On the Proposed Exemptions to the DMCA’s Access Control Provisions

On February 10, 2012, the U.S. Copyright Office will stop accepting public comment on proposed administrative exemptions to the Digital Millennium Copyright Act’s “access control” provisions. Fresh from their SOPA and PIPA victories, organizations such as the Electronic Frontier Foundation are pushing activists to flood the U.S. Copyright Office with comments supporting the renewal and expansion of current exemptions. Regardless of the outcome of this campaign, it is clear that the exemptions currently in place will change.

First, some background. According to Section 1201(a)(1)(A) of the Digital Millennium Copyright Act, individuals may not “circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act].” This was one of the key provisions of the DMCA (along with the Safe Harbor provisions of 17 U.S.C. § 512) and essentially makes it a crime to hack software or hardware designed to protect copyrighted material. Concerned that the law would weaken the fair use doctrine by criminalizing circumvention even when the individual plans to engage in non-infringing uses, Congress required the Librarian of Congress to issue specific exemptions for certain classes of works every three years. Such exemption rules were issued in 2000, 2003, 2006, and 2010. Although the rules scheduled to be issued in 2009 were delayed for a year, the Copyright Office plans to get back on schedule by issuing new rules early — in October of this year.

Of the six classes of works exempted in 2010, only four have been proposed for renewal this year. This virtually ensures that two prior exempted classes will expire. The first expiring class consists of “[c]omputer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.” This exemption has been in place since the first set of rules in 2000, which makes its absence from the current proposed list rather surprising. The reason for its absence is unclear, but it may simply be the case that there are so few individuals and companies using outdated dongle-reliant software that the exemption is no longer needed.

The other expiring class of works concerns “[v]ideo games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities.” According to Nimmer on Copyright § 12A.03, this exemption was first implemented in 2010 as a response to vulnerabilities caused by Macrovision’s SafeDisc technology. Since this exemption was probably unnecessary given the DMCA’s safe harbor exemption for encryption research (§ 1201(g)), it is unsurprising that it has not been proposed again.

Of the four classes proposed for renewal, only one will likely remain unchanged. This class covers literary works distributed in ebook format, where access control technology prevents the use of read-aloud functionality or the use of specialized screen readers. This exemption has been proposed by the American Council for the Blind and the American Foundation for the Blind, and will likely be renewed without much controversy.

For the other three classes, EFF and others are proposing that they be renewed, but with changes to reflect advances in technology and consumer use. For example, current rules exempt the use of DeCSS and other software to bypass the Content Scrambling System on DVDs. This exemption only applies when the circumvention is conducted for educational purposes, for documentary filmmaking, and for noncommercial videos. EFF and the University of Michigan Library would like to renew this exemption, but EFF has proposed expanding it by including audiovisual works acquired via online distribution systems (such as Netflix streaming or Amazon Instant Video). This expansion would likely be opposed by the film industry, which resisted the exemption for DVDs.

EFF has proposed expanding the remaining two classes to reflect the rise of tablet computers, but they will undoubtedly face some resistance. The exemptions for unlocking (whereby computer applications circumvent technology limiting a device to one particular wireless telecommunications network) and jailbreaking (which allows an individual to install third-party software on a device) currently apply only to mobile phones. Every proposed renewal of these rules would extend the exemption to other wireless devices such as tablets. It is hard to argue than an iPhone is really all that different from an iPad, so it will be interesting to see whether the Librarian of Congress agrees to widen the class of devices subject to the exemption.

Although there initially appear to be few practical arguments for distinguishing phones from tablets in this context, it would create problems for the Copyright Office if it treated them the same. If computer programs designed to jailbreak the iPad and other tablet computers are allowed, then why not allow–as EFF has proposed–the jailbreaking of video game consoles such as the Xbox 360 and the Playstation 3? They are all essentially limited-purpose computers that allow individuals to play games, watch movies and access the internet–albeit tablets have their screen built-in while gaming consoles attach to a television. Furthermore, if gaming consoles can be jailbroken, then why not DVRs such as the TiVo? There is no doubt that Sony, Microsoft, and cable companies would oppose subjecting their devices to such exemptions, just as Apple Computer opposed the current exemptions. Yet the same fair use rationale that justified the current exemptions relating to mobile phones would seem to apply to other devices. Ultimately the Librarian of Congress–with the input of the public–will have to decide where to draw the line.

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