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Digital Copyright Exemptions Benefit Educators, Filmmakers and Smartphone Owners
by
Posted On August 5, 2010


In what is being described as a "win" for college and university students and faculty, smartphone users, and visually impaired ebook readers, the Librarian of Congress recently approved several new exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). The first of these exemptions would allow DVD protections to be circumvented for fair use purposes by college and university faculty and film and media studies students. An exemption was also approved to permit iPhone users to "jailbreak" their phone's built-in software to allow the use of software that may not be approved by Apple. An exemption was also renewed to allow ebooks to be circumvented to allow increased accessibility for readers with visual impairments.

The DMCA was passed in 1998 and was intended to provide increased protection to copyrighted works, particularly those in digital formats. Digital works are often protected by various measures to limit access, such as requiring passwords, encryption, or dongles, often referred to as Digital Rights Management (DRM). Section 1201 of the DMCA makes it illegal to "circumvent" any of these or other technological devices that the copyright owner may use to control or restrict access to the work. The Act also makes it illegal to manufacture or traffic in a device designed to circumvent a work's technological protection.

However, the Act recognized that some non-infringing uses, such as fair use, could be adversely affected by the inability to circumvent DRM protection. The Act allows the Librarian of Congress, as administrative head of the Copyright Office, to identify users and/or uses that are being adversely affected by the DMCA and exempt those uses from the anti-circumvention provisions. Exemptions are good for 3-year periods, after which they must be re-proven to the librarian or they expire. Exemptions were created in 2000, 2003, and 2006. However, the 2010 exemptions, released on July 27, are seen as among the most far-reaching and "pro-user" since the DMCA was enacted.

The exemption that is getting the most buzz in the mass media deals with "jailbreaking" iPhones and other smartphones. Jailbreaking refers to circumventing the software and firmware installed on smartphones in order to use software applications that haven't been approved for use on the phone. Apple, Inc. in particular has been noted for its strict management and approval of iPhone apps. The librarian approved an exemption finding that jailbreaking for the purpose of software interoperability either did not infringe on Apple copyrights or licenses, or constituted a fair use, and was being "adversely affected" by the DMCA.

Of greater interest to the academic community is an exemption that allows the de-scrambling of motion pictures on DVDs for selected educational uses, for documentary filmmaking, and for noncommercial videos.

All DVDs are protected by the Content Scrambling System (CSS.) This system utilizes a form of encryption lock and key on the content of the DVD. The CSS lock is encoded with the DVD while the CSS key is encoded with DVD players and drives. Putting a DVD into a player or drive unlocks the content and allows it to play, but restricts the ability to extract or access the specific content files to use for archival, educational, or piracy purposes. While software to unlock the CSS encryption has been available on various internet sites for some time, it remains a violation of the DMCA to use or legally market this kind of software.

The DMCA has a provision indicating that it does not affect "fair use" rights. However, courts have determined that a violation of the DMCA is a separate copyright violation from copyright infringement. Fair use is considered a defense to infringement, but is not considered a defense to the DMCA. If you decrypt a movie to use clips in a class, you still are violating the DMCA even if your purpose is a fair use. The courts have said that because "other means" of obtaining fair use exist, such as pointing a camera at the screen, using a script, or cuing up the relevant clips, are available, the DMCA is not "affecting fair use" rights.

The exemption recognizes that these "other means" are not good enough for college and university faculty, film studies students, documentary filmmakers, and for noncommercial videos. The exemption focused on their need to make and incorporate high-quality film clips in order to effectively utilize their fair use rights. Decrypting a motion picture on DVD to obtain the high-quality clip would no longer be a DMCA violation.

The exemption is not unlimited however. It is strictly limited to "motion pictures" on DVDs, and not all other forms of audiovisual works. It only applies to the faculty, students, filmmakers, and noncommercial video creators mentioned above. In addition, the use by these groups is limited to short film clips to be used for teaching, criticism, or commentary. Others who might use motion pictures or other A/V works, or for other purposes, are not covered by the exemption. It also doesn't address the problem of unlocking the CSS encryption. As noted, the market for such software is limited and of questionable legality. And, any use that is not a fair use, such as ripping the entire DVD, remains both a copyright infringement and a violation of the DMCA.

The exemption for ebooks originated in 2006 and was renewed in the current round of exemptions. However, the expanding ebook market gives this more importance. The exemption allows circumventing access controls in order to utilize read-aloud or screen readers for the visually impaired. The librarian recognized that the need to provide access to the visually impaired was a particular societal challenge that was being adversely affected by the DMCA. Concerns have been raised about the potential impact on the existing audio-book market, and whether the adverse impact is widespread enough to warrant the exemption.

Other exemptions allow for jailbreaking of used cellphones for use on alternate wireless networks, access to PC-based video games for testing and correcting security flaws, and for accessing computer programs protected by dongles that are damaged or obsolete. All of the exemptions are now in effect and will remain in effect until 2013.

Links

Statement of the Librarian of Congress on the Anticircumvention Rulemaking: http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html

Determination of the Librarian of Congress and Text of the Regulation: http://www.copyright.gov/fedreg/2010/75fr43825.pdf

The Recommendation of the Register of Copyrights: http://www.copyright.gov/1201/2010/initialed-registers-recommendation-june-11-2010.pdf

Section 1201(a)(1) title 17, United States Code: http://www.copyright.gov/title17/92chap12.html#1201


George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School of Law. He writes the Legal Issues column and feature articles for Information Today.

Email George H. Pike
Comments Add A Comment
Posted By Jason Scott8/5/2010 3:36:12 AM

Not ALL DVDs have the CSS copy protection installed - it's an option at the duplication level, one most Hollywood companies tend to utilize. All of my films have no CSS on them, and I in fact save a small amount of money choosing not to use the system.

In the new Blu-Ray systems, the protection system is both mandatory and costs money for the creator. (Over $1000 for a key, etc.) But it's not CSS, it's a newer system.

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