You may know the Digital Millennium Copyright Act (“DMCA”) from the widely deployed DMCA take-down notices that copyright owners use to remove putatively infringing content from the Internet. Enacted in 1998, the DMCA is more, however, with provisions scattered throughout the Copyright Act.
One such DMCA provision comes into play every three years. Section 1201 of the Copyright Act prohibits circumvention of access control technologies (“ACT”) associated with software and devices embodying software. Many such ACT are well known: encryption, scrambling, password protection. Subsection 1201(a)(1)(C) provides for exemptions from the circumvention rules. It mandates the Librarian of Congress, with the advice of the Register of Copyright (in turn advised by federal agencies and the public), to determine every three years whether users of certain copyrighted works are, or are likely to be, adversely affected by the imposition of ACT in the coming three-year period.
Case in point: computer programs contained in and controlling automobiles, previously restricted, may now be accessed for purposes of diagnosis, repair or lawful modification of the vehicle. As one member of the public commented prior to enactment of the new regulation: “It’s my own damn car, I paid for it, I should be able to repair it….” Whether an auto repair shop can access the software on the owner’s behalf remains unsettled.
The pace of technological change is swift; the pace of legislative change, glacial. Recognizing this, Congress incorporated Subsection 1201(a)(1)(C) into the DMCA to encourage the periodic recalibration between the desire of copyright owners to safeguard their content and technology and the desire of copyright users to access that content and the inner workings of that technology for purposes that are otherwise noninfringing.
The most recent triennial rulemaking exercise was concluded in October. All previously authorized DMCA circumventions were reauthorized. New this year are permission to “unlock” certain digital devices (e.g., cellphones, tablets, etc.) for use with alternative wireless networks; permission to “jailbreak” certain digital devices to allow interoperation with software applications; patient access to medical data recorded by digital monitoring devices; what amounts to hacking of software for purposes of good-faith security research; broader rights for libraries and museums to archive and permit use of legally acquired video games, particularly in circumstances where technical support is no longer available from the copyright owners; expanded access to motion picture excerpts for certain educational uses and reproduction in documentary films and noncommercial videos; and access to computer programs that operate 3D printers to permit use of alternative feedstock.
The range of new regulations is broad. Feel free to reach out to a member of the Morningstar Law Group IP/Tech Law team to discuss your own DMCA circumvention concerns.
–Mitch Tuchman
