CopYrIgHT oFFICE ImpLEmEnTs ExEmpTIons To anTI-CIrCumvEnTIon provIsIons oF THE DmCa
Intellectual Property Section
Chairs: Cole Carlson – GrayRobinson, P.A. & Ryan M. Corbett – Burr & Forman
The seemingly random nature
of the exemptions, and the
fact that are being made by
a government agency instead
T
he Digital Millennium
Copyright Act was
enacted in 1998 with
the aim of bringing
the nation’s copyright laws into
the digital age. One of the most
controversial aspects of the Act was
the anti-circumvention provision
outlined in 17 U.S.C. §1201. Section
1201 forbids circumventing an
access-control device to gain access
to copyrighted material. These
“digital locks” are encountered,
for example, when trying to alter
a computer program or copy a
song or video. Users who violate
§1201 can be subject to severe civil
and even criminal penalties. These
penalties apply even if the purpose
of breaking the lock is otherwise
lawful. For this reason, many view
§1201 to be unconstitutional.
Every three years, the Copyright
Office examines §1201’s impact
on the ability of users to engage in
lawful, non-infringing uses of copy-
righted materials. The Copyright
Office then promulgates certain
exemptions to §1201. Last October,
the Copyright Office finalized its
“Seventh Triennial Proceeding to
Determine Exemptions to the
Prohibition on Circumvention” and
adopted or expanded upon several
important exemptions to §1201.
The exemptions include:
Unlocking Cellular Devices:
An earlier rule allowed users to
unlock cellular devices, such as
38
of Congress, raises serious
constitutional questions.
cellphones and tablets, for the
purpose of switching the device to
an alternative wireless network (i.e.
“unlocking”). The current rule has
been expanded so that it is applicable
to both new and used devices alike. 1
Jailbreaking Digital
Assistants: The Copyright Office
also expanded the ability to
jailbreak various electronic devices
such as smartphones and smart
televisions. Jailbreaking is a process
whereby a user gains root access to
the operating system of the device
so that software can be added or
removed. A prior ruling of the
Copyright Office allowed various
classes of devices to be modified in
this way. The current rule expands
this ruling so it applies to voice
assistant devices, such as the Amazon
Echo ® and Apple HomePod ® . 2
Motorized Land Vehicles:
§1201 also applies to the computer
software now commonly found
in cars and trucks. The Copyright
Office previously extended an
exemption to allow users to access
such software for the purpose
of repairing the vehicle. This
exemption has been expanded
and clarified to allow users to also
access the various diagnostic data
generated by such systems. 3
Maintenance and Repair:
The Copyright Office has also issued
a rule that is broadly applicable to a
wide range of devices provided that
the access is needed for the purpose
of “diagnosis, maintenance, or
repair.” This rule is presumably
applicable to smartphones, home
appliances, or other home systems. 4
Despite these positive
developments, many of §1201’s
prohibitions remain in place —
many inexplicably so. For example,
the exemptions for motorized land
vehicles are just that, and strangely
do not apply to boats or planes.
Perhaps most puzzling, §1201’s
prohibition against distributing
circumvention tools, such as
jailbreaking kits, remains in place.
The seemingly random nature of the
exemptions, and the fact that they
are being made by a government
agency instead of Congress, raises
serious constitutional questions.
Section 1201 Rulemaking: Seventh
Triennial Proceeding to Determine
Exemptions to the Prohibition on
Circumvention at 6, available at https://
www.copyright.gov/1201/2018/2018_
Section_1201_ActingRegisters_
Recommenda tion.
pdf
2 See id. at. 7.
3 See id.
4 See id.
1
Author:
Michael
J. Colitz, III –
GrayRobinson
JAN - FEB 2019
|
HCBA LAWYER