Most of the headlines over this week’s DMCA rulemaking (large PDF) by the U.S. Copyright Office, understandably enough, have focused on the “jailbreak” angle. For the next three years at least (until the next scheduled triennial review), iPhone users will legally be able to circumvent the digital locks on their handsets to install software and apps that have not been approved by Apple (Apple says it will still void your warranty), or to use the phone with a different wireless carrier. See here, here and here. Previously, the DMCA’s prohibition on circumventing access control technologies made jailbreaking illegal.
Yet for all the attention the jailbreaking exemption attracted, its impact in the market, and on the DMCA itself, is likely to be limited. It’s not clear (at least to The Media Wonk) that there is a large contingent of iPhone users clamoring to install a lot of non-Apple approved apps, and other leading mobile platform providers like Google and Microsoft allow users as a matter of course to install whatever software they want on their devices.
A less noted group of new exemptions to the DMCA’s anti-circumvention rules, however, concerning CSS on DVDs, could have more far-reaching implications, for the DMCA and for the evolving debate over technical protection measures generally. For the first time, the new rules put the U.S. government on record in favor of distinguishing between the de jure access-control functions of technical protection measures, and their de facto operation as use-control systems.
It’s a distinction that has been gaining ground in U.S. courts, most recently last week in the Fifth Circuit Court of Appeals ruling on a DMCA claim in MGE UPS Systems v. Power Maintenance International (a company owned by GE), as well as among regulators outside the U.S., and it threatens both the legal and business foundations of one of the media companies’ most successful strategies over the past decade.
Circumventing CSS is now permissible to “accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use.”
The ruling purports to limit the exemption to three specific use cases: (1) educational uses by college and university professors and by college and university film and media studies students; (2) documentary filmmaking; and (3) creating noncommercial videos. But as a practical matter, those limitations will be difficult to sustain. As the Copyright Office report itself goes on to note:
The Register [of Copyrights] sees no workable way to further qualify the class of works for documentary filmmaking and noncommercial videos by including specific requirements relating to the identify of the users who would be permitted to circumvent. While the proponents of the class pertaining to documentary films suggested that persons eligible to take advantage of that class be limited to documentary filmmakers who are members of an organization of filmmakers or are enrolled in a film program or film production course at a post-secondary educational institution, the Register does not believe that it is appropriate to require membership in any particular organization in order to qualify. It makes sense to conclude that the best way to determine whether someone is a documentary filmmaker is to ask whether that person is making a documentary film. Further, noncommercial videos that comment on motion pictures can be made by anyone; fair use does not depend upon the credentials of the person engaging in the noninfringing act.
In other words, anyone can circumvent CSS as long as they can plausibly claim to be making a mash-up.
More devastating than the exemptions themselves, however, at least for content owners, is the reasoning offered by the Copyright Office for how it reached its decision.
The report takes note of the mixed-use nature of CSS:
CSS is a technological measure that controls access to a work. But that encrypted work is automatically decrypted whenever a person in possession of a DVD places the DVD in an authorized DVD player. What is the point of an access control when access is granted to everyone in possession of the DVD? The answer is that CSS as an access control is a means to a further end… To obtain authorized decryption, copyright owners require device manufacturers to agree to additional contractual terms, specifically, terms that inhibit the reproduction of the content on DVDs… As a condition of obtaining the decryption keys, the device manufacturer agrees to certain conditions on the capabilities of the DVD player, including an agreement that the device will not contain a digital output that will allow digital reproduction of the decrypted content. By design, the CSS encryption system serves as a link in a chain of legal and technological requirements that ultimately inhibit the possessor of a CSS-protected DVD from copying the work or works embodied in it [emphasis added].
For all intents and purposes, in other words, CSS is a use (i.e. copy) control technology that operates as an access control technology, something that was not anticipated by the framers of the DMCA’s anti-circumvention provisions.
The Copyright Office actually made similar observations about CSS in its inaugural review, back in 2000:
The merger of technological measures that protect access and copying does not appear to have been anticipated by Congress. Congress did create a distinction between the conduct of circumvention of access controls and the conduct of circumvention of use controls by prohibiting the former while permitting the latter, but neither the language of section 1201 nor the legislative history addresses the possibility of access controls that also restrict use. It is unclear how a court might address this issue. It would be helpful if Congress were to clarify its intent, since the implementation of merged technological measures arguably would undermine Congress’s decision to offer disparate treatment for access controls and use controls in section 1201 [emphasis added].
The proponents [of the exemptions] have demonstrated that there are an appreciable number of noninfringing uses that they contend are, or are likely to be, adversely affected by the prohibition on circumvention, because CSS prevents certain forms of reproduction of motion pictures contained on CSS-protected DVDs [emphasis added].
The problem here identified by the Copyright Office is that the operation of the overall CSS system, including both its technology and licensing elements, makes it impossible to separate its access control function from its use control functions, despite the fact that the law treats the two quite differently. Circumvention of the latter is permissible in some circumstances (e.g. fair use), whereas under §1201 circumventing the former is never permissible.MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners… Without showing a link between “access” and “protection” of the copyrighted work, the DMCA’s anti-circumvention provision does not apply. The owner’s technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing [emphasis added].
The Fifth Circuit ruling joins a growing list of cases, including Chamberlain v. Skylink, Lexmark v. Static Control and Storage Technology v. Custom Hardware, in which courts have cast a cold eye on efforts by copyright owners to use the anti-circumvention rules pertaining to access control technologies to bootstrap use rights not actually conveyed to them by the Copyright Act.
While the growing push-back against copyright owner overreach may be cause for rejoicing in some circles, it’s worth remembering the original CSS model was at delivering benefits to consumers as well as to copyright owners.
As the Copyright Office noted, CSS “serves as a link in a chain of legal and technological requirements” imposed on DVD drive makers as a condition of obtaining the CSS decryption keys. While those requirements may have prohibited certain legitimate uses of the content on DVDs they also brought design consistency to DVD drives ensuring the universal compatibility among DVD discs and drives, whether those drives were implemented in set-top players, PCs or game consoles.
That uniform compatibility, in turn, was essential to the format’s achieving mass-market volumes, which delivered low prices and broad retail availability to consumers as well as a major revenue boost to the studios. Without it, the optical disc market might well have gone the way of the digital distribution business, with multiple, incompatible formats and platforms, an absence of scale and ultimately a lack of availability for consumers.
That “chain of legal and technological requirements” the courts and the Copyright Office now seek to weaken, in other words, while legally suspect, has also produced real-world benefits. Weakening it further may benefit fair use, but it does not necessarily follow that consumers would benefit as well.
