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Background
The Digital Millennium Copyright Act (the “DMCA”) is part of copyright law. The DCMA protects digital works from copyright infringement by making it illegal to circumvent the technical locks and controls that copyright owners use to protect digital works.

Examples of technical locks and controls are mechanisms on DVDs and video games that prevent people from copying the content. Additionally, sections of web sites that are protected by passwords are also considered controls under the DMCA. The DMCA prohibits people from working around any of these protections in order to copy the content without authorization from the copyright owner.

Just as the Copyright Act has “fair use” exceptions, the DMCA has exceptions too. Fair use exceptions provide for instances in which a copyrighted work can be copied or reproduced without violating a copyright holder’s rights. For example, a news reporter quoting a speech in a news report would probably be deemed a fair use of that copyrighted speech.

Currently, the seven exceptions where the DMCA does not apply are:

• Libraries, archives, and educational institutions for acquisition purposes;
• Law enforcement and intelligence gathering activities;
• Reverse engineering in order to develop inter-operable programs;
• Encryption Research;
• Protecting minors from material on the Internet;
• Protecting the privacy of personally identifying information; and
• Security testing.

In order to ensure that the DMCA does not prohibit any fair uses of copyrighted works, the Library of Congress updates the DMCA exceptions every three years. The number of exceptions approved at each update may vary as there is no required number of exceptions. For example, the Copyright Office approved six exceptions in 2006 and 2010. The Library of Congress is accepting suggestions on new exemptions until February 10, 2012. Submissions received on or before December 1, 2011 are posted on the Library of Congress website.

Comments
Advocacy organizations from around the country have begun to submit their proposals for new safe harbor provisions. As the use of safe harbor provisions become more prevalent, organizations and interest groups search for ways to protect their respective interests. These proposals generally reflect the organizations’ specific interests and few have the breadth necessary to be implemented. However, several of the proposed exceptions discussed below and are likely to be persuasive to the Library of Congress.

The first proposed class of works includes “literary works in the public domain that are made available in digital copies.” According to the Open Book Alliance’s supporting comment, Google requires many libraries throughout the world to impose these technological protection measures (“TPMs”) and/or others like them on digital files of public domain works. The restrictions placed by companies like Google limit access based on copyright protections under Section 1201 of the Copyright Act. The Open Book Alliance contends that copyright protection was not designed to protect works in the public domain, so in order to promote dissemination of public works and prevent misuse of Section 1201, this class of works should be protected under safe harbor provisions. Works in the public domain are supposed to be accessible by the public for use and can be used to promote creativity; thus, barriers to access can be viewed as a hindrance to the purpose of copyright protections.

The second proposal from the American Council for the Blind and the American Federation for the Blind seeks to add electronically distributed literary works that have currently have restrictions that limit accessibility by blind or other persons with print disabilities as protected class of works under the safe harbor provisions. These organizations assert that, “[w]ithout an exemption, people who are blind or otherwise have print disabilities are at risk for significant legal sanctions simply for finding a way to read material they have otherwise legally obtained.” They seek to rectify what they view as an oversight that has caused an avenue for discrimination. Lack of access and the opportunity for unintentional discrimination will make this proposal one to really consider.

Lastly, proposals were submitted by the Software Freedom Foundation and the Electronic Frontier Foundation. These proposals seek to allow computer programs that enable smartphones and other personal computing devices to use legally obtained software. These proposals contend that smartphones and other personal computing devices derive their value from the software they are able to run. Limits placed on use of software on certain devices not only limit the abilities and options of the consumer, but exclude small developers from the market. These limitations lead to numerous development issues and limitations in functionality of the devices. Smartphones and other personal computing devices are rapidly becoming a staple in American society. Addressing gaps in access and development are issues that should be considered carefully as this technology continues to permeate society.

There are quite a few proposals not addressed here. The topics range from motion pictures and other digital media to educational uses of copyrighted works. Cyveillance encourages you to educate yourself on all of the proposals and monitor how DMCA safe harbor provisions may change and affect your business.

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