Information on the New Digital Millennium Copyright Act Exemptions

On July 26th, the Library of Congress issued its triennial statement of exemptions to the portions of the Digital Millennium Copyright Act (DMCA) that forbid the circumvention of digital rights management (DRM) and other technological measures intended to prevent access to or copying of digital materials. Three years ago, the announced exemptions allowed film and media studies professors to crack the content scrambling system (a.k.a. CSS) on DVDs in order to rip short clips to make compilations for classroom use. This seemed at the time like an awfully restricted exemption — literally only film and media studies profs (no profs in other fields, and no students), literally only in order to create compilations of clips for use in the classroom (not for use in critical writing) — but it appeared then that the statement might be the thin end of the wedge.

And so it turns out to have been. The exemption on the cracking of CSS now extends to all college and university instructors, as well as students in film and media studies courses, and the permitted “educational uses” now include critical commentary and documentary production, as well as the exceptionally broad category of “non-commercial videos.”

Moreover, the newly announced exemptions eliminate claims of copyright violation as grounds for preventing jailbreaking and unlocking cell phones (though violation of a particular company’s Terms of Service may still be an issue), and they grant permission to those who circumvent protections on video games in order to test or study their potential security risks. Finally, the exemptions also permit circumventing DRM in order to activate the text-to-speech function of e-books for which the function has been disabled, as well as circumventing DRM in order to make e-books usable by “screen readers that render the text into a specialized format.”

In all of these cases, the exemptions come with the caveat that where there are other means of accomplishing the same thing (getting video clips; getting e-books with the audio component enabled), consumers must take the route that does not require circumventing DRM, but where there is no other way, the position seems to be that those who have legally purchased texts and objects protected by DRM have the right to break those systems for purposes that would otherwise fall under the category of fair use.

–Kathleen Fitzpatrick in the “ProfHacker” bloc at The Chronicle of Higher Education, July 27, 2010.

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