[x-pubpol] US: Updated DMCA Anti-circumvention provisions published

[Joly MacFie]

http://lawandinformatics.wordpress.com/2012/10/25/copyright-anti-circumvention-provisions-published-jailbreaking-for-phones-okay-but-not-tablets-access-to-dvds-for-comment-and-criticism-in-education-and-ducumentary-filmmaking-increase/

Copyright Anti-circumvention provisions published; jailbreaking for phones
okay but not tablets; access to DVDs for comment and criticism in education
and ducumentary filmmaking increase

By Jon M. Garon

In 1998 Congress updated the copyright law with the Digital Millennium
Copyright Act <http://www.copyright.gov/legislation/hr2281.pdf> with hopes
that it provided a forward-looking approach to the rapidly changing
technologies affecting movies, music, television, publishing, the artists
and all manner of creative endeavors. Among its two key provisions are the
Section 512 take-down
provisions[1]<http://lawandinformatics.wordpress.com/2012/10/25/copyright-anti-circumvention-provisions-published-jailbreaking-for-phones-okay-but-not-tablets-access-to-dvds-for-comment-and-criticism-in-education-and-ducumentary-filmmaking-increase/#_ftn1>
and
the Section 1201 anti-circumvention provisions.

Section 1201(a)(1)(A)
<http://www.copyright.gov/title17/92chap12.html#1201> makes
it a crime (and a tort) to “circumvent a technological measure that
effectively controls access to a work protected” by copyright. Put another
way, if a work protected by copyright is accessed through a digital lock,
such as encryption or a digital authentication handshake, then the steps to
get around that process violate sec. 1201. The law has some specific
exemptions built in for library research, law enforcement, reverse
engineering, and encryption research. But these exemptions are highly
limited. As a result, Congress also called upon the Librarian of
Congress<http://www.loc.gov/about/librarianoffice/>,
in consultation with the Register of
Copyright<http://www.copyright.gov/docs/maria-pallante.html> to
provide a review every three years to publish a list of additional
exemptions.

The fifth such list has just been published: Section 1201 Rulemaking: Fifth
Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention<http://www.copyright.gov/1201/2012/Section_%201201_%20Rulemaking%20_2012_Recommendation.pdf>.
A copy of the final
rule<http://lawandinformatics.files.wordpress.com/2012/10/copyright-office-final-rule-on-access-control-technologies2.pdf>
is
here.

To be successful, an applicant seeking an exemption had to establish by a
preponderance of evidence on a factual record that  “(1) uses affected by
the prohibition on circumvention are or are likely to be noninfringing; and
(2) as a result of a technological measure controlling access to a
copyrighted work, the prohibition is causing, or in the next three years is
likely to cause, a substantial adverse impact on those uses.”

In most cases, the exemptions are modification of the petitioner’s actual
request. Here is a summary of approved exemptions:

   1. *Literary works distributed electronically – assistive technologies*:
   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 blind or persons with a disability under 17
   U.S.C. 121.
   2. *Wireless telephone handsets – software interoperability*:
   Jailbreaking of smartphones – but not tablets – to allow for apps from
   outside the provider app store.
   3. *Wireless telephone handsets – interoperability with alternative
   networks*: phone unlocking to allow a handset to be redeployed on
   another phone network.
   4. *Motion picture excerpts – commentary, criticism, and educational uses
   *: circumventing the DVD Content Scrambling System for the traditional
   fair use purposes of comment and criticism where “where circumvention is
   undertaken solely in order to make use of short portions of the motion
   pictures for the purpose of criticism or comment in the following
   instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in
   nonfiction multimedia ebooks offering film analysis; and (iv) for
   educational purposes in film studies or other courses requiring close
   analysis of film and media excerpts, by college and university faculty,
   college and university students, and kindergarten through twelfth grade
   educators.” The exemption for motion picture capture makes fairly clear
   that screen capture is not a circumvention prohibited by the statute. The
   Register also supported the exemption because “[d]espite the commercial
   aspect of uses by documentary filmmakers and multimedia ebook authors, …
   when a short excerpt of a motion picture is used for purposes of criticism
   and comment, even in a commercial context, it may well be a productive use
   that serves the essential function of fair use as a free speech safeguard.”
   5. *Motion pictures and other audiovisual works – captioning and
   descriptive audio*: permits the circumvention of motion pictures and
   other audiovisual works contained on DVDs or delivered through online
   services to facilitate research and development of players capable of
   rendering captions and descriptive audio for persons who are blind,
   visually impaired, deaf, or hard of hearing.

In addition to this list, the report specifically identified a number of
categories of works that did not earn an exemption.

*Works in the public domain*

Of greatest note is the ongoing refusal to provide an exemption to
circumvent a digital protection measure to obtain a work in the public
domain. The Register correctly notes that it is not a violation of section
1201 to circumvent a technological protection measure unless there is a
copyright work being sought. Therefore no exemption is required.

This is more than parsing language. To create an exemption would suggest an
expansion of section 1201 that is unwarranted. As a result, the report that
the exemption is not needed provides ample protection to the public.

*Space-shifting for DVDs*

The other significant rejection was the space-shifting of DVD content to
devices without DVD players such as iPads and other tablets. The U.S. has
been behind Europe in providing that non-physical versions of movies are
generally offered in streaming mode rather than download format. The
ability to acquire a second format of the same content is also generally
sold at a premium price. An exemption to section 1201 would have put
significant pressure on the motion picture industry regarding this
transition. It is likely that this will become of greater economic and
legal importance by the next rule-making.

*Jailbreaking Limited to Phones – No Tablets, Video-Game Consoles or
Computers*

The report also rejected the desire to permit video game console
interoperability. Much like the rejection of tablet jailbreaking, the
report refused to exempt console jailbreaking so that lawful third-party
games could be used on a particular platform. In both instances, the
Register rejected the evidentiary record on the matter. There is likely
little evidence to be developed because the practice may be quite common
and the benefits of enforcement are too limited.

The report similarly rejected a desired exemption for jailbreaking
computers to allow installation of unauthorized operating systems. This
appears to fail for the reasons stated in the other jailbreaking proposals.
In contrast to the smartphone app stores, the Register takes the position
that the other categories of interoperability limitation have not developed
sufficient economic concerns to merit an exemption.

Taken together, the rule-making continues to reflect a very conservative,
incremental approach to the development of new technology and the
appropriateness of anti-circumvention self-help. The Register has made
great strides regarding fair use in the educational and documentary
filmmaking environments but was probably overly conservative on iPads and
tablet computers.

*Conclusion*

As a whole, the report is thoughtful and predictable. The process restarts
with each triennial review.

In each rulemaking proceeding, the Register and Librarian review the
proposed *classes de novo*. The fact that a class previously has been
designated creates no presumption that redesignation is appropriate. While
in some cases earlier legal analysis by the Register may be relevant to
analyzing a proposed exemption, the proponent of a class must still make a
persuasive factual showing with respect to the three-year period currently
under consideration. When a class has been previously designated, however,
evidence relating to the costs, benefits, and marketplace effects ensuing
from the earlier designation may be relevant in assessing whether a similar
class should be designated for the subsequent period.

As the Register describes the process, it becomes clear how important the
evidentiary record and the economic significance of the particular issue
must be. Unless Congress has itself shown a preference for a class of
users, such as persons with disabilities, the exemptions are limited to
very large classes of users.

Of course, if you did not get what you wanted, start preparing your
petition for rule-making VI – coming in just two years.
------------------------------

[1]<http://lawandinformatics.wordpress.com/2012/10/25/copyright-anti-circumvention-provisions-published-jailbreaking-for-phones-okay-but-not-tablets-access-to-dvds-for-comment-and-criticism-in-education-and-ducumentary-filmmaking-increase/#_ftnref1>
Known
as the DMCA Takedown
Provisions<http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act>
, section 512 <http://www.copyright.gov/title17/92chap5.html#512> provide
ISPs immunity from copyright liability if the ISP provides an effective
method of accepting copyright infringement notice allegations and responds
to those notices in a timely manner. Though highly criticized by some
organizations <https://www.eff.org/issues/dmca>, these provisions do not
have a triennial review process.


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