Copyright Office Issues New Rules on Circumvention of Copyright Protection Systems

Last week, the Copyright Office published its final rule regarding “Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies.” Much like its tongue-twisting mouthful of a title, the document itself is not what you’d call “light reading” – but it yeezy replica is undeniably an important development for rights-holders, technologists, consumers and everyone else with a skin in the game where copyright is concerned.

It’s difficult to summarize the Copyright Office’s findings — and probably ill-advised for me to try — but I would like to call attention to one particular section, because I think it demonstrates that the Copyright Office put a lot of thought into this, and considered a lot of thorny, nuanced issues along the way to coming up with these new exemptions.

One of the exemptions sought by the Electronic Frontier Foundation, in conjunction with several supporters, was an exemption to “permit the circumvention of access controls on video game console computer code so that the consoles could be used with non-vendor-approved software that is lawfully acquired.”

Unlike jailbreaking a smartphone for the purposes of “software interoperability” (something that the Copyright Office has now given the seal of approval to, provided that reason for the jailbreaking satisfies the criteria outlined in the new rule) the Office declined to establish a similar exemption for circumventing access controls with respect to gaming consoles, like the XBOX 360, Playstation 3 or Nintendo Wii.

In the paragraph below, which quotes at length the Copyright Offices’ new rules, “Register” refers to the Register of Copyrights, which issued the recommendations on which the Copyright Office based its new rules.

Although EFF sought to rely upon the Register’s 2010 determination that modification of smartphone software to permit interoperability with non-vendor-approved applications was a fair use, the Register concluded that the fair use analysis for video consoles diverged from that in the smartphone context. Unlike in the case of smartphones, the record demonstrated that access controls on gaming consoles protect not only the console firmware, but the video games and applications that run on the console as well. The evidence showed that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the millions of dollars. While the access controls at issue might serve to further manufacturers’ business interests, they also protect highly valuable expressive works – many of which are created and owned by the manufacturers – in addition to console firmware itself.http://www.stockxsale.co.uk

While I’m sure the EFF and its supporters are disappointed by the above finding, the reasoning seems sound, both logically and based on the evidence considered by the Register.

For the full text of the Copyright Office’s findings, see this page.