Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions
By Jessica Vosgerchian – Edited by Dorothy Du
On October 25, the Register of Copyrights and the Librarian of Congress announced new recommendations for exemptions to Section 1201(a)(1)(A) of the Digital Millennium Copyright Act (“DMCA”) effective October 28. Section 1201(a)(1)(A) of the DMCA makes it illegal to circumvent technological controls found in electronic devices that control access to copyrighted works. Section 1201(a)(1)(B), however, allows the Register to grant exemptions to be reviewed every three years. In this year’s review, the Register upheld the legality of jailbreaking smartphones and decrypting DVD and e-book controls for the visually- and hearing-impaired. The Register also broadened exemptions for fair use of video excerpts. However, the new rules prohibit “unlocking” smartphones purchased after January 2013, forbid jailbreaking tablets and game consoles, and prohibit “space shifting.”
Fair Use of DVDs and Online Video
Circumventing a DVD’s access controls in order to view the film on another device such as an iPad — also known as “space shifting” — is still prohibited by the DMCA. According to Public Knowledge, this prohibition is more restrictive than is required by either the MPAA or the RIAA, the two associations most protective of video copyright.
However, the Register has added an exemption for circumventing controls on DVDs and commercially available online videos in order to extract short video excerpts to create works for the noninfringing purposes of comment and criticism. Such works include noncommercial videos, documentaries, and educational films. Recommendation of the Register of Copyrights, at 142.
Jailbreaking and Unlocking Smartphones and Tablets
Since 2010, the DMCA has allowed users to jailbreak their smartphones in order to execute lawfully obtained applications unauthorized by the phone manufacturer. Last week’s announcement reaffirmed the rationale that using unapproved applications on smartphones is fair use and limiting users’ ability to execute such applications hinders choice and impairs innovation. Id. at 74-5.
The Register has refused to extend the same rights to tablet devices, however. The Register reasoned that the variety of devices that can be described as a “tablet” — including e-readers, tablet computers and handheld gaming consoles — is too broad to receive the same uniform treatment applied to smartphones. Id. at 76.
The new exemptions also deliver a blow to users looking to unlock their phones in order to continue using the same phone with a different carrier, which has been allowed under the DMCA since 2006. The rule allows only those phones purchased before January 2013 to be unlocked without the carrier’s permission. The Register bases its decision in part on Vernor v. Autodesk, 621 F.3d 1102 (9th Cir. 2010), which found that a purchaser of software with a license agreement is merely a licensee of the software and cannot alter it in any way prohibited by the agreement.
Circumvention of Controls for Expansion of Disability Accessibility
The latest version of the DMCA exemptions represents a coup for disabilities advocacy groups, which have urged the Register to exempt “literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies” for the disabled. Id. at 24-25.
The Register adopted a similar exemption in 2010, but limited its applicability to e-books for which no platforms made the book available without controls inhibiting access by the disabled. In this year’s update, the Register adopted the more expansive exemption, conceding that the growth and fragmentation of the e-book market makes a rule requiring all editions to be inaccessible before circumvention is allowed impractical. In such a market, disabled people would be burdened with owning several e-reader devices to access a popular selection of titles. Id. at 20-21.
Along with e-books, legally obtained DVDs may now be circumvented to make them “capable of rendering visual representations of the audible portions of such works and/or audible representations or descriptions of the visual portions of such works” for the disabled. Id. at 156.
Mixed Reviews From Fair-Use Advocates
The Electronic Frontier Foundation, which lobbied the Register for more liberal exemptions, is celebrating the announcement as a step “towards mitigating some of the DMCA’s most grievous harms.” However, some critics lament that the rules are still too restrictive and inconsistent to avoid making criminals of people who endeavor to modify their devices for fair-use purposes. Ars Technica explains how the Register’s case-by-case approach to the exemptions is arbitrary and detrimental to judicial review of fair use questions.