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Fair Use

The Library of Congress has just this morning issued its statement of exemptions to the portions of the Digital Millennium Copyright Act that forbid the circumvention of DRM and other technological measures intended to prevent access to or copying of digital materials. These exemptions are issued every three years; last time out, the exemptions allowed film and media studies professors to crack the content scrambling system (a.k.a. CSS) on DVDs in order to rip short clips to make compilations for classroom use. This seemed at the time like an awfully restricted exemption — literally only film and media studies profs (no profs in other fields, and no students), literally only in order to create compilations of clips for use in the classroom (not for use in critical writing) — but it struck me then that the statement might be the thin end of the wedge.

And so it appears to have been. The exemption on the cracking of CSS now extends to all instructors and students [Correction: see Timothy Yenter’s comment below; the extension includes all instructors but only students in film and media studies courses], and the “educational uses” now include critical commentary and documentary production, as well as the exceptionally broad category of “non-commercial videos.” Whether this gets taken to mean that fan vids will be recognized as falling under the exemption remains to be seen, but the chances seem to me to be high.

This is already pretty amazing, and yet, as they say on late-night infomercials, “but wait! There’s more!” The LOC has also declared that programs that allow the jailbreaking of a cell phone in order to install “lawfully obtained” applications is legal, as is the following:

Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

If I’m reading that correctly, I think that unlocking a “used” phone has now just been made legal as well. The question of what constitutes “used” here is open, I think — is the iPhone I purchased new but have now had for a year “used”? — but I think the way has been paved for users to connect their handsets to their network of choice. Ars Technica correctly, I think, understands these two provisions as a direct kick in the teeth to Apple; it will be interesting to see how the company responds.

And, as if that weren’t enough, the LOC has also declared that circumventing DRM in order to activate the text-to-speech function of e-books for which the function has been disabled is now permitted, as is circumventing DRM in order to make e-books usable by “screen readers that render the text into a specialized format.” I’m not exactly sure what that last means — is it now legal for me to crack DRM on my Kindle app books in order to port them into iBooks? — but there seems to be at least a recognition that lawfully obtained digital texts should be readable in the purchaser’s choice of formats.

All of these provisions come with the caveat that where there are other means of accomplishing the same thing (getting video clips; getting e-books with the audio component enabled), consumers must take the route that does not require circumventing DRM, but where there is no other way, the position seems to be that those who have legally purchased texts and objects protected by DRM have the right to break those systems for purposes that would otherwise fall under the category of fair use.

These exemptions promise to have an extraordinary impact on the kinds of media scholarship that can be published over the next few years; projects like In Media Res, which has long led with its jaw on the fair-use front, now have a certain measure of legal protection working in their favor. But these exemptions will be up for review in three years, so media scholars, students, and practitioners who care about their ability to access and use the legally-obtained media texts with which they work need to make wise use of the time, demonstrating to the LOC what can be done with such free access. And we need to continue to lobby for further expansions in our rights to access the primary sources with which we work.


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