Exceptions which Circumvent Logic

Effective October 28, 2012, the US now has a new list of exceptions to its digital management circumvention laws in the Digital Millennium Copyright Act (hereafter “DMCA”).

These exceptions were granted by the Library of Congress in accordance with DMCA sections 1201 (B) and (C), which allows the Library to set exceptions for a period of three years.  Although the exercise of the power is not unusual, the list of exceptions seems to be lacking an overall theory as to which digital protections the public should be allowed to circumvent.

The exception for “Literary Works Distributed Electronically—Assistive Technologies” are justified on compassionate grounds.  This exception allows persons with disabilities to disable any measures that prevent an electronic literary work from being read aloud or otherwise assisted read.  This section makes electronic books (eBooks) available to be read on devices which are used in assisted reading, in order to make eBooks more accessible to people who require the assistance.

The exception for “Wireless Telephone Handsets—Software Interoperability” appears arbitrarily limited.  This exception allows users to use computer programs which allow wireless telephones to run software that it was previously unable to run.  The same exception does not apply to tablets.  Proponents of this exception argued that this “jailbreaking” of devices was within the US definition of fair use.  The reason that the Library of Congress rejected the proposal that the exception should apply to tablet devices was because the class of devices “was broad and ill-defined”.  If that justification appears to be an odd reason to reject the application of this exception to tablets, I would suggest that Library of Congress may simply not have had enough data on tablets to feel comfortable extending the exception.

Those who advocated that the exception was justified by fair use suggested that the exception would have a negative impact on the sale of mobile telephones.  The Library of Congress was able to reject that principle on the basis that the data on mobile phone sales since 2010, when the exception was originally enacted, did not appear to have been impacted by the DMCA exception.  Perhaps tablet devices were simply too new in the market for the Library of Congress to draw the same conclusion.

But as confusing as the actual exceptions are, the reasoning behind the Library of Congress rejecting certain exceptions is even less principled.  The Library of Congress rejected the exception for “time-shifting” of DVDs purchased legally for non-commercial personal use.  “Time-shifting” refers to making digital copies of DVDs, specifically to allow these works to be viewed on devices which lack DVD drives.  The Library of Congress said that “no court has held that ‘space-shifting’ is a fair use.”  While I agree that the statement is technically true, the Library of Congress was presented with Sony Corporation of America v. Universal City Studios, Inc..  In that decision the court said:

“When these factors are all weighed in the “equitable rule of reason” balance, we must conclude that this record amply supports the District Court’s conclusion that home time-shifting is fair use.”

Is time-shifting (recording) television shows really theoretically different from space-shifting?  The Library of Congress appears to make a distinction, but, in my opinion, missed the point.  They have the legislative authority to create exceptions to digital management circumvention laws.  If their power was only limited to codifying existing exceptions in law then their power is redundant.  They appear to be unwilling to consider the fair use analysis presented to them by the proponents of this exception, and instead simply rely on whether or not courts have already made space-shifting an exception.

Canada is about to adopt its own section on Technological Protection Measures and Rights Management into its Copyright Act.  Hopefully Canada’s exceptions to the law will be more principled and consistent than those in America.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

  1. For clarification, there are differences between time shifting and space shifting. Time shifting refers in this article to making a copy of a broadcast television show in order to view it at a later time. This was held to be fair use, according to the US Supreme Court. Space shifting refers in this article to making a digital copy of a DVD to to be viewed on a device that doesn’t have DVD capability. The proponents of this DMCA exception wanted to draw a similarity between these two types of copying in order to further their argument that space shifting DVDs should be an exception to the American DMCA laws. These types of copying have similarities but are by no means identical

  2. Hi Adam,

    I agree, the exceptions to the anti-circumvention provisions in the DMCA are not infallible, and are rather vulnerable to criticism, as you’ve demonstrated. However, I believe it’s necessary to acknowledge that although not flawless, the exemptions you’ve mentioned, in addition to several others, permit activities that would be otherwise infringing under several other copyright regimes, including Canada. For instance, in the DMCA, the circumvention of a TPM is allowed in order to make use of short portions of a motion picture for the purpose of criticism or comment in: (i) noncommercial videos; (ii) documentary films; (iii) nonfiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty and students, and kindergarten through twelfth grade educators. Conversely, under the Copyright Modernization Act (CMA), narrow exceptions have been carved out that don’t remotely resemble this exemption in the DMCA. Instead, the CMA authorizes the circumvention of TPMs for purposes relating to national security and law enforcement, the interoperability of computer programs, encryption research, and making content perceptible to persons with perceptual disabilities, amongst a few other exceptions. The anti-circumvention provisions in the CMA ostensibly extend beyond copyrights own safety valves, such as fair dealing and other exceptions and limitations contained in the legislation. It is evident that both regimes aren’t perfect and could benefit from amendments.

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