DMCA Hearing 5: More Consensus Than You Might Think on Section 1201

On September 16th, the IP Subcommittee of the Senate Judiciary Committee held hearing number five in its ongoing review of the 22-year-old Digital Millennium Copyright Act. The subject was Title I of the DMCA, also referred to as §1201, which proscribes the circumvention of Digital Rights Management (DRM) technologies used to protect copyrighted works distributed through digital systems. When the DMCA was enacted in 1998, as the market was shifting away from the purchase of physical copies of works, DRM was predominantly used to control licensed access to creative content (e.g. eBooks) that falls under traditional categories of copyright law.

With regard to the ordinary consumption of music, movies, TV shows, books, etc., §1201’s protections have been highly successful for producers and consumers. Critics who scorn DRM on principle (i.e. hate copyright) are unlikely to acknowledge that all the variety and instant access we enjoy—from Audible to Netflix—is entirely founded on DMCA’s anti-circumvention provisions. At the same time, readers are probably familiar with, and sympathetic to, complaints about DRM preventing farmers from repairing tractors, patients from accessing medical data, security researchers from analyzing vital systems, or the blind and deaf from accessing reading material. Yet, despite a considerable volume of headlines on these issues, last week’s testimony sounded more like consensus than conflict.

Professor Blake Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic, testified on behalf of various constituencies that have been unintentionally harmed by §1201 and addressed, for instance, the matter of access to electronic books for the blind and deaf. Although organizations representing blind and deaf readers have successfully petitioned the Copyright Office for §1201 exemptions in its triennial rulemaking process, Reid and others assert that the requirement to re-apply every three years is a high burden for these constituencies, merely to maintain exemptions that have no opposition.

Not surprisingly, the Copyright Office seems to agree with Reid on this point. In her testimony before the committee, General Counsel Regan Smith stated that because the statute does not give the Office authority to grant permanent exemptions, Congress could make the process more efficient and fair by amending §1201 to explicitly and permanently exempt deaf and blind readers, along with other frequent petitioners (e.g. security researchers), who have consistently been granted exemptions without opposition. It stands to reason that the Copyright Office would prefer not to spend its limited resources reviewing and re-reviewing the petitions of these parties, to say nothing of the fact that many interests in circumventing DRM often fall under the jurisdictions of other agencies, like the EPA, more than the Library of Congress.

The apparent consensus between the Copyright Office and many of the stakeholders represented by Professor Reid suggest to me that all those headlines, which have fed a lot of §1201 rancor over the years, may be outdated with respect to the task before the IP subcommittee today. At least in the consideration of various categories of petitioners, there appears to be ample room for negotiating a compromise bill calling for a wider spectrum of permanent exemptions.

Where Conflict Persists

More generally, however, there remains an ideological split over the nature of §1201. Reid and others view the prohibition against circumvention of DRM as a prior restraint on those parties who would only circumvent in order to engage in otherwise legal conduct. Thus, these critics of Title I would like Congress to amend the statute to affirmatively state that circumvention for non-infringing purposes is not a violation of law. The Copyright Office does not endorse this nexus between circumvention and infringement. Especially with regard to §1201’s prohibition against trafficking in devices used for circumvention, this nexus would undermine the fundamental purpose of the statute, which is the aforementioned fostering of eBooks, streaming platforms, and all those services we enjoy.

Personally, I am not unsympathetic to Reid’s view, at least in principle. If a documentary filmmaker uses software to rip a scene from a DVD to incorporate into her film in a manner that would be considered a fair use, the act of circumvention does seem incidental to her otherwise legal conduct, especially because the DRM is there to protect copyright, which, in this hypothetical, is not being infringed. So, I get where Reid et al are coming from when they argue that the act of circumvention itself should not be a violation.

On the other hand, these types of one-off examples are at least a little bit flimsy as practical matters. If the doc filmmaker uses AV clips in a manner consistent with fair use, the owner of those clips is highly unlikely to file a viable legal complaint. And absent a solid copyright infringement claim, the prospect that the rightsholder will file suit solely on an allegation of circumvention seems like a dubious path for most attorneys to follow.

Doubtless, Reid and I could play Pong with different examples tilting toward one hypothetical outcome or another. But it seems to me that the more exemplary users represent a class (e.g. teachers), the more they belong in the above discussion about candidates who deserve permanent exemption, rather than serve as a rationale to codify an infringement nexus. In fact, both teachers and documentary filmmakers have been granted limited exemptions in prior USCO rulemakings and are both viable classes for the committee’s further consideration.  

If I can presume to read between the lines of the testimony, the Copyright Office has an interest in resolving many of the unanticipated conflicts that have arisen from the protection of software integrated into devices and machines that are not typically within the scope of copyright law; but the Office also has a duty to §1201’s original purpose to secure the rights of copyright owners to control the manner in which their creative works are accessed. Endorsing an infringement nexus would perhaps resolve the former, but it would also betray that latter. Hence, a more nuanced approach to legislative adjustment should be sufficient to satisfy all parties with balanced results.

See full summary of the hearing at Copyright Alliance.

© 2020, David Newhoff. All rights reserved.

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