New Copyright Rules Protect Filmmakers, Artists and Students

WASHINGTON — The Library of Congress today added five new exemptions to the Digital Millennium Copyright Act (DMCA) to protect consumers who modify their cell phones, artists who remix videos, documentary filmmakers, and students. The exemptions lift the prohibition in 17 U.S.C. section 1201(a)(1) against circumvention of technological measures that control access to copyrighted works.

DMCA is a US copyright law that criminalizes attempts to bypass digital copyrights. The 1998 Act is revisited every three years, with new exceptions added based on changing technology. These landmark exceptions were carved out for  consumers who modify their cell phones, artists who remix videos, documentary filmmakers, and students who, until now, could have been liable for non-infringing or fair use.

The immediate effect of these key new exemptions is to permit: (1) jailbreaking cell phones (2) college professors, students, and documentary filmmakers to circumvent DVD copyright protection for “criticism or comment” (3) breaking e-book protection to enable text to speech and (4) breaking video game protection for testing. The exemptions also define obsolete computer software more clearly.

The headline-grabbing change is the legalization of jailbreaking, or the process by which cell-phone users can modify their software to bypass copyright protection and customize their phones. Users can now legally break copyright protection to execute software applications if circumvention is solely for enabling interoperability. One significant effect is that cell-phone users will be able to unlock their phones to make them compatible with different wireless networks.

The new exemption will stifle Apple’s efforts to shut down so-called “jailbreak” sites that offer alternative software and customization for the popular i-Phone. Apple had fought hard to argue jailbreaking violated copyright law. But the Copyright Office rejected Apple’s claim that copyright law prevents installing unapproved programs on iPhones: “When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.”

Apple could still potentially ban jailbreaking indirectly by add new conditions to its user agreement.  But those agreements, governed by contract, would force Apple to sue its own customers to recover any actual damages. Meanwhile, unofficial “app” stores like Cydia and RockYourPhone are poised to grown in popularity as a result of the new exemptions.

Another important change is that college professors, students, documentary filmmakers, and those making noncommercial videos are now able to circumvent copyright protection on DVDs “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 . . .” The exemption, which previously only applied to professors, has now been expanded to include students and filmmakers. The new rules will also likely protect video remix artists who rework commercial videos on websites like YouTube. These artists will no longer violate the DMCA when they use short clips from DVDs to create new, noncommercial works for purposes of criticism or comment. The exemption rejects Hollywood’s longstanding argument that “ripping” DVDs always violates the DMCA.

The user may take only a “short portion” of the original work for purposes of criticism and commentary, and the user must reasonably believe it is necessary to break the digital rights management. The exemptions doe not apply to K-12 educators and students who aren’t in film and media studies classes. The bottom line, however, is that it is clearly fair use to use short portions of a movie for purposes of criticism or comment in a noncommercial video.

Another new exception to the DMCA allows users to break copyright protection on e-books in order to enable text-to-speech functionality. Text-to-speech functionality of the Kindle was an issue with the Authors Guild who felt it took away from potential audio book sales. The exemption does not apply if a publisher offers an option for an audio version. Nevertheless the exception is a significant victim for individuals with visual impairment and other disabilities.

The last new exemptions allows breaking copyright protection on video games “when circumvention is accomplished solely for the purpose of good faith testing, for investigating or correcting security flaws or vulnerabilities.” This addition was added specifically to advance research in the area of SecuROM and SafeDisc.