2010 Exemptions 2010 Exemptions for the DMCA: for the DMCA: What’s New?What’s New?

Christian BurrisChristian Burris

September 16, 2010September 16, 2010

A brief refresher…A brief refresher… The Digital Millennium Copyright Act (DMCA) The Digital Millennium Copyright Act (DMCA)

was enacted in 1996 was enacted in 1996 Primary purpose: “It criminalizes production Primary purpose: “It criminalizes production

and dissemination of technology, devices, or and dissemination of technology, devices, or services intended to circumvent measures services intended to circumvent measures (commonly known as digital rights management (commonly known as digital rights management or DRM) that control access to copyrighted or DRM) that control access to copyrighted works.” (works.” (Wikipedia entry))

Secondary purpose: “It also criminalizes the Secondary purpose: “It also criminalizes the act of circumventing an access control, whether act of circumventing an access control, whether or not there is actual infringement of copyright or not there is actual infringement of copyright itself. In addition, the DMCA heightens the itself. In addition, the DMCA heightens the penalties for copyright infringement on the penalties for copyright infringement on the Internet.” (Internet.” (Wikipedia entry))

Contents of the DMCAContents of the DMCA

Five provisions:Five provisions: Title I: WIPO Copyright and Performances Title I: WIPO Copyright and Performances

and Phonograms Treaties Implementation and Phonograms Treaties Implementation ActAct

Title II: Online Copyright Infringement Title II: Online Copyright Infringement Liability Limitation ActLiability Limitation Act

Title III: Computer Maintenance Title III: Computer Maintenance Competition Assurance ActCompetition Assurance Act

Title IV: Miscellaneous ProvisionsTitle IV: Miscellaneous Provisions Title V: Vessel Hull Design Protection ActTitle V: Vessel Hull Design Protection Act

However…However…

Provisions contain exemptions for Provisions contain exemptions for “fair use”“fair use”

17 U.S.C. 1201(a)(1) requires 17 U.S.C. 1201(a)(1) requires Librarian of Congress to consider Librarian of Congress to consider possible exemptions by the possible exemptions by the Copyright Office and issue a decision Copyright Office and issue a decision accordinglyaccordingly

Changes for exemptions are Changes for exemptions are amended every three yearsamended every three years

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A Fair(y) Use TaleA Fair(y) Use Tale http://www.youtube.com/watch?v=CJn_j

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A Fair(y) Use TaleA Fair(y) Use Tale http://www.youtube.com/watch?v=CJn_j

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Latest exemptionsLatest exemptions

Issued July 26, 2010- cover six Issued July 26, 2010- cover six classes of worksclasses of works

1.1. Motion pictures on DVDsMotion pictures on DVDs

2.2. Cellphone applicationsCellphone applications

3.3. Cellphone handsetsCellphone handsets

4.4. Video gamesVideo games

5.5. Computer programs protected by Computer programs protected by donglesdongles

6.6. EbooksEbooks

Exemption 1: Exemption 1: Motion pictures on DVDsMotion pictures on DVDs

What it says:What it says: ““Motion pictures on DVDs that are Motion pictures on DVDs that are lawfully made lawfully made

and acquiredand acquired and that are and that are protected by the protected by the Content Scrambling SystemContent Scrambling System when when circumvention is accomplished solely in order to circumvention is accomplished solely in order to accomplish the accomplish the incorporation of short portions incorporation of short portions of motion pictures into new works for the of motion pictures into new works for the purpose of criticism or commentpurpose of criticism or comment, and where , and where the person engaging in circumvention believes and the person engaging in circumvention believes and has reasonable grounds for believing that has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of circumvention is necessary to fulfill the purpose of the use in the following instances:the use in the following instances:

(i) (i) Educational uses by college and university Educational uses by college and university professors and by college and university film and professors and by college and university film and media studies studentsmedia studies students;;

(ii) Documentary filmmaking;(ii) Documentary filmmaking; (iii) Noncommercial videos”(iii) Noncommercial videos”

Exemption 1: Exemption 1: Motion pictures on DVDsMotion pictures on DVDs

What it means:What it means: Excerpts of films can be used at colleges Excerpts of films can be used at colleges

and universities by and universities by faculty in all academic faculty in all academic programsprograms andand students in film and media students in film and media studies programsstudies programs

Video artists can create “mashups” as long Video artists can create “mashups” as long as they aren’t used commerciallyas they aren’t used commercially

Copy protection software can be bypassed Copy protection software can be bypassed “…“…for the purpose of criticism or for the purpose of criticism or

comment”comment”

Exemption 2: Exemption 2: Cellphone applicationsCellphone applications

What it says:What it says: ““Computer programs that Computer programs that enable enable

wireless telephone handsets to wireless telephone handsets to execute software applicationsexecute software applications, where , where circumvention is accomplished for circumvention is accomplished for the sole purpose of enabling the sole purpose of enabling interoperability of such interoperability of such applicationsapplications, when they have been , when they have been lawfully obtained, with computer lawfully obtained, with computer programs on the telephone handset.”programs on the telephone handset.”

Exemption 2: Exemption 2: Cellphone applicationsCellphone applications

What it means:What it means: First instance of “jailbreaking” exemptionFirst instance of “jailbreaking” exemption Specifically addresses iPhone programs Specifically addresses iPhone programs

unsupported by Apple (Google Voice, unsupported by Apple (Google Voice, tethering)tethering)

Apple cannot legally prevent iPhone users Apple cannot legally prevent iPhone users from “jailbreaking” their phone to run the from “jailbreaking” their phone to run the software, and they cannot seek punitive software, and they cannot seek punitive damagesdamages

Apple does not have to support “jailbroken” Apple does not have to support “jailbroken” phonesphones

Exemption 3: Cellphone Exemption 3: Cellphone handsetshandsets

What it says:What it says: ““Computer programs, in the form of Computer programs, in the form of

firmware or software, that firmware or software, that enable used enable used wireless telephone handsets to connect wireless telephone handsets to connect to a wireless telecommunications to a wireless telecommunications networknetwork, when circumvention is initiated , when circumvention is initiated by the owner of the by the owner of the copy of the computer copy of the computer program solely in order to connect to a program solely in order to connect to a wireless telecommunications networkwireless telecommunications network and access to the network is authorized by and access to the network is authorized by the operator of the network.”the operator of the network.”

Exemption 3: Cellphone Exemption 3: Cellphone handsetshandsets

What it means:What it means: Second instance of “jailbreaking” Second instance of “jailbreaking”

exemptionexemption Users can “unlock” their phones to use Users can “unlock” their phones to use

with different carriers (iPhones on with different carriers (iPhones on Verizon network)Verizon network)

Apple does not have to support Apple does not have to support “jailbroken” phones“jailbroken” phones

Could void warranties and supportCould void warranties and support

Exemption 4: Video Exemption 4: Video gamesgames

What it says:What it says: ““Video games accessible on personal computers Video games accessible on personal computers

and protected by technological protection measures and protected by technological protection measures that control access to lawfully obtained works, that control access to lawfully obtained works, when circumvention is accomplished solely for the when circumvention is accomplished solely for the purpose of purpose of good faith testinggood faith testing for, investigating, or for, investigating, or correcting security flaws or vulnerabilities, if:correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is (i) The information derived from the security testing is used primarily to promote the security of the owner or used primarily to promote the security of the owner or operator of a computer, computer system, or computer operator of a computer, computer system, or computer network; andnetwork; and

(ii) The information derived from the security testing is (ii) The information derived from the security testing is used or maintained in a manner that does not used or maintained in a manner that does not facilitate copyright infringement or a violation of facilitate copyright infringement or a violation of applicable lawapplicable law.”.”

Exemption 4: Video Exemption 4: Video gamesgames

What it means:What it means: DRM protections for video games can DRM protections for video games can

be bypassed for security testing by be bypassed for security testing by owners and/or operators of computer owners and/or operators of computer hardwarehardware

Users cannot make use of findings from Users cannot make use of findings from security testing to violate existing security testing to violate existing copyright lawscopyright laws

Exemption 5: Exemption 5: Computer programs protected by Computer programs protected by

donglesdongles What it says:What it says:

““Computer programs protected by Computer programs protected by dongles that prevent access due to dongles that prevent access due to malfunction or damage and which are malfunction or damage and which are obsolete.  A obsolete.  A dongle shall be dongle shall be considered obsoleteconsidered obsolete if it is no longer if it is no longer manufactured or if a replacement or manufactured or if a replacement or repair is no longer reasonably available repair is no longer reasonably available in the commercial marketplace;”in the commercial marketplace;”

Exemption 5: Exemption 5: Computer programs protected by Computer programs protected by

donglesdongles What it means:What it means:

Physical devices for software Physical devices for software authentication purposes, like a lock and authentication purposes, like a lock and keykey

If replacements to the dongles are no If replacements to the dongles are no longer available, the programs they longer available, the programs they were protecting are open for usewere protecting are open for use

Continues exemptions from 2003 and Continues exemptions from 2003 and 20062006

Exemption 6: EbooksExemption 6: Ebooks

What it says:What it says: ““Literary works distributed in ebook Literary works distributed in ebook

format when all existing ebook editions format when all existing ebook editions of the work (including digital text of the work (including digital text editions made available by authorized editions made available by authorized entities) contain entities) contain access controls that access controls that prevent the enablingprevent the enabling either of the either of the book’s book’s read-aloud function or of read-aloud function or of screen readersscreen readers that render the text that render the text into a specialized format.”into a specialized format.”

Exemption 6: EbooksExemption 6: Ebooks

What it means:What it means: Readers can enable the “read aloud” Readers can enable the “read aloud”

feature of an ebook reader feature of an ebook reader Screen readers can deliver the text Screen readers can deliver the text

from ebooks into alternate formats on from ebooks into alternate formats on the device, e.g. magnifying textthe device, e.g. magnifying text

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Mashup example: Han Solo P.I.Mashup example: Han Solo P.I. http://www.youtube.com/watch?v=rYntj

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Mashup example: Han Solo P.I.Mashup example: Han Solo P.I. http://www.youtube.com/watch?v=rYntj

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AnalysisAnalysis

Electronic Frontier Foundation says Electronic Frontier Foundation says ruling offers “new legal protections ruling offers “new legal protections for video artists, cellphone for video artists, cellphone jailbreakers, and unlockers.”jailbreakers, and unlockers.”

Library Copyright Alliance praises Library Copyright Alliance praises the decision to give students and the decision to give students and faculty of all disciplines the right faculty of all disciplines the right circumvent copy protectionscircumvent copy protections

AnalysisAnalysis

Creating video clips from copy-protected Creating video clips from copy-protected DVDs now legal for university faculty of DVDs now legal for university faculty of all disciplinesall disciplines

Regarded as the most sweeping Regarded as the most sweeping exemption ruling on the DMCA yet, exemption ruling on the DMCA yet, especially in terms of “jailbreaking”especially in terms of “jailbreaking”

Still early to determine consequences of Still early to determine consequences of rulingruling

Potential to expand the ebook market to Potential to expand the ebook market to more usersmore users

LinksLinks

U.S. Copyright LawU.S. Copyright Law U.S. Copyright Office- Copyright Law, U.S. Copyright Office- Copyright Law,

Chapter 12 Chapter 12 http://www.copyright.gov/title17/92chap12.html#1201

Statement of the Librarian of Congress Statement of the Librarian of Congress Relating to Section 1201 Rulemaking Relating to Section 1201 Rulemaking http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html

WikipediaWikipedia Digital Millennium Copyright Act Digital Millennium Copyright Act

http://en.wikipedia.org/wiki/DMCA

LinksLinks Go Ahead, Jailbreak Your Smartphone Go Ahead, Jailbreak Your Smartphone

http://chronicle.com/blogPost/Go-Ahead-http://chronicle.com/blogPost/Go-Ahead-Jailbreak-Your-Sm/25792/Jailbreak-Your-Sm/25792/

Information on the New DMCA Exemptions Information on the New DMCA Exemptions http://chronicle.com/blogPost/Information-on-http://chronicle.com/blogPost/Information-on-the-New-DMCA/25795/the-New-DMCA/25795/

Letting Us Rip: Our New Right to Fair Use of Letting Us Rip: Our New Right to Fair Use of DVDs http://chronicle.com/blogPost/Letting-DVDs http://chronicle.com/blogPost/Letting-Us-Rip-Our-New-Right/25797/?Us-Rip-Our-New-Right/25797/?sid=wc&utm_source=wc&utm_medium=ensid=wc&utm_source=wc&utm_medium=en

LinksLinks DMCA Changes: Copyright Rules Made More DMCA Changes: Copyright Rules Made More

Flexible Flexible http://www.daniweb.com/news/story299581.htmlhttp://www.daniweb.com/news/story299581.html

EFF Wins New Legal Protections for Video EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Artists, Cell Phone Jailbreakers, and Unlockers Unlockers http://www.eff.org/press/archives/2010/07/26http://www.eff.org/press/archives/2010/07/26

The jailbreaking exemption has its limits The jailbreaking exemption has its limits http://news.cnet.com/8301-13578_3-20012109-http://news.cnet.com/8301-13578_3-20012109-38.html?tag=mncol;2n38.html?tag=mncol;2n

Library Copyright Alliance Press Release Library Copyright Alliance Press Release http://www.arl.org/news/pr/1201exempt-http://www.arl.org/news/pr/1201exempt-27july10.shtml27july10.shtml

Questions?Questions?