New DMCA Exemptions from Anti-Circumvention of Technological Access Measures
The Librarian of Congress has issued a new rule that became effective October 28, 2015, listing new exemptions to the Digital Millennium Copyright Act (“DMCA”) anti-circumvention provisions. The “DMCA”, as codified in section 1201 of title 17, makes it illegal to circumvent technological measures used to prevent unauthorized access to copyrighted works. However, this rule provides the classes of copyrighted works that are subject to a fair-use exemption. Every three years, the Librarian of Congress issues new rules on DMCA exemptions based on public comment, responses, and hearings to ensure that the law sufficiently considers changes in both technology and markets, as well as developments in the fair use doctrine. It is intended to ease the law in cases where people can show that it has had an adverse effect on their non-infringing use. The proponents have to reapply for an exemption putting forth evidentiary and legal bases for it because the law does not permit the Librarian to simply “renew” exemptions.
The subject matter of exempted classes adopted in the 2015 rulemaking is broad. The following categories/classes of works are exempt:
- Motion pictures (including television shows and videos) on various pre-recorded media or streaming platforms for educational and derivative uses, for multimedia e-books offering film analysis, for uses in documentary films and noncommercial videos;
- Literary works distributed electronically (including e-books) for purposes of accessibility for persons who are blind, visually impaired or print disabled;
- Computer programs that operate wireless devices (including cellphones, tablets, mobile hotspots and wearable devices), to allow connection of a device to an alternative wireless network, a.k.a. “unlocking”;
- Computer programs that operate smartphones and portable all-purpose mobile computing devices (including tablets and smart TVs), to allow the device to interoperate with or to remove software applications, a.k.a. “jailbreaking”;
- Computer programs that are contained in and control motorized land vehicles for purposes of diagnosis, repair and modification of the vehicle (effective in October 28, 2016);
- Computer programs that operate a device or machine primarily designed for use by individual consumers (including voting machines), motorized land vehicles and medical devices, for purposes of good-faith security research (for voting machines, effective immediately; for all others, effective in October 28, 2016);
- Video games for which outside server support has been discontinued (abandoned software), to allow individual play by gamers and preservation of games by libraries, archives and museums (as well as necessary jailbreaking of console computer code for preservation uses only);
- Computer programs that operate 3D printers to allow operators to use materials that are not approved by the printer manufacturers and;
- Literary works consisting of compilations of data generated by implanted medical devices and corresponding personal monitoring systems.