HCBA Lawyer Magazine Vol. 29, No. 3 | Page 40

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