Library of Congress Requests Comments Regarding Proposed Exemptions to the DMCA

January 4, 2012

For the fifth time, the Librarian of Congress (currently James Hadley Billington), upon the recommendation of the Register of Copyrights (currently Maria Pallante,), will conduct a rulemaking proceeding to determine whether certain prohibitions of the Digital Millennium Copyright Act (“DMCA”) adversely affect users of copyrighted works. Anti-Circumvention Provisions of the DMCA Among the many provisions of the DMCA, enacted in 1998, is a provision (17 U.S.C. § 1201(a)) which prohibits the circumvention of technological measures which control access to works protected by the DMCA.  For example, the anti-circumvention provision prohibits the use of software to bypass DVD encryption which prevents illicit copying. However, the same section of the DMCA provides that the anti-circumvention provision does “not apply to persons who…adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title…”  In other words, the anti-circumvention provision will not apply to certain groups of people who are unable to make a valid noninfringing use of a work due to the technological measures, so long as the group is one of the groups identified by the Librarian of Congress. Triennial DMCA Rulemaking Proceedings Accordingly, the Librarian of Congress must “make the determination in a rulemaking proceeding…of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the [anti-circumvention] prohibition…in their ability to make noninfringing uses under this title of a particular class of copyrighted works.”  In other words, every three years the Librarian of Congress must determine and publish which classification(s) of people it has identified as unable to make a valid noninfringing use of a work due to technological measures controlling access to works. Since enactment of the DMCA, four such determinations have been made.  Following the most recent determination, the Librarian of Congress published on August 6, 2010 the following classifications of people exempt from the anti-circumvention provision of the DMCA:

• DVDs protected by a Content Scrambling System, when circumvention is to incorporate short portions into a new work for the purpose of criticism or comment, and where the circumvention is for: (i) an education use by college and university professors or film and media studies students; (ii) documentary filmmaking; or (iii) noncommercial videos;

• Computer programs enabling wireless telephone handsets to execute software applications for the sole purpose of enabling interoperability of such applications;

• Computer programs that enable used wireless telephone handsets to connect to a wireless telecommunications network;

• Testing for or investigating security flaws or vulnerabilities of video games accessible on personal computers

• Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete; and

• Literary works distributed in ebook format when all existing ebook editions of the work prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

Comment Period Open Through February 10, 2012 In September, the Copyright Office issued a Notice of Inquiry in the fifth anticircumvention rulemaking requested written proposals to designate classes of works from all interested parties in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works. Those proposals have been posted to the Copyright Office’s website, and the Copyright Office recently requested comments regarding these proposed classes of works, which include several new classes in addition to those adopted in 2010. Comments addressing the Proposed Classes of Works are due by 5 p.m. E.S.T., February 10, 2012 (via this form).  Reply comments addressing points made in the initial comments are due by 5 p.m. E.S.T. on March 2, 2012.