DMCA Rulemaking: The Caveat

Many are celebrating the release of the Copyright Office's new set of 17 USC 1201 (a)(1) exemptions which allow for the circumvention of certain technological protections to make lawful uses of copyright protected works. They include circumventing:

  1. DVD protection for copying short portions for commentary or criticism;
  2. mobile phone programs for interoperability (such as adding a program that the operator doesn't want added);
  3. mobile phone programs for network interoperability (such as allowing use on another operator's network);
  4. video games for testing security flaws;
  5. computer programs protected by obsolete dongles; [This one is particularly satisfying to me as I helped the Internet Archive get this way back in 2003.]
  6. literary works when no edition allowing read-aloud exists.
I'm paraphrasing and over-simplifying, so take a look at the actual determination of the Librarian of Congress for more (and more accurate) detail.

While these are significant steps forward in both the specific "classes" exempted and the more reasonable scope of "class" that the Office continues to embrace, the celebration misses the fact that the vast majority of us will not be able to take advantage of the new exemptions. For example, the first exemption that allows for the circumvention of DVD access protection for educational and other uses of short clips clearly envisions students and media professors copying and short bits of films for use in criticism and discussion. This is a good step forward but its actual usefulness is hampered by the fact that the tools these students and professors might use to make that (now) lawful fair use are still illegal under 17 USC 1201 (a)(2) and/or 17 USC 1201 (b). The exemptions only apply to the actual act of circumventing (17 USC 1201 (a)(1)) but not any of the tools needed to accomplish the circumvention (17 USC (a)(2) and 17 USC 1201 (b)). So unless the students can somehow circumvent the DVD protections all by themselves, what they have received is a theoretically appealing but practically useless exemption. For students to actually be able to reasonably and legally make use of DVDs and cell-phone owners to exercise the ordinary "ownership" rights in their phones we need exemptions from (a)(2) and (b). Those are not forthcoming.

The exemptions won today are big steps forward and many were hard fought and well-won by the Electronic Frontier Foundation. The EFF deserves our thanks, congratulations and donation, but we still have a long way to go.

Update: El Pedro points out in the comments that there may be non-circumventing ways to record from DVD.


El Pedro / Logan 5 said...

Thank you for pointing out that the software tools remain inhibited. However, there are numerous legally distributed hardware devices used in professional and semi-professional video production processes which are able to defeat analog copy protection mechanisms which prevent re-digitizing a protected analog signal produced by a DVD player. Many higher educational institutions (but my no means all) have this sort of equipment as part of an instructional media lab, and so it will now be legal to use it for this purpose. Some examples of technology which works are professional playback and record decks, video mixers with genlock, professional IO breakout boxes and others. I hope this will be a starting point for some institutions to get busy exercising their rights.

khu said...

5. computer programs protected by obsolete dongles; [This one is particularly satisfying to me as I helped the Internet Archive get this way back in 2003.]

well punned.

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