A presentation to library staff following the

1. 2010 Exemptions for the2010 Exemptions for the
DMCA: What’s New?DMCA: What’s New?
Christian BurrisChristian Burris
September 16, 2010September 16, 2010

2. A brief refresher…A brief refresher…
 The Digital Millennium Copyright Act (DMCA) wasThe Digital Millennium Copyright Act (DMCA) was
enacted in 1996enacted in 1996
 Primary purpose: “It criminalizes production andPrimary purpose: “It criminalizes production and
dissemination of technology, devices, or servicesdissemination of technology, devices, or services
intended to circumvent measures (commonly known asintended to circumvent measures (commonly known as
digital rights management or DRM) that control accessdigital rights management or DRM) that control access
to copyrighted works.” (to copyrighted works.” (Wikipedia entryWikipedia entry))
 Secondary purpose: “It also criminalizes the act ofSecondary purpose: “It also criminalizes the act of
circumventing an access control, whether or not therecircumventing an access control, whether or not there
is actual infringement of copyright itself. In addition,is actual infringement of copyright itself. In addition,
the DMCA heightens the penalties for copyrightthe DMCA heightens the penalties for copyright
infringement on the Internet.” (infringement on the Internet.” (Wikipedia entryWikipedia entry))

3. Contents of the DMCAContents of the DMCA
 Five provisions:Five provisions:
 Title I: WIPO Copyright and Performances andTitle I: WIPO Copyright and Performances and
Phonograms Treaties Implementation ActPhonograms Treaties Implementation Act
 Title II: Online Copyright Infringement LiabilityTitle II: Online Copyright Infringement Liability
Limitation ActLimitation Act
 Title III: Computer Maintenance CompetitionTitle III: Computer Maintenance Competition
Assurance ActAssurance Act
 Title IV: Miscellaneous ProvisionsTitle IV: Miscellaneous Provisions
 Title V: Vessel Hull Design Protection ActTitle V: Vessel Hull Design Protection Act

4. However…However…
 Provisions contain exemptions for “fair use”Provisions contain exemptions for “fair use”
 17 U.S.C. 1201(a)(1) requires Librarian of17 U.S.C. 1201(a)(1) requires Librarian of
Congress to consider possible exemptions by theCongress to consider possible exemptions by the
Copyright Office and issue a decisionCopyright Office and issue a decision
accordinglyaccordingly
 Changes for exemptions are amended everyChanges for exemptions are amended every
three yearsthree years

5. Break #1Break #1
 A Fair(y) Use TaleA Fair(y) Use Tale
 http://www.youtube.com/watch?v=CJn_jC4FNDohttp://www.youtube.com/watch?v=CJn_jC4FNDo

6. Break #1Break #1
 A Fair(y) Use TaleA Fair(y) Use Tale
 http://www.youtube.com/watch?v=CJn_jC4FNDohttp://www.youtube.com/watch?v=CJn_jC4FNDo

7. Latest exemptionsLatest exemptions
 Issued July 26, 2010- cover six classes of worksIssued July 26, 2010- cover six classes of works
1.1. Motion pictures on DVDsMotion pictures on DVDs
2.2. Cellphone applicationsCellphone applications
3.3. Cellphone handsetsCellphone handsets
4.4. Video gamesVideo games
5.5. Computer programs protected by donglesComputer programs protected by dongles
6.6. EbooksEbooks

8. Exemption 1:Exemption 1:
Motion pictures on DVDsMotion pictures on DVDs
 What it says:What it says:
 ““Motion pictures on DVDs that areMotion pictures on DVDs that are lawfully made andlawfully made and
acquiredacquired and that areand that are protected by the Contentprotected by the Content
Scrambling SystemScrambling System when circumvention is accomplishedwhen circumvention is accomplished
solely in order to accomplish thesolely in order to accomplish the incorporation of shortincorporation of short
portions of motion pictures into new works for theportions of motion pictures into new works for the
purpose of criticism or commentpurpose of criticism or comment, and where the person, and where the person
engaging in circumvention believes and has reasonableengaging in circumvention believes and has reasonable
grounds for believing that circumvention is necessary togrounds for believing that circumvention is necessary to
fulfill the purpose of the use in the following instances:fulfill the purpose of the use in the following instances:
 (i)(i) Educational uses by college and university professors and byEducational uses by college and university professors and by
college and university film and media studies studentscollege and university film and media studies students;;
 (ii) Documentary filmmaking;(ii) Documentary filmmaking;
 (iii) Noncommercial videos”(iii) Noncommercial videos”

9. Exemption 1:Exemption 1:
Motion pictures on DVDsMotion pictures on DVDs
 What it means:What it means:
 Excerpts of films can be used at colleges andExcerpts of films can be used at colleges and
universities byuniversities by faculty in all academic programsfaculty in all academic programs andand
students in film and media studies programsstudents in film and media studies programs
 Video artists can create “mashups” as long as theyVideo artists can create “mashups” as long as they
aren’t used commerciallyaren’t used commercially
 Copy protection software can be bypassedCopy protection software can be bypassed
 “…“…for the purpose of criticism or comment”for the purpose of criticism or comment”

10. Exemption 2:Exemption 2:
Cellphone applicationsCellphone applications
 What it says:What it says:
 ““Computer programs thatComputer programs that enable wirelessenable wireless
telephone handsets to execute softwaretelephone handsets to execute software
applicationsapplications, where, where circumvention iscircumvention is
accomplished for the sole purpose of enablingaccomplished for the sole purpose of enabling
interoperability of such applicationsinteroperability of such applications, when they, when they
have been lawfully obtained, with computerhave been lawfully obtained, with computer
programs on the telephone handset.”programs on the telephone handset.”

11. Exemption 2:Exemption 2:
Cellphone applicationsCellphone applications
 What it means:What it means:
 First instance of “jailbreaking” exemptionFirst instance of “jailbreaking” exemption
 Specifically addresses iPhone programs unsupportedSpecifically addresses iPhone programs unsupported
by Apple (Google Voice, tethering)by Apple (Google Voice, tethering)
 Apple cannot legally prevent iPhone users fromApple cannot legally prevent iPhone users from
“jailbreaking” their phone to run the software, and“jailbreaking” their phone to run the software, and
they cannot seek punitive damagesthey cannot seek punitive damages
 Apple does not have to support “jailbroken” phonesApple does not have to support “jailbroken” phones

12. Exemption 3: Cellphone handsetsExemption 3: Cellphone handsets
 What it says:What it says:
 ““Computer programs, in the form of firmware orComputer programs, in the form of firmware or
software, thatsoftware, that enable used wireless telephoneenable used wireless telephone
handsets to connect to a wirelesshandsets to connect to a wireless
telecommunications networktelecommunications network, when, when
circumvention is initiated by the owner of thecircumvention is initiated by the owner of the copycopy
of the computer program solely in order toof the computer program solely in order to
connect to a wireless telecommunicationsconnect to a wireless telecommunications
networknetwork and access to the network is authorized byand access to the network is authorized by
the operator of the network.”the operator of the network.”

13. Exemption 3: Cellphone handsetsExemption 3: Cellphone handsets
 What it means:What it means:
 Second instance of “jailbreaking” exemptionSecond instance of “jailbreaking” exemption
 Users can “unlock” their phones to use withUsers can “unlock” their phones to use with
different carriers (iPhones on Verizon network)different carriers (iPhones on Verizon network)
 Apple does not have to support “jailbroken” phonesApple does not have to support “jailbroken” phones
 Could void warranties and supportCould void warranties and support

14. Exemption 4: Video gamesExemption 4: Video games
 What it says:What it says:
 ““Video games accessible on personal computers andVideo games accessible on personal computers and
protected by technological protection measures that controlprotected by technological protection measures that control
access to lawfully obtained works, when circumvention isaccess to lawfully obtained works, when circumvention is
accomplished solely for the purpose ofaccomplished solely for the purpose of good faith testinggood faith testing
for, investigating, or correcting security flaws orfor, investigating, or correcting security flaws or
vulnerabilities, if:vulnerabilities, if:
 (i) The information derived from the security testing is used primarily(i) The information derived from the security testing is used primarily
to promote the security of the owner or operator of a computer,to promote the security of the owner or operator of a computer,
computer system, or computer network; andcomputer system, or computer network; and
 (ii) The information derived from the security testing is(ii) The information derived from the security testing is used orused or
maintained in a manner that does not facilitate copyrightmaintained in a manner that does not facilitate copyright
infringement or a violation of applicable lawinfringement or a violation of applicable law.”.”

15. Exemption 4: Video gamesExemption 4: Video games
 What it means:What it means:
 DRM protections for video games can be bypassedDRM protections for video games can be bypassed
for security testing by owners and/or operators offor security testing by owners and/or operators of
computer hardwarecomputer hardware
 Users cannot make use of findings from securityUsers cannot make use of findings from security
testing to violate existing copyright lawstesting to violate existing copyright laws

16. Exemption 5:Exemption 5:
Computer programs protected by donglesComputer programs protected by dongles
 What it says:What it says:
 ““Computer programs protected by dongles thatComputer programs protected by dongles that
prevent access due to malfunction or damage andprevent access due to malfunction or damage and
which are obsolete. Awhich are obsolete. A dongle shall be considereddongle shall be considered
obsoleteobsolete if it is no longer manufactured or if aif it is no longer manufactured or if a
replacement or repair is no longer reasonablyreplacement or repair is no longer reasonably
available in the commercial marketplace;”available in the commercial marketplace;”

17. Exemption 5:Exemption 5:
Computer programs protected by donglesComputer programs protected by dongles
 What it means:What it means:
 Physical devices for software authenticationPhysical devices for software authentication
purposes, like a lock and keypurposes, like a lock and key
 If replacements to the dongles are no longerIf replacements to the dongles are no longer
available, the programs they were protecting areavailable, the programs they were protecting are
open for useopen for use
 Continues exemptions from 2003 and 2006Continues exemptions from 2003 and 2006

18. Exemption 6: EbooksExemption 6: Ebooks
 What it says:What it says:
 ““Literary works distributed in ebook format when allLiterary works distributed in ebook format when all
existing ebook editions of the work (including digitalexisting ebook editions of the work (including digital
text editions made available by authorized entities)text editions made available by authorized entities)
containcontain access controls that prevent the enablingaccess controls that prevent the enabling
either of the book’seither of the book’s read-aloud function or ofread-aloud function or of
screen readersscreen readers that render the text into athat render the text into a
specialized format.”specialized format.”

19. Exemption 6: EbooksExemption 6: Ebooks
 What it means:What it means:
 Readers can enable the “read aloud” feature of anReaders can enable the “read aloud” feature of an
ebook readerebook reader
 Screen readers can deliver the text from ebooks intoScreen readers can deliver the text from ebooks into
alternate formats on the device, e.g. magnifying textalternate formats on the device, e.g. magnifying text

20. Break #2Break #2
 Mashup example: Han Solo P.I.Mashup example: Han Solo P.I.
 http://www.youtube.com/watch?v=rYntjR4-pY4http://www.youtube.com/watch?v=rYntjR4-pY4

21. Break #2Break #2
 Mashup example: Han Solo P.I.Mashup example: Han Solo P.I.
 http://www.youtube.com/watch?v=rYntjR4-pY4http://www.youtube.com/watch?v=rYntjR4-pY4

22. AnalysisAnalysis
 Electronic Frontier Foundation says rulingElectronic Frontier Foundation says ruling
offers “new legal protections for video artists,offers “new legal protections for video artists,
cellphone jailbreakers, and unlockers.”cellphone jailbreakers, and unlockers.”
 Library Copyright Alliance praises the decisionLibrary Copyright Alliance praises the decision
to give students and faculty of all disciplines theto give students and faculty of all disciplines the
right circumvent copy protectionsright circumvent copy protections

23. AnalysisAnalysis
 Creating video clips from copy-protected DVDsCreating video clips from copy-protected DVDs
now legal for university faculty of all disciplinesnow legal for university faculty of all disciplines
 Regarded as the most sweeping exemptionRegarded as the most sweeping exemption
ruling on the DMCA yet, especially in terms ofruling on the DMCA yet, especially in terms of
“jailbreaking”“jailbreaking”
 Still early to determine consequences of rulingStill early to determine consequences of ruling
 Potential to expand the ebook market to morePotential to expand the ebook market to more
usersusers

24. LinksLinks
 U.S. Copyright LawU.S. Copyright Law
 U.S. Copyright Office- Copyright Law, Chapter 12U.S. Copyright Office- Copyright Law, Chapter 12
http://www.copyright.gov/title17/92chap12.html#1201http://www.copyright.gov/title17/92chap12.html#1201
 Statement of the Librarian of Congress Relating toStatement of the Librarian of Congress Relating to
Section 1201 RulemakingSection 1201 Rulemaking
http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.hhttp://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.h
 WikipediaWikipedia
 Digital Millennium Copyright ActDigital Millennium Copyright Act
http://en.wikipedia.org/wiki/DMCAhttp://en.wikipedia.org/wiki/DMCA

25. LinksLinks
 Go Ahead, Jailbreak Your SmartphoneGo Ahead, Jailbreak Your Smartphone
http://chronicle.com/blogPost/Go-Ahead-Jailbreak-http://chronicle.com/blogPost/Go-Ahead-Jailbreak-
Your-Sm/25792/Your-Sm/25792/
 Information on the New DMCA ExemptionsInformation on the New DMCA Exemptions
http://chronicle.com/blogPost/Information-on-the-http://chronicle.com/blogPost/Information-on-the-
New-DMCA/25795/New-DMCA/25795/
 Letting Us Rip: Our New Right to Fair Use of DVDsLetting Us Rip: Our New Right to Fair Use of DVDs
http://chronicle.com/blogPost/Letting-Us-Rip-Our-http://chronicle.com/blogPost/Letting-Us-Rip-Our-
New-Right/25797/?New-Right/25797/?
sid=wc&utm_source=wc&utm_medium=ensid=wc&utm_source=wc&utm_medium=en

26. LinksLinks
 DMCA Changes: Copyright Rules Made More FlexibleDMCA Changes: Copyright Rules Made More Flexible
http://www.daniweb.com/news/story299581.htmlhttp://www.daniweb.com/news/story299581.html
 EFF Wins New Legal Protections for Video Artists,EFF Wins New Legal Protections for Video Artists,
Cell Phone Jailbreakers, and UnlockersCell Phone Jailbreakers, and Unlockers
http://www.eff.org/press/archives/2010/07/26http://www.eff.org/press/archives/2010/07/26
 The jailbreaking exemption has its limitsThe jailbreaking exemption has its limits
http://news.cnet.com/8301-13578_3-20012109-38.html?http://news.cnet.com/8301-13578_3-20012109-38.html?
tag=mncol;2ntag=mncol;2n
 Library Copyright Alliance Press ReleaseLibrary Copyright Alliance Press Release
http://www.arl.org/news/pr/1201exempt-http://www.arl.org/news/pr/1201exempt-
27july10.shtml27july10.shtml

27. Questions?Questions?