In October 2018, the U.S. Copyright Office issued new regulations expanding exemptions to the general prohibition against circumventing access controls to software and other copyrighted material. Do these exemptions impact you or your business? Learn more below.
The DMCA’s Anti-Circumvention Measures
Section 1201 of the Digital Millennium Copyright Act (DMCA) provides in part that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected” by United States copyright law. This section of the 1998 law was inspired in part by technologies directed to allowing copying of copy-protected videotapes and video disks by circumventing the copy-protection, and Congress observed at the time that technological protection measures can “support new ways of disseminating copyrighted materials to users and . . . safeguard the availability and legitimate uses of those materials.”
At the same time, Congress also recognized that such technological protection measures had the potential to inhibit otherwise lawful activity, and the Committee on Commerce recommended that a “fail-safe” mechanism be included in the law, which would “would monitor developments in the marketplace for copyrighted materials, and allow the enforceability of the prohibition against the act of circumvention to be selectively waived, for limited time periods, if necessary to prevent a diminution in the availability to individual users of a particular category of copyrighted materials.” Thus, Section 1201 also includes a provision under which every three years the Librarian of Congress (the Copyright Office is part of the Library of Congress), following a formal rulemaking procedure, identifies certain classes of copyrighted works for which the agency has determined that noninfringing uses are or are likely to be adversely affected by the prohibition and accordingly exempted from the prohibition. These classes, and particular uses, are identified in triennial regulations that establish certain protected exemptions. Importantly, these classes represent instances where the Copyright Office concludes that the underlying purpose of the circumvention is lawful.
These issues continue to be important, and since 1998 the expansion of software systems and controls in particular has warranted the flexible approach created when the law was passed.
Renewing Existing Exemptions
As part of the 2018 triennial review process, the Copyright Office reassessed the existing exemptions (i.e., those enacted in 2015) and determined (using a new streamlined process) that the rationale for the exemptions supported their renewal and extension for another three years.
The renewed extensions included, in general terms:
Assistive technology uses to allow e-books to be utilized for persons who are visually impaired or have other print disabilities;
Access to personal data generated by implanted medical devices;
“Unlocking” of cellphones and other devices to allow connection of a used device to an alternative wireless network;
“Jailbreaking” smartphones and other devices to allow the device to interoperate with or to remove software applications;
Access and modification of computer programs on electronic control units that control motorized land vehicles for diagnosis, repair, and lawful modification; and
Modification of control software for 3D printers to allow use of alternative feedstock.
Other renewed exemptions involve security research, video game preservation, and educational uses of video works. These existing exemptions, moreover, served as a baseline in the consideration of new expanded exemptions.
New and Expanded Exemptions for 2018
The Copyright Office also granted, in whole or in part, a number of petitions to create new or expanded classes of exemptions. In some instances these were based on the fact that a more robust record now existed, some reflected shifts in the technology marketplace, and others reflected newly recognized problems. The new and expanded exemptions included:
Accessibility uses by disability services professionals at educational institutions to create captions or audio descriptions for video works;
Expanding the “unlocking” exemption to cover unused cellphones and other devices;
Expanding the “jailbreaking” exemption to include voice assistant devices such as the Amazon Echo and Google Home;
Expanding the diagnosis, repair, and modification exemption for motorized land vehicles to allow for activities by independent repair shops (not only vehicle owners) and to include vehicle entertainment systems;
Access and modification of firmware in smartphones, home appliances, and home systems for diagnosis, maintenance, or repair; and
Expanding the exemption for 3D printers to allow for the sale of articles produced with such modified software.
Other expanded exemptions involve criticism of video works, software and video game preservation, and security research.
The Copyright Office did not simply “rubber stamp” petitions to expand exemptions. It denied, for example, requests to expand the “jailbreaking” exemption to include home security devices, agricultural equipment, and GPS trackers; to exempt “space shifting” such as transferring a work from a DVD to a computer hard drive; to exempt bypassing of content protection used with HDMI cables; and to exempt access to certain control systems and data on electronic systems used in aircraft.
This summary merely skims the surface of regulations, and underlying statutes, that are complex and detailed. If you or your business incorporates technological protection measures that may be impacted by the exemptions, or more importantly may wish to explore bypassing technological protection measures implemented by others, we strongly recommend speaking to an attorney who can consider and assess your specific circumstances.
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