As a result of the rulemaking, it is now permissible to break copy protection in order to access eBooks through software that blocks rendering for the blind and disabled (e.g., through text-to-speech conversion or large-type displays); software protected by dongles that are both obsolete and nonfunctioning; software or video games that run on obsolete hardware and require the presence of such hardware; and lists of Internet addresses that are created by "censorware" filtering programs. The latter two carveouts are narrower versions of those created in the previous rulemaking.

Under the provisions of the DMCA, the Copyright Office is required to conduct a rulemaking exercise every three years to determine whether any exemptions to the anticircumvention rule of DMCA 1201 should be defined. Congress's mandate to the Copyright Office in this rulemaking is very specific: it is supposed to consider classes of works whose unavailability due to copy control restrictions creates undue obstacles to the use of those works for education, research, and other purposes. Classes of works have to be defined by the characteristics of the works (type of content, format, etc.) rather than by how the works are used, and concrete examples have to be given of how copy protection schemes are actually restricting legitimate access to content now or are likely to do so during the next three years.

During the rulemaking, the Copyright Office solicits proposals for such classes of works; it received 51 such proposals this time around. The carveouts that the Copyright Office approves remain in effect until the next rulemaking, at which time they are revoked and must be considered anew.

The document that spells out the Copyright Office's determinations in detail - whether you agree with the Office's findings or not - is a fascinating, highly informative glimpse into the world of media formats, DRM schemes, and how they all relate to the existing body of copyright law in the U.S., as determined by experts in the field. Copyright attorneys ought to be given CLE credit just for reading it. (Others may prefer to read the document published in the Federal Register, which is much briefer but still quite enlightening.)

Perhaps more important than the four exemptions defined in the rulemaking are some of the proposed exemptions that were not approved. Here are a few particularly interesting examples:

• A proposal to allow circumvention for making backups of copy-protected media, such as DVDs, was denied on the basis that making backups is not a fair use - an assertion with which some, like Rep. Rick Boucher (D-VA), would disagree. The main problem with this is that, as a practical matter, it's virtually impossible to create a way of making a backup copy that is only usable for restoring after a failure.
  
  
• A couple of proposals to allow circumvention for purposes of "space-shifting" - i.e., for rendering content on devices other than that for which the content was originally intended - were denied on the basis that "tethering" content to rendering devices is a mere inconvenience to users and does not limit the content's overall availability, but also on the basis that tethering content is a legitimate part of a content owner's strategy for protecting against unauthorized distribution. Again, various consumer advocates would take issue with this assertion and suggest that the Supreme Court's landmark "Betamax" decision (Sony v. Universal, 1984) provides for space-shifting.
  
  
• A proposed exemption was not approved for music and video content obtained through monthly subscription services and then rendered inaccessible because the subscription lapsed, because content owners should feel free to offer different services with different levels of accessibility at different price points (i.e., you should pay more if you want to access the content indefinitely). We agree: the controversy over "renting" vs. "buying" music is specious; you get what you pay for, and already we see evidence that consumers are able to vote either way with their wallets.
  
  
• Finally, there were a few instances where the Copyright Office denied a proposed exemption because although it is not possible to make a perfect digital copy of protected content without breaking copy protection, it is possible to make an analog or lesser-quality digital copy (e.g., of CDs with copy-protected second sessions). These were denied because there is legal precedent for the assertion that fair use does not include the ability to make perfect copies, just adequate ones. Here we get into the area that the Copyright Office isn't touching: the type of use involved. Some uses might require or benefit from perfect digital copies; others may not. Without the ability to take type of usage into account, it's hard to imagine how the line between adequate and inadequate could be drawn.

The results of the Copyright Office's rulemaking show a balance between legal principles, legitimate content usage interests, and content-owner-dominated market forces that, while properly putting legal principles first, strikes us as delicate and occasionally a bit uneasy. In a few cases, for example, the Office relied on the media industry's habitual assertion that fear of piracy causes reluctance to make a work available; in support of this notion, the document cites movie studios' willingness to offer titles on DVD as indicative of "the faith they have in the protection offered by CSS."

We reiterate our major objection to DMCA 1201, that it affords a gratuitous legal backstop to weak, easily hacked technology - like CSS. If the movie studios really had faith in CSS, then they would hardly have needed to lobby so hard for the DMCA in the first place. However, such concerns are far beyond the scope of the Copyright Office's rulemaking.