Library of Congress Grants 10 Exemptions to DMCA Section 1201

The CO retained existing exemptions for unlocking and jailbreaking cellphones while extending the exemptions to tablets, mobile connectivity devices and wearable devices. The CO also recommended extending its jailbreaking exemption to cover smart TVs when circumvention is done “for the sole purpose of enabling interoperability of such applications with computer programs” on the smart TV. The CO recommended that LOC not extend the jailbreaking exemption to include e-book readers and video game consoles. Arguments in favor of jailbreaking video games consoles “to engage in console repair did not provide a basis for an exemption in light of the availability of authorized repair services and the ability of proponents and others to perform repairs without the need to circumvent,” the CO said.

The CO said it invited proposals to extend the scope of its unlocking and jailbreaking exemptions in response to Congress' 2014 passage of the Unlocking Consumer Choice and Wireless Competition Act, which reinstated a full unlocking exemption for cellphones. The act was clearly a major impetus for the CO's extension of the unlocking and jailbreaking exemptions, but it wasn't the sole impetus, said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz in an interview.

The CO recommended that LOC grant an exemption to allow circumvention of technological protection measures (TPMs) for software on implanted medical devices, vehicles, voting machines and other individual consumer products for “good-faith security research” as long as circumvention doesn't violate the Computer Fraud and Abuse Act. “Good-faith security research” would include testing, investigation and correction of “a security flaw or vulnerability, where such activity is carried out in a controlled environment designed to avoid any harm to individuals or the public,” the CO said. Information obtained from software circumvention would need to be “used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines,” the CO said.

The CO also recommended that LOC grant an exemption for circumvention of TPMs on vehicle software “when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function.” The exemption doesn't allow circumvention of vehicle software “primarily designed for the control of telematics or entertainment systems,” the CO said. Like the security-related software exemption, this exemption won't take effect until Oct. 28, 2016.

The CO recommended an LOC exemption to allow copying and modification of computer game software when the copyright owner has ceased providing access to authentication processes needed to run the game as long as circumvention is for personal use or noncommercial preservation purposes. The CO recommended against a similar exemption for music recording software, saying there wasn't sufficient evidence to support a recommendation. The CO also recommended granting an exemption for circumventing TPMs on programs that operate 3D printers “when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data.”

The CO recommended allowing circumvention of TPMs on videos to allow the use of short portions “for the purpose of criticism or comment” by college and K-12 faculty and students for education purposes, as part of nonprofit massive open online courses and by other nonprofit digital and media literacy programs. The exemption also applies to use of short portions of videos in documentary filmmaking, noncommercial videos and nonfiction multimedia e-books offering film analysis, the CO said. The office allowed the circumvention of TPMs on electronic versions of literary works that prevent the use of screen readers and other read-aloud technologies when the technology is legally obtained by someone who is blind or others with disabilities.

The LOC's granting of the Section 1201 exemptions “will help users access technologies and content in a way that works for them,” said Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., in a statement. “The rule also builds on the work we did last Congress and will enable consumers to connect not only their smartphones, but also their tablets and devices, to the network of their choice.” Leahy noted that he and Senate Judiciary Chairman Chuck Grassley, R-Iowa, asked the CO last week to do a study of the role of copyright law on the use of “software-enabled devices” (see 1510230036). “Consumers rightly want to know how they can use software-enabled products without running afoul of the law,” Leahy said.

NTIA, which was among the entities that commented during CO's review of the proposed Section 1201 exemptions, believes the granted exemptions “substantially improve the ability to make non-infringing uses of copyrighted works and advance the President’s goal of promoting the free flow of information over a ubiquitous, open, and affordable Internet,” said Deputy Assistant Secretary of Commerce-Communications and Information Angela Simpson in a blog post: Although NTIA is still reviewing the new exemptions, “and particularly the scope of the new exemption for good-faith security research, these appear to be positive steps toward enhancing cybersecurity, ensuring the right of all Americans to repair vehicles they own, and encouraging innovation.”

The granted Section 1201 exemptions overall are “going to clear up a lot of legal uncertainty for a lot of legal users of various technologies, from mobile devices to video games,” Stoltz told us. “All of the people doing work in those areas should be able to breathe a little bit easier.” EFF is “disappointed” about the delayed start of the exemptions for circumventing software for security research, Stoltz said. “There's no good reason for that and especially since exemptions only last for three years.”