DMCA revised: unlocking, jailbreaking phones, e-book text-to-speech, potentially fair use

Methods for bypassing DVD encryption, unlocking mobile phone carrier locks, and other content protection could be argued as fair use under a revision of the Digital Millennium Copyright Act, Librarian of Congress James H. Billington announced today.

Every three years, the Library of Congress must determine if there are any types of works that can be exempt from Section 1201 of copyright law, also known as "Circumvention of Copyright Protection Systems."

When this provision was enacted, the House Commerce Committee felt that "it could be appropriate to modify the flat prohibition against the circumvention of effective technological measures that control access to copyrighted materials, in order to ensure that access for lawful purposes is not unjustifiably diminished." (PDF here) So a "fail-safe" mechanism was written into the law, where the Register of Copyrights and Librarian of Congress determine whether there are times where circumventing copy protection is acceptable.

Today, in his fourth time revising the act, Billington announced six cases where copy protection circumvention is not copyright infringement:

  • When short clips are taken from DVDs encrypted with Content Scrambling System (CSS) for use in Education, Documentary filmmaking, and noncommercial videos.
  • When "jailbreaking" software is used to install third-party applications on mobile phones "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."
  • When firmware or software is used to unlock phones from a particular wireless carrier.
  • When copy protection must be broken in video games to test for, investigate and correct security flaws.
  • When a software's security dongle is malfunctioning or obsolete.
  • When all e-books are blocked from screen readers or e-reader read aloud functions, and no digital edition is available with such accessibility features.

"This is not a broad evaluation of the successes or failures of the DMCA," Billington noted today. "The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Nor is this rulemaking about the ability to make or distribute products or services used for purposes of circumventing access controls."

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