Stakeholders Urge Copyright Office To Simplify DMCA Section 1201 Exemptions Process
The Copyright Office should adopt a far less formal process for considering renewals of previously granted exemptions to the Digital Millennium Copyright Act Section 1201’s ban on circumvention of technological protection measures, parties appeared to agree Thursday. But they were divided when describing to CO officials two distinct visions for the revised process. Sessions for the first day of the CO's roundtable in Washington, D.C., on its Section 1201 study focused on how to streamline the office's triennial review process for Section 1201 exemptions, including both the renewals issue and whether the CO should consider changes to its review process rules on evidence and procedures. The office will conclude the roundtable Friday with sessions on anti-trafficking provisions, the section's permanent exemptions and whether exemptions should be expanded to allow further allowances for third-party assistance in circumventing TPMs. The CO plans a second Section 1201 roundtable in San Francisco May 25.
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“There is a remarkable degree of consensus” that “there should be some sort of streamlined process” for renewing exemptions, said MPAA Vice President-Legal Affairs Ben Sheffner. “It's really a waste of time and effort for both the proponents and [the CO] itself to go through a full process when there's really no meaningful opposition.” MPAA proposed that parties seeking to renew an existing exemption be required to make only a “very simple filing, maybe a page or so” that seeks renewal and explains the exemption's merits, Sheffner said. Any opponents would also need to submit a simple form explaining their case, at which point the CO would decide whether to allow a presumptive renewal or proceed with a full renewal examination, he said. “In the vast majority of cases … there is not going to be a real fight” against renewal, Sheffner said. There was “virtually no opposition” to the renewal of existing exemption during the CO's most recent triennial review, he said.
The MPAA proposal needs more study “but in the broad strokes I agree with a lot of what he said,” said Library Copyright Alliance Counsel Jonathan Band. “There's an awful lot [the CO] itself can do right now without any amendment to the Copyright Act” to streamline renewals. The CO “could really streamline” the renewal process, perhaps even reducing the renewal requirement to “just a paragraph” or less, Band said. The CO can require a full review process if parties oppose a renewal, but even that process “should still be truncated” by allowing parties to submit evidence considered in previous triennial reviews, he said.
DVD Copy Control Association Counsel Bruce Turnbull said he supports a slimmed-down renewal form that would be “minimal enough” to satisfy the CO's interpretation of Section 1201 as requiring a “de novo” renewal process while still “not being a big burden at all.” Parties seeking an exemption renewal should be allowed to resubmit evidence from previous triennial reviews via a reference in their renewal application rather than have to go “through the burden of copying it” into the record, he said. The CO then would be able to focus on any areas within the proposed renewal that differ from the existing exemption, Turnbull said.
Several parties actively supported a fully presumptive renewal process, including Rapid7 Public Policy Director Harley Geiger and Knowledge Ecology International Policy and Legal Affairs Counsel Andrew Goldman. The fault lines appear to center around “the burden of initial filing,” Geiger said. MPAA's proposal to restrict a renewal form's length to one page is admirable but “isn't going to hold for very long” since exemption applications have grown steadily between successive triennial reviews, Geiger said. “That could expand unless it's restricted.” There's “an interesting conversation to have” about the MPAA proposal but it “would have to be fleshed out even more,” said National Federation of the Blind Government Affairs Specialist Gabe Cazares. The renewal process is “burdensome and time consuming,” particularly as it relates to the CO's current evidence requirements, he said.
Stakeholders warned against the CO moving away from its current triennial review timeline, with several saying it was preferable to other alternatives. The triennial timeline can be either “too short” or “too long” depending on whether you consider it more important to keep the exemptions updated with advances in technology or to have the maximum amount of time to use an exemption before seeking renewal, said Public Knowledge Policy Counsel Raza Panjwani. The triennial timeline “works pretty well” because it gives stakeholders some space between proceedings, said Mitchell Silberberg lawyer Matthew Williams for MPAA, the American Association of Publishers and RIAA. The CO should certainly not shorten its period between reviews since it “really would just mean we are constantly” working on exemptions proceedings, he said. Association of Research Libraries Public Policy Director Krista Cox and University of Pennsylvania film professor Peter Decherney separately suggested the CO consider moving to a different review timeline for new exemption applications.