US Librarian of Congress issues new rule on exemption to anti-circumvention prohibition

The Librarian of Congress has just released its fifth triennial review of the impact of existing exemptions allowed under 17 USC 1201 (a)(1)(B) and adopted a new rule of the classes of copyrighted works that shall be subject to such exemption (an overview is available here). 

While making it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material, Section 1201 provides that there can be exemptions for users of classes of works [a “class” generally constitutes some sub-set of Section 102 subject matter], if "such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses" of such works. 

Rulemaking procedure

To determine the exemptions to the anti-circumvention provision introduced into US copyright by the Digital Millennium Copyright Act [IPKat readers will remember that the DMCA was adopted to implement the WIPO internet treaties], the law directs the Register of Copyrights (this is the director of the US Copyright Office, which is part of the Library of Congress and is the official body in charge of maintaining records of copyright registration in the US), to consult with the Assistant Secretary for Communications and Information of the US Department of Commerce, to conduct a triennial review of the impact of existing exemptions allowed under Section 1201(a)(1)(B) and to recommend further exceptions, if necessary. 
As made clear by Section 1201(a)(1)(C), while focusing on whether the implementation of technological measures has an adverse impact on the ability of users to make lawful uses of protected materials, the rulemaking proceeding shall take account of the following factors: 

1. the availability for use of copyrighted works; 
2. the availability for use of works for nonprofit archival, preservation, and educational purposes; 
3. the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; 
4. the effect of circumvention of technological measures on the market for or value of copyrighted works; and 
5. such other factors as the Librarian considers appropriate. 

According to Section 1201(a)(1)(D), the resulting regulations announce “any class of copyrighted works for which the Librarian has determined ... that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition contained in subparagraph (A), which will not apply for the ensuing 3-year period." 
As a consequence of such temporal limitation, in each rulemaking proceeding the Register and the Librarian review the proposed classes de novo, as previous designation of a class creates no presumption that this will be confirmed. Moreover, it is not sufficient that use could be non-infringing, as the Register does not apply a “rule of doubt” when it is unclear whether a proposed use is likely to be fair or otherwise non-infringing.

The designated classes
Upon recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures:  

A. Literary works, distributed electronically [also known as e-books, explains Merpel] that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies for blind or visually impaired persons;

Merpel spends rainy days
downloading the latest apps

B. Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset [in other words, this exception permits interoperability of so called jailbreaking applications. 
Contrary to the request of the proponents (such as the Electronic Frontier Foundation), tablets, e-readers and similar portable devices have not been included. The reason is that the Register found significant merit to the opposition's concerns that (too) many devices could have been considered tablets, notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. This said, Merpel thinks that this class will have to be expanded soon, as the so called app economy is growing at an impressive rate: just in 2011 in the US the mobile app revenue was almost $10 billion, but by 2016 it’s expected to be more than $46 billion, as is explained here]

C. Lawfully acquired computer programs that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network to connect to a different wireless telecommunications network [so called unlocking], if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the telephone owner [the exception applies only to mobile phones acquired prior to the effective date of the exemption or within 90 days thereafter].

Criticism in progress

D. Lawfully made and acquired films on DVDs that are protected by the Content Scrambling System, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment, in the following instances: (i) non-commercial videos; (ii) documentary films; (iii) non-fiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts.

E. Lawfully obtained protected motion pictures and other audiovisual works on DVDs when circumvention is accomplished solely to access the playhead and/or related time code information solely for the purpose of conducting research and development for the purpose of creating players capable of rendering visual representations of the audible portions for the benefit of blind and visually impaired persons.

Classes considered but not recommended
The report also includes a section dedicated to classes of works which, although considered, have been left outwith Section 1201(a)(1)(B) exemption.
Interestingly enough, one of these classes concerns literary works in the public domain. The Register concluded that an exemption to access public domain works would be beyond the scope of the rulemaking proceeding.
Other classes considered but not recommended for an exemption related to video game consoles and personal computing devices for the sake of software interoperability, and films and other works on DVDs and other media for the sake of space shifting.