Possible Presumptive Renewal of DMCA Section 1201 Exemptions at Issue in CO Study Comments

The Entertainment Software Association (ESA) opposed a statutory amendment to Section 1201 to allow presumptive renewal but supported smaller process-based changes. Several public interest groups and other copyright interests backed or were expected to back creation of a wider presumptive renewal standard for Section 1201 exemptions. Comments on the CO’s Section 1201 study were due Thursday but several entities, including ACT | The App Association and the Electronic Frontier Foundation, told us they would file comments after our deadline. The CO isn't expected to post all comments on the Section 1201 study until at least Friday.

Any presumptive renewal of a Section 1201 “should, at a minimum, require that a proponent file an assertion that the need for a particular exemption persists and that there has been no material change to the facts and circumstances surrounding the exemption since the previous triennial rulemaking,” the Copyright Alliance said. “Only after such a filing, and provided the assertion receives no meaningful opposition (a standard which would have to be more fully articulated), would the Copyright Office be empowered to recommend to the Librarian that the exemption be extended for another three-year period.”

The CO’s current Section 1201 triennial review process “imposes significant burdens on both [the office] and participants in the rulemaking,” the Copyright Alliance said. The group said it’s “open to considering proposals for steps that can be taken short of amending [Section 1201] that could help alleviate these burdens without adversely affecting the objectives of the process or the statute, which remain sound.” The CO’s interpretation of Section 1201 has gotten increasing criticism in recent years, particularly after the office concluded its most recent triennial review in October (see 1510270056 and 1510280071).

ESA said it “does not believe that Section 1201 needs to be amended to provide for presumptive renewal of previously granted exemptions” because the current statute is already able to prevent “undue restraints on noninfringing and socially beneficial uses.” The group said it “would not oppose adjustments in the Copyright Office’s procedures to provide a presumption of renewal of a previously granted exemption by shifting the burden of persuasion for such renewal.” Shifting the burden of persuasion “would not change the de novo nature of the review in each proceeding, but simply mean that where renewal was proposed with a claim that the circumstances that had justified the adoption of the exemption persist and support a renewal, and there was no opposition to such renewal (e.g., suggesting that circumstances had changed), the exemption could be re-adopted in the same form previously adopted without further proof,” ESA said. If the CO chooses to modify its Section 1201 review process to allow presumptive renewal, it should “incorporate a mechanism to ensure that the regulations implementing Section 1201 do not become a repository for outmoded and unnecessary exemptions that continue only because nobody cares enough to address them one way or the other,” ESA said.

The Center for Democracy and Technology will tell the CO it’s “largely in agreement” with the office’s proposal for presumptive renewal of previously granted Section 1201 exemptions, Open Internet Project Director Erik Stallman said in an interview. CDT said it expected to file its comments after our deadline Thursday. “As we saw” when the CO failed to grant a renewal of its exemption for cellphone unlocking at the conclusion of its 2012 triennial review process, “people really come to rely on these exemptions, so when you take them away it’s hugely disruptive,” Stallman said. CDT expected also to urge the CO to avoid allowing delayed implementation of exemptions during future Section 1201 reviews, Stallman said. Some stakeholders criticized the CO for allowing a one-year delay on two exemptions. One of the delayed exemptions would allow circumvention of TPMs on consumer products and other devices for “good faith security research,” while the other would allow circumvention of vehicle software for legal vehicle repairs and modifications. Both exemptions are to take effect Oct. 28.

The R Street Institute and two other libertarian-leaning groups jointly urged the CO to allow presumptive renewals of existing Section 1201 exemptions, in combination with reducing the burdens for substantiating needed exemptions and creating permanent exemptions to the statute. Such modifications to Section 1201 “would help alleviate some of the difficulty faced by the public to obtain the legal relief necessary to perform the circumventions of TPMs for non-infringing activities,” the groups said in their filing. But the CO’s proposed changes to Section 1201 “are not enough, particularly where these non-infringing activities in no way implicate copyright interests. Every exemption sought, even if ultimately granted, represents a use that has already been chilled, and no amount of hardcoded exemptions baked into the statute will ever be able to cover all the uses that have yet to be imagined.” The R Street comments also were signed by FreedomWorks and the Niskanen Center.

The American Library Association-backed Library Copyright Alliance also backed presumptive renewal of Section 1201 exemptions, saying “the requirement that an exemption be renewed de novo every three years is enormously burdensome.” When an entity seeks a renewal of a previously granted Section 1201 exemption, “the burden should be on those opposed to renewal to demonstrate why the exemption should not be renewed or should be modified in some manner,” LCA said. The CO has the power to shift the burden of persuasion in Section 1201 exemption renewal cases since nothing in Section 1201 as written “requires that the renewal of an exemption be considered de novo,” the LCA said. “Rather, the de novo standard is set forth” in the House Commerce Committee’s 1998 report on the DMCA. The CO “could simply ignore this report language, or apply it in a less burdensome manner,” the LCA said.