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Expanded DMCA Exemptions Enhance Competition and Innovation

· October 30, 2018

Last week, the Library of Congress adopted new exemptions to the prohibition in the Digital Millennium Copyright Act (“DMCA”) on the circumvention of technological protection measures (“TPMs”). These exemptions, issued at the end of the seventh DMCA triennial rulemaking cycle, reflect the U.S. Government’s growing awareness of the DMCA’s potential to limit competition and innovation.

Background

Section 1201(a) of the DMCA prohibits the circumvention of TPMs that restrict access to copyrighted works. When Congress adopted the DMCA in 1998, it included several permanent exceptions to the circumvention prohibition. It also authorized the Librarian of Congress to adopt additional exemptions where the prohibition would likely have an adverse effect on noninfringing uses.

The exemptions are adopted through a triennial rulemaking proceeding conducted by the Copyright Office, which resides in the Library of Congress. After reviewing petitions submitted by people who believe they would be adversely affected by Section 1201, the Register of Copyrights consults with the Assistant Secretary for Communications and Information of the Department of Commerce, who heads the National Telecommunications and Information Administration (“NTIA”). The Register then develops her recommendation, which she submits to the Librarian of Congress. The Librarian considers the recommendation in issuing the exemptions that will apply for the following three years.

Historically, the rulemaking has been a source of controversy. Petitioners have complained that it has evolved into a quasi-adjudicatory proceeding where petitioners have had to endure several rounds of written submissions, followed by a hearing, and must meet a heavy burden of proof. Petitioners were forced to go through this entire procedure every three years to renew their exemptions, which has been a challenge for non-profit groups such as organizations representing people with print disabilities who want to use locked read-aloud functions of electronic books. Additionally, the exemptions recommended by the Register and adopted by the Librarian have been, in the view of some petitioners, unduly narrow and hard to understand by people without legal representation. The termination of an exemption for unlocking cell phones so that they could be used on a competing network led to public outcry in 2013 and ultimately Congressional reversal the following year.  

In this rulemaking cycle, Acting Register Karyn Temple decided to adopt a streamlined renewal process proposed by the Copyright Office in its 2017 report on Section 1201. Under this process, she would recommend renewal of an exemption so long as it did not face meaningful opposition. The focus of the rulemaking thus shifted to the petitions for the modification of existing exemptions and the adoption of new ones.

The 2018 Exemptions

The Acting Register determined that there was no meaningful opposition to renewal of any of the existing exemptions. On this basis, she recommended renewal of the exemptions issued in the 2015 rulemaking. Last week, the Librarian agreed with the Acting Register’s recommendation, and renewed all the existing exemptions for another three years.

The Acting Register recommended, and the Librarian adopted, several other exemptions that limit the negative impact the DMCA has on competition and innovation.

Repair. Most significantly, the Librarian expanded the existing exemption for accessing computer programs that control the functioning of motorized land vehicles and mechanized agricultural vehicles for the diagnosis, repair, or modification of a vehicle function. First, the Librarian eliminated the requirement that the circumvention be performed by the owner of the vehicle. This requirement reduced the utility of the exemption because few owners of vehicles are themselves capable of circumventing the TPMs on the software that controls the functioning of their vehicles. Instead, the exemption has been reworded to allow third-party assistance. The expanded exemption enables independent repair shops to circumvent technological protections on the software in the course of diagnosis, repair, or modification of a vehicle function. The expanded exemption thus prevents automobile manufacturers from monopolizing the market for repairing their vehicles.

Relatedly, the new exemption removed the exclusion on access to computer programs that control telematics or entertainment systems. The Acting Register stated that she was persuaded that “due to increasing integration of vehicle computer systems since the 2015 rulemaking, retaining this limitation may impede noninfringing uses that can be accomplished by incidentally accessing these systems.”

Additionally, the Librarian created a new exemption for the circumvention of TPMs restricting access to firmware that controls smartphones and home appliances and systems such as refrigerators, thermostats, HVAC or electrical systems. The circumvention is permitted only “as a necessary step to allow the diagnosis, maintenance, or repair of such a device or system.” Here, too, the circumvention could be performed by an independent service organization.

Petitioners had sought a broader exemption that applied to software that controls the operation of any device, not just smartphones and home appliances and systems. The Acting Register, however, implied that there was insufficient evidence in the record justifying a broader exemption.

NTIA issued a press release supporting the exemptions granted by the Librarian. NTIA specifically referenced this exemption, noting that it had “recommended the expansion of the repair exemption to include mobile phones and some home appliances, to encourage the market for software-enabled devices and make it easier for consumers to keep them working longer. We believe that repairing these devices, which are often a critical part of many people’s lives, is unlikely to infringe on copyrights.”

Unlocking. The Librarian expanded the unlocking exemption by eliminating the limitation that it apply only to used devices. She found that unlocking devices so that they could connect to a competing wireless network “is likely a fair use, regardless of whether the devices are new or used.” She also found that extending the exemption to unused devices “will increase the availability of the software within them.” The expanded exemption is pro-competitive because it increases consumers’ ability to switch networks.  

Jailbreaking. The Librarian expanded the jailbreaking exemption to apply to voice assistant devices such as the Amazon Echo or Google Home. Jailbreaking refers to accessing a device’s operating system to install and execute software that otherwise could not be installed or run on that device. The existing exemption applies to smartphones, smart TVs, tablets, and other all-purpose mobile computing devices. Permitting the jailbreaking of voice assistant devices expands the range of devices where consumers can use applications competing with those supplied by the manufacturer.

3D Printing. The Librarian eliminated a burdensome restriction on the exemption permitting circumvention of access controls on 3D printer software for the purpose of enabling the use of non-manufacturer approved feedstock. The existing exemption did not apply to software on 3D printers that produced goods subject to regulatory oversight. Petitioners noted that this restriction was potentially so broad that the exemption would not apply in the majority of circumstances. NTIA agreed. The Acting Register determined that there might be situations where an individual could be complying with relevant regulations but still not meet the qualifying language in the exemption. Thus, “the qualifying language in the existing exemption may be inhibiting otherwise beneficial or innovative uses of alternative feedstock.” Accordingly, the Acting Register recommended removing the qualifying language.  

Security Testing. The Librarian expanded the exemption permitting circumvention for the purpose of conducting good-faith security research on certain types of software-enabled devices and machines. Multiple proponents had sought to broaden this exemption. During the rulemaking, the Copyright Office received a letter from the Computer Crime and Intellectual Property Section (“CCIPS”) of the Department of Justice’s Criminal Division stating that it endorsed changes “likely to support productive cybersecurity research.” In particular, it supported eliminating language that confined the exemption to devices primarily designed for use by individual consumers. The Acting Register found that “good-faith security research involving devices beyond those covered by the current exemption is likely to be a fair use.” Accordingly, she recommended that the exemption apply to a “computer, computer system, or computer network on which the computer program operates,” provided that the circumvention is undertaken “with the authorization of the owner or operator of such computer, computer system, or computer network,” and “in an environment designed to avoid any harm to individuals or the public.”

NTIA stated that “enabling more good-faith security research” would “help improve the state of cybersecurity.” More generally, NTIA recognized that it was important “to ensure that measures intended to protect [copy]rights aren’t misused to stifle innovation or the free flow of information.” NTIA also noted that the DMCA exemptions “balance intellectual property rights and the right to make non-infringing uses of lawfully obtained works, both of which are critical to innovation.”

Section 1201 continues to place an undue burden on lawful uses. And the exemptions granted by the Librarian remain narrow and complex. Nonetheless, the Copyright Office, NTIA, and the Librarian are to be applauded for the streamlined renewal process as well as the expansion of exemptions that enhance competition and innovation.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.