Mix of Legislative Recommendations, Internal Fixes to DMCA Section 1201 Seen Likely From CO
The consistency of arguments on a Copyright Office study of implementation of the Digital Millennium Copyright Act’s Section 1201 makes it likely the office will make recommendations for a revamp of the process for granting exemptions to the statutory ban on the circumvention of technological protection measures, said copyright lawyers and lobbyists in interviews. Comments on possible new permanent exemptions to the circumvention bar largely hewed to stakeholders' existing positions, as expected (see 1610270063). CO sought comment on proposed new permanent exemptions to the ban for mobile device unlocking, assistive technologies for individuals who are blind or vision impaired and some categories of software and “obsolete” technologies. It also sought comment on possible amendments to existing permanent exemptions (see 1609270030).
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The latest round of comments was substantially similar to what parties filed in an initial round, which shows how entrenched all stakeholders’ attitudes are on the statute, several lobbyists said. “I haven’t seen any substantive change in anyone’s arguments” about issues with the statute or the best methods of fixes, said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. EFF urged the CO to use its proposed new permanent exemptions as a starting point that would lead to more wide-ranging changes to the section.
The agency clearly is now trying to “get down into the details” of how to correct issues and make recommendations for how to internally address exemptions issues under existing authority and for legislative fixes to the statute, Stoltz told us. The CO’s permanent exemptions proposal showed it was concentrating on suggesting solutions on which “there was already consensus support,” said Library Copyright Alliance counsel Jonathan Band. There will likely be at least some legislative recommendations, though “what Congress will do with them” amid the House Judiciary Committee’s Copyright Act review “is anyone’s guess,” Stoltz said.
A content-side industry lobbyist said the agency proposed a “raft” of new permanent exemptions and amendments to existing ones. But “it’s telling” how the office crafts the language of those exemptions, as some are much broader than others, the lobbyist said. “They’re very broad in commenting about computer repair but not so much on any of the content-related immunity, “ the lobbyist said. “Consider the fact that they’re willing to recommend that Congress make the narrow e-reader exemption permanent” but are less willing to discuss fair use, said the expert. “It’s interesting to see what they’re willing to be more generous on and what they’re being more tight-fisted on.”
More interesting “is what the [CO] proposes that doesn’t require legislative action,” Band said. The office can deal with multiple issues for its triennial process for reviewing nonpermanent exemptions using existing statutory authority. Possible fixes to the triennial review process have “a lot of support” from all sides of the copyright community, Band said. “Even rightsholders find the current process burdensome.” Issues about the triennial review process received substantial attention during CO roundtable meetings earlier this year on the study (see 1605200069 and 1605260057).
It’s unclear whether the agency needs to open up an additional request for comment on Section 1201 to address any proposals it has for fixing the exemptions review process, lobbyists told us. The CO has “already had plenty” of community input on the exemptions process between earlier comment rounds and the roundtable meetings, Band said. “There’s no reason why they can’t make more tweaks as long as it’s consistent with the existing statute,” he said. Stoltz said he believes it’s possible a new round of comments might be needed, depending on what the CO is considering.