DCMA Exemptions 2006: the Good, the Bad, and the Bewildering
DCMA Exemptions 2006: the Good, the Bad, and the Bewildering
DCMA Exemptions 2006: the Good, the Bad, and the Bewildering

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    The Copyright Office dropped their DMCA exemptions, while most of us were passed out after Thanksgiving supper. You can read about them yourself here, with the Register of Copyrights' full analysis here[PDF]. These are exemptions to the DCMA's prohibition on circumvention of technological protection measures–for which the Copyright Office allows the public to apply every three years. These exemptions are erased every three years, unless one re-applies for an exemption and receives it. The prior two exemption rulemakings yielded two and four exemptions respectively, with each years exemptions generally consisting of a finer parsing of the previous' exemptions. Bill has already written a good analysis of two of the exemptions, but let's take a look at the whole thing, shall we?

    Exemptions to be (somewhat) Thankful for:

    • Exemption 1: Clip compilations of digital works for select class

    This permits the making of compilations of video clips for digitally protected audiovisual works; for example: making selections of digital clips of DVDs.

    • Exemption 2: Archiving of obsolete computer programs/games

    This permits the archive of computer programs and games that have become obsolete, or the hardware to run them is no longer available.

    • Exemption 3: Dongles; Exemption 4: Ebook for the visually impaired

    Essentially the same as the last rulemaking.

    • Exemption 5: Unlock mobile phones

    This exemption allows anyone (consumers included) to modify or “unlock” the software on a mobile phone to allow mobile phone to be used with another mobile phone carriers service. For example: the software on a phone purchased for use on Cingular's network may prohibit it from working on T-Mobile's network; this exemption would allow the software to be swapped-out to allow that mobile phone to work.

    • Exemption 6: Rootkit study and removal:

    The final exemption permits the study and correcting of technological protection measures that create security flaws or vulnerabilities that compromise the security of a personal computer. For example: Sony Rootkit software that was distributed on copy-controlled music CDs, that rendered personal computers vulnerable.

    Limited Exemptions:

    That's all fine and good, but there are a few problems with these exemptions. Exemption 1 is severely limited to the educations settings of university film or media studies departments, and to media studies or film professors, for the purposes of making compilations of portions of works. Not only can professors and students in different departments not take advantage of these provisions, but the consumer's ability to make excerpts of digitally protected audiovisual works for criticism or comment is still prohibited.

    Exemption 2 is a more finely diced version of the previous rulemaking's exemption–it's limited so as only to apply to archival purposes conduced a library or archive. Consumers again are left out in the cold.

    Exemption 5 is limited to allow compatibility between/among networks, not to allow for additional features on a mobile phone that may be crippled by a network operator–such as the use of bluetooth file transfers or java applications.

    Exemption 6 only applies to technological protection measures distributed on compact discs or CDs–not DVDs or any other physical media or delivery method. Six applies only to CD distributions of sound recordings and audiovisual works associated with those sound recordings–meaning, it does not include software distributed on CD that might contain technological protection measures that might spread security flaws or create vulnerabilities.

    Passed on Exemptions:

    So, these new-found exemptions are at best crippled, especially for consumers. There were a number of other exemptions applied for, but were rejected by the Copyright Office. One large one was for “space-shifting” which deals with moving legally obtained digital content from one device or format to another–say from a CD to an mp3 player or from a TiVo to an iPod.

    As to the space shifting exemption, the Copyright Office said that proponents failed to “cite legal precedent that establishes that such space-shifting is, in fact, a noninfringing use”; that “[c]learly such conduct infringes the exclusive reproduction right unless some exemption or defense is applicable”; and lastly that “[a]t most, the commenters have asserted that technological measures have made it difficult to make copies of musical and audiovisual works for use on other devices – a use that is either infringing, or, even if it were noninfringing, would be merely a convenience which is insufficient to support a claim for an exemption.”


    Changing the Rules:

    Something was different with the 2006 exemptions, and it was touched on by Bill in his post:

    This represents a substantial shift in the Copyright Office's interpretation of Section 1201. In 2000 and 2003, they vocally rejected any and all classes of works that were defined, even in part, by reference to specific users or intended uses. Classes of works had to be defined strictly in terms of the qualities of the works themselves.

    “Particular class of works” can now be viewed as to include particular types of uses and/or users. The Copyright Office's reasoning for now considering “use/user” as part of the exemption equation is:

    The interpretation of “particular class of works” applied herein is made in response to new factual situations presented in this rulemaking proceeding, and thus may represent an evolution from the approach taken in past rulemakings. Such reexamination is entirely appropriate in the context of this rulemaking. Indeed, “Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a 'reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.'” Ramaprakash, v. Federal Aviation Administration, 346 F.3d 1121, 1124 (D.C. Cir. 2003). The reasoned analysis establishing that the approach taken in this rulemaking is the product of careful deliberation, and not “casual ignorance” of the prior rulemakings, is provided herein.

    What this means is that the Copyright Office, despite expressly forbidding itself for the past six years and despite the objections of numerous organizations including the NTIA (with which the Office is statutorily required to consult), has changed its own rules on how it evaluates and creates an exemption.

    Substantively, this new “use/user” consideration should be viewed as a double-edged sword. The Copyright Office used it in this rulemaking to pair down the exemptions: limiting #1 to media studies or film professors; limiting #2 to libraries and archives; limiting #5 for the purpose of connecting to a mobile network; and limiting #6 to testing, investigating, or correcting security flaws.

    Although, substantively, many may consider it a good thing that the Copyright Office is seeing the light (especially for professors, libraries, and archives), procedurally, there's a big problem here: the Copyright Office changed the rules it had played by over the last six years.

    Why did the Copyright Office make the change on its own and not as a result of the many request on this specific issue? Why now and not years ago? Do we get to go back and reconsider all the previous requested exemptions based on this new standard? How does one challenge these whim-based rule changes of the Copyright Office, or the Office's jurisdiction for this rule making process in general?

    Although it's a good thing that we ended up with more DMCA exemptions in this third round of rulemakings, we now have more questions than answers. It would be useful for Congress to address the question of the Copyright Office's authority and consumers' rights and expectations in the upcoming 110th session.