Stakeholders Hew to Stated Positions on DMCA Section 1201 Circumvention Rules
Copyright stakeholders were expected to hew largely to their existing positions in comments due after our deadline Thursday on the need for new permanent exemptions to Digital Millennium Copyright Act Section 1201's provisions barring the circumvention of technological protection measures. The Copyright Office sought comment last month on exemptions for mobile device unlocking, assistive technologies for individuals who are blind or vision impaired, and some categories of software and “obsolete” technologies. The CO also sought comment on possible amendments to existing permanent exclusions for security testing, encryption research and reverse engineering to address concerns that the current regime doesn't adequately cover good-faith research into security flaws and vulnerabilities (see 1609270030).
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Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz was one of several lawyers and executives who told us they expect the bulk of comments to largely rehash what already has been said. Public Knowledge Policy Counsel Raza Panjwani said he also expects commenters to largely to restate their existing positions on the efficacy of exemptions. Earlier comments partially focused on urging the CO to allow presumptive renewal during the office's triennial review process (see 1603030060). Roundtable discussions also included a focus on presumptive renewal and other potential changes (see 1605200069 and 1605260057). The CO specifically said it was still evaluating comments on the review process. It's encouraging that the office is attempting to “drill down” and focus on specific policy recommendations because that “shows they recognize there's a problem” with the existing exemptions process, Stoltz told us.
Initial comments on Section 1201 and associated roundtable talks didn't show “any evidence that suggests any need for legislative changes to create either new permanent exemptions or to amend existing permanent exemptions,” said Copyright Alliance Vice President-Legal Policy Terry Hart. The industry group plans to tell the CO that calls for amendments to existing exceptions “caution against creating new permanent exemptions because it shows there have been technological changes and changes in business models that have made the existing exemptions at least somewhat outdated,” he said. “That really demonstrates why we have this temporary exemptions process to create exemptions that can stay abreast of marketplace changes.”
The Software & Information Industry Association's comments will “reflect the themes we've developed in prior rounds,” including that “we don't see any need for amendments” to Section 1201, said General Counsel Chris Mohr. SIIA hasn't “seen a record that warrants changes to existing law,” though the group continues to believe the CO can make internal changes to its review process that will correct known problems, Mohr said.
PK continues to believe permanent exemptions “are beneficial to users to whom they're directed, [but] they're ultimately the second-best solution” to Section 1201's issues, Panjwani said. Permanent exclusions aren't necessarily valuable to targeted users if they're not “correctly crafted,” and are often more of a “piecemeal solution” to the problem. PK instead will continue to favor a systematic fix to Section 1201 to correct its “overbroad” language. Panjwani said.
EFF will ask the CO to create a broad Section 1201 exemption allowing circumventions not connected to copyright infringement, Stoltz said. A broad immunity would “cover nearly all of the problems” the CO highlighted as possibly needing correction, he said. EFF will say amending the existing permanent exemption won't be very helpful because even amended versions are “too narrow and unpredictable” to provide sufficient certainty to people seeking to engage in legal circumvention, Stoltz said. Amended permanent waivers would still require expert legal advice to navigate and it might still be “impossible to know ahead of time whether you qualify,” he said.
The Owners' Rights Initiative urged the CO to recommend “far broader amendments to Section 1201 than” what the office proposed. “The narrow, cautious approach [the CO] appears to be following guarantees that the Office and Congress will need to revisit the innovation-inhibiting impact of Section 1201 whenever a new technology is developed,” ORI commented. The CO should either recommend a “permanent exemption” for circumvention of TPMs on “software essential to the operation of hardware” or recommend Congress amend the DMCA to “explicitly require a nexus between circumvention and infringement,” ORI said.
The Competitive Carriers Association​ urged the CO to move forward with its plan to make the device unlocking exemption permanent. A permanent version of the exclusion adopted in CO's 2015 triennial review “is good public policy, providing consumers with greater choice of both wireless carrier and mobile device, as well as fostering competition in the mobile broadband marketplace,” CCA said in its comments. A permanent exemption “will provide needed stability and certainty to carriers and consumers currently operating in a more competitive environment.” A permanent exclusion will also “ease the substantial burden” parties participating in the triennial process for renewal, CCA said.