Upcoming Copyright Office Hearings on DMCA Section 1201 May Shed Light on Exemption Outcome
Upcoming U.S. Copyright Office hearings in Los Angeles and Washington are likely to at least partially clarify how the CO will proceed in its consideration of 27 proposed exemptions to Digital Millennium Copyright Act Section 1201, stakeholders in the DMCA exemption proceedings said in interviews this week. The CO has been reviewing the 27 proposed exemptions as part of its sixth triennial review rulemaking process for Section 1201. The section prohibits the circumvention of technological protection measures. A final round of replies on the proposed exemptions was due earlier this month (see 1505050051 and 1505080051).
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Competitive Carriers Association (CCA) General Counsel Rebecca Thompson said she believes a May 26 hearing on a proposed cellphone unlocking exemption will “provide a lot of guidance as to where [the CO is] headed in its consideration of the exemption.” CCA was one of several industry stakeholders to support the cellphone unlocking exemption proposal, originally filed by Consumers Union, though CCA subsequently proposed a revision to the exemption to satisfy objections raised by TracFone. The proposed revision would exempt unlocking only if the cellphone owner satisfied all legal obligations to the device's original wireless carrier, the cellphone wasn’t obtained through theft or fraud, and the unlocking isn’t occurring for an “unlawful purpose.”
CCA decided to collaborate with TracFone on the proposed revision to remove TracFone as an official opponent of the exemption after Register of Copyrights Maria Pallante told the House Judiciary Committee in late April that exemption requests should be presumed as renewed if they don’t receive any opposition (see 1504290058), Thompson said. CCA saw Pallante’s testimony as a “call to action” and decided a compromise with TracFone would ease the proposed exemption’s chance at approval, Thompson said. “Without opposition, we think there’s a pretty good chance of that.” Consumers Union believes its proposed exemption “should not be restricted, because it does not leave carriers vulnerable to illegal bulk phone trafficking,” said Senior Policy Counsel George Slover. “There are other effective legal protections against that.” Slover said Consumers Union is “encouraged to see what appears to be a growing consensus that an exemption for unlocking makes sense.”
The public outcry over the Librarian of Congress’ decision during the 2012 triennial Section 1201 review not to grant a cellphone unlocking exemption, along with resulting action from Congress, “is going to cast a shadow” over this year’s triennial review, particularly given that several proposed exemptions deal with unlocking or jailbreaking electronic devices, said Electronic Frontier Foundation Staff Attorney Mitch Stoltz. The Librarian of Congress officially grants Section 1201 exemptions based on the register of copyright’s recommendations. Congress’ passage last year of the Unlocking Consumer Choice and Wireless Competition Act in response to the Librarian of Congress’ 2012 decision sent “a message to [the CO] that the DMCA shouldn’t interfere with the purchase and use of portable electronics that really have nothing to do with copyright law,” Stoltz said.
The CO’s Section 1201 hearings, which begin Monday, may provide a slightly better sense of how the CO could rule on the proposed exemptions since the office has given little indication thus far about its thinking, Stoltz said. The CO hearings typically “give you about the same sense about” the outcome of a proceeding as “you would get from oral arguments in a court,” said Public Knowledge Vice President-Legal Affairs Sherwin Siy. The CO’s questions during the hearings “may suggest the grounds on which they’ll make their decision, but it’s not necessarily a 100 percent crystal ball” prediction, he said. This year’s triennial review process also resulted in an increased number of comments from the public, so it will be interesting to see how the CO incorporates those comments into its decision-making, Stoltz said.