Comment on the New DMCA Exemptions

GrumpyJust over two years ago, Kathleen wrote about the DMCA exemptions issued by the Library of Congress.

Last week, the U.S. Copyright Office published an updated rule with DMCA exemptions (it went into effect on October 28), and the changes aren’t all good. To get a quick overview of the new exemptions, I’d recommend reading this piece at ArsTechnica and this one at readwrite hack.

Some of what’s in the new rule is perfectly sensible. As Timothy B. Lee points out, ebook access for the disabled should now be easier, since the exemption no longer requires that “’all existing e-book editions of the work contain access controls’ that inhibit disabled access” before it’s legal to circumvent DRM. Thus, users need no longer incur the expense of owning multiple ebook readers in order to circumvent DRM legally. This is a good thing!

But other parts of the rule cry out for a dose of the common sense Joanna Cabot calls for in her letter to ebook retailers:

  • It’s legal to jailbreak “telephone handsets,” but not tablets. So it’s OK to jailbreak an iPhone, but not an iPad. Huh?
  • If you buy a phone after January 2013, you need your carrier’s permission to unlock it. I actually can see this one, but only up to a point. It’s true enough that securing the carrier’s permission to unlock isn’t too hard in most instances. And you can make the case that, if you acquired the phone with a carrier subsidy, or (as is possible with T-Mobile; I’m not sure about other carriers) you opted to pay full price for the phone in exchange for a lower monthly rate but are paying off the phone in installments, the phone technically belongs to the carrier until it’s paid off. In that situation, I’m fine with having to secure the carrier’s permission to unlock. But once the phone is paid off, it’s mine. Why do I need a carrier’s permission to unlock my own phone?
  • It’s still OK to rip a DVD for the purpose of creating clips for use in educational settings. But if you want to rip a movie or two so you can put them on your iPad rather than have to carry a portable DVD player with you when you travel, you’re out of luck.

Look, I understand that piracy can be a problem, and it’s sensible to take reasonable measures to prevent it—but many of the measures currently used undermine fair use. Why not make use of some sort of watermarking system (as mentioned in the Cabot post) so that it’s possible to track illicit distribution, without making criminals out of those who simply want to make reasonable use of content they’ve paid for? That’s what the current arrangement does, even if the use consumers want to make of the content would otherwise be perfectly legitimate.

The new batch of exemptions doesn’t change that. That is not a good thing.

If you have any thoughts about the new exemptions you’d like to share, please do so in the comments.

[Creative Commons licensed Flickr photo by oddwick]

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