Copyright

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)

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3 comments.

  1. El Magick

    Nice to see a post on international copyright issues! Keep the good work going!

    Amlan, an important CLARIFICATION needs to be made:

    Point no.6 (Text-to-Speech for E-Books) is not, currently, an exemption. It was between 2003 and 2006. The language of the exception sought and the nature of proof that was adduced (the evidence provided was rather limited if not shambolic) to support the exception sought did not permit for the establishment of a prima facie case in favour of this exception.

    As food for thought, is an audio book version (of an e-book) a derivative of the e-book? In this light, how would one look at the circumvention of an e-book which is locked to prevent text-to-speech access?

    Some supplementary points for debate and discussion–

    I. Short Clips from DVDs

    As regards Short Clips from DVDs, you raise a significant point regarding Blu-Ray which employs DRM protection different from normal DVDs using CSS. (http://en.wikipedia.org/wiki/Blu-ray#Digital_rights_management (Does anyone know if DVD, in its colloquial sense, also includes Blu-Ray?)

    Second, I disagree that “criticism or comments” is too narrow a definition. Rather, it is open ended enough to fit in a large number of situations. For example, in http://yaleisp.org/2010/07/dmca-circumvention/ the following question is posed: “Why is this exception targeted chiefly towards criticism and commentary, given that a variety of other activities such as news reporting, teaching, scholarship, and research have typically been understood to be within the domain of fair use?” All of the above, in varying degrees and styles are, in fact, a form of criticism or comment! Therefore, I do not foresee potential problems there.

    Of more significance, I feel, is the fact that ‘educational use’ is limited only to colleges and university professors? The Copyright Office (and the Library of Congress) argue that given that screen capture softwares can make low-quality videos of the CSS blocked content, and given that there is no reason why these lower quality videos should not suffice, there is no reason to extent the exception to high schools. An exception for film and media studies student makes clear sense but not why college and university professors are privileged over school teachers. Lower quality capture videos could work as well for professors as they could for school teachers.

    As regards “short”, the word has not been defined therein. Therefore, it may be assumed that the current position of law for constitute a short-clip (in fair use terms) should apply in this context too. Also notable is that this exception only pertains to “motion pictures” and not other audio-visual works – such as concerts – which may tend to attract “criticism and/or comment” too.

    Finally, even though they may have legitimized circumvention in this case, the Copyright Office further qualifies it (in its explanation available at http://www.copyright.gov/1201/2010/RM-2008-8.pdf ): “The final requirement of the recommended class is that the person engaging in circumvention must reasonably believe that the circumvention is necessary in order to fulfill the purpose of their use”. In other words, they must demonstrate that screen capture softwares are not fit for the job at hand!

    Reply
  2. El Magick

    II. Jailbreaking an iphone

    With regard to Jailbreaking, while the DMCA exception is now explicit (and given the failure of Apple’s consumer-veiled argument), the question that still arises is whether it would now constitute a breach of contract (the iphone license may be accessed here: http://images.apple.com/legal/sla/docs/iphone.pdf )? Further, would a construction of the “agreement” (on purchase of iphone) as merely conferring license for use make a significant difference to what Apple can do? Apple’s stance is that iphone users are merely licensees (http://www.copyright.gov/1201/2010/RM-2008-8.pdf) Both the license and the Copyright office do not shed much light on this. Is there possible a situation where the user owns the device and Apple merely licenses the software that runs the device to him? (The license seems to suggest ownership of device) Is ownership contingent on usage of the “licensed software”? The copyright office also brought out another fascinating point: that while Apple retains ownership of the intangible works, the question of ownership of the copies is still left open (an old debate?) Practically, I think the answer hinges on this: is Apple interested in pursuing jailbreakers?

    Another issue that may be of interest is whether the protection of iphone from Jailbreaking was crucial to Apple’s business model [an interesting and valid point was raised here:http://www.unlockiphone.info/2007/06/iphone-license-agreement.html wherein the question was raised as to whether Apple was trying to protect its business model using DMCA?] or will the DMCA changes result in a rethink of their business model as regards iphones?

    III. Unlocking to Change Mobile Service Provider
    Coming to unlocking to change mobile service provider, I think there are a few issues that need to be considered here. First, in India the Blackberry is not tied to Airtel in the sense that you seem to have understood it (“sim-locking”?). The business model of blackberry is such that it needs to enter into separate agreements with each mobile service provider so that they can technologically calibrate for the providing of the services that are core to what Blackberry is all about – essentially its work e-mail that requires encryption. This means that each operator has to set-up “blackberry services” and the Blackberry set has to be so configured so as to be able to access the service provider’s network. So, in India, it would not be a problem to switch “blackberry services” provider, just a bit of hassle.

    Second, and of more interest, is that operators tend to provide devices such as Blackberry at a subsidized rate tied to a contractual arrangement to utilize that operator’s network for X amount of time or some similar condition. (In India, such restrictions are prohibited and contractual arrangements of this nature in telecommunications are, therefore, a no-no). Given the subsidization, and the concomitant contractual obligation, in those cases I think that there is a strong area of conflict with this exception that has been granted (although it must be noted that the current exemption is an extension on an exemption granted three years back). Thus, while copyright law may allow you to “unlock”, contractual obligations will “lock” you in.

    Third and as a direct response, I think if you read the exemption again, it is clear that the exception allows the manufacture and distribution of “unlocking programs” and limits the scope of the use keeping in mind the concern raised in the preceding paragraph.

    IV. Software Vulnerabilities in Video Games

    With regard to software vulnerabilities in video games, is the use of the phrase “computer, computer system or computer network” broad enough to include xbox, playstations et al? How does one define what is a computer, anyway?

    The reason “good faith” is used is that this is primarily targeted for researchers and developers who are working in the area (and, obviously, these are who have applied for the exemption) and does not condone the incidental discovery by pirates.

    Reply
  3. Amlan Mohanty

    Thank you for your detailed comments El Magick.

    While I wish to reply to each of your contentions in detail shortly, I thought I should post a short response to one of the issues you raised.

    You said

    “I think the answer hinges on this: is Apple interested in pursuing jailbreakers?”

    and also,

    “Whether the protection of iphone from Jailbreaking was crucial to Apple’s business model or will the DMCA changes result in a rethink of their business model as regards iphones?

    In response to both, I’d like to direct you to a link (http://bit.ly/cUiAXc) which speaks of a patent that Apple recently applied for, which amongst other things, seeks to detect jailbroken iPhones remotely, with the ability to cripple the device, when detected.

    Of course, the brains behind the patent will claim that the sole objective is to protect stolen phones. But ‘Don’t be Evil’ is evidently not a motto that Apple believes in. Perhaps, I’m wrong, but I’ve had enough proof in the past that Apple considers itself to be above criticism/bad press and could seriously be pursuing jailbreakers. It may begin as an ‘opt-in feature’ but with the software in place, and jailbreaking seriously impacting their app store revenues, I wouldn’t put it past them.

    I hope to respond to your other comments soon. Just thought I’d share this bit of information in the meanwhile.

    Reply

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