The Copyright Office Expands DMCA Exemptions to Broaden the Use of Technological Controls

Last week, the U.S. Copyright Office published new exemptions to the Digital Millennium Copyright Act (“DMCA”), making circumvention of certain technological measures for restricting access to copyrighted works legally acceptable. The exemptions took effect on October 28, 2012, and will last until the end of 2015.

Under the new exemptions, for the next three years, one can legally “jailbreak” wireless telephone handsets (e.g., smartphones) purchased before January 2013. Jailbreaking a device is the process by which one bypasses Digital Rights Management (DRM) software installed on a device. Jailbreaking a mobile phone, for example, allows a user to download applications, extensions, and themes that are unavailable through the mobile phone manufacturer’s application store. Further, under the new exemptions, mobile phones purchased between now and January of 2013 can be unlocked (i.e., not tied to a particular service provider) by any party. But, phones purchased after January 2013 can only be unlocked with the cellular carrier’s permission. These exemptions to the DMCA, however, are not applicable to smartphones purchased after January 2013 or to tablet computers (e.g., iPads).

Additionally, the DMCA now contains an exemption to legally rip DVDs “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 e-books 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 facility, college and university faculty, college and university students, and kindergarten through twelfth grade educators.” The DMCA, however, does not contain an exemption to allow circumvention for space-shifting purposes, that is, the act of copying digital content for use on a device other than the one for which it was originally intended.

Last, a DMCA exemption was created to permit people with disabilities “to obtain books through the open market and use screen readers and other assistive technologies to read them, regardless of whether an accessible copy may be available for purchase, but provided the author, publisher, or other rights owners receives remuneration.”

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