Ever since the Digital Millennium Copyright Act (DMCA) was enacted in 1998 it’s been a thorn in the side of all sorts of people and organizations but not so for big business including media companie, and a host of other vested interests which want to see fewer consumer rights and tighter controls that work to their benefit.
The primary tool of the DMCA, the DMCA takedown notice, has been used, amongst other things, to chill free speech, limit consumers’ rights, and even allowed Volkswagen to hide their emissions cheat sheet. The DMCA has created a serious legal mess in which, arguably, Fair Use has been one of the biggest problem areas.
If you’re not familiar with the concept of Fair Use, Wikipedia notes:
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work …
The problem with Fair Use and the DMCA is that the latter restricts users’ rights with respect to things as varied as whether you can legally rip a DVDs to make remix that would be covered under Fair Use or jailbreak products such as cell phones and tablets. It even made security research and modification and repairs on cars potentially illegal! As the Electronic Frontier Foundation (EFF) notes:
The section of the law that creates these restrictions—the Digital Millennium Copyright Act's Section 1201—is fundamentally flawed, has resulted in myriad unintended consequences, and is long past due for reform or removal altogether from the statute books.
But, for now, Section 1201 is still in place, and so every activity that falls under the DMCA’s shadow that anyone wants an exemption for has to be argued for in front of the Librarian of Congress, the body charged with administering copyright law. The EFF has been going to bat over a number of exemptions and on October 27, 2015, announced that:
The exemptions we requested—ripping DVDs and Blurays for making fair use remixes and analysis; preserving video games and running multiplayer servers after publishers have abandoned them; jailbreaking cell phones, tablets, and other portable computing devices to run third party software; and security research and modification and repairs on cars—have each been accepted, subject to some important caveats.
These caveats are the usual political horse-trading that is part and parcel of the process but, overall, for the exemptions requested the law is not only more liberal but also better defined.
This is a huge win for the EFF, for consumers. artists, and journalists, and for common sense and fairness. It also reminds me that I should renew my membership of the EFF.