Digital Millennium Copyright Act2010 Exemptions

SJRCC Libraries

The Copyright Act Copyright law grants specific rights to the

author or creator of an original work. These rights include:

The right to reproduce (copy) The right to create derivative works of the original

work, The right to sell, lease, or rent copies of the work

to the public, The right to perform the work The right to display the work publicly And most recently, the right to perform a sound

recording by means of digital audio

The Copyright Act Copyright law also provides some limits to an

author’s exclusive control of a copyrighted work.

These limits are commonly known as the “Fair Use Doctrine”

The law provides that “the fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The Copyright Act Originally copyright was limited the copying of

books. Over time other works were given copyright protection and copyright law today cover a wide range of works, including maps, dramatic works, paintings, photographs, sound recordings, motion pictures and computer programs.

As copyright protection expanded to cover new forms of expression the ability to infringe on copyright protection also grew. New technologies in turn made it easier to illegally reproduce and disseminate copyrighted materials.

The Digital Age Today, those new technologies also give authors

and creators the unique ability to digitally “lock” their content. Time stamps, Content Scrambling Systems (CSS) and other security software has allowed copyright holders to aggressively pursue their Digital Rights Management (DRM) to protect their copyrighted material from data “pirates.”

But technology continues to move forward and for every new digital “locking” software someone, somewhere creates a digital “key” that allows access to that protected content.

The Digital Millennium Copyright Act was written to protect the author’s or creator’s ability to “lock” their content.

Digital Millennium Copyright Act of 1998

The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton on October 28, 1998, amending the 1976 Copyright Act.

Section 1201 of this act makes it a violation of copyright law to circumvent any technological measures used by copyright owners to protect their works.

Section 1201 contains two distinct prohibitions: a ban on acts of circumvention, and a ban on the distribution of tools and

technologies used for circumvention.

What does DMCA mean?

The ban on acts of circumvention, for example, would make it unlawful to defeat the encryption system used on DVD movies. As a result, it would be unlawful to make a digital copy ("rip") of a DVD you have purchased for playback on your iPod. Even though under fair use this would be permissible.

The tools prohibitions outlaws the manufacture, sale, distribution, or trafficking of tools and technologies that make that circumvention possible.

What does DMCA mean? In essence, the DMCA created two “new”

rights for copyright holders that allowed them to “lock” copyrighted content such as music, video, and software and to prevent technology to circumvent these locks from being created and distributed.

But what about the established doctrine of fair use? The DMCA does include the statement “Nothing in this section (1201) shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title.”

What does DMCA mean? To accommodate those types of protected uses

the DMCA mandates a triennial Rulemaking procedure intended to provide exemptions to the law for legitimate uses.

“During this procedure, the public and other interested parties have the opportunity to present arguments for the creation of exemptions. Opponents also have the opportunity to respond to these arguments. The Register of Copyrights and the Copyright Office make a report with recommendations about which exemptions should be made. The Librarian of Congress makes his or her decision about the exemptions. These exemptions last three years. “ source Copythisblog 26-July-10

What does DMCA mean? This procedure considers four criteria:

The availability for use of copyrighted works; The availability for use of works for nonprofit

archival, preservation, and educational purposes; The impact that the prohibition on the

circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;

The effect of circumvention of technological measures on the market for or value of copyrighted works; and

Such other factors as the Librarian considers appropriate.

Federal Register, Vol.145 , No. 143

What does DMCA mean? The latest review was completed in July 2010

and six classes of exemptions were adopted.

Motion pictures on DVD Cell phone applications Cell phone handsets Video games Computer programs protected by dongles Ebooks

Classes of ExemptionMotion Pictures

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i)  Educational uses by college and university professors and by college and university film and media studies students;(ii) Documentary filmmaking;(iii) Noncommercial videos.U.S. Copyright Office

What does it mean? Excerpts of films can be used at colleges and

universities by faculty in all academic programs and students in film and media studies programs.

Video artists can create “mashups” as long as they aren’t used commercially.

Copyright protection software can be bypassed “for the purpose of criticism or comment.”

Classes of ExemptionCell Phone Applications

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

U.S. Copyright Office

What does it mean? This exemption is referred to as the first

iPhone jailbreaking exemption. Apple cannot legally prevent iPhone users

from jailbreaking their phones to run non-Apple software and cannot seek punitive damages.

Apple does not have to support jailbroken phones.

Classes of ExemptionCell Phone Handsets

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

U.S. Copyright Office

What does it mean? This is referred to as the second iPhone jailbreaking exemption.

Users can unlock their phones in order to use a different carrier.

Apple can void warranties and support for jailbroken phones.

Classes of ExemptionVideo Games

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i)  The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

U.S. Copyright Office

What does it mean? DRM protection for video games can be

bypassed for security testing by owners of computer hardware.

Users cannot make use of findings from security testing to violate existing copyright laws.

Classes of ExemptionComputer Programs protected by Dongles

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.  A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(Definition of a dongle )

U.S. Copyright Office

What does it mean? If replacements for the dongles are no longer

available, the programs they were protecting are open for use.

Classes of ExemptionEbooks

(6) 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 either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

U.S. Copyright Office

What does it mean? Readers can enable the “read aloud” feature

of an ebook reader.

Screen readers can deliver the text from ebooks into alternate formats such as larger print formats.

Important things to remember The Rulemaking procedure mandated by

DMCA occurs every three years. It is Your responsibility to be aware of any changes before you assume that the current exemptions are still applicable.

Fair use guidelines still apply to the unlocked content! DMCA exemptions apply only to the ability to circumvent the locking features of the software; it does not exempt the material from its original copyright protection.

For more information on Fair Use see “Copyright in the Classroom.”

Copyright is the Law This presentation has provided some broad

outlines of DMCA and fair use exceptions. When there is any doubt that your intended

use falls under the listed exemptions of DMCA or is “fair use,” it is the obligation of the user (you) to get legal counsel or to pursue purchasing the rights to the materials in question through your department.

Nothing in this presentation should be construed as legal advice. These guidelines are simply that and in no way guarantee exemption from infringement.

Sources Used for this Presentation include: United States Copyright Office United States Copyright Office,

Rulemaking on Anticircumvention Copythisblog, Legal Circumvention, July 10,

2010 Federal Register. Vol. 75, No. 143. Tuesday,

July 27, 2010, Rules and Regulations.