New Anticircumvention Rulemaking: Major Shifts in the DMCA thanks to Library of Congress
Jul 26th, 2010 by Isaiah Beard

Some major policy shifts came out of the Library of Congress today that fundamentally changes how the Digital Millennium Copyright Act (DMCA) is applied and enforced.  This decision making is part of a three-year cycle in which the Librarian of Congress and the Register of Copyrights hear from the public and review policies regarding enforcement of the DMCA.  According to the Librarian of Congress’ statement:

Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.  I make that determination at the conclusion of a rulemaking proceeding conducted by the Register of Copyrights, who makes a recommendation to me.  Based on that proceeding and the Register’s recommendation, I am to determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works.

For this cycle, some rather significant rulings were made that are decidedly consumer-friendly and archivist-friendly.  In particular, the Register touched on:

  • Decryption of DVDs for fair use. Commercial and other video DVDs that are protected by the Content Scramble System (CSS) may now be lawfully decrypted, and the copy protection circumvented, for Fair Use purposes.  This includes extraction of short pieces for comment or criticism, educational uses in college and university settings, documentary filmmaking, and noncommercial videos.
  • Video games and computer programs. Recognizing that preservation of old, obsolete software packages like applications and video games can require some circumvention of anti-pirating schemes, it now appears that the LoC is giving some leeway here.  It is now legal to crack DRM on legally-obtained  games and software “when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities.”  It is also legal now to bypass protection measures where security dongles are required if the security measures “prevent access due to malfunction or damage and which are obsolete.”
  • eBooks. With some formats heavily protected by DRM measures, potential eBook buyers are often frustrated by an inability to transfer their legally-purchased content across platforms, and the blind are often thwarted in their attempts to use software that will allow this content to be read to them.  Today’s decision partially relieves this angst.  In cases where no other alternative exists, the LoC has deemed it legal to bypass Digital Rights management for eBooks for the purpose of enabling text-to-speech.
  • Mobile Devices and Wireless Phones. This part of today’s decision deals specifically with a smartphone user’s right to load “unauthorized” or modified operating systems on their mobile devices, in particular, the practice of jailbreaking on Apple iPhones.  The LoC has ruled that this activity does fall under Fair Use.

This decision has been over a year in the making, and the next review cycle is less than two years away, at which point these decision may be revisited, or possibly even more DMCA exemptions will be laid out.

The official announcement and accompanying documentation can be found on the US Copyright Office Website here.



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