Free Culture @ NYU

Copyright Office Issuses New Exemptions for DMCA

Friday, 11.24.2006  –  Category: General, Links, News

In what some are calling an “early Christmas present” the US Copyright Office and Library of Congress have issued 6 new exemptions to the DMCA. Below is a list of the exemptions with my thoughts and attempted explanations underneath each one. Note that I am certainly not a lawyer and this is my opinion as a free culture activist and mine alone.

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

This is the exemption that Peter Decherney testified for. Peter is a film historian and often needs to show examples of films in his class. He usually compiles a series of quick clips from films to demonstrate a particular theme or example. Since quite a few films are available on DVD now, he uses them as his source medium, and instead of swapping in and out DVDs, he creates montages to keep the content engaging. Up until now (or rather the 27th of November), this has been illegal — Peter has been breaking the law in order to teach a class on film history. Because of this exemption, Peter and teachers like him are able to circumvent the CSS (ostensibly using DeCSS) in order to create engaging content for their students.

2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

There’s a huge demand for abandonware. So much so, that the big players have started incorporating functionality into their consoles so that users can buy old games for relatively little. Nintendo is intending on offering old NES and SNES games for $5 on the Wii. But then there are the games that were made for consoles whose parent companies went out of business, or simply stopped producing the hardware. Suppose you’re interested in researching a particular game for the Sega CD (check out this gem of a game by Penn and Teller) and you can’t get your hands on any hardware that works. There’s a need, then, for an emulator that works properly. My understanding is that under the DMCA, one could consider a console (or the media that games are stored on) as copy-protection technology itself (going out on a limb here..) and thus be prohibited from creating an archive copy of the console software or the game software in order to make an emulator. That is, under certain interpretations the DMCA prohibits archiving of old video games or computer programs. This exemption would seek to allow archival uses of programs or video games regardless of what copy-protection may have been originally used to prevent copying.

3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

You are an industrial manufacturer and paid $25,000 for a program in 1995 that contains all of the data for your manufacturing process. In an attempt to avoid “piracy” the manufacturer of the program includes a dongle — a piece of hardware that ensures you have a right to run the software you have purchased. Every time the program on your computer is run, it looks for the dongle and exchanges some encrypted keys to make sure that you’re the only person running the program and that the copy that is being run isn’t unlicensed or an infringing copy. Now suppose, 10 years later, that dongle breaks and becomes unavailable as the company who originally manufactured the software has gone bankrupt and is no longer suppling dongles. You, the industrial manufacturer are in quite a predicament if you want to keep using the software that you paid a license for. Your dongle doesn’t work, you can’t access your data, and suddenly your entire business is in jeopardy because it is illegal to “crack” the software that you purchased that is holding your data. This sounds far fetched — but it isn’t. There is some reason to believe that the software developers that force dongles into their software are in the same set of developers who are likely to go out of business; in general, the less compatible a developer’s product is, the less likely it will be popular and the more likely it is that the developer will go out of business. This is an over simplification, but it does highlight why dongles are not more commonly used.

But to get to the point — your dongle breaks, you need access to your data and/or program, and you now have at least 3 years to crack the program and get your data back without being liable for a DMCA violation.

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

eBooks is the generalized term for electronic books that are basically PDF files with some fancy DRM tacked on. The DRM can vary in terms of its restrictions, but most, if not all of the time, it prevents the eBook reader from accessing the plaintext of the book. This means that users are not able to copy text from books (say for citations, or any other fair use) or treat it like normal text. This fundamentally interferes with screen-readers that are used in disability technology as the text-to-speech depends on parsing plain text. If text is wrapped in DRM then it cannot be read by screen readers. eBooks and DRM break accessibility technology and this exemption allows for people converting copy-protected eBooks to regular PDF or text files so that they can access them properly.

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

This details unlocking cell phones, and is covered in Uninnovate.com’s excellent post on the exemptions here.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

This exemption covers security-related research. During the Sony BMG rootkit scandal, it was widely assumed that the research done to uncover Sony’s dirty little secret was actually illegal with respect to the DMCA. In discovering Sony’s rootkit, Mark Russinovich exposed himself to liability by removing and documenting the security vulnerability. Suppose instead of simply denying that the rootkit was a problem, Sony wanted to silence Russinovich. They could have leveraged the DMCA’s anti-circumvention provisions against the security researcher in an attempt to stop him from publicizing the problem. Instead of alerting the public to a serious security consideration, Mark would have had to deal with a DMCA cease and desist order, and Sony could have brought litigation against him and everyone who explained how to remove the rootkit.

This provision seeks to protect those who engage in “good-faith” testing of DRM in the name of security and computer science research. This probably would not have professor Ed Felten against the wrath of the music industry during the SDMI debacle.

But all of these exemptions are merely stop-gap provisions in trying to sustain the legal protections of DRM granted by the DMCA. The number of exemptions will surely increase over the years as more and more people using digital media realize that the DMCA criminalizes behavior that was once legal and accepted under normal copyright. The fact that exemptions must be continuously made and reformed must be some indication that this law is overbroad and perhaps unconstitutional.

UPDATE: Ed Felten has some comments about the exemptions here and Derek Slater has a roundup of comments as well.