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DMCA Exceptions for 2012 through 2015

Image via BigStock Photo

Intro

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.

DRM EBooks

[spoiler]Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read- aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) when a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or (ii) when such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.[/spoiler]

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

[spoiler]Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.[/spoiler]

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

[spoiler]

Computer programs, in the form of firmware or software, that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network or retailer no later than ninety days after the effective date of this exemption to connect to a different wireless telecommunications network, if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the owner of the wireless telephone handset, and when circumvention is initiated by the owner, an individual consumer, who is also the owner of the copy of the computer program in such wireless telephone handset, solely in order to connect to a different wireless telecommunications network, and such access to the network is authorized by the operator of the network.

 

[/spoiler] This is a big change from the previous years. This time you will only be able to change carriers within 90 days of October 28, 2013, the date these exemptions will go into effect. After January, you can only unlock (or root) the phone with the permission of your carrier. The industry proponents won the day here arguing that locking a phone to a carrier was a key part of their business model. Based on the Vernor decision, the Register felt that the software on a smartphone locking it was just licensed by the consumer instead of owning the software. Because of the licensing v. ownership change and evidence of a large market of unlocked phones on the market, the Register closed this loophole.

DRM for Movies

[spoiler]

• Motion pictures, as defined in 17 U.S.C. 101, on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives, such as noncircumventing methods or using screen capture software as provided for in alternative exemptions, are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) In noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators. For purposes of this exemption, ‘‘noncommercial videos’’ includes videos created pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.

• Motion pictures, as defined in 17 U.S.C. 101, that are lawfully made and acquired via online distribution services and that are protected by various technological protection measures, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives, such as noncircumventing methods or using screen capture software as provided for in alternative exemptions, are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) In noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators. For purposes of this exemption, ‘‘noncommercial videos’’ includes videos created pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.

• Motion pictures, as defined in 17 U.S.C. 101, on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where the circumvention, if any, is undertaken using screen capture technology that is reasonably represented and offered to the public as enabling the reproduction of motion picture content after such content has been lawfully decrypted, when such representations have been reasonably relied upon by the user of such technology, when the person engaging in the circumvention believes and has reasonable grounds for believing that the circumvention is necessary to achieve the desired criticism or comment, and where the circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes by college and university faculty, college and university students, and kindergarten through twelfth grade educators. For purposes of this exemption, ‘‘noncommercial videos’’ includes videos created pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.

• Motion pictures, as defined in 17 U.S.C. 101, that are lawfully made and acquired via online distribution services and that are protected by various technological protection measures, where the circumvention, if any, is undertaken using screen capture technology that is reasonably represented and offered to the public as enabling the reproduction of motion picture content after such content has been lawfully decrypted, when such representations have been reasonably relied upon by the user of such technology, when the person engaging in the circumvention believes and has reasonable grounds for believing that the circumvention is necessary to achieve the desired criticism or comment, and where the circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) In noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes by college and university faculty, college and university students, and kindergarten through twelfth grade educators. For purposes of this exemption, ‘‘noncommercial videos’’ includes videos created pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.

[/spoiler] TL;DR right? Basically the above exemptions allow DVDs to be ripped and excerpts from those DVDs to be used “for purposes of criticism and comment in noncommercial videos, documentary films, nonfiction multimedia ebooks offering film analysis, and for certain educational uses by college and university faculty and students and kindergarten through twelfth grade educators.” The reason for this exemption was due to the Register’s belief that the use of excerpts for comment and criticism for nonfiction purposes falls within fair use.

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.

[spoiler]Motion pictures and other audiovisual works on DVDs that are protected by the Content Scrambling System, or that are distributed by an online service and protected by technological measures that control access to such works, when circumvention is accomplished solely to access the playhead and/or related time code information embedded in copies of such works and solely for the purpose of conducting research and development for the purpose of creating players capable of rendering visual representations of the audible portions of such works and/or audible representations or descriptions of the visual portions of such works to enable an individual who is blind, visually impaired, deaf, or hard of hearing, and who has lawfully obtained a copy of such a work, to perceive the work; provided however, that the resulting player does not require circumvention of technological measures to operate.[/spoiler]

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.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

2 Comments

  1. Estara
    Oct 28, 2012 @ 15:34:53

    As always thanks for this fascinating insight and summary. I may not be American but your trends in these things often get exported to the EU, so I’m grateful for learning what may be in store.

    ReplyReply

  2. SAO
    Oct 29, 2012 @ 01:01:00

    So what the Copyright Office is saying is that we don’t own books or movies, we only have a license to use them in the way that the copyright holder chooses at this moment in time.

    Locking phones is a horrendous business model. Consumers get less choice and higher prices. I never buy locked phones. Of course, I don’t buy phones in America.

    ReplyReply

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