Streamlined 1201 Rule-Making Procedure & EFF’s Constitutional Challenge

In July of 2016, the Electronic Frontier Foundation filed a lawsuit alleging that Section 1201 of the Digital Millennium Copyright Act (DMCA) is unconstitutional.  More recently, in September, Cory Doctorow announced the EFF’s “Project Apollo” vowing to “end DRM within a decade.”  I personally tend to think of such high-drama tilting at windmills is mostly a fund-raising strategy for EFF, and one detail from the Copyright Office’s Final Report on the Seventh Triennial Proceeding demonstrates why.

For review, Section 1201 of the DMCA contains the statutes prohibiting the circumvention of technical protection measures (TPM) used to protect copyrighted works stored on digital media.  Also known as Digital Rights Management (DRM), technical measures generally means encryption software used to prevent access to digital files like movies stored on DVDs or the software running systems in our cars.  

By law, the USCO must conduct a triennial review of Section 1201 and consider petitions for exemptions to its prohibitions.  Petitioners are grouped into various “Classes” based on proposed rationales for exemptions.  For instance, exempted classes have included researchers, who want to circumvent TPM in order to test safety or security systems; teachers, who want to “rip” film clips from DVDs for use in classroom instruction; or creators like documentary filmmakers who circumvent TPM in order to copy segments of motion picture clips for their films. 

Does the New Streamlined Process Militate Against the Constitutional Challenge?

A key allegation in EFF’s constitutional challenge to 1201 is that because the triennial review is slow and cumbersome, the process amounts to a prior restraint on otherwise protected speech.  In particular, the need for an exempted class to re-petition the USCO every three years places a substantial burden on parties wishing to engage in conduct protected by the First Amendment—and which has previously been exempted by the Copyright Office. 

But, as alluded to in my July post, one flaw with this challenge on First Amendment grounds is that the USCO actually agreed with the complaint about the re-application process and so implemented a new rule mandating that previously exempted classes need not reapply unless new objections are raised that require fresh review, for instance based on a change in law or market practices.

This most recent rulemaking procedure was the first implementation of the new streamlined process, and it appears to have had the desired effect.  Nine Classes of exemptions were renewed, including seven sub-categories in the Audio-Visual Class.  So, for instance, the teachers exempted three years ago are still exempted without the need to reapply.  In another example, the Motor & Equipment Manufacturers Association has now endorsed the exemption it objected to during the last rulemaking process, now referring to the USCO decision “as striking an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance.”  

Another notable detail from this review, relative to EFF’s lawsuit, is that the Acting Register of Copyrights recommended expanding an exemption originally made for documentary filmmakers to now include a “subset of fictional filmmakers” who wish to use small portions of existing motion pictures in ways that would likely be considered fair uses.  In its lawsuit, the EFF hihglighted the USCO’s prior failure to include any “narrative” filmmakers in the last rule-making process as evidence of 1201’s “adverse impact on speech.”

One broad expansion of 1201 exemptions sought by EFF and others in this recent rulemaking procedure was a “Single Overarching Exemption for Purposes of Comment and Criticism.”  This proposal was rejected by the Acting Register, who found the petitioners’ approach too broad relative to the case-by-case analysis applied when considering fair use.  Characteristic of most parties determined to vitiate copyright, this proposal looks like yet another attempt to imply that copyright’s exceptions should be so overreaching as to render its protections meaningless.  

The USCO/LOC filed its Final Rule in this triennial procedure with the US District Court for the District of Columbia, and the EFF filed a response offering to provide a supplemental brief to support its allegation that 1201 is a “speech-licensing regime.” Otherwise, there has been no movement in the past two years on this litigation. 

On that score, even if the EFF’s 1201 case does proceed, I maintain that the decade or more of its prospective journey represents another anti-copyright boondoggle—a PR campaign akin to Lenz v. UMG—designed to keep donors and supporters active while achieving nothing.  As I mentioned in 2016, it seems absurd for EFF to dedicate its resources to this improbable constitutional challenge to 1201 rather than collaborate with the USCO, which continues to demonstrate a nuanced approach to balancing copyright’s protections with important exceptions to those protections.  

© 2018, David Newhoff. All rights reserved.

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