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DMCA Section 1201 Rulemaking to Determine Exemptions to the Prohibition on the Circumvention of Technological Controls to Copyrighted Works

On October 25, 2012, the Register of Copyrights and the Librarian of Congress announced new recommendations for exemptions to Section 1201(a)(1)(A) of the Digital Millennium Copyright Act (DMCA). Section 1201(a)(1)(A) of the DMCA makes it illegal to circumvent technological controls found in electronic devices that control access to copyrighted works.  Section 1201(a)(1)(B), however, allows the Register to grant exemptions to be reviewed every three years.  In this triennial review, the Register upheld the legality of “jailbreaking” smartphones and decrypting DVD and e-book controls for the visually- and hearing-impaired. The Register also broadened exemptions for fair use of video excerpts. However, the new rules prohibit “unlocking” smartphones purchased after January 2013, forbid jailbreaking tablets and game consoles, and prohibit “space shifting.”

What Do These Exemptions Mean for the EDUCAUSE Community?

Circumvention of Controls for Expansion of Disability Accessibility

The first exemption applies to "literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies."  The work must have been purchased legitimately through "customary channels," such that "the rights owner is remunerated."

The latest version of the DMCA exemptions is a victory for disabilities advocacy groups, which have urged the Register to exempt “literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies” for the disabled.

The Register adopted a similar exemption in 2010, but limited its applicability to e-books for which no platforms made the book available without controls inhibiting access by the disabled. In the current rulemaking, the Register adopted the more expansive exemption, conceding that the growth and fragmentation of the e-book market makes a rule requiring all editions to be inaccessible before circumvention is allowed impractical.  In such a market, disabled people would be burdened with owning several e-reader devices to access a popular selection of titles.

Along with e-books, legally obtained DVDs may now be circumvented to make them “capable of rendering visual representations of the audible portions of such works and/or audible representations or descriptions of the visual portions of such works” for the disabled.

Fair Use of DVDs and Online Video

The most complicated exemption focuses on DVDs.  For next three years, it will be legal to rip a DVD "in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and K-12 educators." A similar exemption applies for "online distribution services."

But the Librarian did not allow circumvention for space-shifting purposes. While public interest groups had argued that consumers should be allowed to rip a DVD in order to watch it on an iPad that lacks a built-in DVD drive, the Librarian concluded that no court has found that such "space shifting" is a fair use under copyright law.  According to Public Knowledge, this prohibition is more restrictive than is required by either the MPAA or the RIAA, the two associations most protective of video copyright.

Jailbreaking and Unlocking Smartphones and Tablets

Since 2010, the DMCA has allowed users to jailbreak their smartphones in order to execute lawfully obtained applications unauthorized by the phone manufacturer.  The Register reaffirmed the rationale that using unapproved applications on smartphones is fair use and limiting users’ ability to execute such applications hinders choice and impairs innovation.

The Register has refused to extend the same rights to tablet devices, however.  She reasoned that the variety of devices that can be described as a “tablet” — including e-readers, tablet computers and handheld gaming consoles — is too broad to receive the same uniform treatment applied to smartphones.

Mixed Reviews from Fair Use Advocates

The Electronic Frontier Foundation, which lobbied the Register for more liberal exemptions, is celebrating the announcement as a step “towards mitigating some of the DMCA’s most grievous harms.”  However, some critics lament that the rules are still too restrictive and inconsistent to avoid making criminals of people who want to modify their devices for fair-use purposes.  For the EDUCAUSE community, these exemptions, while not perfect, do advance the teaching and learning missions of colleges and universities. 

The final rule became effective on October 28, 2012. This rulemaking is the culmination of a proceeding initiated by the Register on September 29, 2011.

EDUCAUSE will continue to monitor and report on this issue.

Comments

So these are recommendations, not updates to Copyright law?

I'm specifically looking at. "....when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: (i) Educational uses by college and university professors and by college and university film and media studies students."

Thank you!

Thanks for the question, which is a good one but complex.  Under the provisions of the DMCA (which is part of the copyright law), the Register of Copyrights is allowed to make exemptions to the copyright law for certain uses for a 3-year term.  After 3 years these exemptions are reviewed and can be granted again or revoked.  The recent round of exemptions went into effect on October 28, 2012 for a period of three years.

You asked if these are recommendations.  These are not recommendations, but rather are exemptions to the current copyright law.  In essence, the law lays out the groundwork and the rules are the specifics to implement the law.  So the law says that the Register of Copyrights can make exemptions to the law for certain purposes.  The Register took input from the public about the anti-circumvention provisions of the DMCA and then made her ruling.  For example ... "For next three years, it will be legal to rip a DVD "in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and K-12 educators."  If someone took advantage of this exemption for the reasons specified above, it would be necessary to check again in three years to see whether or not the exemption still stands.

I hope this helps.  However, this answer should not be taken as legal advice.  It is always best to check with your general counsel to be sure.

 

 

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