Intellectual Property Law

Copyright Office issues new DMCA exemptions: iPhone jailbreaking, noncommercial use of DVD snippets

By McKee, Voorhees & Sease, P.L.C.

Every three years, the United States Copyright Office seeks proposals for exemptions from the Digital Millennium Copyright Act ("DMCA").  As part of the DMCA, it became unlawful to circumvent access control measures copyright holders used to secure their copyrighted works.  For example, it is arguably a violation of the DMCA to use a program to "break" the content scrambling system ("CSS") encryption used for standard DVDs in order to make a copy of the DVD, even if making such a copy would otherwise be considered fair use under copyright law (although a recent decision by the Fifth Circuit arguably holds to the contrary).  The purpose of the exemptions is to adapt to any unintended consequences of the DMCA, such that lawful uses of copyrighted works are not unduly restricted.

Today, the Copyright Office issued the list of exemptions in this go-around of the triennial rulemaking process.  Included among the newly-granted exemptions are circumvention of the above-mentioned CSS encryption to use "short portions" in new works for the purpose of criticism or comment, when the use is educational, noncommercial, or for documentary filmmaking.  This is an important exemption, as it arguably covers the majority of videos on sites such as YouTube where short portions of movies, televisions shows, and the like are posted as a portion of a remix or other creative work.

In addition, unlocking a mobile phone to allow software to be run (commonly called "jailbreaking") is also exempted from the DMCA.  Notably, this does not prevent phone providers (such as Apple) from placing the restrictions on a phone in the first instance, it simply makes it not a DMCA violation to remove the restrictions.

The Office also permitted circumvention of prohibitions on "read-aloud" functionality of e-books.  Some e-books have been sold with a limitation that prevents the user from using their e-reader's "read-aloud" function, essentially turning the e-book into an audio book.  This is now not a violation of the DMCA anti-circumvention provisions.

The Copyright Office revisits these exemptions every three years.  Click below for the full text of the exemptions granted, or head to the Copyright Office website for the full release.

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Full post as published by FileWrapper on July 26, 2010 (boomark / email).