Policy Talks: DMCA DRM Anticircumvention Rules

One of the policy initiatives we’ve discussed this semester in the clinic is possible improvements to the DMCA’s DRM anti-circumvention rules. Section 1201 of the DMCA prohibits using measures to circumvent technological means of protecting copyrighted works (Digital Rights Management, or DRM). Circumventing DRM can carry severe penalties, including criminal liability.

The statute has some built-in exceptions, and every three years the Librarian of Congress issues specific exceptions following a notice-and-comment rulemaking process. The most recent exceptions (which will remain in place until 2015) permit limited DVD descrambling for educational and noncommercial purposes, jailbreaking cell phones, good-faith testing for flaws or vulnerabilities in video games, accessing computer programs that protect access by dongles if damaged and obsolete, and enabling read-aloud and screen-reader technology for ebooks.

Among the criticisms of section 1201 is its potential to chill traditionally protected speech. Because it creates liability for making circumvention techniques publicly available, researchers and white-hat hackers have been threatened if they publicize their findings. Additionally, this creates liability for copyright violations beyond that created by the Copyright Act. This is especially problematic as, unlike normal copyright infringement, §1201 liability isn’t protected by fair use arguments.

Aside from the first amendment concerns, the current law can impact startups. While the Librarian of Congress can create exceptions to the prohibition, the exceptions last for a very short time. Startups may wish to create a business that takes advantage of one of these exceptions, but be discouraged if they have no way of knowing if their model will still be viable (or legal) in three years.

Brooklyn Law Incubator & Policy Clinic © 2013