The New DMCA Anti-Circumvention Exemptions are here!

While not as exciting as the new phone books, the Copyright Office released its latest rulemaking on exemptions to the DMCA prohibition on circumventing technological protection measures of copyrighted works: Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works. The current exemptions include:

  1. Short clips from DVD’s “when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment” to meet the goals of fair use for:
    1. Educational uses by college and university professors and by college and university film and media studies students;
    2. Documentary filmmaking;
    3. Noncommercial videos.
  2. Programs to enable phone handsets to execute software applications (phone “jailbreaking.”)
  3. Computer programs that enable used wireless telephone handsets to connect to a wireless telecommunications network with the permission of the network owner
  4. Technological protection methods on computer-based video games, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if the information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and the information derived from the testing is used in a manner that does not facilitate copyright infringement or a violation of applicable law.
  5. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
  6. Literary works distributed in ebook format when all existing ebook editions of the work contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

Links
EFF: EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers “The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities.”
Nate Anderson, Ars Technica, Apple loses big in DRM ruling: jailbreaks are “fair use” “This time, the Library went (comparatively) nuts, allowing widespread bypassing of the CSS encryption on DVDs, declaring iPhone jailbreaking to be ‘fair use,’ and letting consumers crack their legally purchased e-books in order to have them read aloud by computers.”
Jon Healey, LA Times, More legal reasons to circumvent electronic locks: “The biggest beneficiaries may be documentary filmmakers and iPhone software developers. The former gained permission to circumvent the Content Scramble System software on DVDs to copy short portions of copyrighted motion pictures for non-infringing uses. In an interesting twist, the copyright office extended the exemption to anyone making a documentary, not just members of a recognized group of filmmaking professionals.”
MGE v. GE
In other DMCA Anti-Circumvention news, the Fifth Circuit ruled last week that in order to deserve protection under the anti-circumvention provisions, the technological prevention measures need to protect an action that copyright law reserves for the copyright owner. MGE UPS Systems Inc. v. GE (5th Cir. Jul. 20, 2010)

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners… Without showing a link between “access” and “protection” of the copyrighted work, the DMCA’s anti-circumvention provision does not apply. The owner’s technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.

GE was using a version of MGE’s systems that were modified to work without a copy protection dongle, but GE was not otherwise infringing on any of MGE’s copyrights. The circumvention was done to use the MGE products that GE purchased, but not to distribute or perform copies of MGE’s copyrighted works.
Nilay Patel, Engadget, Did the Fifth Circuit just make breaking DRM legal? Not quite.