In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) to implement the terms of two international treaties: the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. Included in the DMCA is a provision that prohibits individuals from circumventing access controls that have been placed on copyrighted works. Every three years the Librarian of Congress engages in a rulemaking process to carve out exemptions to this general prohibition. This blog will look at the most recent exemptions, with particular focus on the exemptions most likely to impact teaching and learning activities of faculty, staff, and students.
Section 1201: Prohibition Against Circumvention
Section 1201(a) of the U.S. Copyright Law prohibits individuals from circumventing technological protection measures (TPMs) that are in place to effectively control access to a copyrighted work. Under this anti-circumvention rule, a person could face civil and in some cases criminal penalties for bypassing, decrypting, descrambling, removing, deactivating, impairing, or otherwise avoiding protection measures that are commonly placed on all types of media, if the circumvention is done without the authority of the copyright owner. These penalties may exist even if the circumvention is done to access and use a work in a non-infringing manner (e.g., making a fair use of the work).
Every three years, however, the Librarian of Congress identifies classes of copyrighted works that may be exempt from this anti-circumvention rule. Exemptions are based on recommendations from the Register of Copyrights and are valid only for a three-year period. At the end of the three year period, the exemption expires, unless successfully renewed in the next rulemaking cycle. Exemptions cover classes of works for which the Librarian of Congress has determined non-infringing uses of the work would be adversely affected by the circumvention prohibition.
2015 DMCA Exemptions
On October 28, 2015, the final rules from the most recent triennial proceeding were announced. The final rules included a total of ten exemptions (a summary of all of the exemptions may be found here):
- Motion pictures (including television shows and videos)
- Literary works, distributed electronically, protected by TPM interfering with assistive technologies
- Computer programs that enable devices to connect to a wireless network (“unlocking”)
- Computer programs on smartphones and all-purpose mobile computing devices (“jailbreaking”)
- Computer programs on smart TVs (“jailbreaking”)
- Vehicle software to enable diagnosis, repair, or modification
- Computer programs to enable good faith research of security flaws
- Video games requiring server communication
- Software to limit feedstock of 3D printers
- Patient data from implanted networked medical devices
As seen in previous rulemaking proceedings, the final exemptions are narrowly crafted, coming with restrictive details on their appropriate application. A few of the exemptions, however, may provide useful for the educational activities undertaken by faculty, staff, and students of the University.
Motion pictures (including television shows and videos): This exemption is similar to the exemption granted in the previous rulemaking process. Under this exemption, non-circumventing screen capture software may be used to copy short portions of lawfully acquired motion pictures. These short portions must be used for the purposes of criticism or comment and may only be used in a limited number of specific settings, including use by college and university faculty and students for educational purposes. Short portions may also be used by faculty of MOOCs (provided other restrictions are met) and educators and participants in face-to-face nonprofit digital and media literacy programs offered by libraries and museums.
In some situations, screen capture technology may not be capable of capturing the level of high-quality detail needed for commentary or criticism. For these situations, circumvention may be permitted by college and university faculty and students, but only for film studies or other courses requiring close analysis of film and media excerpts. Circumvention in these situations is also limited to circumvention of TPMs on DVDs protected by Content Scrambling System, Blu-ray videos protected by Advanced Access Control System, or digital transmissions. As with screen capturing, mentioned above, only short portions of the motion picture can be used and only for the purpose of criticism or comment.
Literary works, distributed electronically, protected by TPM interfering with assistive technologies: This exemption permits a blind or other person with disability to circumvent TPMs on e-books when those TPMs interfere with read-aloud functionality or other assistive technologies. Copyright owners must be appropriately remunerated for the price of the mainstream copy of the work. This exemption was a renewal of a 2012 exemption and received no opposition.
Video games requiring server communication: This exemption permits circumvention of lawfully acquired video games when access to an external server that is needed for local gameplay is no longer provided. Circumvention must be made solely for the purpose of restoring access for personal gameplay or to allow preservation of the game by eligible libraries, archives, or museums.
Software to limit feedstock of 3D printers: This exemption permits the circumvention of computer programs in 3D printers in order to use alternative feedstock. The exemption does not extend to 3D printers capable of producing goods or materials for use in commerce or goods and materials whose production is subject to legal or regulatory oversight, making the exemption extremely limited in scope.
What does it all mean?
For the next three years, you may rely on the exemptions listed above to circumvent TPM on various forms of copyrighted works. If you would like to descramble, decrypt, remove, or deactivate an access control on a copyrighted work and you cannot rely on one of the exemptions to do so, you must seek permission from the copyright owner of the work.
These exemptions have the effect of promoting access to works, helping to facilitate the non-infringing use of these works in everyday teaching and learning activities. In three years, however, all exemptions will expire and proponents will have to petition to receive new exemptions as part of a new rulemaking process.
It is also important to remember that these exemptions only cover the circumvention of TPMs that are placed on a work to control access. Once TPMs have been circumvented, you must still ensure that your intended use of the copyrighted work is permissible under the law (e.g., meets all requirements of the TEACH Act or qualifies as a fair use).
Many have voiced the opinion that the DMCA exemption process, as designed, is in need of reform. The process is time-consuming, involving multiple rounds of public comments, hearings, and opportunities for response. The result is a handful of exemptions that only remain valid for a relatively short amount of time. In this rulemaking round, for example, multiple exemptions were sought to simply renew already existing exemptions. To address this issue and streamline the rulemaking process, the Register of Copyright has suggested that a presumption be made in favor of the renewal of exemptions when no meaningful opposition to the renewal has been raised. Further public input on the DMCA rulemaking process is currently being sought by the U.S. Copyright Office.
DMCA’s anti-circumvention rule continues to impact many different types of works and is increasingly impacting activities that don’t fall neatly into the realm of the U.S. Copyright Office’s area of expertise (e.g., the modification of software in motor vehicles or software within patient medical devices). As noted by the Copyright Office, these activities may be more properly handled by Congress or relevant regulatory agencies.
By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
 Full text of the final rules, public comments, hearing transcripts and exhibits, and the Register’s recommendations may be found at http://www.copyright.gov/1201/.
 While this exemption is applicable to museums, it is worth noting that museums must have permission or rely on fair use to make copies of games for purposes of preservation. Unlike libraries and archives, museums do not enjoy special protection for reproductions under Section 108.
 See, e.g., “Re:Create Coalition Reacts to Copyright Exemptions Released By The Library of Congress,” Press Release (October 28, 2015).
 Section 1201 Study: Notice and Request for Public Comment, 80 FR 81369 (Dec. 29, 2015), available at https://federalregister.gov/a/2015-32678.