When the U.S. Copyright Office was created in 1897 as a department of the Library of Congress, the idea of rights protection for ‘things’ would have been as unimaginable as the internet. Yet here we are, not much more than a century later, living in a world of the ‘internet of things’ in which microchips, software and data reside in everything from automobiles to watches.
In response to digitization, the Digital Millennium Copyright Act (DMCA) was enacted in 1998. The Act’s Section 1201 creates restrictions forbidding users from breaking DRM (Digital Rights Management) protection, even when the intent and purpose may be considered lawful fair use. DRM refers to the technologies that control access and restrict usage of proprietary software, hardware and content. While the law allows for exemptions, it’s an onerous task. Every exemption must be argued anew, undergoing a process that takes place every three years.
Recently announced were the latest such exemptions that will affect the makers, rights owners and consumers of automobiles (newer models), tablets and smartphones, video games and video/Blu-ray content. Following is a summary of some of them, as well as a link to the full text of the complete rulings.
New DRM Circumvention Rulings by the Librarian of Congress
‘Jailbreaking’ Phones, Tablets and Other Portable Devices
The Librarian renewed the existing exemption for jailbreaking smartphones, to allow them to run software the user chooses, and more importantly expanded the exemption to include tablets and ‘smart’ watches. Removing the line that formerly separated them will clear up some of the legal uncertainty for software developers who design and market applications for these devices.
Educational and Derivative Uses of Audiovisual Works
Proposed Classes 1 through 7 affect the fair use of audiovisual content, including motion pictures and television programming distributed via DVDs or online streaming services. Past rulings granted exemptions for the use of excerpts for such use as classroom discussion or commentary in noncommercial documentaries. The new rulemaking expands the exemption to encompass Blu-ray discs, which means that remixers can lawfully access high definition, high quality source material.
The stated intention of the Register is that “the exemptions should provide reasonable guidance to the public in terms of what uses are likely to be fair, while at the same time mitigating undue consequences for copyright owners.”
Archiving and Preserving Video Games
Museums, libraries, and archives can jailbreak game consoles as needed to get games working again, which will help keep many classic video games playable by future generations.
Automobile Research, Repair, and Modifications
As long as there have been automobiles, there has been tinkering and modifying of automobiles. Yet modern automobiles and other machinery are equipped with computer systems that monitor and control a variety of functions. Class 21 of the ruling would allow circumvention for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement when undertaken by or on behalf of the lawful owner.
What Remains Protected (and Unlawful to Break)
While the arbitrary line that separated an iPhone or Android phone from an iPad or Android tablet has been removed, other jailbreaking appeals did not pass muster. Essentially, you cannot move content from one locked platform to a different locked platform. The concept of space- or format-shifting for eBook readers is not allowed, so your Nook content cannot be moved to a Kindle. Likewise for game stations like the PlayStation or Xbox.
Needless to say, this article skims the surface of this ruling, leaving out many details and nuances. What we have written here is provided only for guidance and awareness and should not be construed as rights clearance or advice. Rights Management is a complex issue and may have different facets depending on the business, platform, application or usage. But whatever the case, effective rights management is a critical component of any library and / or digital asset management project.
For access to the complete ruling, please view the document on the Federal Register website.
Phil Spiegel
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