Beginning in 2002, the American Foundation for the Blind, which was later joined by the American Council of the Blind, has made a pilgrimage to the Copyright Office every three years, seeking out and renewing an exemption to bypass the DRM on locked versions of e-books so they can be read aloud using text-to-speech software. During the fourth triennial review in 2010 (which began in 2008 but took more than a year and half to complete), the register of copyrights, who leads the Copyright Office, urged the librarian of Congress to overturn the e-books exemption. Thankfully, the librarian of Congress overruled the register and renewed the exemption, then renewed it again during the fifth review in 2012. But next fall, the blind and visually impaired groups will have to trek back to the Copyright Office to make their case yet again.
I’m a teaching fellow and staff attorney at Georgetown Law’s Institute for Public Representation clinic, where I work on media and accessibility issues. In 2011, my students and I filed a new exemption request on behalf of the nonprofit TDI (which advocates for equal media access for people who are deaf or hard of hearing) to allow researchers to develop advanced closed captioning and video description features to help make video programming more accessible—development hindered by the DMCA. (Gallaudet University and the Participatory Culture Foundation also signed the petition.) Crowdsourcing, customized user interfaces, error correction, and other innovations could help realize the goal of equal access to video programming on the Internet—a goal enshrined by Congress and President Obama in the 21st Century Communications and Video Accessibility Act of 2010.
But our proposal faced opposition from a coalition of copyright lobbyists who insisted, for example, that errors in closed captions were a “mere inconvenience” to people with disabilities and that developing accessibility features might even constitute copyright infringement. In the end, the librarian issued an exemption, but it was so riddled with caveats that it was difficult to identify precisely what accessibility research it was intended to enable, if any.
We also proposed a general exemption for accessibility technology, urging the librarian to take action in light of the widespread and demonstrated negative impact of the DMCA on the ability for people with disabilities to experience copyrighted works on equal terms. The Copyright Office did not even solicit comment on the proposal, and the librarian effectively ignored it.
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.”
In 1903, the deaf-blind author and activist Helen Keller wrote in The Story of My Life: “Literature is my Utopia. Here I am not disenfranchised. No barrier of the senses shuts me out from the sweet, gracious discourse of my book-friends.” Yet more than a century later, the vast majority of the world’s printed and digital books—and many television shows, movies, video games, and other copyrighted works—still aren’t accessible to people with disabilities. Reforming the DMCA won’t fix that overnight—but it’s an important step on the road to equal access.
This article arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.