DMCA Section 1201 Anti-Circumvention Rule Making

New DMCA Section 1201 Anti-Circumvention Rule

December 4, 2006

The Librarian of Congress issued a new rule on November 27, setting out six classes of copyrighted works that will be subject to exemptions for the next three years from the Digital Millennium Copyright Act’s prohibition against circumvention of technology that controls access to a copyrighted work. The exemptions will be in effect for the next three years (through October 27, 2009).

Section 1201 of the 1998 DMCA makes it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material. Violators of the anti-circumvention provision are subject to civil and criminal penalties. At the same time, however, the law provides that there can be exemptions from the prohibition for users of "classes of works" who would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses" of those works. For more background on the triennial rulemaking procedure, see below.

The six classes of works in the Librarian’s new rule are:

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

3. 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.

4. 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.

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

The Librarian stated, “Three of these classes of works are very similar to the classes of works that were exempted three years ago, but with modifications to take into account the somewhat different cases that were presented to the Register this year. The new classes of works will enable film and media studies professors to make compilations of film clips for classroom instruction, make it easier for owners of wireless telephone handsets to continue to use those handsets when they switch to new wireless carriers, and permit the testing, investigation and correction of security vulnerabilities on compact discs that are distributed with access control technology that compromises the security of personal computers.”

Details about the rulemaking, including the recommendation of the U.S. Register of Copyrights to the Librarian of Congress, are available on the U.S. Copyright Office web pages.

The Library Copyright Alliance and the Music Library Association filed comments with the U.S. Copyright Office in December 2005, requesting two new exemptions along the lines of those just issued by the Librarian, plus a renewal of the four exemptions that were granted in 2003 (PDF).

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2006 Copyright Office Section 1201 Rulemaking

The Library Copyright Alliance and the Music Library Association filed comments (PDF) on December 1 with the U.S. Copyright Office requesting exemptions to the DMCA's Section 1201 prohibition on circumvention of technological measures that control access to copyrighted works.

The Copyright Office issued its notice of inquiry in October 2005, to begin the third round of triennial proceedings under Section 1201(a)(1) of the Digital Millennium Copyright Act of 1998.

The law allows for exemptions from the prohibition on circumvention for users of "classes of works" who would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses" of those works. But the exemptions must be determined through a rulemaking process that takes place every three years: the Library of Congress issued Rules in October 2000 and October 2003; the next rule will be issued in October 2006. The Copyright Office received 74 comments in this latest round; reply comments from interested parties are due February 2, 2006.

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The Libraries' Filing

The The Library Copyright Alliance (LCA) consists of five major library associations—the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. In their comments, the LCA and the Music Library Association requested two new exemptions plus a renewal of the four exemptions granted in 2003 (PDF).

  1. One of the new requested exemptions is for audiovisual works and sound recordings distributed in digital format when all commercially available editions contain access controls that prevent the creation of clip compilations and other educational uses. Teachers at the high school, college and graduate school level are increasingly unable, because of technological measures, to compile film and music clips to use in a variety of classes (for example, in media studies, literature, and criminal law).
  2. The second new exemption that the library groups requested is for sound recordings or audiovisual works (including motion pictures) embodied in copies and phonorecords; computer programs or video games; or pictorial, graphic, or literary works or compilations distributed in formats protected by access controls that threaten privacy and security. This requested exemption was prompted by recent disclosures about Sony BMG's copy control technology placed on music CDs, which has raised a public outcry about access controls that threaten the privacy of computer users and the security of their computers.

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Background

Section 1201 of the 1998 Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material. Violators of the anti-circumvention provision are subject to civil and criminal penalties. At the same time, however, the law provides that there can be exemptions from the prohibition for users of "classes of works" who would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses" of those works.

To determine the exemptions to the anti-circumvention provision, the law directs the U.S. Copyright Office to consult with the Assistant Secretary for Communications and Information of the U.S. Department of Commerce, to conduct a triennial review of the impact of existing exemptions allowed under Section 1201 (a)(1) of the Act and to recommend further exceptions, if necessary. The U.S. Copyright Office conducts the rulemaking process, which consists of public hearings and submission of written comments from interested parties, and makes a recommendation to the Librarian of Congress. The Librarian issued the first "final rule" in October 2000.

The Rule issued by the Librarian of Congress in 2000 set out only two "classes of works" subject to the exemption from the prohibition on circumvention:

  1. Compilations consisting of lists of Web sites blocked by filtering software applications; and
  2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.

Libraries, researchers, technologists and other critics of this section of the law have insisted that the anti-circumvention provision stifles fair use of copyrighted information and chills legitimate research crucial to the advancement of science and technical innovation. The rulemaking process does not adequately fix these problems.

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2003 Rulemaking

In December 2002 the U.S. Copyright Office began a second round of rulemaking. The comments filed in 2002-03 by ALA and its fellow library associations (ARL, AALL, MLA and SLA) were more limited than those filed in 2000. At that time, ALA and our fellow library associations had submitted extensive comments and testimony that technological "locks" could have an enormous impact on the ability of libraries to provide access to, lend, and archive material, as well as adversely affect the ability of users of a library to make full legitimate use of its resources. Thus, the libraries had proposed an exemption from the anti-circumvention provision for those who circumvent a technological lock in order to make a non-infringing use (i.e., a use permitted by the copyright law for fair use, classroom, preservation or similar provisions) of a lawfully acquired copyrighted work. The Copyright Office did not accept this proposal.

As we stated in our December 2002 filing (PDF), our assessment was that the section 1201 regulatory scheme, as implemented by the Register of Copyrights and the Librarian of Congress, offered little promise of meaningful relief from the genuinely adverse effects of the statutory prohibition on circumvention of technological measures that effectively control access to copyrighted works. Therefore, we offered only modest proposals, "because more appropriately ambitious exemptions designed to address the growing imbalance between copyright holders and the public with respect to access to copyrighted works were rejected by the Register of Copyrights in the first rulemaking. The Copyright Office has made clear that those proposed exemptions will not be reconsidered within the framework of the section 1201 rulemaking."

The libraries' filing thus asked for a renewal of the previous two exemptions which were granted in the 2000 Rulemaking, plus an additional exemption for "literary works, including eBooks, which are protected by technological measures that fail to permit access, via a 'screen reader' or similar text-to-speech or text-to-braille device, by an otherwise authorized person with a visual or print disability."

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2003 hearings on the requested exemptions to Section 1201's anti-circumvention provision

In May 2003, the U.S. Copyright Office concluded a round of hearings in Washington, D.C. pursuant to its rulemaking, under the Digital Millennium Copyright Act of 1998 (DMCA), to determine potential exemptions to the Section 1201 prohibition on circumvention of technological measures that control access to copyrighted works. The five major U.S. library associations were represented at three of the Washington hearings by their outside counsel, Jonathan Band, who testified in support of several exemptions that the libraries have requested through the written comments submitted to the Copyright Office. There also were two days of hearings held in California in May 2003 at the University of California at Los Angeles School of Law.

The transcripts of all the hearings are available on the Copyright Office web site.

Advice from U.S. Department of Commerce
The DMCA Section 1201 directs the Assistant Secretary for Communications and Information of the U.S. Department of Commerce to consult with the Copyright Office in the rulemaking. The Commerce Department urged the Copyright Office in August 2003 to revise its legal requirements so as not to continue placing an inappropriate and heightened burden of proof on proponents of the exemptions from the anti-circumvention rule.

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2003 Rule

In his October 28, 2003 triennial rulemaking, Librarian of Congress James Billington again issued narrow exceptions (PDF) to the Digital Millennium Copyright Act (DMCA) prohibition on circumventing technological locks intended to prevent access to copyrighted digital works. Although the exemptions offered slight relief from the anti-circumvention rule, the Librarian still did not address the excessive restrictions of the DMCA and particularly its impact on libraries' and educational institutions' ability to make fair use of digital materials. Libraries are disappointed that the law continues to disallow legitimate and customary uses of digital materials by libraries and schools.See Joint Library Press Release (PDF), October 28, 2003

ALA supports federal legislation that would amend the DMCA to address these and other concerns.

The Librarian recommended two additional exemptions beyond the two that were issued in 2000. One of the new exemptions allows people with vision or print disability to circumvent technological protection measures in order to access literary works, including eBooks, via a 'screen reader' or text-to-speech or text-to-Braille device. Libraries submitted comments to the U.S. Copyright Office in support of this exemption from the prohibition, as did the American Foundation for the Blind.

In hearings held earlier in 2003 by the U.S. Copyright Office, the libraries testified that the Librarian should continue to approve exemptions that permit users of digital literary works, including databases and computer programs, to circumvent access control mechanisms when they fail to permit access because of malfunction, damage, or obsoleteness. The new rule narrowed that exemption to permit circumvention only in connection with computer programs rather than all literary works. Another new exemption allows circumvention in the case of computer programs and video games in formats that have become obsolete.

The libraries also requested a renewal of an exemption that would allow access to the lists of websites blocked by filtering software. While libraries are now required to filter access to the Internet under the Children's Internet Protection Act (CIPA), they maintain that they must be able to determine which sites are being blocked so that they can assist adults who still have a right to access a blocked site. Under CIPA, libraries are allowed to disable filters for adult patrons. The Librarian issued a similar exemption in the 2003 round of rulemaking.


2000 Rulemaking

One of the many issues arising out of the DMCA was the 2000 Rule issued by the Library of Congress to implement Section 1201 governing circumvention of copyright protection systems. The DMCA in Section 1201(a)(1) prohibits circumventing a technological measure that controls access to a copyrighted work; violators of the prohibition are subject to civil and criminal penalties. Over the long term, these technological "locks" could have an enormous impact on the ability of libraries to provide access to, lend, and archive material, as well as adversely affect the ability of users of a library to make full legitimate use of its resources.

The Rule as issued by the Librarian, effective Oct. 28, 2000, set out two "classes of works" subject to the exemption from the prohibition on circumvention of technological measures that control access to copyrighted works.

The two classes of works were:

  1. Compilations consisting of lists of Web sites blocked by filtering software applications; and
  2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.

These exemptions were in effect from October 28, 2000 to October 28, 2003.

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Background

The effective date of the anti-circumvention provision was delayed until October 23, 2000, to allow time for the Librarian of Congress to issue rules that would allow certain users to access certain "classes of works" if they needed to circumvent in order to make "non-infringing" uses of the works.

The Copyright Office throughout most of this year conducted rulemaking proceedings, in order to make a recommendation to the Librarian of Congress on what the implementing rule should encompass.

In preparation for the rulemaking proceedings, ALA's Office for Information Technology Policy conducted a policy study in September 1999 to help ALA and its fellow library associations begin to frame their response to the rulemaking.

ALA and the other four major national library associations submitted three sets of written comments on the rulemaking for the Copyright Office and provided oral and written testimony at two hearings. Through these submissions, the Libraries argued for a broad, meaningful exemption from the technological measure "anti-circumvention" restriction in order to continue to serve the needs of millions of library patrons. The Libraries' comments, along with the comments and responses of other stakeholders who supported or opposed an exemption, and hearing testimony can be found at the U.S. Copyright Office Web site.

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Problems with the 2000 Rule

In issuing the rule, the Librarian rejected the Libraries' evidence that they are already experiencing adverse effects from technological measures and that an exemption is needed to ensure that libraries and library users can continue to exercise fair use and other activities permitted under copyright law.

The Copyright Office (and implicitly the Librarian) rejected also the recommendation of the National Telecommunications and Information Administration (NTIA) that endorsed the Libraries' proposal. To do otherwise, the NTIA stated in a September 29, 2000 letter to the Copyright Office (PDF), "would, in effect, reinforce and extend a licensing basis and transactional model for the electronic information market."

The Copyright Office did acknowledge that it "is appropriate to consider harm emanating from licensing in determining whether users of works have been adversely affected by the prohibition," and that such harm "may" justify an exemption in the future.

Ironically, the Librarian issued a statement along with the Rule, which set out several "concerns":

Because technology is changing rapidly, and waiting the statutory three year period to review the Rule might cause damage to scholarship, the Librarian intends to ask Congress to shorten the review period.

The Librarian will ask Congress to consider "more appropriate" criteria for assessing harm that the anti-circumvention prohibition might bring: "As presently crafted, the statute places considerable burdens on the scholarly, academic and library communities to demonstrate and even to measure the required adverse impacts on users."

There needs to be more "precise guidance regarding the definition of a class of works, as well as the standard of proof" for what classes would qualify for the exemption.

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