Under the Digital Millennium Copyright Act (DMCA), it it illegal to circumvent measures taken by the producers of copyrighted works to protect access to their works, such as digital rights management (DRM) software. This has hampered a great many creatives and would-be tinkerers alike, in particular by restricting the ability of consumers to repair parts of their property that require altering software.
One silver lining in the DMCA is Section 1201(a)(1), which “requires the Librarian of Congress, following a rulemaking proceeding, to publish any class of copyrighted works as to which the Librarian has determined that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding three-year period, thereby exempting that class from the prohibition for that period.”
Last week, the Library of Congress published a final rule that would protect a whole host of copyrighted works otherwise covered by DMCA:
The Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works:
Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure…
Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies…
Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle such as a personal automobile, commercial vehicle, or mechanized agricultural vehicle…
Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process.
These are just a few examples, and there are a number of particulars associated with each of these exemptions (for example, the exemptions for motion pictures extend to educational institutions, documentaries, and modifications for viewers with disabilities).
The impact of this rule, however, is far-reaching. In addition to the examples listed above, the rule also covers devices such as smartphones and smart home assistants (e.g. Alexa), giving consumers and, more important for the technologically challenged, repair shops, ability to fix these devices on the owner’s behalf. The rule would also provide greater latitude for archivists and museums to preserve video games.