DMCA Section 1201 Needs Fixes To Deal With Statute's Growing Burdens, Revamp Supporters Say
Fundamental change is needed to fix the Digital Millennium Copyright Act's (DMCA) Section 1201 because the process for seeking exemptions to the section's ban on circumvention of technological protection measures (TPMs) has become increasingly burdensome, said several parties who backed Section 1201 exemptions during the Copyright Office's most recent triennial review of proposed exemptions. The Library of Congress granted 10 CO-proposed exemptions to Section 1201 in October that combined elements of 22 of the 27 exemptions that parties originally proposed, including an expanded exemption for jailbreaking and unlocking mobile devices and an exemption for circumventing TPMs on vehicle software to allow a car's owner to repair or otherwise legally modify a vehicle (see 1510270056).
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The Electronic Frontier Foundation is among the parties that intend to file comments with the CO on the scope of the office's proposed study of Section 1201, said Legal Director Corynne McSherry in an interview after a Public Knowledge event. The CO's planned Section 1201 study will examine the CO’s triennial exemptions rulemaking process, permanent exemptions and the section’s anti-trafficking provisions (see 1512280030). The CO also announced two other planned studies since December -- one on DMCA Section 512 and one on how embedded software in everyday products affects and is affected by U.S. copyright law (see 1601050055).
EFF is still figuring out the full scope of its planned comments on the Section 1201 study, but the group is likely to emphasize the need for the CO to make the entire triennial review process “less burdensome,” McSherry told us. “The entire process depends on the volunteer activity of a bunch of pro bono organizations and others who are willing to invest their time and resources into protecting the public from Section 1201 mission creep. I like protecting the public but it seems to me that it doesn't seem appropriate that this whole process is dependent on people who volunteer to help make it function.” EFF is also likely to urge the CO to “stay focused on what its actually tasked to do, which is determine if infringement is occurring,” McSherry said.
The CO's notice announcing the Section 1201 study makes clear that it “explicitly recognize[s] that it seems like Section 1201” is now affecting issues “far beyond what it was intended to reach,” McSherry said during the Thursday event. The CO itself has some flexibility in deciding how to do the triennial exemptions process, but Congress also will need to make the process “a little bit easier,” she said. Kartemquin Films Artistic Director Gordon Quinn said the triennial review process has resulted in all parties constantly “playing catchup” to expand the scope of their exemptions to cover technological advancements that have occurred since the previous triennial process ended. Congress should consider allowing Section 1201 exemptions to apply to third parties that circumvent TPMs or educate product owners on how to circumvent TPMs rather than just applying to individual circumvention actions, McSherry said. Farmers will need to “go to third parties” to perform circumvention on the sophisticated technologies included in software-embedded tractors, iFixit CEO Kyle Wiens said. IFixit backed the granted Section 1201 exemption on vehicle software, which in part applies to tractors.
Wiens was one of several parties who backed revamping Section 1201 to allow granted circumvention exemptions to remain in place absent an objection rather than requiring parties to reapply for the same exemptions during each triennial process. “This process requires so much investment from so many different people” that it's becoming increasingly burdensome, Wiens said. American Federation for the Blind Director-Public Policy Mark Richert said the process of re-obtaining exemptions to create accessible versions of e-books and other content consumes more resources and time during each successive triennial process.