The Digital Millennium Copyright Act: Exemptions to the Prohibition on Circumvention
Released: 2008-12-22T00:00:00

Introduction

On November 27, 2006, the Librarian of Congress announced six exemptions to the Digital Millennium Copyright Act's (DMCA's) prohibition on circumvention of technological measures controlling access to copyrighted works. These exemptions allow users of copyrighted works to circumvent access control devices, under certain specified conditions, for a period of three years, in order to (1) make compilations of video clips for film and media studies courses; (2) archive obsolete computer programs or games; (3) bypass "dongles," or hardware locks, that are obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect wireless telephone handsets to communication networks; and (6) test for or correct security flaws in works distributed on compact discs. These exemptions will remain in effect until the Librarian of Congress makes a new determination as to classes of works to be exempted from the DMCA circumvention prohibition, which are expected to be published in fall 2009 following a rulemaking proceeding. This report describes the statutory basis for the exemptions, the triennial rulemaking proceeding that results in them, and the exemptions granted in 2006.

Background

The Digital Millennium Copyright Act

Copyright is a protection provided by U.S. law to literary, musical, dramatic, artistic, and other works that are original and fixed in a tangible medium of expression. The authors of copyrighted works, or those to whom they transfer their copyrights, have the exclusive rights to reproduce, distribute, and publicly perform or display the works, and to prepare derivative works based upon them. Congress passed the Digital Millennium Copyright Act ( P.L. 105-304 ) in 1998, in part, to help copyright owners protect their exclusive rights against infringement facilitated by digital technologies, including the Internet. Section 1201 of the DMCA outlaws circumvention of any access control devices, such as password codes, encryption, and scrambling, that copyright owners may use to protect copyrighted works. The DMCA's prohibition on circumvention extends to both the act of circumventing access control devices and trafficking in devices that may be used for this purpose.

The DMCA's prohibition on circumvention is not absolute, however. Much like the way in which the Copyright Act limits copyright owners' exclusive rights with the doctrine of fair use, the DMCA allows for circumvention in certain limited circumstances. First, the DMCA includes statutory exceptions, providing that circumvention is not unlawful when—

a library, archive, or educational institution accesses a commercial work only to make a decision about purchasing that work; a federal, state, or local law enforcement officer accesses a work in the course of a lawful investigation; a person who has lawfully obtained use of a computer program accesses a particular portion of the program solely to identify and study elements of the program that are necessary for interoperability and that have not been previously available to him or her; a person who made a good faith effort to obtain permission accesses a lawfully obtained published work to conduct encryption research, provided that doing so does not otherwise violate the Copyright Act or the Computer Fraud and Abuse Act ( P.L. 99-474 ); or a person identifies and disables access control devices that also collect or disseminate personally identifying information about his or her activities.

Second, the DMCA establishes a rulemaking proceeding, wherein the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, may exempt for three years a "particular class of copyrighted works" from the DMCA's prohibition on circumvention. According to the legislative history of the DMCA, the relatively short duration of these exemptions reflects Congress's intent that the "§ 1201 rulemaking" functions as a "fail safe," monitoring developments in the marketplace for copyrighted works and temporarily waiving enforcement of the prohibition on circumvention in response to those market changes.

Although these triennial exemptions apply to the DMCA's anti-circumvention provision, they do not affect the DMCA's prohibition on trafficking in devices that facilitate circumvention. Thus, while the act of circumventing a technological protection measure that controls access to an exempted class of work is not itself a violation of the DMCA during the three-year period, the making and distribution of technology that enables that circumvention is still prohibited and the exemptions cannot be invoked as a defense to an action brought under the DMCA's anti-trafficking ban. Furthermore, the exemptions only apply to persons making noninfringing uses of the exempted classes of works—an individual who circumvents an access control to engage in copyright infringement will still be liable for those infringing acts.

The DMCA § 1201(a)(1) Rulemaking Proceeding

Section 1201(a)(1)(C) of the DMCA provides that the Librarian of Congress and the Register of Copyrights determine exemptions through a "rulemaking proceeding." The DMCA's legislative history specifies that this rulemaking proceeding is to be conducted through "notice-and-comment." Accordingly, the Librarian and the Register provided notice of the rulemaking, solicited initial and reply comments from the public, and conducted hearings in granting the 2000, 2003, and 2006 exemptions. On October 6, 2008, the Copyright Office initiated a fourth § 1201 rulemaking, in order to determine the 2009 exemptions. Content users who are presently affected, or likely to be affected within the next three years, may propose exemptions to the DMCA's prohibition on circumvention. Once the proposals for exempted classes of works are received, the Copyright Office will publish a notice of proposed rulemaking and then hold a series of hearings in the spring of 2009 in which proponents and opponents of the proposed exemptions may present their views. The new exemptions are expected to be published by the fall of 2009.

Proponents of exemptions bear the burden of proof. Based upon its reading of the DMCA statute and legislative history, the Copyright Office has determined that to meet this burden of proof, proponents must (1) identify the specific technological measures causing the alleged problems and show that these measures effectively control access to copyrighted works; (2) explain the non-infringing activities that the prohibition adversely affects; and (3) establish that the prevented activities are, in fact, non-infringing under current law. Only technological measures that restrict access are considered; non-technological measures that restrict access (e.g., contracts or usage agreements) are not considered, nor are technological measures that control things other than access (e.g., reproduction or distribution). The technological measure must directly lead to the problems of which the exemption's proponent complains: "[a]dverse impacts that flow from other sources ... are outside the scope of the rulemaking." The problems complained of must be more than "isolated harm or mere inconveniences," and the adverse effects must be substantial. Claims of present problems and adverse effects should be supported by first-hand knowledge of "verifiable problems occurring in the marketplace" and, preferably, documented by factual and quantitative data. Claims of future problems and adverse effects should be especially well documented, because the legislative history of the DMCA provides that future harm should only be recognized "in extraordinary circumstances in which the evidence of likelihood is highly specific, strong and persuasive." Non-infringing activities must be recognized under the current law and must not be possible by alternative means. Proponents arguing for the renewal of existing exemptions must make their case de novo. The existence of an exemption that was granted in previous rulemaking proceedings does not create a presumption in its favor; rather, it must be justified as if it were a new exemption.

Even when proponents demonstrate that access control devices adversely affect their abilities to make non-infringing uses of copyrighted works, their exemptions are not automatically granted. Rather, the Librarian of Congress and the Register of Copyrights weigh the proven harm against other factors prescribed by statute in determining whether to grant an exemption. These factors include

the availability of copyrighted works generally; the availability of copyrighted works for nonprofit archival, preservation, and educational purposes; the impact of access control devices on criticism, comment, news reporting, teaching, scholarship, and research; the effect that circumvention of access control devices would have on the market for or value of copyrighted works; and any other factors the Librarian deems appropriate.

These factors are intended to ensure that the Librarian and the Register balance the adverse and positive effects of access control devices, which not only limit access but also promote copyright owners' willingness to disseminate their works in new ways. The Register also must consult with the Assistant Secretary for Communications and Information of the Department of Commerce, who heads the National Telecommunications and Information Administration, before recommending exemptions to the Librarian in order to ensure that the market benefits of both access control devices and potential exemptions are fully considered.

Change in the Scope of the Term "Class of Works"

In granting exemptions, the Librarian of Congress and the Register of Copyrights must consider to what "class of works" the exemption will apply. The DMCA states that an exemption may be granted only for "a particular class of copyrighted works" upon a sufficient showing of adverse effects. The statute does not define what constitutes a "class of works." The Register sought comments on this issue in the 1999-2000 rulemaking and concluded that a "class of works" was to be defined in relation to the categories of copyrighted works in § 102 of the Copyright Act of 1976, namely, literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. However, the Register cited legislative history that expressed the view that the § 102 categories were too broad to serve as the basis for a "class of works." After consulting this legislative history and reviewing the statutory language, the Register determined that a "class of works" was to be a subcategory of the § 102 categories that was "based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or users of the works." The Copyright Office applied this definition of "class of works" in terms of the works' attributes in granting the 2000 and 2003 exemptions. It also described "class of works" in terms of works' attributes when seeking comments proposing exemptions for 2006.

However, in granting the 2006 exemptions, the Copyright Office for the first time expanded "class of works" to include classes defined in relation to their uses or users. The Copyright Office implicitly justified this shift by describing how adhering to the prior definition of "class of works" could harm either users or copyright owners in situations where class definitions are necessarily broad but harmed users are few in number. For example, in 2006, film and media studies professors described how their inability to circumvent access controls in order to make compilations of DVD clips for use with their students harmed their teaching. The class here cannot be defined more narrowly than in terms of "motion pictures and other audiovisual works" on DVD. However, granting such an exemption would harm the copyright owners unduly by allowing anyone to copy any film on DVD. Failing to grant such an exemption would harm the professors and their students, though. Thus, the Copyright Office reached a compromise consistent with the congressional intent in enacting § 1201(a)(1) by allowing a "class of works" to be defined in terms of its uses or users. While several commentators noted that the Copyright Office essentially changed the meaning of "class of works" in the middle of the rulemaking process, its doing so will likely not affect the status of the exemptions.

The 2006 Exemptions

Exemptions Granted

As a result of the most recent § 1201(a)(1) rulemaking process, the Librarian of Congress granted the following six exemptions.

1. Audiovisual works included in the educational library of a college or university film or media studies department when circumvention is for the purpose of compiling portions of these works for educational use in the classroom54

Before this exemption, film and media studies professors who wanted to show segments of DVDs to their students could not create compilations of those segments because copying them into a compilation would require bypassing the content scrambling systems (CSSs) protecting DVDs. Thus, professors and students previously lost 30 seconds of class time, or more, every time a new DVD was loaded and displayed its introductory materials. Under the exemption, professors can copy segments to other presentation media that allow seamless transitions between materials originally from different DVDs.

2. Preservation or archival reproduction, by libraries or archives, of computer programs and video games that were distributed in formats that have become obsolete and that require the original media or hardware as a condition of access56

Computer programs and video games constitute important parts of modern American cultural history, and archives and museums are thus interested in preserving them for future generations. However, where these programs are protected by access control devices, such as hardware-authentication, the DMCA precludes archivists from circumventing those devices even to make a copy for preservation purposes. Under this exemption, archivists can now work around such access control devices to make preservation copies.

3. Computer programs protected by "dongles" that prevent access due to malfunction or damage and that are obsolete58

Some manufacturers restrict access to their copyrighted works by relying on "dongles," or hardware locks attached to computers that interact with software to prevent unauthorized access. But when the locks malfunction and the manufacturer is unresponsive or no longer in business, consumers are unable to use these programs because the DMCA bars them from bypassing the dongle to access the program. This exemption ensures that consumers facing problems with dongles can still use their software.

4. Literary works distributed in e-book format when all existing e-book editions contain access controls that prevent enabling the read-aloud function or screen readers60

People who are blind or visually impaired rely on read-aloud programs and screen readers to turn eye-readable text into audible speech. However, some manufacturers distribute e-books with their read-aloud and screen reader functions disabled through access control devices. People who are blind or visually impaired cannot circumvent these access control devices to "read" the books' content. With this exemption, they can circumvent access control devices when no version of the e-book works with the read-aloud or screen reader functions.

5. "Firmware" computer programs that connect cellular telephones to a particular communication network, when the circumvention is done to connect the telephone to another network62

Cell phone companies prevent customers from "recycling" their cell phones, or using them with other carriers once their contracts have expired, by using "software locks" to block access to the operating system that connects the phone to the carrier's network. While the DMCA prohibits circumventing software locks, this exemption allows cell phone users to bypass the software locks and change their phones over to other networks.

6. Good faith testing for correcting of security flaws or vulnerabilities in sound recordings and audiovisual works distributed in CD format65

In November 2005, many consumers were unhappy to learn that Sony-BMG had sold them Celine Dion, Neil Diamond, and other music compact discs that secretly installed rootkit software on their computers. Rootkit is software designed to conceal running processes, files, or systems data from a computer's operating system. Researchers attempting to determine the extent of the problem and potential fixes for it were stymied in their efforts by the DMCA's prohibition on circumvention, which kept them from bypassing access controls on the CDs to figure out how the rootkit installation worked. With this exemption, researchers will be able to investigate and correct similar problems in the future.

These six exemptions are effective through October 27, 2009. They are the largest group of exemptions the Librarian has granted to date, although three of these (preservation or archival reproduction of computer programs and video games, computer programs protected by dongles, and e-books) essentially correspond to prior exemptions. The 2003 and 2006 e-book exemptions were slightly different in that the 2003 exemption allowed circumvention only where all existing editions of the work prevented enabling the e-book's read-aloud function and screen reader, whereas the 2006 exemption allows circumvention where all existing editions of the work prevent enabling the e-book's read-aloud function or screen reader. See Appendix for a comparison of the exemptions granted in 2000, 2003, and 2006.

Exemptions Denied

The 2006 rulemaking denied all but 6 of the 74 proposed exemptions. Among those denied were exemptions for

space-shifting, which would have allowed circumvention in order to copy a lawfully obtained audiovisual or musical work from the medium or device on which it was intended for use onto other media or devices; region-coded DVDs, which would have allowed users to play DVDs that are engineered to work only on players coded for one geographic region on players with different region-codes; works protected by access control devices that prevent the creation of back-up copies, which would have allowed consumers to make copies of lawfully obtained works to prevent their damage or destruction; and audiovisual works and sound recordings protected by broadcast flags, which could in the future allow users to time-shift, format-shift, and record for personal use television and radio programs.

Many exemptions were denied because there was no evidence of harm, or no harm involving access control devices, and their proponents complained only of insubstantial inconvenience.

The 2006 rulemaking also marked the first time that the Copyright Office and the Librarian rejected a preexisting exemption proposed for renewal. The exemption for compilations consisting of lists of Internet programs blocked by filtering software, which had been granted in 2000 and 2003, was rejected in 2006 because its proponents relied on the record from three years earlier. Because proponents did not address the current market conditions or demonstrate that the exemption had been used, it was denied.

Public Responses and Reactions

Supporters of the 2006 exemptions characterized them as beneficial to consumers generally, or to specific user groups. Because the Librarian granted more exemptions in 2006 than in prior years, some predicted that this year's exemptions "will open 'big chinks' in DMCA authority." Others focused specifically on the cell phone exemption, calling it "good news for consumers. Consumers pay dearly for their phones. It'd be nice if they can keep them working with other carriers." The Chronicle of Higher Education similarly described the exemptions allowing film and media professors to create compilations and computer scientists to research the security flaws of sound recordings and audiovisual works distributed on CD as "wins" for scholars.

Some critics of the exemptions faulted the exemptions for not going far enough in protecting consumers. Pro-consumer groups noted that a number of the exemptions are tailored to narrow user groups not made up of "average" consumers (e.g., the exemptions for film studies professors and archiving computer programs), and that the exemptions that would have been most beneficial to consumers (e.g., space-shifting) were rejected. They also objected that the exemptions are too limited to counteract the negative effects of the DMCA, which "block[s] good technologies."

In contrast, some industry groups criticized the exemptions for their potential to harm specific industries. The cell phone exemption, in particular, generated significant opposition from cell phone carriers and industry associations. For example, in December 2006, TracFone Wireless, Inc., filed suit in federal district court in Florida challenging this exemption; however, the lawsuit was formally withdrawn by the company in June 2007. One reason for dropping the lawsuit, according to the company, was because TracFone has experienced success in suing resellers that make retail purchases of thousands of new TracFone handsets, then unlock them for sale overseas. Federal courts have held that the cellphone exemption does not apply to companies that purchase and unlock TracFone handsets in bulk "for the purpose of reselling those handsets for a profit, and not for the sole purpose of lawfully connecting to a wireless telephone communication network." However, some legal scholars and other observers have questioned whether these judicial opinions have interpreted the cellphone exemption too narrowly and, as a result, have rendered the exemption effectively "useless."

Legislation in the 110th Congress

Representative Rick Boucher introduced H.R. 1201 , the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act of 2007), in the 110 th Congress; the bill was later referred to the House Subcommittee on Courts, the Internet, and Intellectual Property. Section 3(a) of H.R. 1201 would have codified the Librarian of Congress's 2006 exemptions and made them permanent (rather than have them be subject to renewal, revision, or rejection in 2009). In addition, Section 3(b) of the bill would have authorized six additional exemptions, for the following circumstances in which technological protection measures may be circumvented:

(1) instructors wishing to make a compilation of portions of audiovisual works for educational use in a classroom (and therefore not limited solely to college-level media studies courses, as in the Librarian's first exemption);

(2) consumers wanting to skip past or avoid commercials or personally objectionable content in an audiovisual work (however, the sponsor of the bill cautions that this provision "does not authorize consumers to make back up DVDs for archival or any other purpose");

(3) consumers interested in transmitting a work over a home or personal network, but not in order to upload that work to the Internet for mass, indiscriminate redistribution;

(4) individuals wishing to gain access to one or more public domain works that are included in a compilation consisting primarily of works in the public domain;

(5) reporters, teachers, and others wanting to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; and

(6) a library or an archive satisfying the requirements of 17 U.S.C. § 108(a)(2), needing to preserve or secure a copy or to replace a copy in its collections that is damaged, deteriorating, lost, or stolen.

Conclusion

The 2006 exemptions to the DMCA's prohibition on circumvention of technological measures controlling access to copyrighted works allows users, under certain circumstances, to circumvent those access controls in order to (1) make compilations of video clips for film and media studies courses; (2) archive obsolete computer programs or games; (3) bypass "dongles," or hardware locks, that are obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect wireless telephone handsets to communication networks; and (6) test for or correct security flaws in works distributed on CD. These exemptions are effective until October 27, 2009, at which time they will be superseded by new exemptions issued by the Librarian of Congress, on the recommendation of the Register of Copyrights, following a notice-and-comment rulemaking proceeding conducted pursuant to 17 U.S.C. § 1201(a)(1). H.R. 1201 , introduced in the 110 th Congress, would not have altered the triennial rulemaking proceeding, but rather would have codified the 2006 exemptions and statutorily authorize six new exemptions to Section 1201 of the DMCA. The outcome of the fourth § 1201 rulemaking proceeding, currently underway and scheduled for completion by fall of 2009, will likely influence whether the 111 th Congress considers similar or other legislation relating to DMCA exemptions.

Appendix. Exemptions Granted under 17 U.S.C. §§ 1201(a)(1)(B)-(C) in 2000, 2003, and 2006