Reverse Engineering DRM on CDs Deemed Lawful

In keeping with the jovial holiday spirit in which these two findings were made, the Library of Congress handed classic video game collectors a Christmas present: The owners of games can legally work to move those works to other formats, when their native formats have become technologically obsolete. This exemption was proposed by the folks responsible for the non-profit Internet Archive project, as an extension and refinement to an exemption granted to this class of works in 2003.

As the Archivists successfully argued, the video games they seek to protect for the historical record are themselves protected by access controls whose physical technology -- such as an early class of floppy diskette -- limits them for use with their original consoles and computers only.

A further request by the Archive extending the exemption to games restricted to earlier operating systems was denied, not for protective reasons but because the Register determined that the use of a different OS was not, in itself, an "access control" that required addressing. In other words, such circumvention may already be protected by existing law.

Also recommended for exemption yesterday were cases where a university or institution compiles audio/visual material from its old library onto new media; cases where an old program is protected from running by an old dongle that doesn't fit in a new computer, and circumvention is required for the program to run; and cases where a sight-impaired person might require circumvention to enable an audio screen-reading utility to access content in order to read it aloud.

But the Librarian wasn't granting exemptions sight unseen. For instance, a request to renew an existing exemption enabling software to circumvent "censorware" such as WebWasher, in order to access the list of blocked Web sites, was rejected. Proponents of the exemption wanted to be able to create their own Web sites where individuals could comment on, or file grievances about, sites that are blocked but perhaps shouldn't be. The Library didn't see that as a good enough reason.

Also among the denied were requests to exempt cases where individuals move legally-purchased digital media from one DRM format to another ("space-shifting"); cases where Linux users can't view specially-coded DVDs and work to resolve such problems; cases where DVD owners living in one country would like to see a movie sold in another (the classic region-coded DVD request); cases where a program developed for one operating system for one reason or another won't run in another operating system; and at least one request to exempt absolutely all works addressed by the DMCA, on the grounds that the act unfairly infringes upon consumers' rights.

On his blog, Prof. Felten devoted less space to celebrating his victory as he did to lamenting the exemptions that were denied. "Fair use is sometimes broken down into two categories: transformative uses such as scholarship, research and parody; and personal uses such as time-shifting and space-shifting," Felten wrote.

"The Copyright Office now seems to recognize that the DMCA is harming transformative use...But what they don't yet see, apparently, is the harm to personal use - hence the denial of the space-shifting and backup requests. Worse yet, they didn't even acknowledge that these personal uses are lawful in the first place. In short, the Copyright Office still isn't willing to grapple with the issues of most direct interest to the public."