Spataro & Associates

New Exemptions From DMCA Anti-Circumvention Rules

Copyright © 2010 Stephen A. Spataro

In 1998, the U.S. Congress enacted the Digital Millennium Copyright Act (“DMCA”), which among other things amended title 17, United States Code, to add section 1201. Section 1201 prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect their works (“access controls”).

As of November 27, 2006, for the next three years, the DMCA prohibition against circumvention of technological measures that effectively control access to copyrighted works shall NOT apply to persons who engage in noninfringing uses of six classes of copyrighted works.

Exemptions

There are six classes of exempt works:

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.
2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.
4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.
   

Why this matters

The new exemptions are narrow and mostly industry specific.  However, the Copyright Office’s increased role in crafting and recommending these exemptions may signal a new trend in how access controls are defined and limited, and balanced with fair use rights.  The process may involve more intense lobbying of the Copyright Office by various players for very narrow industry specific temporary exemptions.  This may also change the landscape of Congressional lobbying and litigation strategies.