Copyright Office Lists New Exceptions to the DMCA

On November 22, the Librarian of Congress issued a—take a deep breath— declaration of exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. In other words, the LOC decreed that six classes of "non-infringing rights" were exempt from the Digital Millennium Copyright Act (DMCA), which criminalized "production and dissemination of technology whose primary purpose is to circumvent measures taken to protect copyright."

The exemptions are:
1) Educational libraries can make copies of audiovisual works "when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors."
2) Libraries and archives may make copies of obsolete audiovisual formats (or computer software) when the intent is "preservation or archival reproduction." A format is 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."
3) Dongle-protected computer programs may be copied—when the dongles malfunction or have been damaged and are no longer manufactured or "reasonably available in the commercial marketplace. "
4) Ebooks can be copied, but only when "all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format." (I really tried to think of another way to say that, but I'm no match for the Librarian of Congress, obviously.)
5) It is permissable to circumvent wireless phone firmware that enables handsets to connect to a communication network, but only when "circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network."
6) Let's call this the "root-kit" exception—and again I must quote verbatim: "Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities."

All of these exceptions make sense, but there are some essential exceptions missing—indeed, some of us would call them rights. Fred von Lohmann of the Electronic Frontier Foundation, who alerted us to the LOC exceptions, points to Representative Rick Boucher's (D-VA) DMCA Reform Bill (HR 1201), which advocates that citizens have the right to circumvent copy-protection measures as "long as what they are doing is otherwise legal." Translation: You could rip that CD you bought to your computer and your personal digital player, or a software professor could bypass copy-protection to analize encryption technology.

"Essentially," von Lohmann said, "HR 1201 would codify the Betamax defense, which is under attack by the entertainment industry."

Audiophiles take note: I'm no lawyer, but if I read exception #2 correctly, the DMCA denies us the right to record our lawfully purchased copyrighted LPs, not only because turntables are still "reasonably" available in the commercial marketplace, but also because we are not libraries or archives. I'm sending representatives letters urging them to sign on to HR 1201. Maybe you should, too.