United States: Latest DMCA Triennial Review Permits Jailbreaking, Video Game Preservation, And More

Last Updated: January 6 2016
Article by Joshua S. Jarvis

Most readers of this blog are well-acquainted with the Digital Millennium Copyright Act (DMCA) and the anti-circumvention provisions codified therein, 17 U.S.C. § 1201 et seq., which prohibit the circumvention of technological measures that control access to a copyrighted work, even in the absence of copyright infringement.  The anti-circumvention provisions of the DMCA are often criticized for their failure to include an explicit fair use exemption like that included elsewhere in the Copyright Act, see 17 U.S.C. § 107. Instead, the provisions empower the Librarian of Congress, upon recommendation by the Register of Copyrights, to conduct a review of the copyright landscape every three years and determine whether specific types of circumvention should be excluded from Section 1201's draconian position.  The Section 1201 rulemaking process is colloquially referred to as the "Triennial Review."

Exemptions arising out of the 2012 Triennial Review allowed for the unlocking of mobile devices, the "jailbreaking" of smartphones, and the use of DVD and digital video for certain remix and traditional fair use purposes.  However, no exemptions — even those that are largely uncontroversial — automatically stay "on the books."  Instead, they must be granted anew during the next Triennial Review.  For the next three years, the Librarian of Congress has granted 10 categories of exemptions including the following:

  1. Jailbreaking. The existing exemption permitting jailbreaking (the process of removing from your smart phone software restrictions imposed by the manufacturer's operating system) was reaffirmed and expanded to "portable all-purpose mobile computing devices," including tablets, smartwatches, and more. Among other things, this will allow mobile device users to continue to install "unofficial" operating systems and other software on their devices.
  2. Digital Video. The existing exemption, which permits the circumvention of access controls on DVDs and digital video, was reaffirmed and expanded to specifically cover Blu-ray discs. This exemption applies to a range of non-infringing purposes, such as documentary films, noncommercial videos, multimedia e-books offering film analysis, and various other educational projects.
  3. Archiving and Preservation of Video Games. This new exemption is intended to preserve video games that have been abandoned by their developers/publishers but contain digital rights management (DRM) technology which would otherwise prevent continued use of the game. Under the exemption, the owner of a lawful copy of a game may modify that copy to eliminate the need for server authentication if the game would otherwise be unplayable — a welcome development where many modern games won't run until they receive permission from a remote server.  Also, libraries, museums, and other archives may jailbreak game consoles in order to make such games playable.
  4. Car Security Diagnosis, Repair, and Modifications. This new exemption allows owners of motorized land vehicles to access computer programs (excluding entertainment/telematics software) for the purposes of diagnosis, repair, or modification of a vehicle function, assuming the modification doesn't violate other laws (e.g., traffic safety or emissions laws). This allows for traditional car "tinkering" in the digital age and, at a higher level, permits engineers and inspectors to better understand how a vehicle works.  Proponents of this exemption, which was earlier opposed by the Environmental Protection Agency, maintain that it will aid in the detection of anomalous behavior during emissions testing.
  5. Security Research. This new exemption permits circumvention of access controls for the purposes of "security research" for a large range of devices, including machines designed for use by individual consumers, motorized land vehicles, and certain medical devices. Security research is meant to include "good faith testing for and the identification, disclosure and correction of malfunctions, security flaws and vulnerabilities in computer programs."

Critics of the exemptions argue that they don't go far enough. For instance, the video game exemption applies only if a game is entirely unplayable after a server shutdown, and not if the server shutdown simply removes certain features from the game. And the automobile exemption may not permit the circumvention of access controls at the direction of the owner — e.g., by a mechanic — and includes a controversial one-year delay before the new rule takes effect.  Others continue to decry the Triennial Review process more generally.  Senator Ron Wyden (D-OR) called the new rules "positive steps," but noted that the process itself is "broken," and that the three-year review "does not keep up with the pace of innovation and places burdens on users who have to repeatedly ask for permission for the same activity."  The Electronic Frontier Foundation (EFF), which has spearheaded exemption efforts throughout the life of the DMCA, called the three-year system "ridiculous."

Certainly it's not hard to see how the time and effort that go into Triennial Review — especially the necessity of making a case for existing exemptions to continue — might be better spent elsewhere.  Will the coming years see adjustments to the Section 1201 rulemaking process — to make the review process more nimble, and allow for more frequent and permanent exemption?  Will Section 1201 itself be updated to incorporate Section 107, or a similar fair use provision?  Is the increasingly global economy, as well as trade agreements such as the Trans-Pacific Partnership (TPP), likely to make such updates more difficult?  Time will tell.

Other exemptions instituted by this year's review include provisions allowing the circumvention of technological measures in order to use alternative feedstock with 3D printers, to implement assistive technologies for the blind and visually impaired, and to access health care data gathered by medical monitoring systems.  The text of the final rule is available here.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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