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:
- Short portions of motion pictures (including television shows and videos) for purposes of criticism or comment;
- 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;
- Literary works, distributed electronically, protected by TPM interfering with screen readers or other assistive technologies;
- Literary works consisting of compilations of data generated by patient’s implanted medical devices and personal monitoring systems;
- Computer programs that that operate cellphones, tablets, mobile hotspots, and wearable devices to allow connection to a wireless network (“unlocking”);
- Computer programs that operate smartphones and all-purpose mobile computing devices, to enable interoperability or removal of software applications (“jailbreaking”);
- Computer programs that operate smart TVs for the purpose of enabling interoperability with computer programs on the smart television;
- Computer programs that enable voice assistant devices to enable interoperability or removal of software applications;
- Computer programs contained and controlling function of motorized land vehicles to allow diagnosis, repair, or modification of a vehicle function;
- Computer programs that control smartphones, home appliances, or home systems to allow diagnosis, maintenance, or repair of the device or system;
- Computer programs, for purposes of good-faith security research;
- 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;
- Computer programs, except videos games, no longer reasonably available in commercial marketplace, for preservation by eligible libraries, archives, and museums; and
- Computer programs operating 3D printers, to allow use of alternative feedstock.
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