Oct 28 2012
On October 26, 2012, the Register of the Federal Copyright Office issued the triennial exemptions to the DMCA law. (PDF here) Every three years, the Register of the Copyright opens a proceeding whereby it accepts public arguments as to why certain anti circumvention processes should be allowed. It’s a flawed system but the only one we have in place.
The Register’s exemptions doesn’t mean that the disallowed techniques are not legal. Rather it blesses and sanitizes certain ways around copyright protection put in place by manufacturers like DRM on DVDs and books and technological locks on phones and tablets.
The “classes” as the Register calls them that are exempt from the DMCA act for the next three years are as follows. The actual language of the exemption is hidden but you can click on it to see if you would like to read it.
If you are sight impaired and the DRM prevents read aloud function or interferes with screen readers, DRM stripping is permitted so long as it is lawfully obtained. The latter is kind of ridiculous because you can’t strip the DRM on a book unless you have lawfully obtained it.
This is a change from the previous exemption which only permitted one to strip the DRM if the ebook was not available anywhere in a read aloud format. In support of removing this qualification, the proponents provided examples of books where the read aloud version was available in one format (like the iBookstore) but not at Barnes & Noble or Amazon.
If you are sight impaired or qualify under 17 U.S.C. 121, you will want to take a look at the Ars Technica post on removing the DRM using a plugin and Calibre. If you have questions about installing a plugin, I have instructions here. Also you might want to take a look at our Automator posts which imports a new copy of a Kindle or B&N book into Calibre.
Jailbreaking to allow you to install other, non authorized software
Jailbreaking is the term used to unlock a mobile phone. The Register agreed that this jailbreaking exception should be allowed to continue but would not apply it to tablets. The tortured reasoning behind this was because, according to the Register, the record did not support it.
The reason jailbreaking for phones is permitted per the Register is because it falls under a fair use. Jailbreaking allows owners of smartphones to “use them for the purpose for which they were intended.” The Register did not apply the same fair use argument to tablets. Instead the Register agreed with the opponents that the class of tablets was just too broad.
The Register determined that the record lacked a sufficient basis to develop an appropriate definition for the ‘‘tablet’’ category of devices, a necessary predicate to extending the exemption beyond smartphones.
Even ereaders could be considered tablets. Yes, can you imagine if eReaders could easily be hacked open and other applications could be installed, opening up the devices and platforms so consumers weren’t tied to one retailer? That would be awful./sarcasm
Unlocking to use your smartphone with another carrier
DRM for Movies
A second exemption for DRM stripping of movies was permitted essentially for the same reason as the ebook exemption was allowed. To the extent that DRM prevents captioning or limits accessibility, the disabled person is entitled to remove the DRM.
Considered by declined exemptions
The Register considered jailbreaking of console devices but felt that console devices (like Sony Playstation or Xbox) differed from smartphones in the fair use because the cost of developing a video game was very great and that the video game was inseparable from the console in these discussions.
The Register also considered the issue of space shifting for DVDs which would be ripping a DVD to play on an iPhone. Opponents of this exemption argued that consumers aren’t buying a copy of the movie. Instead, they are buying access to a copy of the movie, access that can only be used through the DVD player. I hadn’t heard of this argument before but I thought it provided some fascinating insight into the copyright holder’s belief that every use should require payment. Per the copyright holder argument, you don’t really own a physical copy of the movie, but rather access to a DVD playable only copy.
DVDCCA explained that consumers are able to purchase the copy at its retail price—typically less than 20 dollars—because it is distributed on a specific medium that will only play back on a licensed player
The Register felt that space shifting did not qualify under fair use and that wholesale copying of a creative work was primarily for infringing purposes even when it was done by a consumer who had lawfully obtained this access to a DVD copy.
There were others, but I felt that these were two of interest.