Cracks In The DMCA's Facade

Foretelling the future is a tricky business. For instance, last week I wrote here that I wanted the new Democratic Congress to repeal the Digital Millennium Copyright Act (otherwise known as the DMCA). I must have seen something coming, but I didn't get it quite right, because Wednesday the Librarian of Congress, the government official who administers U.S. copyright law, announced some truly awesome changes that take some big chinks out of the DMCA. And The Great DeJeani predicts they're bound to have a major impact on the viability of the most pernicious of the DMCA's anti-consumer provisions.The Associated Press reported on Wednesday that Librarian of Congress James H. Billington has approved new rules for the Copyright Office that allow six exemptions for specific uses of copyrighted material. Cellphone owners will be allowed to break software locks on their handsets in order to use them with competing carriers. Educators will be allowed to copy brief excerpts from DVDs for educational compilations, and blind people will be allowed to use special software to read copy-protected electronic books.

These exemptions are doubly significant: they're the most exemptions the Copyright Office has ever granted at once, and for the first time, groups of users have been exempted. Obviously, Billington and the Copyright Office are wrestling with the contradictions that the DMCA has injected into enforcing copyright law.

(The other exemptions allow the breaking of locks on electronic books so that blind people can use them with read-aloud software and similar aids, the hacking of copy-protection on computer software and video games that require hardware that's no longer available -- like programs for the Atari, or applications with copy-protection that depends on a hardware dongle. Computer security researchers were also granted an exemption so they could reverse-engineer copy-protection technologies to test for security flaws.)

The exemptions could have gone a lot further. They could have done more for consumers by granting a requested exemption that would let owners of DVDs transfer their content to other media and media players.

But while Billington didn't break the back of the DMCA, he cracked it, by golly. The Great DeJeani also foresees a large number of court cases that will argue the exemptions should be expanded to cover not just fortunate groups, but all citizens.

The Copyright Office granted the cellphone exemption, for example, because it determined that consumers aren't able to enjoy full legal use of their handsets because wireless service providers are using software locks to control access to phones' underlying programs. A very similar argument can be made for DVDs: the DMCA prevent consumers from enjoying full legal use of their property.

The education exemption is even more direct. It gives teachers of film courses permission to use excerpts from copy-protected DVDs in materials they prepare for the classroom. Preparing compilations of such excerpts from print materials has generally been permitted under "fair use" provisions of copyright law, but breaking the CSS encryption locks on DVDs is illegal under the terms of the DMCA. The education exemption specifically authorizes the group of educators to break the CSS protection.

Billington clearly sides with fair use at the expense of the DMCA. And that's really great news. And a great precedent for lawyers to use. Coming soon to a courtroom near you: Citizens vs. the Motion Picture Association of America et al. I predict.