New Exemptions to the DMCA

The Digital Millennium Copyright Act (DMCA), enacted in 1998, prohibits users of copyrighted works from circumventing technological measures placed on those works (e.g., encryption), subject to limited exemptions.  Some of the exemptions are permanent, such as reverse engineering to ensure interoperability.  Other exemptions are revisited every three years by the Librarian of Congress.  During this process, the Librarian of Congress determines classes of works for which non-infringing uses are likely to be adversely affected by the prohibition against circumvention.  The goal of the exemption process is to “ensure that the public can still engage in fair and other noninfringing uses of works.”

The new exemptions approved by the Librarian of Congress include the following:

• Motion pictures (including television programs and videos) where circumvention is undertaken solely in order to make use of short portions for the purposes of criticism or comment in seven enumerated circumstances involving educational purposes, nonfiction multimedia e-books offering film analysis, noncommercial videos and documentary filmmaking.
• Literary works distributed electronically (e.g., e-book, PDF, or other digital works) where the circumvention is for the purpose of implementing assistive technologies for persons who are blind, visually impaired, or have print disabilities.
• Unlocking of computer programs that operate cellphones, tablets, mobile hotspots, and wearable devices to allow connection of the device to an alternative wireless network and such connection is authorized by the operator of such network.
• “Jailbreaking” (which essentially means circumventing software security measures on a device) of computer programs that operate smart phones, smart televisions, and tablets and other all-purpose mobile computing devices to allow the device to interoperate with other computer software or to remove software applications.
• Circumvention of protection measures on computer programs that control motorized land vehicles (including farm equipment) for purposes of diagnosis, repair, and lawful modification of the vehicle.  This exemption will not become available until October 28, 2016.
• Circumvention of protection measures on computer programs that operate the following devices and machines for purposes of good-faith security research: (i) devices and machines primarily designed for use by individual consumers, including voting machines; (ii) motorized land vehicles; or (iii) medical devices designed for implantation in patients and corresponding personal monitoring systems.  The exemption as to voting machines will not become available until October 28, 2016.
• Video games embodied in physical or downloaded formats for which outside server support has been discontinued, solely for the purpose of copying and modification of the computer program to: (i) restore access to the game for personal game play; or (ii) restore access to the game when necessary to allow preservation of the game in a playable form by a library, archive, or museum.
• Circumvention of computer software that operates 3D printers that employ microchip-reliant technological measures to limit use of feedstock, solely for the purpose of using alternative feedstock.
• Literary works consisting of compilations of data generated by implanted medical devices or by their corresponding personal monitoring systems, where the circumvention is undertaken by a patient solely for the purpose of lawfully accessing the data generated by his or her own device or monitoring system.

Some of the exemptions rejected by the Librarian of Congress included jailbreaking software on dedicated e-book readers (e.g., Amazon’s Kindle Paperwhite) and jailbreaking software on home video consoles for the purpose of installing alternative operating systems and other non-infringing uses.

The above list is only a summary of the exemptions, many of which have several specific requirements that must apply for the exemption to be triggered.  The new exemptions are effective as of October 28, 2015, and the final rule is available on the Copyright Office’s website.