Librarian of Congress issues new DCMA exemptions

Since 1998, the Digital Millennium Copyright Act (DMCA) has been part of the legal environment in which electronic records archivists, digital librarians, and others interested in preserving digital materials operate. DCMA generally prohibits circumvention of the anti-piracy and copy protection mechanisms built into many proprietary software applications, commercial CDs, DVDs, e-books, and any other form of commercially produced digital material. Although the DMCA includes a limited exemption for libraries and archives seeking to preserve digital materials and for IT personnel performing maintenance, security testing, and other essential tasks, it limits the extent to which libraries and archives can disseminate the copies they produce and doesn't address preservation of Web sites or networked resources.

The DMCA also mandates that the Librarian of Congress review its provisions every three years and issue needed exemptions to the law's circumvention clause. Earlier today, the Librarian of Congress issued a sextet of new exemptions, the first three of which are getting a lot of attention on Gizmodo, Ars Technica, and other tech-oriented sites. However, all of them are pretty interesting. They allow:

• Documentary filmmakers, producers of non-commercial videos (i.e., every person with the burning desire to create a mash-up and post it on YouTube), college and university professors, and college and university film and media studies students to incorporate "short portions of motion pictures into new works for the purpose of criticism or comment." The list of exemptions that the Librarian of Congress issued in 2006 contained a similar exemption, but it was limited to college and university media studies instructors and departments.
• Jailbreaking (i.e., running applications not sanctioned by the manufacturer) of mobile phones; however, jailbreaking your iPhone will still void its warranty.
• Unlocking mobile phones and using them on cellular networks other than those preferred by the phone's manufacturer; this exemption has been carried over from the Librarian's 2006 list, but keep in mind that unlocking your iPhone will void its warranty and that Apple will try to stop you via firmware updates.
• Circumvention of copy-protection mechanisms built into video games provided that said circumvention is done "solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities," is used chiefly to promote computer security and the resulting information isn't used to "facilitate copyright infringement or a violation of applicable law." This exemption looks pretty dull on the surface, but as Ars Technica points out, its real aim may be the copy-protection mechanisms themselves: a couple of digital rights management mechanisms, including the very widely used SafeDisc, contain known security vulnerabilities.
• Circumvention of copy protection and authentication dongles provided that they are malfunctioning or damaged and considered obsolete (i.e., "no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.") This is another holdover from the 2006 list, and it certainly is the least glamorous; it gets scant mention in the media coverage of the current list. However, it's of particular interest and value to electronic records archivists, digital librarians, and other cultural heritage professionals.
• Bypassing of e-book access controls that disable "the book's read-aloud function or . . . screen readers that render the text into a specialized format" provided that there are no commercially available editions that support text reading. This is another holdover from the 2006 list, and it's particularly important for libraries that serve patrons with visual disabilities.

As Ars Technica notes, these exemptions don't address a number of key issues (e.g., circumventing digital rights management mechanisms built into purchased music files after authentication servers go offline). However, archivists and librarians should be pretty pleased with them. Moreover, those of us who focus on documenting contemporary popular culture should probably start thinking about how we're going to handle the explosion of multimedia creativity that the first exemption may engender; a lot of the documentaries, commentaries, and mash-ups that will be disseminated as a result of the first exemption will be of middling to poor quality, but some of them are going to be compelling works of art, solid scholarly productions, or works that warrant preservation because they are representative of their era.

FYI, it took the Librarian of Congress a little longer than usual to issue the current exemptions, so they'll remain in effect until 2012. If you find one of these exemptions directly benefits your work, be sure to speak up: in the past, the Librarian has dropped at least one exemption because no one was making use of it.