The Limits of the Limits of the Law: How Useable Are DMCA Anticircumvention Exceptions?

Abstract

The U.S. Digital Millennium Copyright Act (DMCA) criminalizes decryption of “copy protected” digital content, even if the decryption itself serves lawful purposes that do not infringe on copyright. However, temporary exemptions to this prohibition are granted triennially if communities of practice can demonstrate that the encryption ban adversely affects noninfringing uses. This study explores to what degree members of communities with existing exemptions for audiovisual work (1) are aware of the DMCA ban on encryption and (2) are aware of the relevant exemptions, and (3) whether they believe they can use the exemptions with confidence. We find that existing knowledge of DMCA exemptions is low, but that creators may employ the exemption reliably if given the exemption language. This empirical evidence demonstrates creative and productivity costs of narrow exemptions, as well as the importance of education. Results are relevant to discussions about international treaty intellectual property discussions, about the function of exemptions in intellectual property law, and about the consequences of criminalizing decryption.