October 16, 2008 | By Fred von Lohmann

Do You Need An Exemption from the DMCA?

Every three years, the U.S. Copyright Office undertakes a rule-making to consider whether the DMCA's ban on circumventing technological protection measures (e.g., DRM and other "access control" restrictions) is interfering with noninfringing uses of copyrighted materials. The Copyright Office has announced that those interested in requesting a DMCA exemption for the period 2009-2012 must submit their proposals to the Copyright Office by December 2, 2008 (there will be an opportunity in February to support or oppose the proposals, but the proposals have to be made in December).

Do you think you might need a DMCA exemption? Before you answer, you should read the Copyright Office's final report in the 2006 rule-making carefully. As we pointed out in 2005, the Copyright Office has repeatedly dismissed any consumer-oriented fair uses, such as making backup copies of DVDs or video games, as well as requests for exemptions to enable copying DVDs to laptops and portable devices. The Copyright Office also rejected EFF's efforts to secure exemptions in 2003 to allow circumvention of DVD region coding by legitimate DVD owners, to skip "unskippable" DVD advertisements, and to access public domain materials on DVDs. All in all, we stand by our 2005 assessment that the DMCA rulemaking process is hopelessly broken when it comes to addressing noninfringing digital consumer fair uses.

However, the 2006 rule-making showed that other kinds of exemptions may be granted, where circumvention is necessary for noninfringing activities like classroom teaching (e.g., film professors using DVD clips), computer security research (e.g., regarding copy-protected CDs), archiving and preservation (e.g., preserving video games and multimedia software), maintaining obsolete systems (e.g., malfunctioning or obsolete "dongles" for software), and promoting interoperability (e.g., cell phone unlocking).

If you are engaged in noninfringing activities that have been tripped up by the DMCA's anti-circumvention provisions, and would be interested in a DMCA exemption for 2009-2012, let us know by October 31. We've got some ideas of our own (including renewing the cell phone unlocking exemption for you iPhone unlockers!), but we're eager to hear from other user communities that may have been overlooked.


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