US Copyright office issues new exemptions from DMCANovember 25, 2006

Every three years, the United States Copyright Office seeks proposals for exemptions from the Digital Millennium Copyright Act (“DMCA”). The DMCA was enacted in 1998. As part of the DMCA, it became unlawful to circumvent access control measures copyright holders used to secure their copyrighted works. For example, it is a violation of the DMCA to use a program to “break” the content scramble system (“CSS“) encryption used for standard DVDs in order to make a copy of the DVD, even if making such a copy would otherwise be considered fair use under copyright law. On October 3, 2005, the Copyright Office issued is request for comments for new exemptions from the anticircumvention rules. Over the course of the past 13 months, the Office reviewed many comments, reply comments, held hearings, and gathered more information after the hearings. The net results of these administrative proceedings is that there have been six new exemptions from the DMCA approved by the Copyright Office for this three-year period, the most exemptions ever granted by the Office. The high number of exemptions is likely because for the first time, the Copyright Office granted exemptions specific to certain classes of individuals. The new exemptions permit, among other things, universities to make copies of audiovisual works in order to make compilations for educational use, visually impaired individuals to circumvention the protection on e-books in order to use the “read-aloud” function of their e-book reader, and, potentially most interestingly, circumvention of access controls in mobile phones in order to “unlock” the phone for use with another wireless service provider. The Office also granted an exemption for security researchers to test copy protection technologies for security vulnerabilities. This exemption was likely granted, at least in part, because of the security vulnerabilities created by Sony BMG CDs using XCP copy protection, which security researchers discovered introduced a rootkit onto users’ computers whether or not they agree to install any software. The rootkit then prevented the user from seeing any file beginning with a certain prefix, including viruses, trojans, and other potentially hazardous software. Shortly after XCP’s behavior was revealed, a trojan was discovered taking advantage of its characteristics. A class action lawsuit was eventually filed and settled, with Sony BMG agreeing to, among other things, replace any XCP CD with a CD without the XCP copy protection. The most notable exemption that was requested and rejected by the Copyright Office was an exemption for “ripping” DVDs to view them on other devices such as video iPods. These exemptions take effect when published in the Federal Register and will last for three years, until the next triennial rulemaking.

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