Copyright Stakeholders Make Likely Final Case on DMCA Section 1201 Permanent Exemptions
Content owners and tech sector stakeholders again stuck to their stated positions on the need for new permanent exemptions to Digital Millennium Copyright Act Section 1201's provisions barring the circumvention of technological protection measures in reply comments due late Wednesday. Stakeholders have viewed the consistency of all participants' positions on Section 1201 as making it likely that the Copyright Office will make recommendations for a revamp of the process for granting exemptions to the ban (see 1610270063 and 1611010059). Content owners used the reply comments to caution the CO against making legislative recommendations in their Section 1201 study report and instead focus on using its existing authority to fix issues with its triennial process for reviewing nonpermanent TPM exemptions. The tech sector again urged the CO to proceed with its proposed new permanent exemptions in addition to fixes to the triennial review process.
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Nothing in previous rounds of comments “justifies amending” Section 1201, whose protections “have played a large role in the development of the thriving digital marketplace for expressive works that Congress envisioned nearly two decades ago when it passed the DMCA,” said MPAA and three other entertainment industry groups in a joint filing. The Association of American Publishers, Entertainment Software Association and RIAA also signed the comments. Section 1201’s protections “are only growing in importance, as online dissemination of works becomes the primary business model for a broad range of products,” the entertainment groups said. The CO’s Section 1201 triennial review process, “with a few relatively minor procedural adjustments, will continue to provide a flexible fail-safe mechanism to address any perceived problems associated with the prohibition against circumventing access-control technologies.”
The record on Section 1201 “fails to show that statutory adjustments to Section 1201 or the rulemaking process are warranted,” the Copyright Alliance said in its filing. “Rather than provide evidence, those in support of establishing new permanent exemptions rely entirely on speculation.” Several proponents of new exemptions “argue in support of permanent exemptions because they would prefer to avoid the triennial rulemaking process, which they characterize as burdensome and inconvenient,” CA said. That process “was designed to act as a ‘fail-safe’ mechanism” and “to the extent the process is burdensome, the [CO] can tweak the process in ways that do not require legislative changes.”
The CO “now possesses a voluminous record cataloging the burden Section 1201 imposes on the public” based on previous rounds of comments and associated roundtable meetings, Public Knowledge said in its filing. The CO’s proposed new permanent exemption for “obsolete” technologies “should not be limited to only certain classes of works,” PK said. “The history of ‘obsolete technology’ exemptions evidences an array of works covered by the exemption, from ‘literary works’ generally in 2000, to ‘video games’ in 2015.” Expansion of existing permanent exemptions for security testing, encryption research and reverse engineering is needed because PK generally believes “that permanent exemptions should be crafted broadly to avoid the very trap of limited utility that these exemptions have fallen into,” the group said.
The CO “cannot accept major entertainment companies’ insistence that Section 1201 is ‘not broken’ when librarians, educators, electronics repair specialists, security researchers, aftermarket equipment industries, creative professionals, and many others have provided detailed evidence of all the ways the statute is, in fact, broken,” the Electronic Frontier Foundation said in its filing. “That Section 1201 impacts so many stakeholders in such diverse fields illustrates why the [CO] cannot base its policy recommendations on the interests of the entertainment industry alone.” The CO should proceed with its proposed new permanent exemptions in part because the Section 1201 study “has revealed numerous, largely intractable problems with the triennial rulemaking. It is simply not an adequate ‘safety valve’ for important, widespread, and otherwise lawful uses of ubiquitous copyrighted works,” EFF said.
The Software & Information Industry Association “supports responsible security testing, and agrees with the security firms’ characterizations that many security researchers (indeed, most) are not looking to infringe copyright ‘but rather seek to evaluate and test software for flaws that could cause harm to individuals and businesses,’” the group said in its filing. SIIA members also support strong encryption and copyright protections, which together “deal with an intractable problem: that the same tools that can be used to research security and engage in reverse-engineering for interoperability are those that can be used to engage in wholesale infringement.” Criticisms of Section 1201 “present an incomplete picture of the context in which the exemption operates,” though the CO “can and should consider industry custom and trade usage such as [the National Institute of Standards and Technology] indices” as additional factors that could show good faith when applying the security research exemption, SIIA said.