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The Copyright Office Preps for a New Section 1201 Rulemaking

· December 8, 2014

Next year marks the 6th triennial rulemaking under Section 1201 of the Digital Millennium Copyright Act (DMCA), a recurring regulatory process which determines to what extent consumers can use content and devices that they own. While the first sale doctrine limits downstream control of protected works, Congress permits content owners to implement use restrictions in the form of “technological protection measures” (TPMs). Every three years the Copyright Office and multiple stakeholders engage in a year-long process to convince the Librarian of Congress to grant or deny exemptions to prohibitions against circumventing TPMs used on certain classes of protected works. The Office will not only continue to implement new administrative procedures next year, but will also address multiple proposed class exemptions that are in front of the Office for the first time.

Jonathan Band provides an excellent summary of the legal history leading to the enactment of this section, but in short Section 1201 bans (1) the circumvention of TPMs, and (2) the manufacturing and “traffic[king]” of circumvention tools. To provide balance, the DMCA allows the Copyright Office to review and grant proposed exemptions to the former. The Office requests public petitions for class exemptions and reviews all petitions de novo, placing the burden on the petitioning party to show by a preponderance of the evidence that harm alleged by the anti-circumvention ban to the proposed class is more likely to occur than not. After a notice and comment period following the petitions, the Office holds public hearings. The Office, in consultation with the National Telecommunications & Information Administration (NTIA), then makes recommendations to the Librarian of Congress, who will subsequently adopt the recommendations. This entire process must be done every three years for all exemptions to the anti-circumvention bans, regardless of whether the Office granted them in the past.

The process has been criticized as an outdated and somewhat ineffective requirement to permit otherwise lawful, fair uses of technology (one recent critic going as far as calling it quite literally lethal to the public). While there are beneficial uses to TPMs, and they can be utilized to effectively balance the concerns of copyright owners and innovators, some contend that the triennial ritual has come up short in effectively realizing this goal.

The Copyright Office appears to be cognizant of the process’s issues and, this year, has made changes to the administrative procedures. Prior to the 6th triennial rulemaking, the Office required that the requesting parties provide the complete legal and evidentiary basis and support for the proposal in the initial submission. This year, the proponents only have to include in their petition the “essential elements” and a “clear description of the specific elements of the proposed exemption”, showing that the Section 1201(a) threshold requirements are met. However, a separate petition for each proposal is required (the Office will consolidate similar proposals when constructing the Notice of Proposed Rulemaking).

There is also a new comment procedure, divided into three separate rounds. The first round will be limited to those who filed the proposals and members of the public in support of the exemption, and are required to include the entire legal and evidentiary basis for their arguments. The second round will be limited to those opposing the exemptions. The third round will allow for reply comments. The hearing and recommendation stage will remain unaffected.

The Office believes these changes “will . . . [make] the process more accessible and understandable to the public, allowing greater opportunity for participants to coordinate their efforts, encouraging participants to submit effective factual and legal support for their positions, and reducing administrative burdens on both the participants and the office.” These procedural changes might effectively reduce the burden on those seeking exemptions and increase transparency, but do little to address the fundamental flaws of the process. The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet hearing on the Section 1201 rulemaking process in September, which Band described as “simultaneously disturbing and encouraging”, is however promising of possible legislative changes in the future.

The initial petitions, submitted in November, request exemptions for new and previously granted classes. The following provides a brief overview of some of the petitions likeliest to be of interest to the broader public, and previews next year’s Section 1201 rulemaking.

Wireless device unlocking

This petition is in response to the Unlocking Consumer Choice and Wireless Competition Act (“Unlocking Act”), enacted earlier this year with overwhelming support, that repealed a former Library rulemaking decision (members of the House Subcommittee in the September hearing cited this as an example of the Section 1201 rulemaking’s failure). The Act allows all users to unlock their phones by circumventing the TPM on the copyrighted software to work with different carriers if the user chooses to switch. However, Congress delegated the decision to expand unlocking provisions of other wireless devices to the Library and the 1201 rulemaking proceedings.

The petitions have asked for exemptions for classes of wireless telephone handsets for software interoperability, all-purpose tablet computers, mobile hotspot and MiFi devices, wireless modems, and connected wearable and consumer machines. While the class for wireless telephone handsets for software interoperability was granted in 2012, the Office was explicit in stating that this exemption would not extend to tablets. However, the Consumer Union requested a broad exemption for wireless telephone handsets and all “mobile wireless devices that are essentially the same functions and in the same manner as wireless telephone handsets, including tablets.” It is unclear whether this class would meet the Copyright Office’s request that petitions avoid seeking general exemptions for all wireless technology in their petitions (citing the concerns of a lack of specificity necessary to comply with Section 1201(a)(1)(C)).

3-D printing feedstock

Interoperability is the dominant theme of many rulemaking petitions, but the applicability of this principle to new technology is particularly notable in one petition. Public Knowledge has submitted a petition for an exemption to feedstock code for 3-D printers. 3-D printers rely on consumable feedstock to create the physical object from digital code (akin to the ink or toner in a 2-D printer). Some manufacturers of the printers are implementing software onto the machines that digitally verifies the origin of the feedstock, thereby allowing the manufactures to prevent 3rd party created feedstock from working with their printer. Similar to the Keurig pod debates in the realm of patents, this practice by device manufacturers can discourage competition and innovation to comparable products, and may give manufactures unprecedented control of how individuals use their devices. The petition seeks to allow developers to circumvent any TPM on the code used to determine the origin of the feedstock in order to create their own feedstock products.

Vehicle software

With cars becoming increasingly equipped with sophisticated software code, many fear that overprotection of this software necessary for operation will infringe on the traditionally recognized rights of device owners (Representative Blake Farenthold introduced the You Own Devices Act in September to address this growing concern). The petitions seek to exempt the “Electronic Control Units” within these vehicles that control a wide variety of functions from anti-circumvention bans in order to allow users and developers to retain a level of control. Exemptions for vehicle software are requested in three separate classes: modification, repair, and safety research.

The development of digitally-equipped vehicles have spread outside personal automobiles into heavy machinery. Petitions also seek class exemptions for agricultural machinery that manufactures have placed TPMs in the embedded software, preventing farmers from personally making repairs and individualized changes to better suit their needs.

High definition clips of films for educational purposes

Petitions seek to expand the class of works that the Office has previously granted for educators and scholars who wish to “rip” clips from films for use their classrooms. The proponents of these exemptions wish to include high-definition and Blu-ray copies of the audiovisual works and online classroom use of these clips, taking into account the realities of current market practices and modern education.

Rachael Stelly is a Law Clerk at the Computer & Communications Industry Association and a student at American University Washington College of Law.

Intellectual Property

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