New Exemptions to the DMCA Anti-circumvention Rule

With our recent readership survey producing enthused demands for international coverage as well, we will begin our reporting of important recent developments in international copyright law with the recently announced exemptions regarding circumvention of access-control technologies in respect of the American Digital Millennium Copyright Act (DMCA).

This post may also be useful in the context of debates surrounding the inclusion of an anti-circumvention provision in the proposed amendments to the Indian Copyright Act (see Section 65-A and 65B). In this post, I will present the text providing the exemption itself, provide a brief illustration to demonstrate its applicability and follow it up with a few comments of my own.

BACKGROUND:
Under Sec. 1201(a)(1) of Title 17 of the Digital Millennium Copyright Act (DMCA), the Library of Congress, effectively the Copyright Office of the United States, is required to, approximately every three years, enact new rules, to determine whether any classes of works must be exempted from the statutory prohibition against the circumvention of access controls (DRM’s) to copyrighted works. Recently, six new classes of works were provided this exemption and I will go into each of these individually.

(1) SHORT CLIPS FROM DVD’s
“Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfil the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies
students;
(ii) Documentary film making;
(iii) Non-commercial videos“

ILLUSTRATION:
Say for example, you are a professor taking a course on music copyright and want to take a class on ‘parody’ in copyright law. You want to play short clips of the video ‘Oh, Pretty Woman‘ and the parody ‘Pretty Woman‘. Extracting short clips of these videos from DVD’s employing the CSS encryption method, by circumventing the DRM, would now be permissible and legal. (Educational uses)

Similarly, a documentary film maker, who wants a short clip of a tiger chasing an antelope, can circumvent the DRM on a high-quality DVD produced by National Geographic, to use in his film. (Documentary film making)

Lastly, I remember the time I wanted to rip my legally-purchased DVD’s and extract short clips for a compilation video titled ‘20 funniest sequences from Bollywood movies‘ and upload it onto YouTube. While this would have been illegal under the DMCA earlier, it is now acceptable. (Non-commercial videos)

COMMENTS:
Firstly, it must be stated that this is an important exemption benefiting several groups of people – students, teachers, film makers and even amateur video-makers using the likes of Windows Movie Maker to bring out their creative juices. However, the exemption does appear to be narrowly constructed.

For one, the text only covers those uses for the purpose of ‘criticism or comment‘, which is evidently, too narrow an exception. Second, the use of the word ‘short‘ appears restrictive, given that longer excerpts have often qualified for fair use exemptions. Third, the exemption only covers one form of encryption (CSS) and hence other forms of DRM, when circumvented, may not receive similar protection. Four, the exemption speaks of motion pictures in DVD’s only and hence other forms of media such as Blu-Ray, are immediately excluded.

Moreover, even basic knowledge of copyright law would suggest that such use would be completely legal under the ‘fair use‘ doctrine if it wasn’t for the legal recognition of the DRM placed in the DVD.

(2) JAILBREAKING TO INSTALL APPLICATIONS
“Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.“

ILLUSTRATION:
This rule essentially allows the “jailbreaking” of “wireless telephone handsets”. As most of you are aware, the iPhone relies on a system of applications, which may be purchased from the App store and run on the iPhone (for example, a Facebook app for the iPhone, which allows you to access Facebook from the iPhone). However, prior to this rule being announced, applications outside the app store would not run on the iPhone, seriously restricting consumer choices. So when one ‘jailbreaks’ an iPhone, one is able to download and run unauthorised apps. Thus, a whole range of apps, that have not been authorised for sale on the App store may be utilised after jailbreaking. Keep in mind, this was illegal under the DMCA, prior to this announcement (sounds ridiculous, doesn’t it?). So, post-announcement, I can have my iPhone customised to my liking – my favourite wallpaper, themes, icons and applications – without breaking the law.

COMMENTS:
It seems that more than one of the exemptions was directed towards the appeasement of iPhone users and their increasing demands for freedom in consumer choice, and this is one such example. The larger issue is that of interoperability, and despite the arguments advanced by Apple, that permitting ‘jailbreaking’ would impair the performance of iPhones, the Copyright Office agreed that freedom of choice for customers was paramount and that Apple’s concerns were not related to copyright law at all. In fact, this is one of the reasons that Google’s Android operating system, with its open nature, has been gaining popularity recently and is steadily outpacing the iPhone. This has also become increasingly important with the App store being subjected to severe censorship from the folks at Apple.

(3) UNLOCKING TO CHANGE MOBILE NETWORK PROVIDER
“Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.“

ILLUSTRATION:
In India, the BlackBerry is tied to Airtel. This entails a restriction in a consumer’s ability to choose a particular network provider based on the handset purchased. Similarly, in the US, the iPhone is tied in to the carrier AT&T. Essentially, the iPhone works exclusively with one carrier. This is ensured by placing a DRM, a technological measure, that prevents a user from switching carriers without having to circumvent it in the first place. However, several consumers, distressed with the poor service, demanded the ability to switch operators/carriers without having to break the law. With this new rule, circumvention of this DRM is permissible. So, a consumer can switch from AT&T to Verizon, or from Airtel to Vodafone, to draw a parallel.

COMMENTS:
While the exemption envisaged here is very specific, there is still scope for manufacturers to hinder consumer freedom through technological and contractual restrictions, rendering the exemption meaningless. How this works is that when an iPhone is purchased from a store, a contract is signed, locking in a consumer to a particular carrier. While one pays a monthly fee to the network provider, the handset itself is provided at a subsidised rate. Hence, Apple could always argue that changing carriers is a violation of the contractual terms.

However the problems do not stop there. At the threat of sounding severely sardonic and cynical, I must say, the logic of the DMCA is critically flawed and is filled with absurdities. Take for example the fact that while the above two rules exempt ‘jailbreaking’ and ‘unlocking’ of phones, the manufacture and distribution of software that facilitates this is still illegal under the DMCA. Think how ridiculous that is. Obviously every John, Rahul and Amlan is not a C++ expert, able to write code by hinself, allowing circumvention of the DRM. Some software is required to break the DRM, but the DMCA specifically illegalises this.

It is on this point that the proposed amendments to the Indian Copyright Act have displayed better judgement, by not criminalising the manufacture and distribution of software facilitating the circumvention of DRM for lawful purposes, preventing absurd and embarrassing situations such as the above.

(4) SECURITY VULNERABILITIES IN VIDEO GAMES
“Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if: (i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and (ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.“

ILLUSTRATION:
Readers will recall the Sony Root kit fiasco, which posed a significant security risk to users, by infecting the computer with a Trojan that remained hidden from detection. If you believe that a certain video game’s DRM poses a similar threat, then this exemption allows you to circumvent the DRM to test for security vulnerabilities. So for example, the DRM that prevents you from playing FIFA 2010 without the CD in the drive, may prove a security threat, because it accesses personal files on your computer. This rule allows you to break the DRM to investigate the security flaw.

COMMENTS:
On the face of it, this exemption has been created for a very specific but important purpose and after intense lobbying by a group of researchers. The target of this exemption is the DRM itself – specifically, two DRM systems often found in video games – SecuROM and SafeDisc. SafeDisc, specifically, has been proven to create security vulnerabilities, posing serious threats to the data on a computer system.

Of course, the most glaring deficiency in this exemption is that it applies only to video games. But as evidenced by the Sony rootkit episode, invasive and potentially dangerous DRM’s are not restricted to video games alone. The exemption to test for security flaws within DRM’s should have been extended to movies, audio CD’s and other software that employ DRM’s.

Further, the ‘good faith‘ requirement needlessly restricts the benefit of this exemption, since security flaws are often discovered by pirates (not surprisingly) in the course of cracking a game.

Finally, the term ‘personal computers‘ restricts its applicability to games available on computers only and not video game consoles such as the Xbox, Playstation etc.

(5) COMPUTER PROGRAMS PROTECTED BY DONGLES
“Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace“

ILLUSTRATION:
A dongle is essentially a small piece of hardware that is used as a means of Digital Rights Management, for example, a USB drive that must be inserted into the computer to run a photo-editing software. Without the dongle, the software will not run at all, or may run only in a restricted mode. But with this new rule, using the software, that would ordinarily require a dongle to function properly, without the dongle would be perfectly legal.

COMMENTS:
The most aggressive lobbying came from the Internet Archive group, which can now host copies of obsolete computer games and software without breaking the law. While this is an important exemption, it is likely to benefit only a small group of individuals.

(6) TEXT-TO-SPEECH FOR E-BOOKS
“Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.“

ILLUSTRATION:
Say, you just downloaded an e-book of ‘The Hungry Tide‘. After a hard day at work in front of the computer, you don’t want to strain your eyes any further by reading the text from a screen and instead would like it to be read aloud to you. This rule makes it legal to circumvent any DRM that restricts your right to do so, by disabling the text-to-speech feature available.

COMMENTS:
While the above illustration may appear too frivolous to warrant an exemption, think about the needs of the visually and print disabled who rely entirely on text-to-speech features. This exemption comes as a welcome relief to them, in the wake of increasing debates about whether this is legal or not. This entire issue has received significant attention with Amazon going as far as to state that its speech feature is legal. But its opponents (the Authors Guild) contend that an audio right is a derivative under copyright law and hence separately protected.

However, this exemption is not without its limitations. Just like in the DVD exemption, if there is a ‘legal alternative’ (for example, a more expensive text-to-speech version, even if more expensive) then this exemption is not applicable. Thus, only when there is no commercially available alternative can a user resort to breaking the DRM to enable the read-aloud feature.

CONCLUSION:
Overall, the exemptions that were allowed are important in their own respect, and despite being narrowly constructed, have important ramifications for different groups. However, the entire process has thrown doubt over the way in which the exemptions are argued and accepted.

Perhaps the entire process can remind us again of the dangers in enacting an anti-circumvention provision in the Indian Copyright Act, requiring constant review and modifications. With the law always playing catch-up with technology, will an anti-circumvention provision really help rights owners, or can a new model of adequately compensating copyright owners be developed as an alternative?

(Image from here)