Mashup artists, smartphone users, academics, and people who are visually impaired are all winners, thanks to the latest exceptions made by the Librarian of Congress to the Digital Millennium Copyright Act.
Since its enactment in 1998, the impact of the DMCA on fair use of digitized materials has been subject to review every three years by the Librarian of Congress, who is administrative head of the U.S. Copyright Office, in consultation with LC’s Register of Copyrights.
“This is not a broad evaluation of the successes or failures of the DMCA,” Librarian of Congress James H. Billington explained July 26 in announcing the latest round of rulemaking, but “whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing, or is likely to cause, adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works.”
What’s only fair
Here’s a rundown of the new DMCA exemptions put into place:
- In a win for higher education, a 2006 exemption was significantly broadened; only film and media studies faculty had been allowed to circumvent digital rights management (DRM) software in order to create film-clip compilations for classroom and educational use. Now, the exemption also applies to students of media and film, as well as faculty from any subject discipline. “The record demonstrates that it is sometimes necessary to circumvent access controls on DVDs in order to make these kinds of fair uses of short portions of motion pictures,” Billington said.
- Also covered by the exemption are amateur filmmakers, who may now bypass DRM safeguards in order to incorporate an audio or visual excerpt of an artistic work in a new documentary or a noncommercial work of cultural commentary. “Noncommercial videos are a powerful art form online, and many use short clips from popular movies,” said Corynne McSherry, senior staff attorney at the Electronic Frontier Foundation. “Finally, the creative people that make those videos won’t have to worry that they are breaking the law in the process, even though their works are clearly fair uses.”
- The rulemaking exemption applies to e-readers as well: Consumers are now permitted to bypass the digital security mechanisms anchoring an e-book to a particular e-reader for the purpose of activating a read-aloud function or a screen-reader feature that can render the text into a specialized format for a visually impaired person.
- Also determined to be fair use is the modification by cell phone users of their device’s proprietary software in order to run third-party applications or to switch to a different carrier using that now-unlocked mobile phone—a practice known as “jailbreaking.” “The Copyright Office recognizes that the primary purpose of the locks on cell phones is to bind customers to their existing networks, rather than to protect copyrights,” asserted Jennifer Granick, civil liberties director for EFF. “The DMCA shouldn’t be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers.”
Room to grow
“Quite honestly, the entire rulemaking exceeded my colleagues’ and my expectations,” Corey Williams, associate director of ALA’s Office of Government Relations, posted July 28 to the ALA Washington Office’s District Dispatch blog. “It’s far too rare that we librarians, libraries, and the public who use them (OK, everyone) get as big a win as we all did.” Also hailing the exemptions was the Library Copyright Alliance, whose members are the American Library Association, ALA’s Association of College and Research Libraries, and the Association of Research Libraries.
While applauding the nature of the exemptions, Sherwin Siy, deputy legal director of the consumer-advocacy group Public Knowledge, offered a caveat: “At the same time, we continue to be disappointed that the Copyright Office under the Digital Millennium Copyright Act can grant extremely limited exemptions and only every three years. This state of affairs is an indication that the law needs to be changed.”