Copyright Ruling Allows Bypass of DVD, Smartphone Protection Mechanisms

by Eversheds Sutherland (US) LLP
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On July 27, 2010, the Librarian of Congress, acting on the recommendation of the Copyright Office, exempted six classes of copyrighted works from a provision of the Digital Millennium Copyright Act (“DMCA”) that prohibits users from circumventing copyright protection mechanisms (e.g., DVD or iPhone® encryptions or “digital locks”). The six exemptions will be effective for the next two years and will allow users to engage in the following activities: bypass DVD encryption for certain narrow educational/non-commercial purposes, “jailbreak” iPhones® or similar smartphone devices for personal use, unlock personal cell phones for use on another network, “crack” video game software access restrictions to investigate and correct software security flaws, bypass malfunctioning or broken hardware dongles to enable dongle-activated software to function, and circumvent text-to-speech restrictions on eBooks when no alternative read-aloud eBooks exist. Compared to the 2000, 2003, and 2006 DMCA exemptions, the 2010 DMCA Exemptions are broader and tend to favor end-users more so than copyright owners.

Title 17 U.S.C. § 1201(a) prohibits circumvention of access control technologies used by copyright owners to protect against copyright infringement (i.e., a digital lock or digital rights management (“DRM”) system that protects content on DVDs/CDs, smartphones, eBook readers, and other devices from unauthorized copying). Every three years, the DMCA requires the Register of Copyrights to conduct a public rulemaking review, consult with the Assistant Secretary of Communications and Information, and recommend to the Librarian of Congress classes of copyrighted works that should be exempted from the DMCA’s anti-circumvention provisions. The purpose of this review is to ensure that end-users can make non-infringing uses of copyrighted works that are similar or analogous to the uses that they had been able to make before the DMCA was adopted in 1998. Anti-circumvention exemptions can be granted to a class of copyrighted works if class users are, or are likely to be, adversely affected by being unable to make non-infringing uses of those particular classes of works. The Register of Copyrights conducted rulemaking reviews in 2000, 2003, 2006, and most recently in 2009. The Register did not issue a recommendation, and the Librarian did not issue a final decision for the 2009 review year until July 2010.

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