Copyright Anti-circumvention provisions published; jailbreaking for phones okay but not tablets; access to DVDs for comment and criticism in education and documentary filmmaking increase

In 1998 Congress updated the copyright law with the Digital Millennium Copyright Act with hopes that it provided a forward-looking approach to the rapidly changing technologies affecting movies, music, television, publishing, the artists and all manner of creative endeavors. Among its two key provisions are the Section 512 take-down provisions[1] and the Section 1201 anti-circumvention provisions.

Section 1201(a)(1)(A) makes it a crime (and a tort) to “circumvent a technological measure that effectively controls access to a work protected” by copyright. Put another way, if a work protected by copyright is accessed through a digital lock, such as encryption or a digital authentication handshake, then the steps to get around that process violate sec. 1201. The law has some specific exemptions built in for library research, law enforcement, reverse engineering, and encryption research. But these exemptions are highly limited. As a result, Congress also called upon the Librarian of Congress, in consultation with the Register of Copyright to provide a review every three years to publish a list of additional exemptions.

The fifth such list has just been published: Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention. A copy of the final rule is here.

To be successful, an applicant seeking an exemption had to establish by a preponderance of evidence on a factual record that  “(1) uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, a substantial adverse impact on those uses.”

In most cases, the exemptions are modification of the petitioner’s actual request. Here is a summary of approved exemptions:

  1. Literary works distributed electronically – assistive technologies: 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 for the blind or persons with a disability under 17 U.S.C. 121.
  2. Wireless telephone handsets – software interoperability: Jailbreaking of smartphones – but not tablets – to allow for apps from outside the provider app store.
  3. Wireless telephone handsets – interoperability with alternative networks: phone unlocking to allow a handset to be redeployed on another phone network.
  4. Motion picture excerpts – commentary, criticism, and educational uses: circumventing the DVD Content Scrambling System for the traditional fair use purposes of comment and criticism where “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.” The exemption for motion picture capture makes fairly clear that screen capture is not a circumvention prohibited by the statute. The Register also supported the exemption because “[d]espite the commercial aspect of uses by documentary filmmakers and multimedia ebook authors, … when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard.”
  5. Motion pictures and other audiovisual works – captioning and descriptive audio: permits the circumvention of motion pictures and other audiovisual works contained on DVDs or delivered through online services to facilitate research and development of players capable of rendering captions and descriptive audio for persons who are blind, visually impaired, deaf, or hard of hearing.

In addition to this list, the report specifically identified a number of categories of works that did not earn an exemption.

Works in the public domain

Of greatest note is the ongoing refusal to provide an exemption to circumvent a digital protection measure to obtain a work in the public domain. The Register correctly notes that it is not a violation of section 1201 to circumvent a technological protection measure unless there is a copyright work being sought. Therefore no exemption is required.

This is more than parsing language. To create an exemption would suggest an expansion of section 1201 that is unwarranted. As a result, the report that the exemption is not needed provides ample protection to the public.

Space-shifting for DVDs

The other significant rejection was the space-shifting of DVD content to devices without DVD players such as iPads and other tablets. The U.S. has been behind Europe in providing that non-physical versions of movies are generally offered in streaming mode rather than download format. The ability to acquire a second format of the same content is also generally sold at a premium price. An exemption to section 1201 would have put significant pressure on the motion picture industry regarding this transition. It is likely that this will become of greater economic and legal importance by the next rule-making.

Jailbreaking Limited to Phones – No Tablets, Video-Game Consoles or Computers

The report also rejected the desire to permit video game console interoperability. Much like the rejection of tablet jailbreaking, the report refused to exempt console jailbreaking so that lawful third-party games could be used on a particular platform. In both instances, the Register rejected the evidentiary record on the matter. There is likely little evidence to be developed because the practice may be quite common and the benefits of enforcement are too limited.

The report similarly rejected a desired exemption for jailbreaking computers to allow installation of unauthorized operating systems. This appears to fail for the reasons stated in the other jailbreaking proposals. In contrast to the smartphone app stores, the Register takes the position that the other categories of interoperability limitation have not developed sufficient economic concerns to merit an exemption.

Taken together, the rule-making continues to reflect a very conservative, incremental approach to the development of new technology and the appropriateness of anti-circumvention self-help. The Register has made great strides regarding fair use in the educational and documentary filmmaking environments but was probably overly conservative on iPads and tablet computers.

Conclusion

As a whole, the report is thoughtful and predictable. The process restarts with each triennial review.

In each rulemaking proceeding, the Register and Librarian review the proposed classes de novo. The fact that a class previously has been designated creates no presumption that redesignation is appropriate. While in some cases earlier legal analysis by the Register may be relevant to analyzing a proposed exemption, the proponent of a class must still make a persuasive factual showing with respect to the three-year period currently under consideration. When a class has been previously designated, however, evidence relating to the costs, benefits, and marketplace effects ensuing from the earlier designation may be relevant in assessing whether a similar class should be designated for the subsequent period.

As the Register describes the process, it becomes clear how important the evidentiary record and the economic significance of the particular issue must be. Unless Congress has itself shown a preference for a class of users, such as persons with disabilities, the exemptions are limited to very large classes of users.

Of course, if you did not get what you wanted, start preparing your petition for rule-making VI – coming in just two years.


[1] Known as the DMCA Takedown Provisions, section 512 provide ISPs immunity from copyright liability if the ISP provides an effective method of accepting copyright infringement notice allegations and responds to those notices in a timely manner. Though highly criticized by some organizations, these provisions do not have a triennial review process.

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