Today's Library of Congress statement marks a historic moment in the battle between those who dictate how we should be able to use media and technology, and the rest of us. We explain what the new exemptions mean for you.
Copyright law is a giant, hulking swamp beast of legislation and tangled legal precedent. The Digital Millenium Copyright Act—which essentially serves as a sweeping, powerful legal instrument for copyright holders to wield against us—has been further complicating intellectual property law since 1998. This is the law that has, for twelve years, made it illegal for you to crack the stifling DRM placed on your music, movies, books, software, and almost anything else that can be digitized.
But tucked away in the DMCA is the stipulation that every three years, the Librarian of Congress, on behalf of the Library of Congress (which houses the US Copyright Office) will evaluate this infuriating legal bear trap and consider exemptions to the circumvention clause, giving you the right to blast DRM for select uses.
The Librarian has decreed a set of such exemptions, and they are a (relative) doozy. We're here to help you make sense of these dizzying acronyms, legalese, and the consequences it'll have on the way we all use technology.
What exactly is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act (or DMCA, because that's a lot to type out) is an addition to the existing Copyright Act of 1976, intended to deal with the rise of digital media and mass online proliferation. The 1976 act was, of course, never meant to deal with game changing technologies like DVDs, MP3s, and—gee golly!—modems. The ability to make a perfect digital copy of a movie or song and distribute thousands of copies online sent copyright holders (and, unfortunately, lawmakers) into a frenzy, with the DMCA being the reactionary end result. In short, the act makes bypassing DRM for your own personal or educational consumption—things that would normally be legally protected as fair use—illegal.
That sounds kind of excessive. Are there ANY exemptions?
Yes. But they were few, far between, and often not very significant—such as allowing university professors to rip a DRMed DVD to show short clips to students. Not exactly permissive. But, not wanting to be too shortsighted given the unbelievably rapid advance of technology, Congress mandated that the Librarian of Congress review and declare new exemptions to the DMCA's anti-circumvention powers every three years. And this year is one of those years.
So, what are the newest exemptions?
The full text of the six (!) new exemptions to the DMCA can be viewed at the Library of Congress, but we'll give you a quick rundown here.
You can rip your own DVDs, and nobody will stop you.
First, and arguably most importantly, is an exemption for DVDs you legally own, giving everyone (not just film and media studies majors!) the right to break DRM for the purposes of "short" use in both "documentary filmmaking" and original "noncommercial videos." The first is rather specific, of course, but the broadness of the latter is impressive—although for now you can't appropriate the entire film. But as long as you aren't charging money for it or profiting off it, it's noncommercial. So go ahead, rip and remix a scene from Inception so that it actually makes sense.
You can jailbreak your phone.
Second, and another huge one, is an exemption that allows you to jailbreak your phone—100% legally—and run the applications of your choosing. As Ars Technica points out, this is almost certainly a direct shot at Apple and the battle over jailbroken iPhones. Since computer code is classified as a literary work under copyright law, and, as the Library of Congress pointed out, jailbroken firmware alters "fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole," Apple's infringement claims have been totally bogus.
The third exemption is for software that would unlock your phone for use on a different network. Again, a loss for Apple and AT&T. As we've commented, this won't stop Apple from continuing to lock jailbreakers out through firmware updates and voided warranties, but the issue was clearly of enough importance to prompt Apple to issue a strongly worded defense of its practices before the federal government.
And The Rest:
The fourth exemption is narrower than the first three, granting the right to crack video or computer game DRM (such as SecuROM) for the purposes of research or "investigation." The language here is broad enough to give a little wiggle room (after all, anyone who's curious can investigate).
The fifth exemption is less exciting still, allowing you to bypass software protected by a hardware dongle that is either broken or no longer manufactured.
Finally, the sixth exemption will let you crack the DRM on encrypted eBooks to have the text read aloud, even if this function is explicitly prohibited by copy protection. This is great news for the blind and otherwise visually impaired.
How did this happen?
The first three and inarguably most significant exemptions are thanks to the Electronic Frontier Foundation, who petitioned the Copyright Office and Library of Congress on behalf of all of us.
What about music? Or ripping video games?
No dice this time around—the act makes no exemption for copying DRM-protected music or games, so breaking the encryption on a song or Blu-ray you rightfully own is still illegal.
How long will these exemptions last?
Exemptions to the DMCA must be reconsidered every three years, but because this round took so long, the next review will take place only two years from now.
Is this the same thing as the Fifth Circuit court decision?
No. The Librarian of Congress has the authority to issue exemptions to federal law—United States Code Title 17, to be specific. This applies to the entire country. But, as Nilay Patel points out, Fifth Circuit rulings aren't nationally applicable (in fact, they only apply to Louisiana, Mississippi, and Texas). It is possible that, should the case advance, the Supreme Court would side with GE and either interpret the DMCA as allowing for fair use DRM circumvention, or strike down part of the law itself. The Fifth Circuit decision is a promising step, but it isn't a final one.
How big of a deal is this?
A very big deal. The Library of Congress has proven that it is willing to listen to the fair, rational arguments of tireless groups like the EFF, and able to stand up to powerful copyright interests. These exemptions might seem trivial when compared to the things that are still illegal under the DMCA, but keep in mind that twelve years of precedent has been reversed today. What might happen two years from now? We can only hope the realization that DRM stifles creativity, productivity, and intellectual curiosity—and what are copyrighted works intended for if not these things?—will continue into the future. Until then, we applaud the Librarian of Congress for taking a loud, stomping step in the right direction.
Discuss.
