Some New (and Some Rejected) Exemptions to the Digital Millennium Copyright Act

by Pillsbury Winthrop Shaw Pittman LLP
Contact

[author: Patrick J. Myers]

The U.S. Copyright Office issued its exemptions to the Digital Millennium Copyright Act of 1998 ("DMCA") on October 26. The exemptions, effective as of Oct. 28, define the limited circumstances in which users are allowed to circumvent technology that prevents access to copyrighted works, e.g., content encryption schemes. The exemptions are reviewed and issued anew every three years, so what was allowable prior to the ruling may not be anymore, and new exemptions, primarily directed to assistive technologies for the blind, are available. Companies that relied on previous exemptions should take heed that many are no longer lawful, and the Copyright Office affirmatively denied the universal legality of jailbreaking devices.

Background
If copyrighted content can be thought of as an exclusive club, access control schemes are the bouncers. The bouncers allow only authorized users and programs into to the club. Whereas copyright infringement deals with what a person does in the club, the DMCA criminalizes sneaking past or removing the bouncers.

An important tenet of the DMCA is the allowance for exemptions—uses that the Copyright Office, based on the recommendations of the Register of Copyrights, establishes to allow the public to send the bouncers home for the night, provided the end use of the copyrighted content is non-infringing. The rulemaking process allows proponents of an exemption to make an affirmative case to the Register of Copyrights why the circumvention should be allowed for a particular class of works and why not allowing it will substantially adversely affect those uses in the next three years; mere inconvenience does not support an exemption. The process also provides opponents of the exemption an opportunity to explain why it should not be allowed and to demonstrate the harm that will occur if it is. No exemptions are carried over from one exemption period to the next—every exemption is examined as if it was being presented for the first time, though the impact of previously exempted works may be relevant in deciding if a similar exemption should be granted.

New Exemptions to the DMCA
Literary Works Distributed Electronically – Assistive Technologies: This exemption allows blind people or those with "print disabilities" to work around circumvention measures on lawfully obtained copies of an electronic book ("eBook") for the purpose of enabling "read aloud" functionality in the eBook. The only catch is that the author must be paid for the work as he or she would be if the book had been purchased through other channels. This caveat though should not be an issue for any eBook that is purchased from an established eBook seller.

Motion Pictures and Other Audiovisual Works – Captioning and Descriptive Audio: This exemption allows users to circumvent access control mechanisms to access the playhead and time codes in a motion picture or audiovisual work so that assistive technologies can be developed to render descriptions of the visual portions of the content. The exemption was made so that visually or hearing impaired users can enjoy a lawfully obtained copy of the work.

Prior Exemptions That Have Been Altered
Wireless Telephone Handsets – Software Interoperability: This exemption is similar to a 2010 exemption. It allows users to circumvent access control schemes on cellular telephones for the purpose of executing lawfully obtained software programs that the cell phone provider has not provided. This is commonly known as "jailbreaking" a phone. Although the proponents requested that the class of works be extended to include tablet computers, this expansion was rejected. The Register declined recommending that tablets be included because the record presented by the proponents did not support creating a separate class of "tablets" that was exempt.

Wireless Telephone Handsets – Interoperability with Alternative Networks: This exemption is also similar to a 2010 exemption. It allows users to circumvent access control schemes for the purpose of "unlocking" a cell phone and using it on a network that it was not originally purchased for. For example, purchasing a phone at a T-Mobile store and then unlocking the phone so it may be used on AT&T's network after the customer's contract with T-Mobile has expired. The change in this exemption is that owners of legacy phones may still circumvent the control schemes to unlock previously purchased phones, but for phones purchased more than 90 days after the effective date of the exemption, the exemption does not apply. The cause for the change was the Register felt that sufficient alternatives to unlocking a locked phone exist now, whereas they did not in 2010.

Motion Picture Excerpts – Commentary, Criticism, and Educational Uses: This exemption is also similar to a 2010 exemption, but has been broadened. It allows users to excerpt portions of motion pictures, lawfully obtained on DVDs or online—the online aspect not being part of the 2010 exemption—where the use is for the purposes of commentary or criticism. Additionally, the use must also be: in noncommercial videos, in documentary films, in nonfiction eBooks offering film analysis, or in educational classes such as film studies or those that require close analysis of media excerpts.

Proposed Exemptions That Were Not Adopted
Literary Works in the Public Domain – Digital Access: This was not adopted simply because the DMCA is directed to preventing circumvention of access control schemes that protect copyrighted works and public domain works are not protected by copyright. Therefore, the Register concluded that the proposal was beyond the scope of the exemption rulemaking proceeding.

Video Game Consoles – Software Interoperability: This proposed exemption was similar to the cellular phone exemption, and would allow users to jailbreak their video game consoles. The Register determined that the proposed exemption did not meet the requisite showing that, absent the exemption, the inability to circumvent the access controls would have a substantial adverse impact on the ability to make non-infringing uses. Additionally, the opponents provided compelling evidence that allowing an exemption would diminish the value of, and impair the market for, the affected code because the game consoles would no longer be a secure platform for the development and distribution of legitimate content. Without the evidentiary proof from the proponents and the weighty harm provided by the opponents, the Register recommended not creating the requested exemption.

Personal Computing Devices – Software Interoperability: This proposed exemption, similar to the proposed exemption for jailbreaking video game consoles, was directed to allowing users to circumvent “application locks” and “Operating System locks” on personal computing devices—a broad class meant to cover almost any device: mobile phones, tablets, eBook readers, and more—so that the users could install alternative programs or operating systems on the personal computing device. The proponents—many of whom were also proponents of the video game console proposal—argued that the telephone exemption created by the 2010 rulemaking process supported this exemption. Additionally, they expressed concern that Microsoft’s announcement that it will require hardware manufacturers for Windows 8 to enable a secure boot system will prevent users from installing 3rd party applications or operating systems. While this secure boot system will prevent viruses from installing malicious code, the proponents argued it will also prevent users from lawfully and intentionally installing alternative operating systems on the new devices. The proponents, however, failed to present evidence showing the harm, instead relying primarily on speculation of harm. This showing was insufficient, and the Register recommended not adopting this exemption.

Motion Pictures and Others Works on DVDs and Other Media – Space Shifting: This proposed exemption was directed to allowing users to copy the content on lawfully obtained DVDs to other electronic devices that do not have a DVD player. To do this, the DVD’s Content Scramble System (CSS) would need to be circumvented to access the underlying content. The proponents failed to show the lack of an exemption was having an adverse impact on non-infringing uses. Indeed, the Register noted that a similar exemption was proposed in 2006 and in that rulemaking, it was discussed that space-shifting may not be a non-infringing use. The DVDCCA—who provides DVD’s CSS access controls and was an opponent of the exemption—supported this interpretation, and noted that consumers had not purchased the motion picture itself, but only a DVD of the motion picture. Furthermore, the proponents did not present any court ruling that supported the assertion that space shifting is a non-infringing use; the famous Sony Betamax case was presented, but the Register noted that case was about time-shifting, not space shifting. As a result, the Register recommended this exemption not be adopted.

Prior Exemptions That Are No Longer Available:
Because the exemptions to the DMCA are decided anew every three years, if an existing exemption is not proposed for a subsequent rulemaking, it lapses. Two such exemptions available as of 2010 are no longer lawful circumventions of access control mechanisms.

Video games accessible on a personal computer 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. This 2010 exemption allowed users to circumvent the access control mechanisms for the purpose of finding security flaws in the video game software. It was not considered in the 2012 rulemaking.

Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. Some computer programs require that a piece of hardware be present, e.g., plugged into a USB port, when the program was running. If the software was unlawfully copied, the infringing user would not have the dongle and therefore could not run the software. The 2010 exemption allowed users to circumvent the access control schemes if the dongles that were required to run the software were no longer manufactured or available in the commercial marketplace. This exemption was not considered in the 2012 rulemaking.

Written by:

Pillsbury Winthrop Shaw Pittman LLP
Contact
more
less

Pillsbury Winthrop Shaw Pittman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!