Thanksgiving for New DMCA Exceptions
Thanksgiving for New DMCA Exceptions:
Exciting and surprising good news from the world of copyright law: the Librarian of Congress has approved an exception to the anti-circumvention rules of the DMCA that prevented film and media studies professors from copying clips of DVDs for use in class. This legal obstacle to an educational use of digital content was one of the case studies at the center of our Digital Learning white paper released this summer by the Berkman Center. The final rule is here, and this page has links to more details.
The problem was a serious one for film professors. A provision of the Digital Millennium Copyright Law (or DMCA) prohibited the “circumvention” of “access controls” placed on digital media — including the CSS encryption used in just about all commercially distributed DVDs. A film professor who wanted to show three clips from three movies that exemplified, say, a particular cinematographic convention, had to break that encryption to make the “clip reel” (or else waste half the class period navigating scene selection menus to get to the relevant part). Until this ruling, breaking the encryption meant breaking the law — and while many (perhaps most) film professors did so anyway, they were taking a risk. Their dilemma illustrated the ridiculous over-inclusiveness of the DMCA, since the actual use of the film clips in class was unquestionably legal.
The new exception is one of six — count ‘em, six — granted in the three-year review undertaken as part of the DMCA by the Librarian of Congress (who oversees the Copyright Office). Others include:
- renewal of a provision meant to help blind readers (who often confront difficulty with DRM) circumvent access controls that prevent conversion of e-books to reading machines;
- a new provision allowing security research on CDs with DRM that would harm computers, such as the infamous Sony root kit; and
- a new provision allowing circumvention of access controls in cell phone handsets that can prevent use of the phone on other wireless carriers (including using your GSM phone in Europe — sort of defeats the purpose of GSM if you are “locked in” by your domestic carrier…).
I must say I am pleasantly surprised. The DMCA calls for such a rulemaking proceeding by the Librarian once every three years, but the two previous ones since the law passed have been disappointing. These rules are still quite narrow, but after all, the DMCA only authorizes exceptions that correct for situations where DRM prevents noninfringing uses of content. Advocates such as EFF, Peter Jaszi and the crew at the American University IP clinic, and Jennifer Granick and the Stanford Cyberlaw Clinic, among others, all deserve credit for commenting in a situation where they might have appeared to be tilting at windmills — their efforts have been rewarded.
Nice to enter the holiday giving thanks for, of all things, a DMCA rule!