Recent Exemptions Created by the Digital Millennium Copyright Act
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This article was originally published in the Spring 2004 edition (Vol. 4, No. 1) of Thelen Reid's Intellectual Property and Trade Regulation Journal.
The world of entertainment is progressing full speed ahead through the transition from analog to digital. DVD, high definition/digital television, digital cable, digital music downloads, digital projection of motion pictures – a decade ago, these digital formats were essentially non-existent in the U.S. marketplace. Yet today these formats are ingrained into our culture and the changes they have made to our daily lives are even more dramatic when viewed in retrospect. The digital revolution is clearly upon us; however, lawmakers are in the unenviable position of playing a game of catch-up, especially in regard to the protection of the intellectual property that is at the heart of these digital formats.
The Digital Dilemma
A fundamental problem with intellectual property stored via a digital medium is that it is possible to make a perfect copy essentially with the click of a button. Concerns about piracy and the desire to protect the market and distribution channels for lucrative intellectual property have driven providers of digital content to develop technological measures that control access to the copyrighted work.
One example of such a technological measure is the regional encoding system on DVDs released throughout the world. A DVD that is purchased in the United States will not work on DVD players sold internationally, and vice versa, as the regional encoding blocks access and will only be recognized by a DVD player (i.e. hardware) sold in the same region as the actual DVD (i.e. software). The regional encoding system for the DVD market was primarily developed as a compromise between the major entertainment companies (i.e. the content providers) and the big electronics manufacturers to protect the sales of DVDs in local markets, thereby prohibiting local markets from being flooded by imports. This protection is particularly important in the DVD market because often with entertainment properties, the ancillary rights are split among different intellectual property owners – i.e. one company may own the U.S. home video/DVD rights for a certain film and another company owns the international home video/DVD rights for the same title. Because film release patterns around the world differ, it is often the case that a major film is released on DVD in the U.S. market before that film has even been released theatrically overseas. This leads to scenarios where the DVD release of a film in the U.S. can be available as much as a year in advance of the planned foreign DVD release of the same film. Without the regional encoding system on the DVDs, the company that owns the foreign DVD rights for a given film title could see its marketplace drastically shrink as the U.S.-produced DVD of that same film title would be readily available for import. Inevitably, the regional encoding system on DVD's has been hacked and so-called "region free" DVD players have been created that allow playback of DVD's from any territory, thereby eroding the local market protections that the regional encoding system sought to enforce.
The DMCA Solution
Congress sought to protect technological measures, such as the DVD regional encoding system, from circumvention when it enacted the Digital Millennium Copyright Act (DMCA) in 1998. The DMCA prohibits the circumvention of technological measures that effectively control access to copyrighted works (see 17 U.S.C. Sec. 1201(a)(1)(A) of the Copyright Act, a section added to the Act by the DMCA). Under Section 1201(a)(3)(A), to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner. Under Section 1201(a)(3)(B), a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
However, the DMCA was drafted to give the Librarian in the Library of Congress power to ensure that its anti-circumvention provisions would not apply in special cases, as determined by the Librarian, where circumvention of a technological measure is necessary to make a noninfringing use of a copyrighted work.
- ÂŽ Section 1201(a)(1)(B) provides that the anti-circumvention provisions set forth in Section 1201(a)(1)(A) shall not apply to persons who are users of a copyrighted work, which is in a particular class of works (as determined under subparagraph 1201 (a)(1)(C)), if such persons are, or are likely to be, in the succeeding three-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works.
- ÂŽ Section 1201(a)(1)(C) provides that the Librarian of Congress, on the recommen-dation of the Register of Copyrights, shall make the determination in a rulemaking proceeding for the purposes of subparagraph 1201(a)(1)(B) of whether persons who are users of a copyrighted work are, or are likely to be, in successive three-year periods (i.e. the rule-making proceeding takes place every three years), adversely affected by the prohibition under subparagraph 1201(a) (1)(A) in their ability to make noninfringing uses of a particular class of copyrighted works.
Exemptions
On October 28, 2003, the Librarian of Congress ruled that the following classes of works are subject to exemption (for a three-year period) from the prohibition against circumvention of technological measures that control access to copyrighted works:
- Compilations consisting of lists of Internet locations blocked by commercially-marketed filtering software applications that are intended to prevent access to domains, Web sites or portions of Web sites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of e-mail.
Computer programs protected by dongles (hardware locks that interact with software programs to prevent unauthorized access to computer software) that prevent access due to malfunction or damage and which are obsolete- Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
- Literary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the e-book's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.
The first two exempted classes of works set forth above are very similar to the two classes of works exempted under the Librarian of Congress' previous ruling dated October 27, 2000, which expired on October 28, 2003. The first exempted class allows interested persons to circumvent technological measures to gain access to the complete list of blocked Web sites that a filtering software program may block in order to review the list of blocked sites and to see if, perhaps, some sites have been blocked that don't deserve to be blocked or were even blocked mistakenly. The intended underlying purpose of this exemption is to serve the public interest by allowing for criticism and debate over filtering software. The second exempted class, discussed more fully below, allows users of a computer program to overcome damaged access control measures to gain access to the underlying program.
According to the Statement of the Librarian of Congress relating to the October 28, 2003 ruling, the third exempted class was intended to provide relief to libraries and archives in their preservation activities, and the fourth exempted class was intended to assist the blind and visually disabled in their ability to gain meaningful access to digital materials.
Issues Raised by the Exemptions
While the Librarian found that the above-described classes of works were worthy of exemption from the DMCA's anti-circumvention provisions, the exemptions are on their face quite narrow and appear to impact a fairly limited class of end users. Meanwhile, digital formats are multiplying and access to the underlying copyrighted works is being strictly controlled by the manufacturers of these formats. There currently is no digital rival to the traditional First Sale Doctrine, where a copyright holder's right to control a particular copy of a work ends once the author first places that work into the stream of commerce. In the digital content world, where technological measures control the access to digitally encrypted work, the copyright holder maintains control over the copy, even after the first lawful access to that copy has been authorized. If a customer on the Internet downloads a song from the popular online music store iTunes, that customer can only play the song (which is in a mpeg-4 format known as AAC) on his or her computer via the iTunes software. The only compatible portable music device that can properly play the song is the iPod.
As the DMCA currently stands, an end user would be prohibited from altering the encrypted code of such a song file so that they could listen to that song on alternate listening devices (i.e. a less costly portable .mp3 player alternative to the iPod). Because the end user has paid to download this song, the act of listening to the song via a medium of the end user's choice clearly seems to be a noninfringing use of the copyrighted work. The provisions of the DMCA allow the Librarian to provide exemptions for such scenarios and therefore allow circumvention of technological measures in order to protect such noninfringing uses, yet in the Librarian's October 28, 2003 ruling, only limited classes of works were granted exemption.
Even where the Librarian found a class of works worthy of exemption, such as the computer programs protected by dongles, the Librarian's ruling takes a narrow approach by limiting the class of works to computer programs. Where a dongle is malfunctioning, damaged or obsolete, a computer user who has purchased or has a user license for the software should be allowed to circumvent the dongle in order to gain access to the copyrighted material he is entitled to, and the Librarian ruled accordingly.
However, there could be many other instances, not necessarily involving computer programs, where a copyrighted work can not be accessed by an authorized user of that work due to access control mechanisms that have failed because of malfunction, damage or obsoleteness. It is a fact that companies go out of business, or they may not have proper incentive to provide product support once they release their product into commerce. In such cases, legitimate users may not be able to access works because of obsolete or broken access controls. The Librarian's ruling only allows a user to circumvent the damaged access controls if the underlying work is a computer program.
As to other types of works besides computer programs, if the access controls to such works malfunction, the malfunction would prevent authorized users from the access to a copyrighted work to which they are entitled, thereby denying such users their right to make noninfringing uses of the underlying work. It seems clear that exemptions should be provided from the DMCA's anti-circumvention provisions where access controls are no longer furthering the purpose of protecting a work from unauthorized users. In such cases, exemptions should be set forth regardless of whether the underlying copyrighted work is a computer program or not.
The Librarian noted that during the ruling process many comments were received arguing that all works should be exempt from the anti-circumvention provisions for non-infringing uses, such as fair use and private uses. The Librarian dismissed such a blanket exemption, indicating that such an action would be, in effect, an administrative abrogation of Section 1201(a)(1). (See Federal Register, Vol. 68, No. 211, Friday, October 31, 2003, Rules and Regulations, pg. 62014).
While a blanket exemption may indeed be taking things too far, it seems dangerous to not provide even a limited exemption for fair uses. It is not hard to imagine a scenario in the future where content providers will only release their copyright-protected work in digital formats that employ technological measures so that access can be blocked to fair uses of the work. In fact, that is the direction the marketplace is increasingly heading. The analog video tapes and cassette tapes of our recent past are slowly ceasing to be manufactured and their digital replacements are proliferating. This danger is here and by the time the current DMCA exemptions expire in 2006, evidence may be mounting that the individual's right to make a fair use of a work has been compromised with the advent of the digital era.
Conclusion
At the moment, the scales appear to be tipped in favor of copyright holders at the expense of those persons who would make a noninfringing use of a copyrighted work, if only they were able to circumvent the technological measures that control access to the copyrighted work. It is apparent that copyright law has not quite caught up to the realities of the new digital age. The provisions of the DMCA allow the Librarian to render the anti-circumvention provisions inapplicable to instances where the circumvention of the access controls would allow for noninfringing uses of the underlying copyrighted material; but, to date, the Librarian has only granted limited exemptions.
The Librarian's most recent ruling regarding exempted classes will expire in October 2006 when a new ruling will be delivered. No doubt there are digital formats that are still on the drawing board today that will be realities in the marketplace at the time of the Librarian's next ruling. By that time will the law have caught up to the realities of a digital universe? Will it even have come close?
For more information, please contact:
Jonathan D. Fuhrman 212.603.6585 jfuhrman@thelenreid.com
©2004 By Thelen Reid & Priest LLP. This article has been published as an information service to clients and friends. Please recognize that the information is general in nature and must not be relied upon as legal advice. The authors, listed above, or your Thelen Reid attorney contact, would be happy to discuss the information in this article in greater detail and its application to your specific situation. We welcome your comments and suggestions.
© 2004 Thelen Reid Brown Raysman & Steiner LLP