3rd round of DMCA exemption rulemaking begins
The Copyright Office has issued a Notice of Inquiry seeking comments on particular classes of works that should be exempt from the DMCA's Section 1201 anti-circumvention provisions.
Under Section 1201(B) of the DMCA:
"The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C) [rulemaking]."
Two previous rounds of rulemaking under Section 1201(C) have resulted in exemptions for the following rather obscure types of works:
"(1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.
(2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format."
The Copyright Office previously rejected proposals to include exemptions for fair use, archiving, public domain works, open source software, foreign DVDs, and the like. See past public comments.
The problem is that the rulemaking, as mandated by Section 1201(C), focuses on identifying specific types of works, rather than specific lawful uses of copyrighted works. As a result, the DMCA exemptions have had limited relevance. It seems unlikely that this round of exemptions will be any different, but we'll have to see how commentators proceed based on the rationales articulated by the Copyright Office in the previous round.
Of related interest is a recent ruling of the Federal Circuit states that the DMCA cannot be used to create property rights beyond those in the Copyright Act. See prior post on StorageTek v. Custom Hardware. In that case, an act of circumvention was held not to violate the DMCA because it was done in connection with repairing and maintaining computer software, which is covered by an exemption to copyright infringement. Whether this rationale would extend to fair use or other noninfringing uses remains to be seen.
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