New Copyright Office rule permits modification of vehicle software for diagnosis and repair, other exemptions to DMCA anti-circumvention rules

The Digital Millennium Copyright Act (“DMCA”) prohibits circumvention of technical measures that control access to copyrighted works. The DMCA’s anti-circumvention requirement permits copyright holders to control how users can access digital works, and also prohibit modification of those works without permission.

In the years since the DMCA was enacted, the Copyright Office has issued several exemptions to the DMCA’s anti-circumvention requirement. In October 2015, the Copyright Office published a new rule adding several new exemptions, including:

• Motion pictures (including TV shows and videos), where the circumvention is undertaken solely for the purpose of criticism or comment in: (i) documentaries; (ii) noncommercial videos; (iii) nonfiction multimedia e-books offering film analysis; and (iv) college and university faculty and students, kindergarten through 12th grade educators and students, certain nonprofit digital and media literacy programs, and certain nonprofit massive open online courses for educational purposes.
• Literary works having technical measures that either prevent the enabling of read-aloud functionality or interfere with screen readers, when lawfully obtained by a blind person or other person with a disability.
• Computer programs that enable certain wireless devices to connect to a wireless telecommunications network (if the device is a used device that was previously lawfully acquired and activated on the wireless communications network of a wireless carrier).
• Computer programs that enable smartphones and portable all-purpose computing devices to execute lawfully obtained software applications, where the circumvention is accomplished solely to allow interoperability of the applications, or to permit the removal of software from the device.
• Computer programs that enable smart TVs to execute lawfully obtained software applications, where the circumvention is accomplished solely to allow interoperability of the applications.
• Computer programs that are contained in and control the functioning of a motorized land vehicle (excluding programs for the control of telematics or entertainment systems), when circumvention is necessary for diagnosis, repair or lawful modification of the vehicle by the authorized owner of the vehicle.
• Computer programs operating on certain machines solely for the purpose of good-faith security research.
• Abandoned (i.e., no longer supported by the manufacturer) video game software requiring server communication.
• 3D printer programs that limit the type of feedstock that may be used on the printer (so long as the circumvention is limited to enabling the use of alternate feedstock).
• Compilations of data generated by medical devices that are wholly or partially implanted in the body.

Each exemption has various limitations and restrictions. For example, the exemption for vehicle diagnosis and repair is limited to diagnosis and repair “by the authorized owner” of the vehicle and does not permit circumvention by third parties acting on behalf of the vehicle owner. In addition, some of the exemptions (like the vehicle diagnosis and repair exemption) will not take place until November 2016. Because of this, it is important to carefully review the full exemption before attempting to get around technology that protects a digital work.