New 1201 Rules on Exemptions to Prohibition on Circumvention of Technological Protection Measures Released

On October 27, 2015, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking, setting forth exemptions from the prohibition against circumvention of technological protection measures (TPMs).  Every three years, proponents of exemptions must engage in a long process to seek renewal or expansion of existing exemptions or the granting of new exemptions in order to circumvent TPMs for non-infringing uses.  The new exemptions expand the previously granted exemptions in several areas and also grant new ones.

ARL, as part of the Library Copyright Alliance (LCA) submitted petitions for proposed exemptions requesting renewal of an exemption grating people who are print disabled circumvention of technological protection measures on literary works distributed electronically as well as renewal and expansion of an exemption for motion picture excerpts for educational purposes.  LCA also joined in five filings that provide evidence for the need of various exceptions that have been proposed including for: use of audiovisual works for educational use, for MOOCs, and for informal learning and K-12; e-book accessibility; and 3-D printing.

The new rules renew the exemption for literary works distributed in electronic form for persons who are blind, visually impaired or print disabled.  Notably, there was no opposition to renewing the exemption granted in 2012 and the Association of American Publishers filed comments indicating it did not object to this renewal.  Additionally, the 2015 rules permit circumvention for motion picture excerpts for educational purposes.  In a long and detailed rule, the new exemption permits circumvention of DVDs and Blu-ray discs for the use of short portions of motion pictures by college and university faculty and students in film studies or courses requiring close analysis of film and media excerpts and by the faculty of massive open online courses (MOOCs) in film studies or other courses requiring close analysis of film and media excerpts (among other specific exceptions regarding use of motion picture excerpts).

The new exemptions also permit circumvention to access video games for the purpose of copying and modification to restore access to the game when necessary to allow preservation by a library, archive or museum.

Among other exemptions not directly related to libraries and higher education, but that highlight the absurdity of the process, the Copyright Office and Library of Congress considered exemptions to permit circumvention for the purpose of diagnosis, repair and modification of vehicles and for the purpose of security testing on vehicles or medical devices implanted in patients.  In April 2015, Wired published a piece highlighting the absurdity of using technological protection measures and copyright to prevent individuals from tinkering with items that they own in a piece titled “We Can’t Let John Deere Destroy the Very Idea of Ownership.”  While the Library of Congress ultimately granted (again, highly detailed) exemptions in these categories, but the exemption that allows diagnosis, repair or modification of a vehicle will not go into effect for 12 months.

The National Telecommunications and Information Administration (NTIA) submitted its recommendations to the Copyright Office and noted concerns over the potential misuse of technological protection measures for non-copyright purposes and cautions against giving too much weight to non-copyright concerns implicated by proposed exemptions:

While there have long been proposed exemptions that implicated issues unrelated to copyright law, the sixth triennial rulemaking has stood out for its extensive discussions of matters with no or at best a very tenuous nexus to copyright protection.  Parties have, in this proceeding, raised concerns about medical device safety, vehicle emissions standards, best practices in software vulnerability disclosure, and other issues that are not contemplated in copyright law. In asserting the relevance of such matters to this proceeding, parties often cite the fifth statutory factor in this rulemaking, which allows the Librarian of Congress (and by extension, the Copyright Office) to consider “such other factors as the Librarian considers appropriate.”

NTIA urges the Copyright Office against interpreting the statute in a way that would require it to develop expertise in every area of policy that participants may cite on the record. Although Congress clearly included this factor to enable consideration of issues not otherwise enumerated, the deliberative process should not deviate too far afield from copyright policy concerns.6 As the Register of Copyrights noted in 2010, “the focus in this rulemaking is limited to actual or likely adverse effects on noninfringing uses of copyrighted works. No other agency has delegated authority to temporarily limit the application of the prohibition on circumvention. This prohibition was established to provide legal support for, and foster the availability of, copyrighted works in the digital environment.” Therefore, the Office should not, in its deliberations, heavily weigh unrelated matters such as greenhouse gas emissions or the quality of materials used to build aircraft, and should instead focus primarily on questions relevant to copyright law.8 Congress, applicable regulatory agencies, and their counterparts within state governments are well-equipped to deal with these non-copyright issues in the appropriate settings and under legal authorities focused on those issues.

Additionally, NTIA’s comments continue expressing concerns:

[T]hat security measures that have been deployed for non-copyright reasons—such as security and privacy, or possibly anti-competitive goals—are being described in this rulemaking as technological measures controlling access to copyrighted works under Section 1201.  This is a fundamental misuse of Section 1201, which can lead to reduced respect for the DMCA and copyright law, and can yield either an inappropriate overprotection of copyright (out of concern, for example, to avoid harming security), or a reduction in security (because of a grant of an exemption in this proceeding where indeed no significant copyright interest is at issue).

A related problem would arise if a manufacturer were to use the same technological protection measure to achieve two functions—enhance security and protect a legitimate copyright interest. Again, this could lead to inappropriate outcomes, and manufacturers would in many cases be well advised to separate techniques aimed at copyright protection from those aimed at security and privacy.

These concerns lead to two practical considerations. First, a record showing that a technological measure was not deployed with copyright protection in mind should weigh heavily in favor of a proposed exemption. Such a standard is entirely consistent with the statutory factors to be considered in this rulemaking.

Second, the increasing ubiquity of security measures has led to a widespread assumption that Section 1201 applies in a broader set of circumstances than may, in reality, be true. One of the clearest examples of this phenomenon appeared during the previous triennial rulemaking, when one group of proponents sought an exemption for circumventing access controls protecting public domain works.  The problem has further manifested itself during this proceeding, as highlighted by the confusion over whether circumvention is necessary to make certain repairs to video game consoles, as well as the possibility that the Lexmark decision may have placed some acts of circumvention involving 3D printers outside the scope of Section 1201.  In these circumstances, the Copyright Office has a role to play in clarifying the scope of Section 1201 through these proceedings. Where the prohibition against circumvention clearly does not apply, NTIA recommends the Copyright Office continue its previous practice of noting that a “requested exemption is beyond the scope of this rulemaking proceeding.”  Similarly, in cases where the prohibition may apply, but only in certain instances, NTIA suggests noting the prohibition’s limitations when recommending an exemption to the Librarian. NTIA further encourages the Copyright Office to make clear to manufacturers and content creators that they should remain cognizant of the underlying purposes for which an access control is implemented. Manufacturers should not implement access controls on devices to restrict certain device functions or enforce non-copyright-related business models—which is not the purpose behind Section 1201—and then try to use the DMCA to enforce a business model or limit a user’s post-purchase modification of a device.

While the 2015 exemptions include some improvements with respect to expanded exceptions, the rules have become more verbose and complex over the course of the six rulemaking cycles. The long, detailed exemptions will lead to greater confusion and make the exemptions less useful.  Laura Quilter has this excellent post on the complexity of the new exemptions.

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