I submit this brief to assist the court in addressing the scope of the anticircumvention provisions of the Digital Millennium Copyright Act  ("DMCA").

I have a Master's degree in Library Science earned in 1972 from the University of California at Berkeley, and a Certificate in Library Science with a specialization in Information Retrieval earned from the same school in 1980.  I currently hold a position of Information Technology Specialist at the California Digital Library, which is within the University of California Office of the President.  I have been employed by the University of California in this and similar positions in the area of library automation since 1980.   I serve on the Library and Information Technology Association's committee on Top Technology Trends, and the American Library Association's committee to study the impact of technology on the privacy of library users. In 1997 I authored a book on policy issues relating to libraries in the digital environment entitled "Coyle's Information Highway Handbook" which was published by the American Library Association.

One of the most important roles of libraries is to provide the public with persistent access to society's entire array of intellectual output.  Libraries must serve as a repository of knowledge since manufacturers of content products such as books, journals, films, and sound recordings are not required to preserve their content indefinitely or to market their content beyond its normal period of commercial value.  Libraries provide the social function of universal and persistent access to materials that have been essentially abandoned by the original producers.

The DMCA exhibits an unsophisticated view of computer technology in general and access control technology in particular.  The mistaken assumption is that technology, without fail, can play the same role as law.  Access control  technologies, for example, may be more restrictive than any license for access or copyright law.  This is clearly evident in the current case in which the access control technology, CSS, does not allow rightful purchasers of DVD products to choose the platform on which they will view the legally acquired content.

Expanding the product's ability to operate on new platforms would conceivably result in an increased customer base for their product.  Even those customers who presently own such a product and are currently able to make use of it with their current technology are not immune from the hazards of access control technology.  There is no guarantee that foreseeable changes in their technology, such as a need to upgrade to a new operating system, will not render their purchased product unusable.  The fact of the matter is that with today's rate of technological change, any product purchased with controls could become unusable within a short period of time due to advances in technology.

In order to prevent a product from becoming unusable in the ever-changing technological environment, it is imperative that the interoperability of products is encouraged.    House Committee Chairman Tom Bliley notably stated that   "consumers will enjoy additional benefits if devices are able to interact and share information."   The restrictive nature of access control technology, as defined in the DMCA and implemented through CSS undermines a user's ability to fair and efficient use of their technology.
Depending on the physical format of the materials, libraries must be able to make preservation copies of any item at risk of deterioration.  Digital formats pose particular problems because even a minor degree of deterioration can render the entire item unreadable.  Libraries must anticipate changes in technology and attempt to preserve digital materials in the most durable formats available.  For this reason libraries favor formats which are based on open standards rather than those   that are proprietary.  Open standard formats are most likely to be available on all current technologies and continue to be made available on future technologies.

With a proprietary access control mechanism, like CSS control for DVDs,   the manufacturer provides the interface between the product and the consumer technology.  Preservation of these materials for future generations is unlikely unless it is possible for the archiving agency to be able to upgrade and transform that particular interface as technology undoubtedly changes.  This may mean developing access programs similar to DeCSS which would allow materials to be readable in the future.
As we all know, computer software can fail.  Failures can be the result of   "bugs", errors in the code, or due to the lack of foresight on the part of the program's creators as we saw with the Y2K or Year 2000 problem.  Access control technology is susceptible to all of these kinds of failures, the DVD/CSS case being an example of lack of foresight.  Failures in technology should not receive protection as access control technology for the purpose of copyright law.  I have worked long enough with computer technology to know that we do not want to grant the machine or the software the power to trump human judgment or law.

Respectfully submitted,
 ___________________
 Karen Coyle

Executed on June 1, 2000 in Oakland, California