Copyright Office Grants Six Exemptions to Digital Millennium Copyright Act

Six new exemptions to the Digital Millennium Copyright Act (DMCA) make it easier for cell phone users to switch providers, film professors to play DVD clips in their classrooms, and CD users to detect self-installing software that may be infected. The exemptions—which also renew three nearly identical predecessors—took effect November 27. In granting them, the Copyright Office largely ignored calls from consumer advocacy groups for broader immunity.

Section 1201 of the DMCA prohibits circumvention of “a technological measure that effectively controls access” to a copyrighted work. The law also requires the Copyright Office to review potential exceptions to this requirement periodically, based on whether the prohibition is likely to inhibit non-infringing use of particular works for a succeeding three-year period. This year’s decision affects industries relating to film, cellular phones, computer programs, literary works, and sound recordings. The new definitions also indicate the Copyright Office has modified its approach to the classification process—choosing to condition some exemptions on the nature of use, in addition to the previously-noted character of the work.

The new exemptions allow circumvention of (A) locks on cellular phone software, known in the industry as “bootloader” programs, that prevent customers from switching carriers without obtaining new handsets; (B) DVD copy-protection for film professors seeking to compile parts of films for educational use; and (C) self-installing technology on CDs designed to protect copyrighted information contained therein, for those attempting to test that technology for security flaws. Three exemptions renewed previous ones allowing circumvention of (A) obsolete computer program formats for archival purposes; (B) obsolete dongles preventing access to computer programs due to irreparable malfunction or damage; and (C) electronic books for compatibility with technology designed to aid the blind.

The cell phone exemption is a boon for consumers, who generally may not access the software on their phones, a requirement should they wish to continue using those phones when switching providers. The main opposition came from copyright owners of sound recordings and audiovisual works whose products were offered on cellular phones; they worried the exemption would allow infringement. The Copyright Office quelled this fear by conditioning the exemption on “lawfully connecting to a wireless telephone communication network.” Still, the decision has engendered criticism from another industry: Tracfone Wireless, Inc., the nation’s largest provider of pay-as-you-go mobile services, has sued the federal government, claiming the exemption will make it more difficult to catch people who disable the locks and sell the phones overseas.
 
Copyright owners in the film industry opposed the DVD exemption, but the Copyright Office again addressed their concerns by conditioning the exemption on “educational use.” Opponents felt an exemption on DVD film protection generally would have offered too much protection for circumvention. Professors claimed they needed to show film clips on DVD to teach their classes; while this constitutes “fair use” under existing copyright law, circumventing the copy-protection technology was illegal. Although the film industry argued that professors could use media such as videotapes, the Copyright Office found the exemption necessary to the “pedagogical needs of the professors.”

In making its recent decision, the Copyright Office declined to grant exemptions on several claims backed by consumer organizations. For example, it refused an exemption for space-shifting—that is, the copying of protected works to transfer them to alternative media and devices. It also declined an exemption for circumvention of technology restricting the viewing of films to certain regions of the world, finding substitutes for such films and legal methods of accessing them readily available. In addition, it declined to grant an exemption for the production of back-up copies of DVDs and CDs, citing the growing problem of copyright infringement in this area.