July 27, 2016

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DMCA Exemptions Granted

Last Wednesday afternoon the U.S. Copyright Office released its list of DMCA exemptions for the next three years. The timing is interesting: releasing news in the afternoon of the day before Thanksgiving is a near-optimal strategy if you want that news to escape notice and coverage in the U.S.

The purpose of these exemptions are to prevent harm to the public from overbreadth of the DMCA’s prohibition on circumventing technologies that control access to copyrighted works. Exemptions last three years.

The good news that that six exemptions were granted, the most ever:

  • Professors can make compilations of film and video material for research or teaching.
  • Archivists can preserve copies of old programs and computer games.
  • Anyone can work around broken hardware “dongles” that prevent access to software programs.
  • Blind people can use software to have e-books read aloud.
  • Wireless phone customers can switch their phones to a different wireless provider.
  • Anyone can study, test, or remove malware distributed on CDs.

(These are summaries; the exact scope of each exemption is detailed in the original document.)

I’m particularly happy about the last exemption, which was requested by Alex Halderman and me, with lots of help from Deirdre Mulligan and Aaron Perzanowski. The exemption is narrower than I would have liked – plenty of valuable research still raises legal issues – but it’s good to see official recognition that the DMCA has harmed research.

The not-so-good news is in some of the exemptions that were not granted. The exemption for censorware research was not renewed, mostly because its most effective advocates, such as Seth Finkelstein, got tired of re-requesting it. (Even if nothing has changed, each exemption must be rerequested every three years through the same bureaucratic process – one example of how the playing field is tilted against exemptions.)

Also, exemptions for space-shifting (e.g. downloading content into portable players like iPods) and backing up digital media were denied. As usual, the Copyright Office pretended not to know what everybody else seems to know, e.g. that digital media are fragile and need to be backed up.

On the other hand, they did seem to recognize the DMCA’s harm to public discourse. The exemptions for film scholarship, archiving, access by the blind, and malware research all address harms to public debate caused by the DMCA. Fair use is sometimes broken down into two categories: transformative uses such as scholarship, research and parody; and personal uses such as time-shifting and space-shifting. The Copyright Office now seems to recognize that the DMCA is harming transformative use.

But what they don’t yet see, apparently, is the harm to personal use – hence the denial of the space-shifting and backup requests. Worse yet, they didn’t even acknowledge that these personal uses are lawful in the first place. In short, the Copyright Office still isn’t willing to grapple with the issues of most direct interest to the public. Maybe they’ll catch on three years from now, or six. Or maybe the new Congress will act sooner and reform the DMCA.

(Derek Slater has a nice summary of some other commentary.)

Comments

  1. avatar Randy Picker says:

    On space-shifting and backup: I haven’t read the full DMCA report yet so I should be cautious, but perhaps they didn’t acknowledge that those personal uses were lawful in the first place because it is far from obvious that they are. The Copyright Act itself creates a limited backup right in favor of libraries in Section 108, but certainly no general express backup right. We would have to fight about fair use, but as should be clear by now, there is very little clarity there. As to space-shifting, same point; those in favor of space-shifting want to move directly from Sony’s time-shifting to space-shifting. The market circumstances are typically quite different now than they were when Sony was litigated–more markets are covered (if you want your DVD on your iPod you can buy the content again on iTunes)–and so there is a much greater claim of a direct harm to potential sales. Not a sure-thing winner, but again, more reason to think that space-shifting isn’t just easily legal.

  2. “Or maybe the new Congress will act sooner and reform the DMCA.”

    I wouldn’t count on it. Both parties have always been in support of the DMCA. So I doubt that any real changes will be made. There is simply too much money on the content owners side.

  3. “The market circumstances are typically quite different now than they were when Sony was litigated–more markets are covered (if you want your DVD on your iPod you can buy the content again on iTunes)–and so there is a much greater claim of a direct harm to potential sales. Not a sure-thing winner, but again, more reason to think that space-shifting isn’t just easily legal.”

    In other words, you think that maybe copyright holders should have a Constitutional right to double-dip?

    For shame.

  4. I agree with jamie, wouldn’t count on it
    because of the famous money problems

  5. “In other words, you think that maybe copyright holders should have a Constitutional right to double-dip?”

    Phrased from their perspective: “You think that having bought 1 copy of a copyrighted work should permit you to have as many personal copies as you like?” I think “space shifting” is arguably fair, but “space replicating” seems an awful lot like “copying”…

  6. Also phrased from their perspective, as often as not: “licensed, not sold”. Which sort of suggests they should only be able to charge per user, not per copy! (Software licenses with certain numbers of “seats” and the like particularly seem to go in this direction.)

  7. Archive old software and games? Does that mean that a packrat like me that wants to find and keep old 386 video games emulations for nostalgia sake can now do it?

    Right on :)

  8. I note that the provision relating to malware is only applicable to CD audio recordings and ancillary audio-visual recordings. If there is an issue that warrants this exemption (which there obviously is), then is should extend to any malware, no matter what the media is. Or are exemptions like this only made after there has been a scandal.

    Will this exemption get to be known as the “Sony Exception”.

  9. fff