Ruling on DMCA Exemptions Before End of Month

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By Anandashankar Mazumdar

Oct. 8 — The Copyright Office is expected to issue its determinations on exemptions from federal anti-circumvention provisions before the end of the month, the head of the agency confirmed to Bloomberg BNA Oct. 8.

The office will issue a final rule resulting from its sixth triennial review of exemptions from the Digital Millennium Copyright Act of 1998 “no later than Oct. 28,” Register of Copyrights Maria A. Pallante said in an e-mail message.

The DMCA, 17 U.S.C. §1201(a), prohibits circumvention of a technological means of controlling access to or use of a work protected by copyright law.

Section 1201(a)(1)(C) allows Library of Congress—of which the Copyright Office is an agency—to exempt certain classes of creative works if the prohibition is likely to adversely affect users' ability to make non-infringing uses of the works.

The statute thus requires that, every three years, the agency conduct a review and determine which exemptions should be made to the DMCA's anti-circumvention provisions.

The last review process, which ended in October 2012, resulted in a public outcry when the agency chose not to renew an exemption that would allow a mobile telephone user to “unlock” his or her handset so that it could be used with a different phone service provider's network.

The current exemptions include:

(1) Enabling read-aloud functionality of electronically distributed literary works to assist the blind;

(2) “Jailbreaking” mobile devices so that they can be made interoperable with legally obtained software, even if such software is not approved by the hardware vendor;

(3) “Unlocking” phones purchased prior to February 2013;

(4) Circumventing the Content Scrambling System to excerpt movies for commentary, criticism and educational uses; and

(5) Circumventing the CSS for captioning and descriptive audio.


In choosing not to renew the exemption allowing mobile telephone users to “unlock” their handsets, the Copyright Office's review had concluded that there were sufficient alternatives available to consumers—such as pre-unlocked phones—such that an exemption was no longer required for newer phones.

The controversy eventually resulted in the enactment of legislation giving consumers the right to unlock their phones so they could change carriers.

In April, Sen. Ronald L. Wyden (D-Ore.), introduced legislation that would statutorily expand the exemptions to the anti-circumvention law.

The Breaking Down Barriers to Innovation Act of 2015 (S. 990) would mandate that any exemptions created by the Library of Congress automatically be renewed.

The Copyright Office initiated the current review process in September 2014.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at

To contact the editor responsible for this story: Mike Wilczek in Washington at

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