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Monday, November 02, 2015
U.S. Copyright Office Proposes Changes To DMCA

The U.S. Copyright Office has released its list of copyright exemptions from the general prohibition against circumvention of access controls that prevent unauthorized access to copyrighted works.

In 1998, the U.S. Congress enacted the Digital Millennium Copyright Act (DMCA) to foster the development of the digital marketplace for copyrighted works. Among other things, the DMCA, makes it illegal to circumvent technological measures used to prevent unauthorized access to copyrighted works, including copyrighted computer programs. For example, the DMCA makes it illegal for a person to decrypt a DVD containing a copyrighted motion picture, or to bypass a password control to access a subscription video streaming service.

Section 1201, however, also instructs the Librarian of Congress to conduct a rulemaking proceeding every three years to evaluate and, as appropriate, adopt limited exemptions from the general prohibition against circumvention of access controls.

The most recent rulemaking, completed in October 2015, calls for public consultation on exemptions to existing copyright laws. These exemptions are needed to prevent copyright laws from impinging on consumer rights, or to prevent teaching and research activities.

The proposed exemptions are the following:

  • Motion pictures (including television programs and videos):
    • For educational uses by college and university faculty and students
    • For educational uses by K-12 instructors and students
    • For educational uses in massive open online courses
    • For educational uses in digital and literacy programs offered by libraries, museums and other nonprofits
    • For multimedia e-books offering film analysis
    • For uses in documentary films
    • For uses in non commercial videos
  • Literary works distributed electronically ( i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired or have print disabilities
  • Computer programs that operate the following types of devices, to allow connection of a used device to an alternative wireless network ("unlocking"):
    • Cellphones
    • Tablets
    • Mobile hotspots
    • Wearable devices (e.g., smartwatches)
  • Computer programs that operate the following types of devices, to allow the device to interoperate with or to remove software applications ("jailbreaking"):
    • Smartphones
    • Tablets and other all-purpose mobile computing devices
    • Smart TVs
  • Computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair and modification of the vehicle (effective in 12 months)
  • Computer programs that operate the following devices and machines, for purposes of good-faith security research (effective in 12 months or, for voting machines, immediately):
    • Devices and machines primarily designed for use by individual consumers, including voting machines
    • Motorized land vehicles
    • Medical devices designed for implantation in patients and corresponding personal monitoring systems
  • Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives and museums (as well as necessary jailbreaking of console computer code for preservation uses only)
  • Computer programs that operate 3D printers, to allow use of alternative feedstock
  • Literary works consisting of compilations of data generated by implanted medical devices and corresponding personal monitoring systems

The Librarian declined to adopt, exemptions with respect to the following proposed categories:

  • Audiovisual works, for broad-based space-shifting and format-shifting (declined due to lack of legal and factual support for exemption)
  • Computer programs in video game consoles, for jailbreaking purposes (declined due to lack of legal and factual support for exemption)
  • Literary works distributed electronically (e-books), for space-shifting and format shifting (declined because incomplete record presented)
  • Computer programs that operate "onsumer machines," for unlocking (declined because incomplete record presented)
  • Computer programs that operate dedicated e-book readers, for jailbreaking (declined because incomplete record presented)
  • Computer programs consisting of specific music recording software that is no longer supported, to allow continued use of the software (declined because incomplete record presented)

Public interest group Public Knowledge petitioned the US Copyright Group to exempt DVD and Blu-ray ripping from copyright laws, if the user is doing so for personal and non-profit reasons, such as to enable cross-device compatibility. The exemption, they say is needed to allow consumers to exercise their fair use rights, to allow consumers to move their legally owned media between their personal devices.

The US Copyright Office did grant limited exemption for DVD/Blu-ray ripping, in the context of ripping short portions for "use in documentary filmmaking" and for "nonfiction multimedia e-books offering film analysis." Teachers and students may also engage in disc ripping "for educational purposes" and for "film studies or other courses requiring close analysis of film and media excerpts."

An exemption was also granted for game DRM ripping for "local play" games. This means that for games which require online authentication even for local solo play, the DRM in these games can now be legally cracked in order to allow for continued play. As for creating replacement servers to allow the continued use of online games, this remains illegal.

Other exemptions include jailbreaking of mobile phones, tablets, wearables with cellular connections, and even smart TVs. Jailbreaking of game consoles remain illegal because the US Copyright Office says the activity is still too closely linked to piracy at the moment.

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