Governmental Deliberations on Exemptions to the DMCA’s Ban on Circumvention
by Nicholas Bramble | July 26, 2010 | DMCA, copyright, user rights | No Comments
Today, following a rulemaking proceeding required by the Digital Millennium Copyright Act and administered by the U.S. Copyright Office, the Librarian of Congress announced six classes of works that would be exempt from the DMCA’s general ban on circumvention of technological measures that control access to copyrighted works.
Related to this rulemaking, here’s a fascinating take from the Copyright Office and Library of Congress on how they analyzed the evidence in the record and resolved competing fair use and policy claims relating to the new DMCA circumvention exceptions: http://www.copyright.gov/1201/2010/RM-2008-8.pdf. (Side note: The notice will be entered into the federal register tomorrow, and I hope that it will be up on the new federalregister.gov site as well, in an easier-to-read format!)
The notice, which is really worth reading in full, addresses (or at least hints at) the following questions, among many others:
Why is it that only college students/professors, and not K-12 students/teachers, are permitted to circumvent CSS to access DVD content? Why is this exception targeted chiefly towards criticism and commentary, given that a variety of other activities such as news reporting, teaching, scholarship, and research have typically been understood to be within the domain of fair use? (page 3)
Why is it permissible under fair use to jailbreak an iPhone in order to add applications to it, and why are Apple’s and NTIA’s arguments against fair use unpersuasive? (pages 4-5)
Why is it permissible for both non-profit entities and (some) commercial users to use software or firmware to retrofit old phones to connect to wireless telecom networks, and why is NTIA wrong in its argument that this exception should be limited to non-profit entities? (pages 6-7)
Why is a DMCA exception necessary to support research into security vulnerabilities of PC games, but not digital books, music, and movies? (pages 7-8)
When does a person gain the right to use self-help to circumvent an “obsolete” dongle (based either in a printer or USB port) that controls access to software? (page 9)
What proposed exceptions did the Register of Copyrights and the Librarian of Congress both decide to reject, and why? (pages 9-13)
How has copyright law failed to protect the interests of blind and print-disabled people in the digital age? Why has the Librarian of Congress rejected the arguments of the Register of Copyrights that the American Federation for the Blind failed to clear all the procedural hurdles necessary to justify a DMCA exception for read-aloud and text-rendering software circumventions? (page 14)
Overall, quite an interesting read—perhaps all the more so because it comes from a set of sources that occupy an often-overlooked place in the interpretation of copyright law.
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