DMCA Exemptions to the Prohibition on Circumvention

Overview
Congress passed the Digital Millennium Copyright Act in 1998, in part, to help copyright owners protect their exclusive rights against infringement facilitated by digital technologies, including the Internet. Section 1201 of the DMCA outlaws circumvention of any access control devices, such as password codes, encryption, and scrambling, that copyright owners may use to protect copyrighted works. The DMCA’s prohibition on circumvention extends to both the act of circumventing access control devices and trafficking in devices that may be used for this purpose.

The DMCA’s prohibition on circumvention is not absolute, however. Much like the way in which the Copyright Act limits copyright owners’ exclusive rights with the doctrine of fair use, the DMCA allows for circumvention in certain limited circumstances. First, the DMCA includes statutory exceptions, providing that circumvention is not unlawful when &mdash;


 * a library, archive, or educational institution accesses a commercial work only to make a decision about purchasing that work;
 * a federal, state, or local law enforcement officer accesses a work in the course of a lawful investigation;
 * a person who has lawfully obtained use of a computer program accesses a particular portion of the program solely to identify and study elements of the program that are necessary for interoperability and that have not been previously available to him or her;
 * a person who made a good faith effort to obtain permission accesses a lawfully obtained published work to conduct encryption research, provided that doing so does not otherwise violate the Copyright Act or the Computer Fraud and Abuse Act (Pub. L. No. 99-474); or
 * a person identifies and disables access control devices that also collect or disseminate personally identifying information about his or her activities.

Second, the DMCA establishes a rulemaking proceeding, wherein the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, may exempt for three years a “particular class of copyrighted works” from the DMCA’s prohibition on circumvention. According to the legislative history of the DMCA, the relatively short duration of these exemptions reflects Congress’s intent that the “§1201 rulemaking” functions as a “fail safe,” monitoring developments in the marketplace for copyrighted works and temporarily waiving enforcement of the prohibition on circumvention in response to those market changes.

Although these triennial exemptions apply to the DMCA’s anti-circumvention provision, they do not affect the DMCA’s prohibition on trafficking in devices that facilitate circumvention. Thus, while the act of circumventing a technological protection measure that controls access to an exempted class of work is not itself a violation of the DMCA during the three-year period, the making and distribution of technology that enables that circumvention is still prohibited and the exemptions cannot be invoked as a defense to an action brought under the DMCA’s anti-trafficking ban. Furthermore, the exemptions only apply to persons making non-infringing uses of the exempted classes of works &mdash; an individual who circumvents an access control to engage in copyright infringement will still be liable for those infringing acts.

DMCA § 1201(a)(1) Rulemaking Proceeding
The DMCA provides that the Librarian of Congress and the Register of Copyrights determine exemptions through a “rulemaking proceeding.” The DMCA’s legislative history specifies that this rulemaking proceeding is to be conducted through “notice-and-comment.” Accordingly, the Librarian and the Register provided notice of the rulemaking, solicited initial and reply comments from the public, and conducted hearings in granting the 2000, 2003, and 2006 exemptions. Content users who are presently affected, or likely to be affected within the next three years, may propose exemptions to the DMCA’s prohibition on circumvention.

Proponents of exemptions bear the burden of proof. Based upon its reading of the DMCA statute and legislative history, the Copyright Office has determined that to meet this burden of proof, proponents must (1) identify the specific technological measures causing the alleged problems and show that these measures effectively control access to copyrighted works; (2) explain the non-infringing activities that the prohibition adversely affects; and (3) establish that the prevented activities are, in fact, non-infringing under current law. Only technological measures that restrict access are considered; non-technological measures that restrict access (e.g., contracts or usage agreements) are not considered, nor are technological measures that control things other than access (e.g., reproduction or distribution).

The technological measure must directly lead to the problems of which the exemption’s proponent complains: “[a]dverse impacts that flow from other sources ... are outside the scope of the rulemaking.” The problems complained of must be more than “isolated harm or mere inconveniences,” and the adverse effects must be substantial. Claims of present problems and adverse effects should be supported by first-hand knowledge of “verifiable problems occurring in the marketplace” and, preferably, documented by factual and quantitative data. Claims of future problems and adverse effects should be especially well documented, because the legislative history of the DMCA provides that future harm should only be recognized “in extraordinary circumstances in which the evidence of likelihood is highly specific, strong and persuasive.”

Non-infringing activities must be recognized under the current law and must not be possible by alternative means. Proponents arguing for the renewal of existing exemptions must make their case de novo. The existence of an exemption that was granted in previous rulemaking proceedings does not create a presumption in its favor; rather, it must be justified as if it were a new exemption.

Even when proponents demonstrate that access control devices adversely affect their abilities to make non-infringing uses of copyrighted works, their exemptions are not automatically granted. Rather, the Librarian of Congress and the Register of Copyrights weigh the proven harm against other factors prescribed by statute in determining whether to grant an exemption. These factors include: These factors are intended to ensure that the Librarian and the Register balance the adverse and positive effects of access control devices, which not only limit access but also promote copyright owners’ willingness to disseminate their works in new ways. The Register also must consult with the Assistant Secretary for Communications and Information of the Department of Commerce, who heads the National Telecommunications and Information Administration, before recommending exemptions to the Librarian in order to ensure that the market benefits of both access control devices and potential exemptions are fully considered.
 * the availability of copyrighted works generally;
 * the availability of copyrighted works for nonprofit archival, preservation, and educational purposes;
 * the impact of access control devices on criticism, comment, news reporting, teaching, scholarship, and research;
 * the effect that circumvention of access control devices would have on the market for or value of copyrighted works; and
 * any other factors the Librarian deems appropriate.

Change in the Scope of the Term “Class of Works”
In granting exemptions, the Librarian of Congress and the Register of Copyrights must consider to what “class of works” the exemption will apply. The DMCA states that an exemption may be granted only for “a particular class of copyrighted works” upon a sufficient showing of adverse effects. The statute does not define what constitutes a “class of works.” The Register sought comments on this issue in the 1999-2000 rulemaking and concluded that a “class of works” was to be defined in relation to the categories of copyrighted works in §102 of the 1976 Copyright Act, namely, literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. However, the Register cited legislative history that expressed the view that the §102 categories were too broad to serve as the basis for a “class of works.” After consulting this legislative history and reviewing the statutory language, the Register determined that a “class of works” was to be a subcategory of the §102 categories that was “based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or users of the works.” The Copyright Office applied this definition of “class of works” in terms of the works’ attributes in granting the 2000 and 2003 exemptions. It also described “class of works” in terms of works’ attributes when seeking comments proposing exemptions for 2006.

However, in granting the 2006 exemptions, the Copyright Office for the first time expanded “class of works” to include classes defined in relation to their uses or users. The Copyright Office implicitly justified this shift by describing how adhering to the prior definition of “class of works” could harm either users or copyright owners in situations where class definitions are necessarily broad but harmed users are few in number. For example, in 2006, film and media studies professors described how their inability to circumvent access controls in order to make compilations of DVD clips for use with their students harmed their teaching. The class here cannot be defined more narrowly than in terms of “motion pictures and other audiovisual works” on DVD. However, granting such an exemption would harm the copyright owners unduly by allowing anyone to copy any film on DVD. Failing to grant such an exemption would harm the professors and their students, though. Thus, the Copyright Office reached a compromise consistent with the congressional intent in enacting §1201(a)(1) by allowing a “class of works” to be defined in terms of its uses or users. While several commentators noted that the Copyright Office essentially changed the meaning of “class of works” in the middle of the rulemaking process, its doing so will likely not affect the status of the exemptions.

Exemptions Granted
As a result of the most recent §1201(a)(1) rulemaking process, the Librarian of Congress granted the following six exemptions. 1. Audiovisual works included in the educational library of a college or university film or media studies department when circumvention is for the purpose of compiling portions of these works for educational use in the classroom. Before this exemption, film and media studies professors who wanted to show segments of DVDs to their students could not create compilations of those segments because copying them into a compilation would require bypassing the Content Scrambling System] (CSSs) protecting DVDs. Thus, professors and students previously lost 30 seconds of class time, or more, every time a new DVD was loaded and displayed its introductory materials. Under the exemption, professors can copy segments to other presentation media that allow seamless transitions between materials originally from different DVDs.

2. Preservation or archival reproduction, by libraries or archives, of computer programs and video games that were distributed in formats that have become obsolete and that require the original media or hardware as a condition of access. Computer programs and video games constitute important parts of modern American cultural history, and archives and museums are thus interested in preserving them for future generations. However, where these programs are protected by access control devices, such as hardware authentication, the DMCA precludes archivists from circumventing those devices even to make a copy for preservation purposes. Under this exemption, archivists can now work around such access control devices to make preservation copies.

3. Computer programs protected by “dongles” that prevent [access]] due to malfunction or damage and that are obsolete. Some manufacturers restrict access to their copyrighted works by relying on “dongles,” or hardware locks attached to computers that interact with software to prevent unauthorized access. But when the locks malfunction and the manufacturer is unresponsive or no longer in business, consumers are unable to use these programs because the DMCA bars them from bypassing the dongle to access the program. This exemption ensures that consumers facing problems with dongles can still use their software. 4. Literary works distributed in e-book format when all existing e-book editions contain access controls that prevent enabling the read-aloud function or screen readers. People who are blind or visually impaired rely on read-aloud programs and screen readers to turn eye-readable text into audible speech. However, some manufacturers distribute e-books with their read-aloud and screen reader functions disabled through access control devices. People who are blind or visually impaired cannot circumvent these access control devices to “read” the books’ content. With this exemption, they can circumvent access control devices when no version of the e-book works with the read-aloud or screen reader functions.

5. “Firmware” computer programs that connect cellular telephones to a particular communication network, when the circumvention is done to connect the telephone to another network. Cell phone companies prevent customers from “recycling” their cell phones, or using them with other carriers once their contracts have expired, by using “software locks” to block access to the operating system that connects the phone to the carrier’s network. While the DMCA prohibits circumventing software locks, this exemption allows cell phone users to bypass the software locks and change their phones over to other networks.

6. Good faith testing for correcting of security flaws or vulnerabilities in sound recordings and audiovisual works distributed in CD format. In November 2005, many consumers were unhappy to learn that Sony-BMG had sold them Celine Dion, Neil Diamond, and other music compact discs that secretly installed rootkit software on their computers. Rootkit is software designed to conceal running processes, files, or systems data from a computer’s operating system. Researchers attempting to determine the extent of the problem and potential fixes for it were stymied in their efforts by the DMCA’s prohibition on circumvention, which kept them from bypassing access controls on the CDs to figure out how the rootkit installation worked. With this exemption, researchers will be able to investigate and correct similar problems in the future.

These six exemptions are effective through October 27, 2009. They are the largest group of exemptions the Librarian has granted to date, although three of these (preservation or archival reproduction of computer programs and video games, computer programs protected by dongles, and e-books) essentially correspond to prior exemptions. The 2003 and 2006 e-book exemptions were slightly different in that the 2003 exemption allowed circumvention only where all existing editions of the work prevented enabling the e-book’s read-aloud function and screen reader, whereas the 2006 exemption allows circumvention where all existing editions of the work prevent enabling the e-book’s read-aloud function or screen reader.

Exemptions Denied
The 2006 rulemaking denied all but 6 of the 74 proposed exemptions. Among those denied were exemptions for:


 * space-shifting, which would have allowed circumvention in order to copy a lawfully obtained audiovisual or musical work from the medium or device on which it was intended for use onto other media or devices;
 * region-coded DVDs, which would have allowed users to play DVDs that are engineered to work only on players coded for one geographic region on players with different region codes;
 * works protected by access control devices that prevent the creation of back-up copies, which would have allowed consumers to make copies of lawfully obtained works to prevent their damage or destruction; and
 * audiovisual works and sound recordings protected by broadcast flags, which could in the future allow users to time-shift, format-shift, and record for personal use television and radio programs.

Many exemptions were denied because there was no evidence of harm, or no harm involving access control devices, and their proponents complained only of insubstantial inconvenience.

The 2006 rulemaking also marked the first time that the Copyright Office and the Librarian rejected a preexisting exemption proposed for renewal. The exemption for compilations consisting of lists of Internet programs blocked by filtering software, which had been granted in 2000 and 2003, was rejected in 2006 because its proponents relied on the record from three years earlier. Because proponents did not address the current market conditions or demonstrate that the exemption had been used, it was denied.

Public Responses and Reactions
Supporters of the 2006 exemptions characterized them as beneficial to consumers generally, or to specific user groups. Because the Librarian granted more exemptions in 2006 than in prior years, some predicted that the 2006 exemptions “will open ‘big chinks’ in DMCA authority.” Others focused specifically on the cell phone exemption, calling it “good news for consumers. Consumers pay dearly for their phones. It’d be nice if they can keep them working with other carriers.” The Chronicle of Higher Education similarly described the exemptions allowing film and media professors to create compilations and computer scientists to research the security flaws of sound recordings and audiovisual works distributed on CD as “wins” for scholars.

Some critics of the exemptions faulted the exemptions for not going far enough in protecting consumers. Pro-consumer groups noted that a number of the exemptions are tailored to narrow user groups not made up of “average” consumers (e.g., the exemptions for film studies professors and archiving computer programs), and that the exemptions that would have been most beneficial to consumers (e.g., space-shifting) were rejected. They also objected that the exemptions are too limited to counteract the negative effects of the DMCA, which “block[s] good technologies.” In contrast, some industry groups criticized the exemptions for their potential to harm specific industries. The cell phone exemption, in particular, generated significant opposition from cell phone carriers and industry associations. TracFone Wireless, Inc., has filed suit in federal district court in Florida challenging this exemption.