What the New DMCA Exemptions Mean to You

The copyright blogs and news sites are buzzing today about the recent new exemptions made into the anti-circumvention rules of the DMCA.

To recap, the Digital Millennium Copyright Act of 1998 (PDF) has a controversial provision that prohibits the breaking of digital locks, more commonly known as DRM, for almost any purpose. The U.S. Copyright Office, however, every three years, revisits the issue and grants exception where breaking these locks are allowed.

Such a process began earlier this year and the rules were just handed down today. Specifically, the USCO designated six different classes of works where DRM circumvention is now acceptable.

The are as follows:

  1. DVD Circumvention: The new law allows users to circumvent the DRM on DVDs, specifically the Content Scrambling System, often known as CSS, in order to obtain short clips of the film for education use, documentary filmmaking and non-commercial clips.
  2. Jailbreaking to Install Applications: The new rules allow the “jailbreaking” of “wireless telephone handsets” to download and run unauthorized apps that are legally obtained. A good example is jailbreaking an iPhone to install apps not available in the App Store.
  3. Jailbreaking to Change Mobile Carriers: The new rules also allow for jailbreaking phones to switch them to a new carrier, for example, allowing iPhone customers to switch to Tmobile.
  4. Security Testing/Flaw Correction in Video Games: Users can now break encryption and copy protection on installed video games for the purpose of investigating and correcting security issues.
  5. Computer Programs Protected by Dongles: If a legally-owned computer program is protected by a dongle (USB key or other hardware attachment) and the dongle is broken and can not be replaced.
  6. Read-aloud Ebooks: Finally, if an ebook publisher has blocked access to the read-aloud functionality of an ebook reader and blocked access to screen readers, circumventing those locks is acceptable for the purpose of having such books read aloud. This most directly impacts the visually impaired.

So what does this mean for you? Probably not a great deal.

There’s a great deal of talk about the two jailbreaking exemptions and they are, almost certainly, the most important. If you want to move your iPhone to another carrier or install unauthorized apps, you can now do so legally.

However, practically speaking, not a lot has changed. Though Apple (and other phone manufacturers) had the right to file suit over jailbreaking, Apple hasn’t so even as an estimate 400,000 user used jailbreaking software on their iPhones. Instead, technological countermeasures, including OS updates, have been the primary tool and those will likely continue as nothing bars Apple from adding more measures to circumvent.

In short, though jailbreaking is legal, it is more of a symbolic than a practical change and it will still, in most cases, remain difficult and risky and there may still be legal issues revolving around the terms of the agreement signed when getting the phone..

Perhaps even more important, though less headline-grabbing, is the first exemption, which allows users to circumvent the CSS encryption on DVDs to gather short clips for non-commercial videos, documentaries and educational use.

But while this is a very powerful exemption, it is also very narrow. It is limited to a very small usage (short clips for various non-commercial uses), to one format of encryption (CSS) and one media type (DVDs). For example, Blu-Ray movies are not covered. Since the usage described would be, almost certainly, a fair use, the exemption merely legalizes a use of the content that would have been completely legal without DRM.

The remaining three are very narrow exemptions. The most interesting is the ebook one, which plays directly to the battle between the Author’s Guild and Amazon over the text-to-speech feature in the Kindle. Amazon eventually backed down, letting publishers decide whether to enable the feature on their books, but now this exemption would make it legal to circumvent that protection to make books readable.

The fourth item is the most specific, only allowing circumvention of video games on personal computers and only for security analysis and correction, no other reason. The fifth item, which deals with dongles, is also very specific and likely only impacts a small number of users.

It is important to note that these exemptions ONLY deal with the circumvention of DRM and not any actual copyright infringement. These protections often make it possible to be in violation of copyright law when doing something, without the DRM, would have been a fair use, such as with the first new exemption.

However, since most smaller content creators, including those reading this site, probably don’t use DRM in any capacity, the rules don’t affect them at all. But even Apple and the MPAA, who attempted to sway the USCO away from passing these exemptions during the hearings, probably had little to fear as they are extremely narrow.

In short, I think the USCO did a good job balancing the needs of consumers with the rights of creators and, if anything, may have made the exemptions too narrow in places.

I don’t think most content creators reading this will be impacted in any appreciable way, and the ones most directly affected would be those wanting to either jailbreak their phones or use clips from DVDs in videos. However, those groups have already largely partaken of their desired activities and few, if any, have faced any legal action over the circumvention.

Basically, it should be business as usual for most copyright holders, especially those who don’t rely on DRM.

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