The Acting Librarian of Congress, David Mao, has adopted a new set of fair use exemptions to the Digital Millennium Copyright Act, including extending exemptions to Blu-Ray discs and some online educational uses, and extending device unlocking to a variety of used devices.
The Librarian is required to review those exemptions every three years and make any necessary changes based on public comment.
The exemptions only apply to copy circumvention for non-infringing uses.
They allow for the circumvention of encryption technologies on movies and TV--hard copies and online versions--for purposes of criticism, commentary, and noncommercial purposes.
Movie and TV studios had opposed efforts to expand those exemptions, including to Blu-Ray discs and some online educational uses, arguing that other formats are sufficiently high resolution in the case of Blu-Rays, and that an exemption for online educational courses "would allow widespread distribution of works over the Internet."
Mao clearly disagreed.
The exemptions also extended to wireless device unlocking.
The Unlocking Consumer Choice and Wireless Competition Act of 2014 prompted the Librarian of Congress "to consider as part of the current triennial proceeding whether to 'extend' the cellphone unlocking exemption 'to include any other category of wireless devices.' "
Those, as proposed by commenters, would included used phones, tablets, mobile WiFi connectivity devices, wearable devices like smart watches and fitness devices. The National Telecommunications & Information Administration, which is the Obama Administration's top telecom policy adviser, proposed exempting all used wireless devices with the exception of vehicle-based hotspots.
Mao declined to allow unlocking exemption for all used wireless devices, but did apply it to phones, tablets, portable mobile connectivity devices, including removable wireless broadband modems and mobile hotspots, and wearable devices.
The Motion Picture Association of America was pleased with the expansions the new exemptions did not include, while respectfully disagreeing with what was included.
“Since the enactment of the DMCA in 1998, the anti-hacking provisions of Section 1201 have played a critical role in fostering the development of a myriad of new platforms for watching movies and TV shows, from the DVD, to the Blu-ray Disc, to online platforms like UltraViolet and over 100 others that allow consumers to experience media when, where, and how they prefer," MPAA said in a statement. "Without the protections embodied in Section 1201, many of these platforms simply would not exist. We are pleased that today’s ruling protects against damaging expansions into space- and format-shifting, and will further encourage the development of new, legal platforms. While we respectfully disagree with certain of today's rulings, such as those pertaining to Blu-ray Discs and Smart TVs, we are grateful to Register Pallante and her dedicated staff at the Copyright Office for the hard work that went into the recommendations to the Acting Librarian.”
Mao also approved a "smart TV" exemption for "noninfringing" uses of smart TV firmware, concluding "that no evidence was submitted to illustrate opponents’ claim that jailbreaking of smart TVs will make it easier to gain unauthorized access to copyrighted content, or that it would otherwise undermine smart TVs as a platform for the consumption of expressive works
The changes to the exemptions were insufficient to assuage New America's Open Technology Institute (OTI), which called for legislation.
“Although they include improvements, ultimately these updated rules don’t eliminate the need for educators, researchers, medical patients, and consumers to agonize over complicated rules to determine the legality under copyright law of activities that don’t infringe copyright," said Laura Moy, OTI senior policy counsel, in a statement. "Owing to a broken process and the outdated nature of a 20-year-old ‘digital’ law [DMCA], the rules contain a number of odd distinctions that defy common sense. It’s time for Congress, the Copyright Office, rights-holders, and the public to work together to update the DMCA, and we look forward to collaborating with others to do so."
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