Library of Congress adds (a dose of) sanity to DMCA

Those in the Free Culture movement frequently point to the Digital Millennium Copyright Act as a primary example of what’s wrong with modern copyrght.  The DMCA is criticized for many reasons, including the procedure for take-down of copyrighted content.  However, the consensus since soon after the DMCA was enacted was that the anti-circumvention provisions located in 17 U.S.C. § 1201(a)(1) were the most significant affront to copyright, fair use and free speech.  The one glimmer of hope for those who wanted to access and reuse DRM-restricted content was that the Library of Congress was given authority “to determine whether there are any classes of works that will be subject to exemptions.”  In other words, while copyright’s fair use protections can’t help you get around the DMCA’s harsh penalties, the LoC can define classes of work that are effectively exempted.  The LoC made its first signficant move to curb the DMCA’s protections in 2006.

Well, this morning the Library of Congress announced its latest round of exemptions, and there are some pretty big ones this time around.  The Electronic Frontier Foundation, after abstaining from the process all together in the past saying the process was “simply too broken,” played a major role in advocating for these changes.

First, LoC has finally decided to exempt motion pictures (read: DVDs) from anti-circumvention protection.  This exemption is not as broad as fair use, though, as it only covers documentary or noncommercial uses of the copyrighted motion pictures.  Moreover, LoC advocates a sort of least restrictive means test when determining whether a particular use should be exempted:  “Where alternatives to circumvention can be used to achieve the noninfringing purpose, such non-circumventing alternatives should be used.”  So this exemption might not be as broad as many would hope, but it finally gives consumers the peace of mind that they can legally rip their DVDs and use them in creative (albeit, noncommercial) content.

Second, LoC in perhaps a suprising and fairly bold move has exempted jailbreaking of mobile handsets.  This fight revolved around whether or not consumers should be able to tinker with their iPhone OS, so Apple fought hard against this measure.  Apple’s justification for having the DRM protection was to maintain its protected ecosystem.  However, the Register pointed out that the danger to Apple had little to do with copyright and much more to do with reputation.  Moreover, the use by consumers was intended to aid interoperability:

When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.

The third major exemption was to allow users to bypass DRM in order to enable text-to-speech functions on audio books.  At first this may seem like a simple, even unimportant exemption until you realize the case for audiobooks for the blind.  Still, this exemption is limited to the scenario where there are no commercial alternatives available.

The final exemption was given to allow researchers to test security vulernabilities within DRM-protected video games.  Another important if limited class.

The LoC did not grant all of the exemptions up for consideration, but it certainly did take a positive step to provide some balance to the DMCA.  This should offer hope for more progress in 2012.  I’m sure there will be plenty of discussion both on this blog and around the web as to the implications of today’s decision.