On October 26, 2018, the Librarian of Congress issued the final rule for the current exemptions to the section of the Digital Millennium Copyright Act that prohibits circumvention of technological measures that control access to copyright protected works. We have written before about this area of the law and the rulemaking process involved (see our post on the previous exemptions from the last triennial proceeding in 2015).

The Prohibition against Circumvention under Section 1201

Section 1201(a) of U.S. Copyright Law prohibits the circumvention (e.g., descrambling, decryption, or removal) of a technological measure employed on or behalf of a copyright owner that effectively controls access to the copyright protected work. In order to ensure that non-infringing uses of copyrighted works are not unnecessarily inhibited by the prohibition on circumvention, however, a rulemaking session is held every three years to identify exemptions for particular classes of works.

Exemptions are determined by the Librarian of Congress, upon recommendation from the Register of Copyright, and remain in effect for three years.[1] There is no presumption that that a previously adopted exemption will be readopted, but new to the seventh triennial proceeding was the introduction of a streamlined process to renew exemptions adopted in 2015.

2018 DMCA Exemptions

On October 26, 2018, the final rules from the most recent triennial proceeding were announced.[2] The final rule includes exemptions covering 14 classes of works. We have created a chart to summarize all of the exemptions for this rulemaking proceeding. Exemptions include:

  1.  Short portions of motion pictures (including television shows and videos) for purposes of criticism or comment;
  2.  Motion pictures (including television shows and videos), for the purpose of adding captions and/or audio descriptions by disability services offices or similar units at educational institutions for students with disabilities;
  3.  Literary works, distributed electronically, protected by TPM interfering with screen readers or other assistive technologies;
  4.  Literary works consisting of compilations of data generated by patient’s implanted medical devices and personal monitoring systems;
  5.  Computer programs that that operate cellphones, tablets, mobile hotspots, and wearable devices to allow connection to a wireless network (“unlocking”);
  6.  Computer programs that operate smartphones and all-purpose mobile computing devices, to enable interoperability or removal of software applications (“jailbreaking”);
  7.  Computer programs that operate smart TVs for the purpose of enabling interoperability with computer programs on the smart television;
  8.  Computer programs that enable voice assistant devices to enable interoperability or removal of software applications;
  9.  Computer programs contained and controlling function of motorized land vehicles to allow diagnosis, repair, or modification of a vehicle function;
  10.  Computer programs that control smartphones, home appliances, or home systems to allow diagnosis, maintenance, or repair of the device or system;
  11.  Computer programs, for purposes of good-faith security research;
  12.  Video games in the form of computer programs, where outside server support has been discontinued, to allow individual play and preservation by an eligible library, archive, or museum;
  13.  Computer programs, except videos games, no longer reasonably available in commercial marketplace, for preservation by eligible libraries, archives, and museums; and
  14.  Computer programs operating 3D printers, to allow use of alternative feedstock.

Important Exemptions for the libraries and educational institutions

The exemptions listed above all have additional restrictions and requirements, limiting their application to specific types of works and specific uses. A number of exemptions, however, are applicable to the activities undertaken by libraries and universities. We have provided some more detail on some of these exemptions below. The full text of the exemptions can be found in the Copyright Office regulations (37 C.F.R. § 201.40).

Short portions of motion pictures for educational uses: While some parts of this exemption have remained the same from the 2015 exemption, other parts have been expanded. Under this exemption, college and university faculty and students may use screen-capture technology or engage in circumvention when non-circumventing alternatives are unable to produce the required level of high quality content, in order to make short portions of motion pictures for purposes of criticism, comment, teaching, or scholarship.  Short portions may also be used by faculty of MOOCs offered by accredited nonprofit educational institutions (provided other restrictions are met) in films studies or other courses requiring close analysis of film. Educators and participants in face-to-face nonprofit digital and media literacy programs offered by libraries and museums may use screen capture technology to make short portions of motion pictures for educational purposes.

This exemption is limited to motion pictures acquired on a DVD protected by Content Scrambling System, a Blu-ray disc protected by Advanced Access Control System, or digital transmissions protected by a technological measure.

Accessible versions of motion pictures for students: This new exemption allows disability services offices or units responsible for accessibility services to students to circumvent TPM to add captions and/or audio description to a motion picture. To rely on this exemption, the educational institution must first determine, after a reasonable effort, that an accessible version cannot be obtained at a fair price or in a timely manner, and the accessible version must be provided to students in a manner to reasonably prevent unauthorized further dissemination.

This exemption is limited to motion pictures acquired on a DVD protected by Content Scrambling System, a Blu-ray disc protected by Advanced Access Control System, or digital transmissions protected by a technological measure.

E-book use with assistive technologies: This is a renewal of the exemption from the last rulemaking proceeding. It permits circumvention of e-books that are protected by TPM preventing read-aloud functionality or interference with assistive technologies. Copies of the work must be obtained by a blind or other person with disability and copyright owners must be appropriately remunerated for the price of the mainstream copy of the work. If the work is a nondramatic literary work, it must be lawfully obtained and used by an authorized entity under Section 121.

Preservation of video games and computer software: One expanded exemption permits circumvention of lawfully acquired video games when access to an external server is no longer provided, to restore access for personal, local gameplay, or to allow preservation of the game in a playable form by eligible libraries, archives, or museums. Exemptions also exist for similar preservation activities by an eligible library, archive, or museum for video games that do not require external server access and other computer programs that are not video games, when the works are no longer reasonably available in the commercial marketplace. Preservation must be made without any purpose of commercial advantage and the work cannot be made available or distributed outside the physical premises of the eligible institution.

Final Points

The exemptions announced in the seventh triennial rulemaking proceeding remain effective for the next three years (October 2018 – October 2021).

It is important to remember that these exemptions only cover circumvention of the TPM; once TPMs have been circumvented, you must still ensure that your intended use is non-infringing (e.g., meets all requirements of the TEACH Act or qualifies as a fair use).


By Maria Scheid, Copyright Service Coordinator at Copyright Services, The Ohio State University Libraries

[1] Section 1201 also contain permanent exemptions, including § 1201(d) which establishes an exemption, under specific circumstances, for nonprofit libraries, archives, or educational institutions to circumvent technological measures in order to make a good faith determination of whether to acquire a copy of the work.

[2] Full text of the final rule and recommendations from the Acting Register for the Seventh Triennial Section 1201 Proceeding may be found at https://www.copyright.gov/1201/2018.