Related

You may know the Digital Millennium Copyright Act (“DMCA”) from the widely deployed DMCA take-down notices that copyright owners use to remove putatively infringing content from the Internet. (See Rethinking Fair Use in the DMCA Context and DMCA Take-Down Notice: Best Practices.) Enacted in 1998, the DMCA is more, however, much more, with provisions scattered throughout the Copyright Act (the “Act”).

One such DMCA provision springs to mind triennially. Section 1201 of the Act prohibits circumvention of access control technologies ("ACT") associated with software and devices embodying software. Many such ACT are well known: encryption, scrambling, password protection. Subsection 1201(a)(1)(C) of the Act provides for exemptions from the circumvention rules. It mandates that the Librarian of Congress, with the advice of the Register of Copyrights (in turn advised by heads of other federal agencies and members of the public), determine once every three years whether users of certain copyrighted works are, or are likely to be, adversely affected by the imposition of ACT in the succeeding three-year period. In other words, despite the fact that the DMCA generally prohibits circumventing ACT attached to software, certain otherwise prohibited acts of circumvention, such as descrambling, decrypting, bypassing, deactivating, impairing and jailbreaking media or devices and their embedded software, are exempted under the Librarian’s triennial rulemaking.

The pace of technological change is swift; the pace of legislative change, glacial. Recognizing this, Congress incorporated Section 1201(a)(1)(C) into the DMCA to encourage the periodic recalibration between the desire of copyright owners to safeguard their content and devices and the desire of copyright users to access that content and the inner workings of those devices for purposes that are otherwise noninfringing. “Otherwise noninfringing” is key because the triennially granted exemptions don’t expand or circumscribe any other aspect of copyright law. They simply address access for purposes deemed noninfringing.

most recent triennial rulemaking exercise was concluded on October 28, when 22 exemptions went into effect (though several are delayed for twelve months). A number of this year’s exemptions, some of them repeated from previous triennial determinations, pertain to education.

  • Faculty and students at nonprofit institutions of higher education are again permitted to use screen-capture technology to access “short portions” of motion pictures, TV and videos for educational purposes and to use other circumvention technologies to access “short portions” of motion pictures, TV and videos for “film studies and other courses requiring close analysis of film and media excerpts lawfully acquired on protected DVDs or Blu-ray discs where screen capture software or other non-circumventing technologies are unable to produce the required level of high-quality content” required for such use. Short or limited portions are not defined, but Section 110(b) of the Act suggests that the proper limit is the amount of a film that might be shown in a live classroom session
  • Faculty of “massive open online courses” offered by accredited nonprofit educational institutions through online platforms may, for educational purposes, use the same circumvention technologies as those in the preceding bullet point, but this exemption is subject to additional restrictions aimed at preventing widespread distribution of content beyond the population of enrolled students
  • Similar privileges are extended for the first time to K12 educators and students, including those associated with accredited GED programs
  • Educators and participants in nonprofit digital and media literacy programs offered by libraries, museums and other nonprofit entities with educational missions may use circumvention technologies but solely for the purpose of face-to-face instructional activities

This year’s exemptions range far and wide to smartphones and tablets, motorized land vehicles, implanted medical devices, e-book readers, security research and more.

A complete summary of newly granted circumvention exemptions is available at http://copyright.gov/fedreg/2015/80fr65944.pdf.

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If you have any questions about the issues discussed in this alert please contact the Womble Carlyle attorney with whom you usually work.

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