Holiday Special

Laura Quilter of Derivative Work points out that before policy makers took off for the holiday, the Copyright office allowed some much-needed exemptions from the highly restrictive Digital Millennium Copyright Act.

1. Audiovisual works included in the educational library of a college or universityÂ’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the bookÂ’s read-aloud function or of screen readers that render the text into a specialized format.

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

There are clearly a lot of copyright-friendly loopholes here, even in the first category of exceptions, which represents a concession to historical definitions of fair use for educational purposes. "Professors" could use these materials in a classroom, but could adjuncts or teaching assistants? Those from "media studies" or "film" are allowed, but those from other departments would still seem to be prohibited, even though, as my friend Bob Blackman likes to say, you can't teach history without a VCR. And -- of course -- why all these onerous requirements about storage specifically in an "educational library"? Not to mention K-12 uses of digital copies!

The second category of exemptions represents a tantalizing possibility for reason, given the rise of videogame studies and the challenge facing librarians who are trying to catalogue digital ephemera before it becomes unplayable.

The exceptions for the disabled have a long history, but it was nice to see some defense of reverse engineering as a legitimate branch of science and some acknowledgement of the fact that DRM could also bring about planned obsolescence.

The official version of the details and backstory on the debate are here.