The importance of being exempt

Under the Digital Millennium Copyright Act of 1998 (DMCA), the US copyright statute known for many things including provisions on intermediary liability, bringing US law into line with the ‘new’ WIPO treaties (WCT, WPPT) and more. One of these provisions relates to anti-circumvention, in US law as 17 USC 1201:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

One of the more controversial provisions of US copyright law, justifying by law the enforcement of digital rights (or restrictions) management (DRM) it does however contain some limited exemptions. Some are set out in the text of section 1201 itself, such as one for law enforcement and others (though limited) for certain kinds of research and development (encryption research, reverse engineering, etc). However, further exemptions can be issued by the Library of Congress working with the Copyright Office (according to specified criteria and following a formal ‘rulemaking’ – a much-loved or much-loathed feature of US administrative law!), lasting for three years and requiring re-enactment for each cycle.

The ability to add to the exemptions is an important one, and one that is perhaps quite appropriate to legislation of this nature. Faced with the fool’s choice between writing detailed new legislation for each social or technical need, or writing bland ‘neutral’ legislation that studiously avoids mentioning anything at all, establishing a process that enables the purpose of the legislation (not just ‘the ban’ but ‘the exemptions’ too!) to continue is helpful, and perhaps more importantly, given the difficulty that non-commercial users in particular have in gaining access to the IP legislative process in the US, can be an important deliberative moment and an opportunity to consider the impact of the core provision in question. One possibly troubling aspect is the requirement to reapply in each round – while it’s probably sensible, it does make the development of applications, technologies etc in an exempted area quite a risky one (and I can imagine the response of the bank being asked for a loan by one of those developers…). On balance, though, it’s an approach deserving of some consideration.

In the last round (2006), six categories were declared as exempt from s 1201, ranging from allowing higher education libraries to circumvent copy protection to create classroom materials (though it does amuse me that it is restricted to materials in the library of a “film or media studies department” for use by “media studies or film professors” – leaving high and dry my American colleagues who teach about media in law schools) to allowing ebooks to be accessed by speech-to-text software. Many others were turned down, including some requests for ‘all fair uses’ (unlikely) and making DVDs work on Linux (which is quite a totemic issue when it comes to circumvention).

This time around, a number of submissions (like this one and this one) argue not just for keeping the film-clips-in-the-classroom exemption but for extending it to the entire range of disciplines. There’s in fact a whole load of submissions making a good case for something that really should have been in the legislation to begin with.

The full list of submissions is here, with some discussed at this handy post by Christopher Soghoian, who contributes to one of the most detailed submissions, that relating to the type of online music/video/whatever store ‘vulnerable to similar loss of usage in the event of a shutdown, breakage or obsolescence of the stores’ authenticating servers’ (hello, Google Video)

With thanks to David Weinberger for letting me know that this important day had rolled around once more. Let’s see what comes of it.