On October 26, 2012, the Copyright Office issued its final rules regarding exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (“DMCA”). This is the fifth triennial rulemaking procedure held pursuant to the DMCA.

The DMCA prohibits circumvention of certain technological measures employed by or on behalf of the copyright owner to protect a work. In order to ensure that the public is still able to use certain classes of copyrighted works for non-infringing purposes, however, the DMCA requires the Copyright Office to issue exemptions to the anti-circumvention provisions every three years.

The five exemptions approved by the Copyright Office for the upcoming three years are as follows:

  1. Literary Works Distributed Electronically—Assistive Technologies. This category is a repeat from the last rulemaking process and permits circumvention of technological measures to access a work in order to assist the blind or other persons with a disability, provided that the work is lawfully obtained by the blind or disabled person so that the copyright owner was compensated for the copy of the work, or the work is lawfully obtained by an eligible nonprofit organization or governmental agency providing services to the blind or disabled. This rule is slightly revised from the exemption first created in 2003 which was limited to situations where no accessible formats were otherwise available for the work. The Copyright Office cites the increased prominence of e-books as one reason for the expansion of this exemption.
  2. Wireless Telephone Handsets—Software Interoperability. This exemption allows for circumvention of a wireless phone’s software applications where the circumvention is performed for the sole purpose of enabling interoperability of the applications with the software programs on the phone. This so-called “jail breaking” exemption is a continuation of an existing exemption. Interestingly, however, a request that this exemption be expanded to apply to tablets (e.g., iPad, Android devices, Microsoft tablet) was specifically rejected by the Copyright Office. According to the Copyright Office, the proposal requesting that the exemption apply to tablets was, among other reason, too broad and speculative.
  3. Wireless Telephone Handsets—Interoperability with Alternative Networks. This exemption allows a user to “unlock” a mobile phone to use it with another wireless telecommunications network if the operator of the network fails to unlock it in a reasonable period of time after a request from the user. This exemption is similar to exemptions from the previous two rulemaking procedures, but will only apply to phones acquired prior to the effective date of the exemption or purchased within 90 days thereafter. The Copyright Office added this limitation to the phones covered because it found that “with respect to new wireless handsets, there are ample alternatives to circumvention.”
  4. Motion Picture Excerpts—Commentary, Criticism, and Educational Uses. This exemption category applies to circumvention of films for purposes related to criticism or commentary. It applies when no alternative means exists and the user circumvents the Content Scrambling Service (CSS) on a DVD for a noncommercial video, documentary film, film study class, or film analysis on an e-book. This exemption also applies to movies that are protected online, and to screen-captures of short clips for criticism and comment from CSS-protected DVDs or movies protected online. The Copyright Office notes, however, that the fair use analysis that applies for nonfictional uses does not (as presented by the record) apply to use of the same clips in fictional works.
  5. Motion Pictures and Other Audiovisual Works—Captioning and Descriptive Audio. The final exemption applies to circumvention of protective technological measures for online films or DVDs for purposes of conducting research and development for the creation of video or audio players for visually or hearing impaired persons.

In order to establish a prima facie case for exemption of a particular class of works, a proponent of the exception must show to the Copyright Office that:

  • uses affected by the prohibition on circumvention are or are likely to be noninfringing; and
  • the technology controlling access to a copyrighted work is causing, or in the next three years is likely to cause, a substantial impact on those noninfringing uses.

As is often the case, the categories that were rejected by the Copyright Office are often as interesting as the groups that are exempted. Rejected categories include the tablet exemption discussed above, a videogame-console interoperability exemption, and an exemption for “space-shifting” movies on DVD and other media to other devices (e.g., circumventing a DVD’s CSS protection to put the movie on an iPad). In its rejection of the “space shifting” exception, the Copyright Office made clear that there are limits to the rulemaking process. For example, according to the Copyright Office, courts have not yet held that space shifting is a fair use that warrants the exemption from the anti-circumvention provisions. The Copyright Office acknowledged that while there is significant consumer interest in the proposed space-shifting exemption, and the law may evolve to accommodate space shifting in the future, the rulemaking process is not a forum in which to break new ground on the scope of fair use.