Legal Circumvention

One of the criticisms people have about the Digital Millennium Copyright Act relates to Section 1201, Circumvention of Copyright Protection Systems. Generally, if a digital work has some kind of technology stopping someone from copyright it or otherwise using it in similar ways, it is illegal to circumvent that technology- even if that particular use would be legal in other circumstances. Fair use*. Education. Libraries & Archives. Personal use. And so on. If there’s a digital lock on it, you can’t go around it except in some very specific circumstances. If you work at a library, archives, or nonprofit educational institution, for example, you can circumvent protection in order to evaluate whether or not you want to purchase the item. But otherwise, if you have a legitimate need to go around these measures, you have to rely on the Section 1201 Rulemaking procedure.

The Section 1201 Rulemaking procedure was intended to provide exemptions to this part of the law for legitimate uses. Reading the Congressional testimony on the DMCA is troublesome. If you’re interested in how the law came to pass, I highly recommend Jessica Litman’s 2001 book, Digital Copyright, particularly the chapter called “The Bargaining Table.” The chapter goes into some detail about content industries used their lobbying and access privileges to get the law past, generally at the public’s (and fair use’s) expense. (More on this and the role of cultural institutions later.)

During this procedure, the public and other interested parties have the opportunity to present arguments for the creation of exemptions. Opponents also have the opportunity to respond to these arguments. The Register of Copyrights and the Copyright Office make a report with recommendations about which exemptions should be made. The Librarian of Congress makes his or her decision about the exemptions. These exemptions last three years.

The latest Rulemaking provisions were delayed. They should have been released in 2009, but were instead extended, and the new exemptions were published today.
Section 1201 Rulemaking on Anticircumvention

There’s some good news, particularly for educators. I just contributed to a paper involving a film and media studies project, where educators and students pretty much need to rely on fair use for what they’re trying to do. The exemption that was previously very narrowly constrained to film and media professors has been broadened to include professors and students. That’s good. That being said, I still think that people will have to rely on fair use in the long-term, though, for reasons I’ll discuss below.

Edit: Neat- the circumvention also covers “noncommercial use;” I expect this will be debated in very strong terms in the near future. ^_^

The big news that’s being published on the tech blogs is that it is now legal to jailbreak your iPhone. I wonder, though, about how this will affect licensing terms in the near future…

There were other exemptions granted, such as for security testing of DRM on video games.

An interesting thing I noticed this time around was that one provision was considered but not recommended by the Register, but ended up being recommended by the Librarian: circumvention for the blind. The exemption allows circumvention of DRM when all existing electronic versions of a work prohibit the read-aloud or screen-reader functionality. The Register was sympathetic to the argument, but didn’t recommend it mainly due to the procedural requirements.

There are problems with the 1201 Rulemaking procedure. One, people have to present evidence that the exemption is needed every three years, and proponents of the exemption have the burden of proof. This process can certainly ensure that potentially legitimate exemptions are lost. That’s why we can’t circumvent site-blocking censorship lists anymore. That’s also why the Register didn’t recommend the exemption for the blind- her office felt that they didn’t meet the burden of proof required by the statute. The procedure is complicated, cumbersome, and can be expensive- and has to be repeated every three years. These circumstances don’t particularly favor the public interest.

Of course, this rulemaking actually refers to the circumvention itself- it doesn’t really address the distribution of material used for circumvention, which is also prohibited by 1201.

*The text of the law actually says that nothing in the law should affect fair use. While I do appreciate this inclusion in the text of the law, it doesn’t actually seem to have affected much. Litman’s “Digital Copyright” also notes that content owners have successfully argued that fair use can not be a defense against circumvention. There’s a bit of scholarship on the issue- check out Thomas J. Loos, Fair Use and the Digital Millennium Copyright Act, 13 Mich. Telecomm. Tech. L. Rev. 601 (2007), for one example.

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