Out with the Old, In with the New: DMCA Exemptions Under Review

Out with the Old, In with the New: DMCA Exemptions Under Review

The U.S. Copyright Office is currently in the process of conducting its 6th triennial rulemaking review under 17 U.S.C. § 1201 of the Digital Millennium Copyright Act ("DMCA"). This section allows the Copyright Office to create exemptions to the DMCA’s prohibition against bypassing technological measures that control access to copyright protected works. In each rulemaking proceeding the Register of Copyrights and the Library of Congress review proposed exempted classes de novo, as previous designation creates no presumption that the exemption will be renewed.


Since the end of last year, the Copyright Office has accepted public submissions for the new batch of exemptions. Currently, 27 proposed classes of works are under consideration, and the finalized list of exemptions is set to be announced in the fall.  Although many of the proposed classes have been either previously accepted or considered, there are several notable additions, including: “Vehicle Software – Diagnosis, Repair or Modification” and “Software – 3D Printers.

While automotive repairs and modifications have been historically associated with patent disputes, the introduction of vehicle software creates a new ambit of protection for manufacturers under copyright law. Much debate between automotive industry insiders, aftermarket suppliers, independent repair shops and car enthusiasts has focused on alterations to the Engine Control Unit ("ECU"), a type of electronic control unit that manages functions of the car engine. ECUs are often modified by car owners and independent mechanics in order to alter performance of and customize vehicles. One example is the modified R34 Nissan Skyline of The Fast and the Furious fame. Though the film's protagonists may not exactly typify average car owners, those who want to have their cars fixed by independent mechanics or even personally tinker with them may be prevented from doing so under the current law.

Proponents of the vehicle software exemption have argued that modifications to ECU firmware fall squarely under fair use. Further, the use is non-infringing when car owners access, copy and modify vehicle firmware as outlined by section 117 of the Act. Conversely, manufacturers have argued that an exemption would undermine the safety and regulatory standards of vehicles. An unscrupulous mechanic or unwary amateur may weaken vital mechanisms of a vehicle and not only diminish its performance but create additional liability for the manufacturer.

The other new proposed class exemption involves 3D printers.  Currently, many manufacturers of 3D printers require their customers to purchase proprietary cartridges with approved feedstock; otherwise, the printer is prevented from functioning by technological protection measures ("TPMs"). Public Knowledge and the Library Copyright Alliance has proposed that non-manufacturer-approved feedstock should be exempted from DMCA liability circumvention of TMPs that control access to the 3D printer’s software. The opponents of this exemption have argued that it would negatively affect the market in at least 3 ways: “(1) it would threaten the value of a manufacturer’s 3D printers; (2) it would undermine security protections for intellectual property and confidential information embedded on printers; and (3) it would undermine growth in the overall market for 3D printers and 3D printed objects by placing at risk technological advances enabled by secure, fully-integrated 3D printing systems.” While the exemption sought does not considerably differ conceptually from unlocking a telephone or a tablet, it highlights the technological advances and improved accessibility of 3D printing.

It should be noted that in previous reviews exemptions have been granted to a handful of classes; in fact, the last review of 2012 was quite controversial. Although the Library of Congress granted an exemption to permit the interoperability of “jailbreaking” application on wireless telephones, it omitted e-readers and tablets from the exemption. Moreover, the Copyright Office decided not to renew the exemption for unlocking wireless telephones through user self-service. The latter decision generated significant public outcry and led to the enactment of the Unlocking Consumer Choice and Wireless Competition Act which temporarily reinstated the old DMCA exemption. This exemption is up for review again this year.

Whether or not one thinks these exemptions are warranted, the sheer breadth of classes up for review this year cannot go unnoticed. More and more industries are becoming affected by electronic commerce and copyright law. It will be interesting to see how the various competing interests will be balanced this time around.

Anastassia Trifonova is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.