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.<\/p>\n
Under Chapter 12 of the DMCA, Section 1201(a)(1)(A) prohibits the circumvention of technological measures designed to ensure copyright protection \u2014 commonly referred to as access controls \u2014 in the following terms:<\/p>\n
“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”<\/p><\/blockquote>\n
To “circumvent a technological measure” is defined under 1201(a)(3)(A) as meaning:<\/p>\n
“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.”<\/p><\/blockquote>\n
The intention underlying the provision was to strengthen copyright protection in the digital era, on the basis that such measures:<\/p>\n
“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”<\/p><\/blockquote>\n
In practice, however, the prohibition has had the effect of stifling even legitimate uses such as journalism, research \u2014 where excerpts from films can no longer be taken owing to software restrictions \u2014 and portability, for example the playing of iTunes videos on an Android device.<\/p>\n
The Section 1201(a)(1)(C) Fail-Safe Mechanism<\/h2>\n
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.<\/p>\n
EFF Intellectual Property Director Corynne McSherry explained the reasoning behind the organisation’s applications in these terms:<\/p>\n
“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.”<\/p><\/blockquote>\n
Key Exemption Sought: Abandoned Video Games<\/h2>\n
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:<\/p>\n
“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 \u00a71201(a)(1).”<\/p><\/blockquote>\n
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.<\/p>\n
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.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"
The Electronic Frontier Foundation is advancing efforts for DMCA exemptions to support software preservation and legitimate use. Their petitions aim to address legal uncertainties and ensure continued access to legally purchased digital content.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":34,"footnotes":""},"categories":[3,6],"tags":[93,2993,539,117,7020,7019,5472,3894],"class_list":["post-17114","post","type-post","status-publish","format-standard","hentry","category-copyrights","category-intellectual-property","tag-copyright-law","tag-digital-rights","tag-dmca","tag-electronic-frontier-foundation","tag-legal-exemptions","tag-software-preservation","tag-technology-law","tag-us-copyright-office"],"_links":{"self":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/17114","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/comments?post=17114"}],"version-history":[{"count":4,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/17114\/revisions"}],"predecessor-version":[{"id":149688,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/17114\/revisions\/149688"}],"wp:attachment":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/media?parent=17114"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/categories?post=17114"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/tags?post=17114"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}