Academic journal article Harvard Law Review

Copyright Law - Digital Millennium Copyright Act - Librarian of Congress Exempts University Professors and Film Students from DMCA Anticircumvention Provisions

Academic journal article Harvard Law Review

Copyright Law - Digital Millennium Copyright Act - Librarian of Congress Exempts University Professors and Film Students from DMCA Anticircumvention Provisions

Article excerpt

COPYRIGHT LAW--DIGITAL MILLENNIUM COPYRIGHT ACT--LIBRARIAN OF CONGRESS EXEMPTS UNIVERSITY PROFESSORS AND FILM STUDENTS FROM DMCA ANTICIRCUMVENTION PROVISIONS.--Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. Reg. 43,825 (July 27, 2010) (to be codified at 37 C.F.R. pt. 201).

Since the emergence of the digital era, the use of technology in the classroom has become increasingly pervasive, (1) and the virtues of such uses have been quite widely felt. (2) Section 1201 of the Digital Millennium Copyright Act (3) (DMCA) generally prohibits the circumvention of technological access controls, which have the effect of limiting the degree to which educators and students may make fair uses of copyrighted works. That same section includes a provision granting the Librarian of Congress the authority to exempt users who "are, or are likely to be in the succeeding three-year period, adversely affected ... in their ability to make noninfringing uses ... of a particular class of copyrighted works." (4) Recently, the Librarian of Congress accepted the recommendation of the Register of Copyrights to issue a rule that exempts university professors and film students from the DMCA's anticircumvention provisions when they override access controls (5) on DVDs with the reasonable belief that such actions are necessary to further pedagogical goals. (6) The new rule succeeds in expanding the limited educational privileges announced in a prior rulemaking proceeding. However, the Register of Copyrights ignored evidence of the benefits of extending the exemption to other university students, to K-12 teachers and students, and to other media beyond motion pictures on DVDs. By adopting the Register's recommendation, the Librarian crafted a rule that leaves many of the very users whom Congress intended to protect without the ability to exercise their fair use rights.

Following the technological "arms race" of the 1980s and the rapid development of the internet in the 1990s, media companies petitioned the government for augmented legal protection against enterprising individuals who circumvented access controls on DVDs and engaged in the widespread copying and dissemination of these companies' prized works. (7) In response, Congress amended the Copyright Act of 1976 (8) by enacting the DMCA in 1998. The DMCA carries a series of anticircumvention measures, the most relevant of which is [section] 1201(a)(1). This provision explicitly prohibits the circumvention of any "technological measure that effectively controls access" to a protected work. (9) In order to preserve the public's ability to engage in fair uses of copyrighted materials, (10) Congress initially identified seven classes of uses that would be free from DMCA liability. (11) However, acknowledging the limitations of its forecasting ability, Congress incorporated within [section] 1201 a "fail-safe mechanism." (12) This mechanism prescribes triennial rulemaking proceedings whereby the Librarian of Congress--upon the recommendations of the Register of Copyrights and the National Telecommunications and Information Administration (NTIA) of the Department of Commerce (13)--balances the benefits and harms of granting exemptions to other proposed classes. (14) Subsection 1201(a)(1)(C) of the DMCA directs the Librarian to examine four primary factors in the course of a rulemaking:

  (i) the availability for use of copyrighted works; (ii) the
  availability for use of works for nonprofit archival, preservation,
  and educational purposes; (iii) the impact that the prohibition on
  the circumvention of technological measures applied to copyrighted
  works has on criticism, comment, news reporting, teaching,
  scholarship, or research; [and] (iv) the effect of circumvention of
  technological measures on the market for or value of copyrighted
  works. (15)

The [section] 1201 rulemaking in 2006 was the first to establish an educational exception to the DMCA's anticircumvention provisions. …

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