Anticircumvention Provisions: Another side of the DMCA

Most people know of the Digital Millennium Copyright Act (DMCA) as a result of its takedown notice and safe harbor provisions.  Those provisions generate frequent discussion, particularly in the wake of a high profile case such as Viacom International, Inc. v. YouTube, Inc. YouTube’s motion for summary judgment in the face of Viacom’s claims of intentional, direct and vicarious copyright infringement was granted on the basis that YouTube was protected by the §512(c) safe harbor.

Anticircumvention is a less well-know side of the DMCA.  The DMCA anticircumvention provisions prohibit hacking software designed to prevent unauthorized copying, for example.  Antcircumvention was one of the topics in I Like (Big) Bots and I Cannot Lie: Bots as Copyright Infringement and DMCA Violations, an excellent post by Drew Boortz on Developing Concerns. Boortz described a recent case in which, as he saw it, the Ninth Circuit ruled that the copyright owner’s right to guard against unwanted access is one of the rights in the copyright bundle and was created by the DMCA. For those who have always believed that §106 defines the copyright bundle of rights, that’s an amazing ruling!   For me, the most intriguing part of the post was Boortz’s reference to the DMCA exemptions.

The DMCA implements two World Intellectual Property Organization treaties and contains five titles. Section 1201 incorporates the anticircumvention provisions. The first sentence reads, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  Under a 2001 court ruling, this meant that people were prohibited from using a decryption computer program to bypass the encryption features of a motion picture DVD so that they could freely copy the DVD. One of the arguments against technologic measures used to protect copyrighted works is that they prevent the fair use of those works.

That seems like a pretty straightforward prohibition, right?  Not so fast!  Section 1201(a)(1) also provides for a rulemaking procedure designed to soften the impact of the circumvention prohibition by exempting users of certain classes of copyrighted works from application of the prohibition.  Every 3 years, the Librarian of Congress, with input from the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce, sets the rules for the next three years.  The most recent set of rules became effective on July 27, 2010. If the exemptions change every three years, what does that mean for people who have built businesses or livelihoods that depend on the existence of one or more exemptions?

Six classes of works are currently exempt from the circumvention prohibition. Technical protections for motion pictures on DVDs can now be circumvented solely to allow the incorporation of short portions of the film into new works for the purpose of criticism or comment.  The use is limited to educational uses by college and university professors and certain students, to documentary filmmaking and to noncommercial videos.  It looks like some of the people who may have decrypted DVDs for fair use purposes prior to 2001 joined forces to persuade the Librarian of Congress to grant them an exemption. Other classes of exempt works include circumventing computer programs on wireless phones to enable application interoperability and to allow owners of used handsets to access a wireless network, and circumventing controls on personal computer video games to fix security bugs. I wonder how many similarly situated groups of potential fair users there are who could benefit from such an exemption.  It seems that taking advantage of the rule setting process is a great strategy for those who want to make fair use of copyrighted materials that are currently protected by technical measures.