The exemptions to the Digital Millennium Copyright Act (DMCA) that the Register of Copyrights announced last month have garnered much publicity, especially the one that dealt with jailbreaking iPhones.  In the university community, the exemption that deals with educational video has also gotten some press.  But what is a DMCA exemption anyway?  And, as one of my first correspondents on this subject asked, is there an appeals process once an exemption is issued.

The DMCA, which was passed in 1998 and became part of various sections of the federal copyright law, contains provisions that address issues of copyright in the digital age, and, in some instances, brought us into line with international intellectual property treaties.  Some of its most notable sections are the anti-circumvention provisions, which forbid breaking copy-protection mechanisms on digital media.  These provisions are in force non-infringing uses, such as those allowed under fair use.  However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years.  Exemptions stay in force for the next three years and must be renewed in order to continue beyond that period.

Can an exemption be appealed?  There is no precedent one way or another.   Some observers believe that, rather than litigate, Apple’s way of dealing with the jailbreaking exemption will be a patent application for systems and methods that will allow the company to detect whether an unknown third party has tampered with a device and take corrective action in response.