DMCA rulemaking issued by Librarian of Congress
The Librarian of Congress has issued its periodic rulemaking determination for exemptions to the DMCA anti-circumvention provisions and has found six such exemptions for noninfringing uses, following the recommendations of the Register of Copyrights. According to the LC's statement:
"The new classes of works will enable film and media studies professors to make compilations of film clips for classroom instruction, make it easier for owners of wireless telephone handsets to continue to use those handsets when they switch to new wireless carriers, and permit the testing, investigation and correction of security vulnerabilities on compact discs that are distributed with access control technology that compromises the security of personal computers."
The new exemption for use of audiovisual works by college professors is important because it represents a determination that the exemption can apply based on a type of use or user, rather than only based on particular types of works (as was concluded in prior rulemakings):
"Therefore, depending upon the circumstances, it can be appropriate to refine a class by reference to the use or user in order to remedy the adverse effect of the prohibition and to limit the adverse consequences of an exemption."
This may lead to future exemptions for other types of uses and users, on an incremental, case-specific basis for fair use. However the bar appears to be quite high to achieve an exemption. Section 1201 requires review of a number of specific factors, in addition to an assessment that the underlying use is noninfringing. For example, in the current rulemaking, the Register recommended against a general exemption for fair use, as well as an exemption for "space-shifting":
"In the absence of any persuasive legal authority for the proposition that making copies of a work onto any device of the user's choosing is a noninfringing use, there is no basis for recommending an exemption to the prohibition on circumvention."
The report did not mention the 9th Circuit's ruling in RIAA v. Diamond Multimedia, which established space-shifting to one's portable music player as fair use. Perhaps the exemption request was considered overbroad, but it would have made helpful to frame the issue with a review of existing authority.
In any event, the Register considered the case for space-shifting under the Section 1201 factors noted above. In light of these factors, the Register concluded that an exemption would not be warranted:
"On the whole, the Register's observation in 2003 remains equally apposite today: 'in essence, the commentators seek to have their cake and eat it too -- they want copyright owners to provide works in digital formats, but do not want to live with the reasonable measures copyright owners feels they must take to guard against the risks that this digital distribution entails.'"
"Given the wide availability of the works in a wide array of formats in the digital marketplace, the Register finds no reason for recommending an exemption to the prohibition for purposes of space-shifting activity."
