Speaking of the DMCA, the Copyright Office this week began the triennial rulemaking that considers whether any classes of works should be exempted from the Act’s anticircumvention provisions. Initial comments are due December 1.
Making infringing uses of a work, such a unauthorized copying or displaying, has always been prohibited by the Copyright Act subject to fair use limitations. So, if you legitimately have access to a work (an ebook, say) and you circumvent technology that would otherwise prevent you from making a copy of it (say, to copy a couple of pages for a class), the DMCA would not cover this circumvention. Regular old copyright infringement would control here and you could raise a fair use defense.
The DMCA, on the other hand, prohibits circumvention of technology that would otherwise limit access to a protected work. Because fair use is not a defense to this prohibition, the DMCA says that it “shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title[.]” That exempted “particular class of works” is determined by the proceeding that began this week.
The standard for a class of works to be exempted is very high. For one thing, “proponents of an exemption must provide evidence either that actual harm exists or that it is ‘likely’ to occur[.] … Claims based on ‘likely’ adverse effects cannot be supported by speculation alone.” Secondly, if a work is available in an unprotected format, then it likely won’t qualify because you can always use the unprotected format to make your uninfringing use. The DMCA’s anticircumvention provision has to render the class of works completely inaccessible for uninfringing uses before it will be exempted:
For example, in the first rulemaking, many users claimed that the technological measures on motion pictures contained on Digital Versatile Disks (DVDs) restricted noninfringing uses of the motion pictures. A balancing consideration was that the record revealed that at that time, the vast majority of these works were also available in analog format on VHS tapes. Final Reg. 2000, at 64568. Thus, the full range of availability of a work for use is necessary to consider in assessing the need for an exemption to the prohibition on circumvention.
In the last rulemaking only four classes of works were exempted. So, given how strict the criteria are, can anyone think of any class of works that could be exempted this time? I would really love to hear any suggestions.
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