Nascent DMCA Section 1201 Study Called Likeliest From CO To Have Policy Impact
A planned Copyright Office study of implementation of Digital Millennium Copyright Act (DMCA) Section 1201 is the likeliest among the trio of new studies the CO began in December to affect the direction of U.S. copyright policy, stakeholders told us. The planned Section 1201 study, announced last week, will examine the CO’s triennial rulemaking process for granting exemptions to the section's ban on circumvention of technological protection measures, along with permanent exemptions and the section’s anti-trafficking provisions (see 1512280030). A planned study of Section 512 also announced Thursday will include a look at general operation of the section's safe harbor provisions (see 1512300039). The CO also began a study in December of how software embedded in everyday products affects and is affected by U.S. copyright law (see 1512150050).
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The studies will be important because they could result in the CO recommending specific legislative remedies to Congress, stakeholders said. The sections 512 and 1201 studies are important because “they’ll feed additional information into the legislative process,” said Center for the Protection of Intellectual Property Director-Copyright Research and Policy Sandra Aistars. Copyright Alliance CEO Keith Kupferschmid said “at this point, it’s really about [the CO] collecting additional information from stakeholders that didn’t comment up in recent proceedings.”
“There’s been a lot of criticism about how Section 512 has been working in practice since the millions of [notice-and-takedown] notices being sent to websites every month haven’t been too effective in remedying the problem,” Aistars said. “Section 1201 also isn’t working as well as it should, but it’s important to balance keeping Section 1201’s anti-circumvention provision strong while also streamlining the exemptions process.” Stakeholder criticism of sections 512 and 1201 led to requests from both House Judiciary Committee ranking member John Conyers, D-Mich., and Register of Copyrights Maria Pallante to conduct studies. The CO is studying embedded software at the request of Senate Judiciary Committee leaders.
The three studies will affect the copyright policy debate, but the Section 1201 study is the “likeliest to have an impact” because of the CO’s role in leading the triennial exemptions review process, said Public Knowledge Policy Counsel Raza Panjwani. The Library of Congress granted 10 exemptions to Section 1201 at the end of the CO’s most recent Section 1201 rulemaking in October (see 1510270056). Section 1201 isn't the only main DMCA section in which the CO can effect policy change -- it’s also the one on which there’s the widest agreement on the need for change, said Library Copyright Alliance counsel Jonathan Band. “There’s a fair degree of consensus that the exemptions process isn’t working as well as it should.” Even copyright holders that may benefit by the CO requiring parties to go through the entire exemptions process every three years have found the existing process “burdensome,” he said.
The CO “signaled” the need for fixes to its triennial Section 1201 exemptions process during the most recent rulemaking, which significantly increased public attention on how the statute was affecting non-copyright stakeholders, Aistars said. The CO could change its Section 1201 exemptions process to a degree without requiring a legislative fix if it reinterpreted its application of Section 1201’s statutory language, Band said. The CO “is probably empowered to streamline its proceedings, and can send signals to the other federal branches through this study that there are issues that need to be dealt with,” Aistars said.
Others were less hopeful about the CO’s willingness to unilaterally reinterpret Section 1201. Panjwani said the CO has long “taken the position that they are statutorily constrained” from straying from its existing processes. “I don’t think there’s much that [the CO] can do internally,” Kupferschmid said. Section 1201’s language is relatively vague, with the CO relying more on a 1998 legislative analysis of the DMCA to direct its implementation of the law, Band said.