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I testified at the first hearing on this issue in May of 2000. The big problem is the way that the question is defined, which is that one must prove that there are classes of individuals who are harmed because they cannot circumvent protection. First, this asks you to provide proof based on something that did not happen -- that is, the person could not access the material, and therefore there was harm. If this was about medical treatment you might be able to come up with solid proof, but we're talking about information access, and there's rarely a good, clear cause-and-effect that links someone's suffering with a particular lack of information. The second problem is that the question is framed in terms of classes of works, not circumstances (although the library needing to review items before purchase seems to be a circumstance). The third problem is that, as of yet, there are very few resources purchased by libraries that have digital protection, so we can't have proof of something that hasn't happened yet.

Folks at the hearing I participated in, like Lolly Gassaway and Siva Vaidhyanathan, were very articulate. Lolly actually had an example of a protected CD product that quit working because of Y2K. But she couldn't show how any person was "harmed" by not getting access to that information (legal article citations, I believe), so the Copyright Office folks pretty much dismissed it. I did make the point that no library in existence today has a job position for a cryptography specialist who could break into protected documents if things went wrong.

Essentially, your astonishment about the obscurity of the anti-circumvention exceptions is not undue. This whole thing is an exercise in obscure nit-picking based on a problem statement that is essentially impossible to respond to. Still, if anyone has a real user who has suffered real harm, PLEASE SPEAK UP! You don't have to write your story in formal or legal terms, just tell it like it is.

Thanks - that makes it sound as though libraries can legally circumvent technological protection measures for purposes other than evaluating works for purchase ... don't you think? Was the Congressional Record item relating to a version of the bill that did not pass, or is there a provision that exists that does indeed protect libraries to a broader extent than purchase examinations?

Hmmm ... I have archives of the DMCA legislative history, so I did a scan. The best I could find was this:

[Congressional Record: May 14, 1998 (Senate)]
[Page S4884-S4900]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

" We have a number of provisions designed to help libraries and
archives. First, libraries expressed concerns about the possibility of
criminal sanctions or potentially ruinous monetary liability for
actions taken in good faith. This bill makes sure that libraries acting
in good faith can never be subject to fines or civil damages.
Specifically, a library is exempt from monetary liability in a civil
suit if it was not aware and had no reason to believe that its acts
constituted a violation. In addition, libraries are completely exempt
from the criminal provisions.
We have a ``browsing'' exception for libraries so they can look at
encrypted work and decide whether or not they want to purchase it for
their library."

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