The legal spotlight has definitely been on the Digital Millennium Copyright Act (DMCA) lately. A few short weeks ago, we told you how the U.S. District Court for the Southern District of New York handed down a victory for YouTube (owned by Google). In that case, the court interpreted the DMCA to decide that YouTube cannot be held liable for acts of copyright infringement committed by its users.
And, just last week (Monday, July 26), the U.S. Copyright Office created several new DMCA exemptions during a regularly scheduled review of this hunk o’ statute.
We know you’re just dying for some background.
Passed in 1998, the DMCA was an attempt by Congress to update U.S. copyright law to reflect emerging technological realities. Among other provisions, the DMCA made it illegal to circumvent most “access controls” on digital content. Meaning, you could be sued for using technology to strip the “locks” meant to prevent the duplication of said content — even for private or noncommercial use. Breaking these locks to use a short movie clip in your own video was a no-no. The same went for modifying your smartphone to run third-party applications or connect to a different network. That is, until now.
Six new DMCA exemptions
As of Monday, prying the locks off your digital media is permitted under federal copyright law in the following instances:
1. The educational, documentary, or noncommercial use of short clips from DVD movies, in instances where there is no other way to retrieve the clip besides stripping the protection.
2. The use of computer programs designed to enhance interoperability of cell phone applications, aka “jailbreaking” — which allows handsets like the iPhone to run third-party applications.
3. The use of computer programs that enable cell phones to connect to another carrier’s wireless network, where access is authorized by the network.
4. The investigation of security flaws in computer games, to protect the security of the computer and computer network, as long as it does not promote copyright infringement.
5. The use of computer programs protected by obsolete, malfunctioning dongles (small hardware devices that plug into the serial or USB port of a computer.)
6. The use of text-to-speech or other accessibility functions for eBooks, where this use is prevented and there is no other alternative.
Possibilites for creators
Given the popularity of the iPhone (and the top-down tendencies of Apple), the “jailbreak” exemption has gotten the most press attention. But the Copyright Office modifications are also significant for other reasons.
The DVD exemption allows individuals to use video clips from legally-purchased DVDs in new works, provided they fit the appropriate criteria (see number one above). Documentary filmmakers, for example, potentially have access to high-quality content where stripping digital protections is the only option.
What’s “fair” and what’s not
This is hardly a get-out-of-infringement-free card. First of all, the lock removal exemption doesn’t guarantee that the end result is automatically a “fair use.” If it’s clearly obvious, the copyright owner of the original work may not file suit. But it’s important to remember that fair use is only legally recognized when a claim of infringement is made and a judge upholds the use by weighing four factors.
OK, so what about music?
While there have been fair use cases regarding the use of music in movies (including this 2008 decision), a judge has yet to rule that sampling even a snippet of music for use in another musical work is “fair.” Actually, court precedent says the opposite.
This is why we pay so much attention to the complexities of the sample license clearance process. At present, you need permission from both the owners of the sound copyright and the underlying composition to use a piece of music — however small — in a new work. (Check out this epic post on mash-up maestro Girl Talk, and look for Creative License, our book on sampling, on Duke University Press in 2011.)
Although it¹s now legal to strip digital protections under certain conditions, whether you¹re smacked with a lawsuit ultimately depends much more on the legality of the new use. This is important stuff to keep in mind. We don¹t want broken locks to lead to broken hears.