United States: The Give And Take Of The 2015 Library Of Congress Sec. 1201 Copyright Exemptions

Last Updated: November 20 2015
Article by Chad A. Rutkowski

I used to love working on cars. As a teenager I had a 1972 Karmann Ghia, which I could repair, MacGyver-like, with rubber bands, tinfoil, and sticks of chewing gum. But as automotive technology advanced, the prospect of making my own repairs to fuel, emission, or transmission systems dimmed. Installation of electronic control units (ECUs) wiped those prospects out altogether, not because the car's technological protection measure (TPM) software prevented me but, well, because my own ineptitude did.

So it is that I look askance at the Electronic Frontier Foundation's declaration of a "Victory for Users" regarding the Library of Congress's recently promulgated rules on exemptions to anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), effective October 28, 2015. It is crucial to understand that these exemptions are wonderful if you yourself would like to hack into your vehicle's software and make repairs or enhancements. If you would like to engage someone else to do it for you because your skills with rubber bands and tinfoil don't cut it anymore, you are out of luck. The Library of Congress made clear that it has authority to grant exemptions under section 1201(a)(1) of the DMCA having to do with conduct of individuals, but not under sections 1201(a)(2) or 1201(b), which relate to products and services that are used to circumvent technological barriers.

But if you are an individual gifted with software skills; a remix artist; an educational institution, faculty member, or student; or cybersecurity researcher, then the new exemptions may be a welcome clarification. The exemptions allow circumvention of TPM that would otherwise be prohibited by application of section 1201 of the DMCA. The exemptions extend to a dizzying array of different "classes," which are categories of devices and proposed uses and circumventions. Set forth below are exemptions that extend to vehicles, motion pictures, wireless devices, smart televisions, video games, 3-D printers, medical devices, and in some instances to any consumer-facing device or machine. The following summary lays out the lines drawn by the Register of Copyrights, whose recommendations were adopted by the Library of Congress and promulgated as regulations.

The Give

  • Vehicle Exemptions (Class 21)
    • Owners of motor vehicles and agricultural vehicles are permitted to circumvent TPM to allow diagnosis, repair, or lawful modification of a vehicle function so long as such modification does not violate other applicable law (and is instituted after a delay of 12 months from the effective date of the regulation).
  • Motion Picture Exemptions (Classes 1-7)
    • Circumvention of Advanced Access Control System on Blu-ray discs for most uses that are otherwise exempt (but not, notably, for uses by K-12 educators and students).
    • Faculty of massive online open courses (MOOCs) for courses requiring close analysis of film and media excerpts under conditions specified by the TEACH Act, 17 U.S.C. 110(2) are permitted to use screen-capture software and/or circumvent TPM.
    • Educators and participants in nonprofit digital and media literacy programs offered by libraries, museums, and other educational nonprofits are permitted to use screen-capture technology for purposes of educational, face-to-face instruction.
  • Wireless Device Exemptions (Classes 11-17)
    • The pre-existing unlocking (which relates to enabling the switching of wireless carriers) exemption for used cell phones was expanded to include all-purpose tablets and wearable wireless devices such as smartwatches.
    • The pre-existing jailbreaking (which relates to enabling installation of lawful software) exemption for cell phones was extended to "portable all-purpose mobile computing device[s]," and includes most tablet and smartwatch devices, but not devices dedicated to one type of media (e-book readers, handheld video game consoles) or computer systems embedded in automobiles.
  • Smart TV Exemptions (Class 20)
    • Jailbreaking is permitted for lawfully obtained software that enables interoperability between applications and computer programs on the smart television.
  • Security Research Exemptions (Classes 22, 25, and 27A)
    • Exemptions were granted for good-faith research into security flaws within devices or machines primarily designed for use by individual consumers, motorized land vehicles, and implanted medical devices. This exemption has a 12-month delay to allow review by other government agencies, except insofar as the exception applies to voting machines (which are deemed to be a kind of machine designed for use by individual consumers). Note that the definition of "good faith security research" contains a number of limitations itself.
  • Video Game Exemptions (Class 23)
    • Circumvention of TPM is allowed to facilitate access to lawfully acquired games that cannot be played without access to remotely located servers for authentication but that were subsequently discontinued or no longer supported by the developers, but only for a) personal gameplay or b) preservation for library, museum, or archival purposes.
  • 3-D Printer Exemptions (Class 26)
    • Circumvention of TPM on 3-D printers that use chip-based verification systems to enable use of non-manufacturer-approved feedstock, but not for any commercial use that is subject to any legal, regulatory, or other certification process, or where the circumvention is otherwise unlawful.
  • Medical Device Exemptions (Class 27B)
    • Circumvention of TPM is allowed on implanted medical devices, such as pacemakers and glucose monitors, to passively monitor wireless transmissions of data (as opposed to active collection of such data, which could impact battery life) so long as such collection of data complies with other applicable laws (such as HIPAA).

The Take

  • Vehicle Exemptions (Class 21)
    • The Librarian emphasized that the circumvention exemption does not extend to activity taken "on behalf of" vehicle owners, expressing concern over creating tension with the anti-trafficking provisions of section 1201(a)(2) and (b).
    • The exemption also does not extend to software and ECUs that are chiefly designed to operate vehicle entertainment and telematics systems that protect against unauthorized access of creative and proprietary content.
  • Motion Picture Exemptions (Classes 1-7)
    • The exemption only applies to courses requiring close analysis of film and media excerpts, rejecting a request to broaden the exemption to "all educational purposes."
    • The exemption only allows use of "short portions," rejecting a request that the exemption be expanded to allow longer clips.
    • The Register found there was an insufficient showing that K-12 educators and students required high-quality video clips, and disallowed their use of Blu-ray discs.
    • The Register similarly disallowed circumvention by students, although she did recommend that students be allowed to use screen-capture technology for exempted activity.
    • The exemption for MOOCs extend to faculty only, and not to students.
    • Only screen-capture technology, not circumvention of TPM, is permitted for after-school and adult education media literacy programs.
    • The Register rejected a request to expand uses to any genre of multimedia e-book, limiting the exemption to film analysis.
    • The Register rejected a request to expand uses to narrative films, limiting the exemption to documentary films.
    • The exemption regarding noncommercial videos was kept as is, rejecting a request that the exemption be expanded to "primarily noncommercial videos."
  • Wireless Device Exemptions (Classes 11-17)
    • The exemption does not apply to new phones, and does not apply to devices embedded in motor vehicles.
    • Extension of exemptions to "consumer machines," such as smart meters, appliances, and precision-guided commercial equipment, was rejected.
    • Jailbreaking exemptions were not extended to devices dedicated to one type of media (e-book readers, handheld video game consoles) or computer systems embedded in automobiles.
  • Security Research Exemptions (Classes 22, 25, and 27A)
    • The Register rejected a request to extend the exemption to all systems and devices, finding that risks to industrial systems (e.g., highly sensitive systems such as for nuclear power plants and air traffic control) was too risky. The exemptions were limited to consumer-oriented devices and machines.
    • Research into security in medical devices is also not allowed.
    • The exemptions also tightly define "good faith security research." Although the findings do not need to be reported to the manufacturer or system developer, the research must be carried out in a controlled environment to avoid harm to individuals or the public, and must be used primarily to promote security or safety.
  • Video Game Exemptions (Classes 19 and 23)
    • The exemptions do not extend to enabling multiplayer play and do not allow jailbreaking of console software, which is strongly associated with video game piracy (although jailbreaking consoles is allowed for preservationists when necessary to maintain a game in playable form).
  • 3-D Printer Exemptions (Class 26)
    • The exemption does not extend to any commercial use that is subject to any legal, regulatory, or other certification process, or where the circumvention is otherwise unlawful.
  • Medical Device Exemptions (Class 27A)
    • As with vehicle software, the exemption expressly forbids third parties from performing the circumvention on behalf of a patient.
  • Space-Shifting and Format-Shifting Exemptions (Classes 8 and 10)
    • These classes related to DVDs, Blu-ray discs, downloaded files, and dedicated e-book readers, seeking the ability to circumvent TPM to make backup copies or to allow play on different operating systems. The Register found there was a reluctance on the part of courts to extend fair use broadly to space-shifting arguments, and therefore found insufficient fair use justification for the proposed classes.
  • Music Recording Software (Class 24)
    • This class related to discontinued music-recording software and presumably sought circumvention to enable access to lawfully recorded music. However, no evidence was submitted in further support of this class, and the class was therefore rejected by the Register.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions