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Letting Us Rip: Our New Right to Fair Use of DVDs

July 27, 2010, 11:00 AM ET

Information on the New DMCA Exemptions

DRMYesterday, the Library of Congress issued its triennial statement of exemptions to the portions of the Digital Millennium Copyright Act that forbid the circumvention of digital rights management (DRM) and other technological measures intended to prevent access to or copying of digital materials. Three years ago, the announced exemptions allowed film and media studies professors to crack the content scrambling system (a.k.a. CSS) on DVDs in order to rip short clips to make compilations for classroom use. This seemed at the time like an awfully restricted exemption — literally only film and media studies profs (no profs in other fields, and no students), literally only in order to create compilations of clips for use in the classroom (not for use in critical writing) — but it appeared then that the statement might be the thin end of the wedge.

And so it turns out to have been. The exemption on the cracking of CSS now extends to all college and university instructors, as well as students in film and media studies courses, and the permitted "educational uses" now include critical commentary and documentary production, as well as the exceptionally broad category of "non-commercial videos."

Moreover, the newly announced exemptions eliminate claims of copyright violation as grounds for preventing jailbreaking and unlocking cell phones (though violation of a particular company's Terms of Service may still be an issue), and they grant permission to those who circumvent protections on video games in order to test or study their potential security risks. Finally, the exemptions also permit circumventing DRM in order to activate the text-to-speech function of e-books for which the function has been disabled, as well as circumventing DRM in order to make e-books usable by "screen readers that render the text into a specialized format."

In all of these cases, the exemptions come with the caveat that where there are other means of accomplishing the same thing (getting video clips; getting e-books with the audio component enabled), consumers must take the route that does not require circumventing DRM, but where there is no other way, the position seems to be that those who have legally purchased texts and objects protected by DRM have the right to break those systems for purposes that would otherwise fall under the category of fair use.

Over the next few weeks, we'll feature posts considering both the policy and the practical issues surrounding these new exemptions—looking more closely at what they mean and how they'll affect the work we do, both in the classroom and in our research.

[Image by Flickr user Noah Hall; Creative Commons licensed.]

Comments

1. peril - July 27, 2010 at 11:13 am

Details aside, the only real way this affects me is that jailbreaking my Apple devices is now completely legal, and if Apple and AT&T don't like what I do with the device I own, they can learn to deal with it. It's nice knowing that doing what I choose with the devices I purchase isn't living in a grey area anymore.

2. george_h_williams - July 27, 2010 at 11:41 am

@peril: I could be wrong, but I think that jailbreaking (while no longer illegal) could still violate the "Terms of Service" that a consumer agrees to when purchasing an iPhone and signing up for an AT&T account, as KF writes in her 3rd paragraph above.

3. kfitz - July 27, 2010 at 11:45 am

Yes, the most common interpretation I'm reading out there is that while Apple/AT&T et al can't threaten legal sanctions based on the use of an illegal technology to circumvent their control mechanisms, they'd still be within their "rights" to cut off your service. Alas, it'll take a higher authority than the Librarian of Congress to change that.

4. droslovinia - July 27, 2010 at 04:17 pm

Doesn't that also mean that it's still all right for Motorola to brick the new Droid X if you try to make changes?

5. kfitz - July 27, 2010 at 05:06 pm

That's my sense, yes. What the LOC has done is prevent manufacturers and service providers from using claims of a DMCA violation in order to pursue legal remedies against jailbreakers/unlockers, but there's nothing there to prevent them from using claims of a TOS violation to take extra-legal measures.

6. george_h_williams - July 27, 2010 at 05:08 pm

@droslovinia: With regard to mobile devices, the LOC's statement affects what owners of the devices may do without breaking the law. What manufacturers and service providers may write into their warranties and terms of service appears to be unchanged.

(By the way, Motorola says that if a user tries any unauthorized tinkering with the Droid X software, the device will stop working until the authorized software is re-loaded, but it won't be permanently disabled, or "bricked" in the strictest sense of the word.)

Update: Oops! Looks like my comment came in right after KF's. Sorry about the redundancy.

7. windfix - July 28, 2010 at 10:40 pm

For the Linux community, I wonder if this in any way affects the use of libdvdcss2, which simply allows the PLAYback of DVDs on Linux systems. From what I gather, its legality has always been a grey area and unchallended in court. Most Linux distributions do not include it in the base install, just to avoid the potential legal exposure.

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