Summary
The rapid advancement of digital technology has outpaced the ability of laws such as the DMCA to address new copyright challenges effectively. The Electronic Frontier Foundation has played a significant role in advocating for exemptions to DMCA’s anti-circumvention provisions, especially through the US Copyright Office’s triennial rule-making. Their recent petitions emphasize the need for legal clarity and the ability to preserve and repair software embedded in everyday devices, including video games made unplayable by discontinued server support. These exemptions support legitimate uses such as research, journalism, and product maintenance while addressing concerns about legal barriers to accessing purchased content. The process remains complex, highlighting the tension between copyright protection and technological innovation.
Since the emergence of the internet, technological development has been exponential. From tablets and phones to watches, glasses, televisions and refrigerators, devices have become progressively more capable, and the legal frameworks designed to address the digital era have struggled to keep pace. Laws such as the Digital Millennium Copyright Act (DMCA), enacted to respond to the rise of the digital era, have not been fully able to match the speed of that development. Against this backdrop, the US Copyright Office initiated its sixth triennial rule-making process and began accepting petitions. The Electronic Frontier Foundation (EFF), which had played a significant role in earlier triennial proceedings and had previously secured exemptions for smartphone jailbreaks and video remixes, filed six further requests to the US Copyright Office.
DMCA Prohibition on Circumvention and Its Scope
Under Chapter 12 of the DMCA, Section 1201(a)(1)(A) prohibits the circumvention of technological measures designed to ensure copyright protection — commonly referred to as access controls — in the following terms:
“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”
To “circumvent a technological measure” is defined under 1201(a)(3)(A) as meaning:
“to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”
The intention underlying the provision was to strengthen copyright protection in the digital era, on the basis that such measures:
“can be deployed, not only to prevent piracy and other economically harmful unauthorized uses of copyrighted materials, but also to support new ways of disseminating copyrighted materials to users, and to safeguard the availability of legitimate uses of those materials by individuals”
In practice, however, the prohibition has had the effect of stifling even legitimate uses such as journalism, research — where excerpts from films can no longer be taken owing to software restrictions — and portability, for example the playing of iTunes videos on an Android device.
The Section 1201(a)(1)(C) Fail-Safe Mechanism
In anticipation of such consequences, a fail-safe provision was included in the legislation on the recommendation of the Commerce Committee, resulting in Section 1201(a)(1)(C). This provision empowers the US Copyright Office to conduct rule-making every three years and to grant temporary exemptions, lasting until the next rule-making cycle, in cases where the anti-circumvention prohibition would obstruct a legitimate use.
EFF Intellectual Property Director Corynne McSherry explained the reasoning behind the organisation’s applications in these terms:
“Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, it’s likely that you can’t tinker, repair, and re-use those objects without incurring legal risk.”
Key Exemption Sought: Abandoned Video Games
Among the most significant exemptions sought in the current round concerned video games that, although legally purchased by consumers, had become unplayable because the developers had discontinued support for the authentication servers required to run them. The petition stated:
“This exemption would serve player communities that wish to continue using their purchased games, as well as archivists, historians, and other academic researchers who preserve and study video games and are currently inhibited by legal uncertainty because of §1201(a)(1).”
The requests were to be considered by the US Copyright Office over a process that could last a year. Although the triennial exemption mechanism was designed as a fail-safe, the EFF had found the procedure increasingly cumbersome owing to the lack of clarity in its operation, the temporary nature of even the most well-established exemptions, and the need for repeated renewal in the face of rapid technological change.
Disclaimer: This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.