are paid by their employers and share their research
articles freely for the sake of advancing knowledge.  They write for
impact and not for money.  When they retain copyright, or transfer
it to an open-access journal, then the copyright holder will typically
consent to open access.  Access-blocking DRM would frustrate this
intention.  </div>
<br>
<div>For the purpose of this rule-making, it shouldn't matter whether
copyright-holder consent to open access is rare or frequent (hence,
whether this class is small or large).  In fact, the class is small
but growing larger every day.  The exemption is needed on the merits
and in order to give this class a better chance of growing larger.
</div>
<br>
<div>-----</div>
<br>
<div>The argument:  When copyright holders consent to relinquish
revenue, or consent to open access, then the copyright statute should not
stand in their way.  Copyright holders have a right to waive their
rights, just as much as they have a right to enforce them.  When
authors sacrifice revenue in order to reach a larger audience, or in
order to share and advance knowledge, then readers ought to get the
benefit of the author's sacrifice.  At the very least,
access-blocking DRM will thwart, not serve, this class of copyright
holders.</div>
<br>
<div>For this class of works, an exceptionless anti-circumvention clause
threatens readers with criminal penalties for gaining the kind of access
that the copyright holder desires to make available.  When authors
consent to open access, then all use is non-infringing use. 
Preventing readers from taking advantage of this gift from authors not
only frustrates copyright holders who wish to make this gift, but negates
their sacrifice in relinquishing revenue, obstructs the free exchange of
scientific ideas, and impedes research.  </div>
<br>
<div>For these reasons, most works in this class will be published in
open-access archives or open-access journals, without DRM, and
consequently circumvention will never be an issue.  But the
exemption is needed for the occasional works of this class for which user
access is hindered by DRM barriers.  Here are some examples:</div>
<br>
<div>1.  A scholar makes a point of publishing her research in an
open-access journal.  But several years later, the journal is sold
to a publisher who changes the business model of the journal, and makes
back issues accessible only to paying customers.  The copyright
holder's consent to provide open access has not changed.</div>
<br>
<div>2.  A scholar's work is published online by an open-access
journal.  But that journal is indexed by a search engine that also
indexes many priced and access-restricted journals.  Rather than
discriminate and give free access to the free articles and priced access
to the priced articles, it charges for full-text access to any article
that comes up in response to a search.</div>
<br>
<div>3.  A government agency decides to outsource its publishing,
bypassing the GPO and its open-access policies.  The private-sector
publisher makes the (public-domain) papers and other documents of the
agency available only to paying customers.  </div>
<br>
<div>The general principle behind this request for an exemption was also
asserted in a public statement by France's Académie des Sciences on
December 6, 2001.  The French Académie called on the European
Commission not to apply ordinary copyright rules to scientific
publications for which the authors seek no payment. </div>
<div><a href="http://www-mathdoc.ujf-grenoble.fr/DA/" EUDORA=AUTOURL>http://www-mathdoc.ujf-grenoble.fr/DA/</a></div>
<br>
<div>For more on open access, see the Budapest Open Access
Initiative.  (For example, the BOAI makes clear that many authors
consenting to open access wish to retain copyright rather than put their
works into the public domain.)</div>
<div><a href="http://www.soros.org/openaccess/" EUDORA=AUTOURL>http://www.soros.org/openaccess/</a></div>
<br>
<div>-----</div>
<br>

<br>
<hr>
<font color="#808080">Peter Suber, Professor of Philosophy <br>
Earlham College, Richmond, Indiana, 47374<br>
Email pet-@earlham.edu <br>
Web
<a href="http://www.earlham.edu/~peters" eudora="autourl">http://www.earlham.edu/~peters</a><br><br>
Editor, Free Online Scholarship Newsletter<br>
<a href="http://www.earlham.edu/~peters/fos/" eudora="autourl">http://www.earlham.edu/~peters/fos/</a><br>
Editor, FOS News blog<br>
<a href="http://www.earlham.edu/~peters/fos/fosblog.html" eudora="autourl">http://www.earlham.edu/~peters/fos/fosblog.html</a></font>

</html>

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