Tag Archives: dmca

A New Approach to Copyright Exceptions and Limitations

*Guest post by Jonathan Band, policybandwidth*

Any discussion with policymakers or rightsholders concerning the possible adoption of new copyright exceptions and limitations invariably centers on how to make sure that the exception is not abused. This leads to lengthy negotiations resulting in complex, difficult-to-use provisions that resemble the tax code. This pattern has been repeated in connection to the exceptions to section 1201 of the Digital Millennium Copyright Act, the TEACH Act for distance education (17 U.S.C. § 110(2)), the Chafee Amendment for the print disabled (17 U.S.C. § 121), and orphan works legislation, to name just a few of the more salient examples.

It’s time for this pattern to be broken. Rightsholders have nothing to fear from exceptions and their possible abuse. Infringement deriving from abuse of exceptions likely would be a tiny fraction of the overall incidence of infringement. At the same time, preventing the public benefits that flow from exceptions undermines the purpose of the copyright system.

Section 108

Unfortunately, this pattern of developing overly restrictive exceptions may soon repeat itself in the context of the exception for libraries and archives in 17 U.S.C. § 108. In 2005, the Library of Congress and the Copyright Office convened a study group consisting of librarians and publishers to consider how to update section 108 for the digital age. After three contentious years, the study group issued a report recommending several possible amendments to section 108, but could not reach consensus on the details of those amendments, nor on how to handle other important issues such as copies for users or license restrictions.

Notwithstanding this lack of consensus, and over the objection of most libraries and archives, the Copyright Office has decided to urge Congress to revise section 108. This past June, the Copyright Office issued a notice of inquiry stating that it seeks “to finalize its legislative recommendation” concerning a “re-drafting” of section 108. In meetings with stakeholders pursuant to this notice of inquiry, the Copyright Office stated that it hopes to complete its legislative recommendation and transmit it to Congress this fall.

Although the Copyright Office hopes to make section 108 simpler and more user-friendly, the Office’s likely concern about “leakage” almost certainly guarantees that the re-drafted section 108 will be complicated and not understandable by librarians without law degrees. And even if the Office somehow manages to produce a streamlined and comprehensible proposal, the rightsholders can be expected to insist on changes to eliminate possible abuse that will inevitably make the proposal more complex.

There is no doubt that digital networks have facilitated copyright infringement. And while the adverse impact of this infringement probably has been overstated by rightsholders, it is perfectly legitimate for rightsholders to take reasonable measures to address infringement. The operative word here is reasonable. And making exceptions for libraries, educational institutions, or the print disabled difficult to use in order to reduce potential leakage is not reasonable.

There are approximately 200 million smartphone users in the United States, and 2 billion smartphone users worldwide. Each smartphone has the capability of reproducing entire copyrighted works and uploading them to the Internet, where they can be disseminated globally. In a world where this technological capability is literally at the fingertips of so many users, what possible difference could it make if there is a small amount of leakage from a library?

Consider the following examples. Under existing section 108(c), a library is permitted to make a replacement copy of a published work that is damaged or lost if the library determines that an unused replacement cannot be obtained at a fair price. While the library may circulate a physical replacement copy, it cannot make a copy available in a digital format outside the library premises. The Section 108 study group recommended modifying the prohibition on off-site lending of digital replacement copies only to allow the lending of a copy reproduced in a digital physical medium if the library’s original copy was also in a digital physical medium. In other words, if the library owned an audiobook CD that was deteriorating, the study group proposal would allow the library to make and lend a replacement CD, but it would not be able to stream the digital file to a user. Similarly, if its original copy wasn’t digital, the library would not be able to make a digital copy viewable outside of the library premises.

The publishers in the Section 108 study group insisted on these restrictions because they were afraid that the digital files would be retransmitted on the Internet. This concern overlooks four facts. First, the exception would only be available if a replacement copy couldn’t be purchased, i.e., the work was out of print so there would be no market harm, even if unlawful retransmission occurred. Second, unlawful copies of any work for which there is current and likely future demand are already available online, so how much incremental harm could be caused by unlawful retransmission of the library’s replacement copy? Third, technological measures exist to make retransmission difficult. Fourth, as fair use jurisprudence has evolved, making the digital copy available outside the library premises with appropriate technological protections likely would be a fair use. In other words, the library could probably engage in the activity anyway under a fair use theory, so why not save the library the burden of performing the fair use analysis and simply permit it under an explicit exception?

A similar analysis could be performed for many of the study group’s other recommendations. For example, the proposed exception for the archiving of publicly accessible websites was unnecessarily regulatory, especially considering that commercial entities such as Google and Microsoft routinely engage in this activity under a fair use theory.

It is the awareness that section 108 reform will be extremely contentious and unlikely to produce positive results that has led to library opposition to the Copyright Office’s initiative.

Section 1201 Rulemaking

Likewise, the exemptions that the Library of Congress has adopted during the course of the triennial rulemaking under section 1201 of the DMCA reflect an unhealthy obsession with possible abuse. The current exemption, adopted in 2015, permits circumvention of the technological protections on lawfully acquired motion pictures by college and university faculty and students, for use of short portions for educational purposes “in film studies or other courses requiring close analysis of film and media excerpts…where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Thus, an instructor or a student may circumvent only after determining that no alternative to circumvention will produce the “level of high-quality content.” This would necessitate that the instructor or student determine: 1) whether the course requires “close analysis of film and media excerpts;” 2) what level of quality excerpt she needs to satisfy her educational purpose; 3) what are the various available alternatives to circumvention; and 4) whether any of these alternatives will produce the required level of quality excerpt. In the K-12 context, this exemption is available only to instructors, not students.

The Copyright Office designed an exemption that requires educational users to jump through many hoops so as to ensure that the exemption is not abused. At the insistence of rightsholders, the Copyright Office evidently considers circumvention to be a highly dangerous activity that leaves films vulnerable to widespread infringement, and thus must be regulated carefully. However, there is no evidence that any infringement resulted from earlier iterations of the exemption that were more straightforward. Further, the software necessary to circumvent the technological protection measures on DVDs or other storage media is widely available on the Internet and easy to use. Moreover, infringing copies of most films can be found on the Internet soon after release. Thus, a simple, broad circumvention exemption for any educational use would not harm the market for the films in any meaningful way. (At one time, some film studios planned to create a market for licensing film clips to educational institutions, but the enormous number of works educators need to access made development of such a market infeasible.)

A New Approach

Rightsholders’ frustration with their loss of control over their content is understandable. It also is understandable that this frustration would fuel a desire to exercise control wherever they can, even though it makes no difference to their bottom line.

Although the rightsholders’ frustration is understandable, it is bad copyright policy to impose the costs of overly restrictive exceptions on libraries and educational institutions where there is no offsetting benefit to rightsholders or society at large. As the Supreme Court recently stated in Kirtsaeng v. Wiley, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Supreme Court then explained that “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.” Exceptions and limitations are the means to achieve the aim of enabling others to build on a work.

Rather than fight reasonable adjustments to Title 17 to accommodate digital technology, rightsholders should embrace them. This not only would better meet the objectives of the copyright system, it also would be in the long run best interest of rightsholders. Instead of advocating for narrow section 1201 exemptions for educational uses of film clips, studios should encourage the broadest possible use of films in classrooms. Doing so would more deeply entrench the role of films in American culture and society.

Similarly, publishers should facilitate libraries making the robust use of their collections. Libraries spend $4 billion a year acquiring books and other materials. The more access libraries are able to provide to their collections—the more libraries are used—the easier it is for libraries to secure the budget they need to purchase more materials. Additionally, greater access to written materials encourages literacy, which in turn leads to greater demand for written materials. Finally, for many users, the alternative to accessing materials through libraries would not be to purchase the materials, but to find infringing copies on the Internet.

The same logic applies to remixes and fan fiction. More enlightened rightsholders have recognized that these activities deepen fan loyalty and result in increased sales. Additionally, these activities train the next generation of artists. And of course, reasonable exceptions enhance the credibility of the copyright system generality.

In short, rightsholders should stop treating libraries and educational institutions—their biggest customers—as their copyright enemies, and instead assist them in promoting the creation and dissemination of culture by supporting the broadest possible copyright exceptions. If rightsholders can’t change direction on their own, policymakers in Congress, the Copyright Office, and the Executive Branch should lead the way. But until rightsholders and policymakers change their approach to exceptions, attempts to fashion new exceptions will largely be exercises in futility.

 

Assessing the DMCA’s Notice-and-Takedown Regime

*Guest post by Jonathan Band, policybandwidth*

There is an escalating war of words between supporters and detractors of the notice-and-takedown regime of the Digital Millennium Copyright Act (DMCA). The content providers argue that the notice-and-takedown system is broken and advocate for its replacement with a notice-and-staydown system. The Internet industry responds that notice-and-takedown is essential to the vibrancy of the Internet, and that the regime demanded by the content providers would require costly and ineffective filtering and monitoring.

This debate about whether the legislative compromise reflected by the notice-and–takedown system still works misses the larger context in which Congress created the notice-and-takedown system and in which the system must be evaluated. Congress enacted the notice-and-takedown system in 1998 as one title of the much broader DMCA. This broader statute, in a separate title, established prohibitions on the circumvention of technological protection measures. These two titles were adopted together to create a balanced approach to copyright enforcement in the Internet environment. Thus, the effectiveness–and fairness–of the notice-and-takedown system should not be considered in isolation, but in relation to the effectiveness and fairness of the anti-circumvention provisions.

The Latest Round of the Debate

For years the content providers have complained about various provisions of the DMCA’s safe harbors for Internet service providers, but their primary target has been the notice-and-takedown system codified at 17 U.S.C. § 512(c) and (d). The latest round of attack started with a full-page ad on June 20, 2016, in the Washington D.C. newspapers The Hill, Politico, and Roll Call placed by music industry organizations such as the Recording Industry Association of America and well-known recording artists including Taylor Swift and Paul McCartney. The ad asserted that the DMCA “is broken and no longer works for creators.” It claimed that the DMCA “was written and passed in an era that is technologically out-of-date compared to the era in which we live.” The ad did not specify precisely why “the DMCA simply doesn’t work,” but observed that “it’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application.” Based on earlier statements by the RIAA and other music industry associations, this presumably was an allusion to the burden of copyright owners sending notices to a platform every time a user uploads infringing content—a burden that would be alleviated by a notice-and-staydown regime. The ad further stated that “the tech companies who benefit from the DMCA were not the intended protectorate when it was signed into law nearly two decades ago.

The ad provoked a quick response from the tech sector. Matt Schruers with the Computer & Communications Industry Association noted that RIAA was asking Congress “to upend one of the legal cornerstones of the Internet.” Schruers observed that the DMCA’s safe harbors “allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.” Schruers stated tens of thousands of Internet platforms relied on the safe harbors to provide millions of creators a cost-free means of reaching a worldwide audience without the interference of traditional gatekeepers such as record labels, movie studios, or book publishers.

Michael Beckerman with the Internet Association similarly asserted that “If you love the Internet, you should thank the DMCA.” He explained that Internet companies should not be responsible for “policing every single piece of online content” because they “don’t have access to constantly changing licensing information, nor are they the appropriate party to make legal judgments about whether content qualifies as fair use….” He added that many Internet companies voluntarily employ “DMCA-plus” programs to provide greater flexibility to copyright owners to address infringing activity.

Neil Fried with the Motion Picture Association of America replied by arguing that “Congress did not intend the DMCA to create a relentless game of Whac-A-Mole.” Fried further complained that “content creators must still endlessly notify technology companies of the presence of unauthorized content, even when it is the same parties posting the same material.” However, unlike the RIAA and the other music industry associations, Fried did not call on Congress to amend Section 512. Instead, it urged the Internet companies to “engage voluntarily and collaboratively with the creative community on solutions that work for everyone….” Fried asked for “better help from technology companies to steer traffic away from websites dedicated to theft….” Fried provided “automatically removing duplicative copies of the same unauthorized content” as an example of how effective notice and staydown could be achieved.

What’s Missing From This Discussion?

The Internet Association’s Michael Beckerman stated that “the bargain” at the heart of the DMCA “is a simple: rightsholders have a mechanism to address infringement without engaging in a lengthy and expensive battle, and internet platforms that respond quickly to remove infringing content are held harmless for the actions of their users.” MPAA’s Fried referred to this bargain as the DMCA’s “grand design.” And CCIA’s Matt Schruers described it as “a compromise between copyright holders and online services.”

Judge Leval, in his recent decision in Capitol Records v. Vimeo, agreed with this characterization of Section 512 as a compromise:

what Congress intended in passing § 512(c) was to strike a compromise under which, in return for the obligation to take down infringing works promptly on receipt of notice of infringement from the owner, Internet service providers would be relieved of liability for user-posted infringements of which they were unaware, as well as of the obligation to scour matter posted on their services to ensure against copyright infringement. The purpose of the compromise was to make economically feasible the provision of valuable Internet services while expanding protections of the interests of copyright owners through the new notice-and-takedown provision.

But the compromise embodied by Section 512 is part of a larger compromise embodied by titles I and II of the DMCA. Title II created Section 512. Title I implemented the World Intellectual Property Organization’s Copyright Treaty and Performances and Phonograms Treaty by creating prohibitions on the circumvention of technological protection measures and the removal of copyright management information. These provisions now constitute Chapter 12 of title 17, including the controversial Section 1201.

Title I and title II originally were introduced as separate bills (the WIPO Copyright and Performances and Phonograms Treaties Implementation Act and the Online Copyright Infringement Liability Limitation Act, respectively). The WIPO implementation bill was supported by the content industry and opposed by sectors of the technology industry. The safe harbor bill was supported by the online service providers and opposed by the content industry. In the face of this opposition, both bills stalled. Senator Orrin Hatch, then Chairman of the Senate Judiciary Committee, in a bold legislative move, merged the two bills into one. He calculated that the content industry would be willing to accept the safe harbors in exchange for WIPO implementation. This calculation proved correct.

The content providers believe that Section 1201 has benefitted them enormously. In response to a notice of inquiry recently issued by the Copyright Office concerning Section 1201, the Association of American Publishers, the Motion Picture Association of America, and the Recording Industry Association of America filed joint comments stating that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” BSA|The Software Alliance, the Copyright Alliance, the Software and Information Industry Association, the Entertainment Software Association, and Microsoft similarly asserted that Section 1201 has facilitated the secure online distribution of content.

In other words, the content providers applaud title I of the DMCA (Section 1201) as much as they complain about title II of the DMCA (Section 512). This is not surprising. Although Congress attempted to achieve a degree of balance within each title—although each title contains internal compromises–at the end of the day, the grand bargain of the DMCA was the marriage of the WIPO implementation and the safe harbor bills. According to the content providers, title I has “enabled an enormous variety of flexible, legitimate digital business modes to emerge and thrive.” And according to the Internet industry, title II has “allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.”

Given the tradeoffs that Congress made in assembling the DMCA, policymakers should not assess the impact of any title in isolation. In particular, any adverse impact content providers claim they suffer on account of the safe harbors in Section 512 must be weighed against the benefit they receive from Section 1201 (which has had an adverse impact on other stakeholders).

Fair Use in 2015 and A Look Ahead at 2016

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “Fair Use Rights: For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.”

Fair use is a critical right and the most important limitation on the rights of the copyright holder. It permits the use of copyrighted material without permission from the rightholder under certain circumstances and has been called the “safety valve” of U.S. copyright law. Fair use is a broad and flexible doctrine that is responsive to change and can accommodate new technologies and developments.  Notably, fair use is relied upon by everyone, including both users of copyrighted content as well as rights holders. This critical doctrine provides essential balance

Below are five news highlights on fair use from 2015 as well as my five favorite fair use resources created in 2015 (created for Fair Use/Fair Dealing Week 2015).

Five Fair Use Highlights from 2015:

  1. Second Circuit Affirms Fair Use in Google Books Case.  In October 2015, the Second Circuit released its unanimous opinion, authored by Judge Leval, affirming the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case.  The Second Circuit held that Google’s copying of books and display of snippets in a search index is transformative and a fair use.  This search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.  This digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.
  2. Ninth Circuit Rules Fair Use Must Be Considered Before DMCA Takedown Notices Sent.  In September 2015, the Ninth Circuit ruled in Lenz v. Universal Music, also known as the “Dancing Baby” case that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises triable issues as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”  In its reasoning, the Ninth Circuit confirmed that fair use is a right: “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”
  3. YouTube Announces It Will Defend Some Creators’ Fair Use Claims.  In November 2015, YouTube announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  YouTube pledged to indemnify some of its creators whose fair use videos are subject to takedown notices for up to $1 million in legal costs if the takedown results in a copyright infringement lawsuit. This announcement is significant given that fair use provides essential balance to the copyright system, allowing for transformative uses including parody, commentary, criticism and innovation and videos posted to YouTube often rely on this important doctrine.
  4. Final Text of the Trans-Pacific Partnership (TPP) Agreement Includes Language on Limitations and Exceptions.  In October 2015, the twelve negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam) announced agreement on the TPP, concluding five years of negotiations.  Although the final copyright provisions of the TPP had mixed results and ARL was disappointed by a number of the provisions and the lack of transparency during the negotiations, one of the positive aspects of the agreement was the inclusion and improvements in the final text on limitations and exceptions. The final text included language based off part of the United States’ fair use provision, with an addition for those with print disabilities, requiring “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.”  The text confirms that the exceptions can apply “in the digital environment” as well as to uses with “commercial aspects.”  Inclusion of this language is significant.  While the final language could have been strengthened further, the final text still provides an obligation for parties to seek a balance and can be used as a basis for stronger language in future agreements.  As noted by Jonathan Band in a paper exploring the evolution of the limitations and exceptions over the course of the TPP negotiations, “The incorporation of the non-exclusive list of legitimate purposes from 17 U.S.C. § 107 provides TPP countries a powerful basis for concluding that this balance is best achieved through the adoption of an open-ended flexible exception like fair use.”
  5. Authors Guild and HathiTrust settle last remaining issue (preservation); Second Circuit decision strongly affirming fair use stands.  While the Second Circuit’s decision in the HathiTrust case was released in June 2014, the court did not resolve the issue of preservation, sending that issue back to the district court.  In January 2015, the parties entered a settlement on the sole issue remaining issue, ending the litigation in a victory for HathiTrust and fair use.  The Second Circuit’s decision found that creation of a full-text search database and providing access to the print disabled constituted fair use.  In January 2015, however, the defendant libraries stipulated that they complied with Section 108(c) of the Copyright Act and agreed that for a period of five years, if they do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”  Authors Guild released a statement after the settlement, noting that it would not seek an appeal to the Supreme Court.

Five Great Fair Use Resources from 2015:

  1. Fair Use Fundamentals Infographic.  In celebration of Fair Use Week 2015, ARL created this infographic explaining that fair use is a right, is vitally important, is for everybody and is everywhere.
  2. A Day in the Life of a Legislative Assistant.  Jonathan Band authored this document, giving a sample day in the life of a legislative assistant.  This sample day shows just how often fair use is relied upon on a daily basis.
  3. Video: Fair Use and Technology.  Fred von Lohmann explains how fair use is essential to every day technology and how we encounter it on a daily basis.
  4. Podcast: Fair Use Protects Culture From Copyright, Not the Other Way Around.  TechDirt created a great podcast devoted to the important doctrine of fair use and how it provides an essential balance to the copyright system.
  5. 12 Fair Use Myths and Facts.  For Fair Use Week 2015, ARL also produced a “Myths and Facts” document on fair use, covering twelve myths about what fair use is and how it can be used.

So what’s next for fair use in 2016?

First, a reminder that Fair Use/Fair Dealing Week 2016 is quickly approaching and will take place from February 22-26, 2016.  A number of organizations and institutions are already planning to participate and have great events planned.  ARL will be creating a new infographic, hosting blog posts, and posting new videos on fair use.  For more information on how to participate or to see the great resources from last year’s celebration, visit the Fair Use Week website.

Additionally, the Authors Guild’s Google Books case may not be over as the Authors Guild filed a petition for writ of certiorari to the Supreme Court on December 31, 2015.  However, the Authors Guild’s petition does not appear to be a particular strong one.  Despite the Authors Guild’s claims that there is a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited have actually split on the issue as the facts of the cases differ significantly.  Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision; the Second Circuit carefully analyzes all four factors.

In fact, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision is probably not worthy of Supreme Court review.  She stated that the decision “probably surprised no one” and that “courts came to interpret Campbell’s reference to ‘something new, with a further purpose’ to encompass copying that does not add ‘new expression,’ so long as the copying gives the prior work ‘new meaning.’  Fair use cases began to drift from ‘transformative work’ to ‘transformative purpose,’ in the latter instance, copying of an entire work, without creating a new work, could be excused, particularly if the court perceived a sufficient public benefit in the appropriation.” Ginsburg acknowledges that courts have interpreted transformativeness to include a transformative purpose and does not cite any circuit split on this issue.  She also pointed out that the Second Circuit’s opinion was restrained and did not expand the fair use doctrine.  If the Supreme Court declines to hear the Google Books case, the Second Circuit’s decision will stand.

Additionally, as noted yesterday, the Copyright Office has issued a notice of a study the 1201 rulemaking process which creates exemptions on a three-year cycle to allow for circumvention of technological protection measures.  The exemptions requested during each cycle represent non-infringing uses, such as those that would operate under fair use in the analog world (that is, without the digital locks placed on digital copies).  The notice of inquiry includes a number of questions that are highly relevant to fair use.  For example:

1. Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a).

[. . .]

3. Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions—for example, when there is no meaningful opposition to renewal—or otherwise be modified to streamline the process of continuing an existing exemption? If so, how?

[. . .]

8. Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing? How do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?

9. Please assess whether there are other permanent exemption categories that Congress should consider establishing—for example, to facilitate access to literary works by print-disabled persons?

 

While these are important questions and it is good to see that the Copyright Office is at least considering the idea of permanent exemptions and a streamlined process, these questions highlight the fundamental flaw of the 1201 rulemaking process.  As noted by the Library Copyright Alliance’s statement for the Judiciary Subcommittee hearing on 1201 in September 2014:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

Fair use should apply equally in the digital world and technological protection measures should not be used to limit the fair use right.  The fact that every three years, proponents of exemptions must use a great deal of time and resources to seek renewal of or a grant of exemptions to anti-circumvention rules to exercise the fair use rights is problematic and inefficient.

 

1201 Rulemaking for a New Era?

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “You Bought It, You Own It: Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.”

*Today’s post is brought to you by guest blogger Caile Morris, ARL Law and Policy Fellow*

Every three years, the Copyright Office facilitates a rulemaking process, which considers potential exceptions to the Section 1201 prohibition of circumvention of technological protection measures (TPMs) under the 1998 Digital Millennium Copyright Act (DCMA). During this process, the Register of Copyrights conducts the rulemaking proceeding and consults with the National Telecommunications and Information Association (NTIA), making a final recommendation to the Librarian of Congress. In plain terms, this means the Copyright Office considers petitions for exemptions that allow for things like professors using video clips from Blu-Ray discs when teaching their classes, or for the print-disabled to make e-books accessible. The Office is currently undertaking a study to consider the practical application of Section 1201, including the triennial rulemaking process, to see what improvements might be made.

In the largest proceeding thus far, the 2015 Triennial Rulemaking also ranged quite far from the area of copyright, considering matters that would fit better at proceedings run by agencies like the Department of Transportation or the Environmental Protection Agency. For example, one class of works proposed for an exemption included computer programs that control motorized land vehicles, including those in cars, which if adopted would allow owners to circumvent TPMs in order to make repairs or modifications to those programs. The copyright implications of circumventing the TPMs in this software, while present, pales in comparison to implications for auto manufacturers, the Department of Transportation, and most importantly the users attempting to “tinker” with their lawfully-purchased vehicles.

The proceeding also continues to perpetuate the fatal flaw in Section 1201 – exemptions are requested for uses that would all be considered non-infringing if these same copyrighted works were analog and did not have TPMs.  ARL, as part of the Library Copyright Alliance (LCA), filed comments for the record at a House Judiciary Subcommittee hearing in September 2014 expanding on this issue explaining “that flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work.” LCA has also filed petitions in numerous triennial rulemakings, and expounded the absurdities of the process:

Although the section 1201 rulemaking process is legal theatre, the cost of admission is extremely high, particularly for nonprofit organizations. An entity seeking an exemption must: 1) assemble the evidence to support an exemption; 2) prepare a written request that includes the text of the proposed exemption, an argument in favor of the exemption, and a recitation of the relevant facts; 3) prepare a written reply to oppositions to the request; 4) participate in a hearing in Washington D.C.; and 5) prepare a written response to the Copyright Office’s follow-up questions. From start to finish, the process can take more than a year.

In addition to being burdensome, expensive, long and often frustrating, this process is often confusing to the public that it is meant to benefit. The language of the exemptions that result from each rulemaking has become incredibly intricate and detailed. The beneficiaries of these exemptions may not be sure they are using the exemptions correctly, and thus would not be able to put stock in the legality of their activities. So much for “you bought it, you own it” victories won in this arena being easily applicable in the real world.

The Section 1201 study being undertaken by the Copyright Office seeks to learn more about the effectiveness of the role of the anti-trafficking provisions, permanent exemptions, and the requirements of the triennial rulemakings themselves, to name a few issues.   In particular, the Office asks for written comments regarding such questions as “[h]ow should section 1201 accommodate interests that are outside of core copyright concerns . . .?,” and “. . .[h]ow do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?”

A question from the Copyright Office of particular interest to the library community asks commenters to “assess whether there are other permanent exemption categories that Congress should consider establishing – for example to facilitate access to literary works by print-disabled persons?” This particular exemption has been granted in every rulemaking* since 2003, and in the 2015 Rulemaking, this petition was met without opposition. This is precisely the kind of exemption that should not have to go through this arduous process anew every three years.

Indeed, in Author’s Guild, Inc. v. HathiTrust, the Second Circuit confirmed that creating a copy of a copyrighted work for the convenience of a blind person is fair use, regardless of other accommodations found under the Americans with Disabilities Act, or the Chafee Amendment to the Copyright Act, found at 17 U.S.C. § 121:

The House Committee Report that accompanied codification of the fair use doctrine in the Copyright Act of 1976 expressly stated that making copies accessible “for the use of blind persons” posed a “special instance illustrating the application of the fair use doctrine” . . . . The Committee noted that “special [blind-accessible formats] . . . are not usually made by the publishers for commercial distribution” . . . . We believe this guidance supports a finding of fair use in the unique circumstances presented by print-disabled readers.

As LCA noted, “[t]he fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption . . . demonstrates the fundamental flaw in section 1201.” This, and other exemptions that have been continuously renewed, provide ample fodder for comments on expanding the current permanent exemption class.

The Copyright Office is accepting comments through February 25, and reply comments through March 25. More information on participation and specific will be posted on the Office’s website by early February. Comments urging the Office to rethink the Rulemaking in order to preserve the resources wasted on a repetitive process and making the exemptions easier for the beneficiaries to understand will help to ensure that non-infringing lawful use can continue.

*During the 2010 rulemaking process, the Register of Copyrights recommended that the exemption for those with print disabilities be denied despite the fact that the NTIA recommended renewal. The Librarian of Congress, however, overruled the Register of Copyrights and granted the exemption.

 

YouTube Announces It Will Defend Some Creators’ Fair Use Claims

YouTube recently announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  Under this initiative, YouTube “indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event that takedown results in a lawsuit for copyright infringement.”

The announcement notes:

We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it . . . In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.

Fair use is a critical right under United States copyright law that accommodates the First Amendment, is flexible and responsive to change, and supports the constitutional purpose of copyright: to “promote the progress of science and the useful arts.”  Fair use allows for creators to use copyrighted works in transformative ways, including for purposes of parody, commentary and criticism, and innovation.  Many videos on YouTube rely on fair use, incorporating other copyrighted works, but using them in transformative ways and we applaud YouTube’s decision to defend some creators who rely on this important doctrine.

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.

9th Circuit Holds Fair Use Must Be Considered Before DMCA Takedown Notices are Sent

On September 14, 2015, the Court of Appeals for the Ninth Circuit ruled in Lenz v. Universal Music that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”  The case decision is a strong affirmation of fair use, with some highlights from the opinion incorporated below.

This case involved a 29-second home video posted on YouTube in which Stephanie Lenz filmed her two children dancing to “Let’s Go Crazy” by Prince.  This video, known as the “dancing baby” video featured her thirteen-month old son dancing while holding a push toy.  Universal Music sent a takedown notice alleging copyright infringement and a “good faith belief” as required by the DMCA that the “activity is not authorized by the copyright owner, its agent, or the law.”  Under the DMCA, service providers enjoy a safe harbor from liability if they follow the procedures under Section 512(c), including removing or disabling access to content after receiving notification from a copyright holder that the content is infringing.  The video was taken down by YouTube, but was eventually reinstated after Lenz sent a counter-notice.  Lenz filed suit against Universal following the takedown.

The Ninth Circuit considered the question of whether the DMCA requires copyright holders to consider fair use before issuing a takedown notification.  In finding that copyright holders must consider whether a particular use is fair, the Ninth Circuit notes, “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”  While Universal argued that fair use is not considered “authorized by law” because it is an affirmative defense, the Ninth Circuit rejects this argument:

Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct.  Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”  Sony Corp of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer:

“Although the traditional approach is to view ‘fair use’ as an affirmative defense, . . . it is better viewed as a right granted by the Copyright Act of 1976.  Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused–this is presumably why it was treated as a defense.  As a statutory doctrine, however, fair use is not an infringement.  Thus, since the passage of the 1876 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.  Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.”  Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996) . . .

Furthermore, the Court notes that even if fair use were to be considered an affirmative defense, copyright holders must consider fair use when sending a takedown notice:

[W]e hold–for the purposes of the DMCA–fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.  We conclude that because 17 U.S.C. 107 created a type of non-infringing use, fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notice under 512(c).

 

Additionally, the Court states, “Copyright holders cannot shirk their duty to consider–in good faith and prior to sending a takedown notification–whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.  That this step imposes responsibility on copyright holders is not a reason for us to reject it.”

The opinion, written by Judge Tallman, was joined by Judges Smith and Muruguia with respect to the conclusion the holding that copyright holders must consider fair use.  Judge Smith dissented on other issues (not discussed in this blog post) regarding the standard used in determining whether Universal faces liability for misrepresenting its good faith belief that the video did not constitute fair use.

ARL Joins Amicus Brief in Mavrix Photographs v. LiveJournal

On June 22, 2015, ARL joined an amicus brief of the Computer & Communications Industry Association, the American Library Association, the Association of College and Research Libraries and the Electronic Frontier Foundation in the case Mavrix Photographs v. LiveJournal, currently pending in the Court of Appeals for the Ninth Circuit, supporting the respondent, LiveJournal.

The case involves a LiveJournal blog, Oh No They Didn’t!, a community blog involving reader submissions about celebrity gossip and pop culture.  These submissions include celebrity photos, including sets of photos from Mavrix.  Mavrix sued LiveJournal (without first sending any takedown notices) and LiveJournal responded by removing the photos and terminating two users as repeat infringers.  In the district court, LiveJournal prevailed under the Digital Millennium Copyright Act (DMCA) safe harbor rules because it did not have actual knowledge of infringement, nor did it have “red flag” knowledge of infringement (that LiveJournal should have known).  Mavrix appealed the case to the Ninth Circuit.

The amicus brief points out the importance of the DMCA safe harbors for the amici parties, including for libraries specifically:

The DMCA safe harbors have also been extremely helpful to the library amici in fulfilling their mission of providing their users with access to information.  Libraries act as “service providers” within the meaning of 17 U.S.C. 512(k)(1)(A).  Libraries are the only source for real Internet connectivity and Internet-ready computer terminals for many Americans . . . The Section 512(a) safe harbor for “mere conduits” has enabled libraries to provide Internet access without the specter of liability for onerous copyright damages because of infringing user activity.

Libraries also operate websites that host user-generated content and prepare directories that link users to other websites.  The safe harbors in Section 512(c) and (d) shelter libraries from liability for infringing activity by third parties.  Any new restrictions on the availability of the DMCA safe harbors could have an adverse effect on the ability of libraries to deliver a critical service to underserved and other user communities.

The brief points out that that while service providers do not have an obligation to look through user-submitted content for infringements, the DMCA also does not discourage monitoring. Many service providers review content for illegal or objectionable material that violates the terms of service agreements.  Such moderation does not result in the loss of safe harbor under Section 512(c) which addresses safe harbors for “Information Residing on Systems or Networks At Direction of Users.”

The brief also notes that, absent actual knowledge of infringement, “red flag” knowledge is a high bar.  It notes that just because a user submits content, such as a photograph, that exists elsewhere online does not constitute a “red flag” that the content is infringing.  Additionally, “Holding online service providers unexpectedly liable for the acts of their users, in contrast to the legal clarity Congress deliberately and presciently provided in Section 512, would be deleterious not only to Internet commerce, but also to free speech online.”  The full brief is available for download here.

What’s Missing from the Register’s Proposals

*Guest post by Jonathan Band, policybandwidth*

In her wrap-up testimony yesterday in the House Judiciary Committee’s two-year Copyright Review, Maria Pallante, the Register of Copyrights, identified three categories of policy issues: those that are ready for legislative process, those that warrant near-term study and analysis, and those that warrant further attention. Unfortunately, what many perceive to be the Copyright Act’s greatest flaw, the existing structure of statutory damages, received just a passing reference in the third “warrant attention” category. As numerous witnesses testified during the course of the Copyright Review, the threat of statutory damages of $150,000 per work infringed chills investment in innovative technologies and allows copyright trolls to extort settlements that greatly exceed the actual harm caused.

The Register paid more attention to the Digital Millennium Copyright Act’s prohibition on the circumvention of technological protection measures, 17 U.S.C. § 1201, which appears on the first two lists. While the Register’s recognition of Section 1201’s flaws is welcome, the Copyright Office has the power to address some of these deficiencies itself without additional Congressional action.

Register Pallante correctly observes that a wide range of stakeholders support “mak[ing] it easier to renew exemptions that have previously been adopted and are in force at the time of the triennial rulemaking proceeding.” She states that “the Copyright Office agrees that the process of renewing existing exemptions should be adjusted to create a regulatory presumption in favor of renewal.” Accordingly, she feels that “it would be beneficial for Congress to amend Section 1201 to provide that existing exemptions will be presumptively renewed during the ensuing triennial cases where there is no opposition.”

However, the Copyright Office need not wait for Congressional action to make the renewal process easier. The Register asserts that “the Section 1201 statutory framework requires that, to continue an existing exemption, proponents must bear the legal and evidentiary burden of justifying the exemption anew .…” In fact, Section 1201 itself imposes no such burden. It simply states that the Librarian must make a determination in a rulemaking proceeding whether to grant an exemption to users of a certain class of works and that the exemption lasts for three years. The statute says nothing about how the Librarian should handle renewals of existing exemptions.

The notion that a proponent must justify an exemption de novo every three years derives from a single sentence in a single committee report issued during the legislative process that resulted in the DMCA. This sentence states that the Librarian’s “assessment of adverse impacts on particular categories of works is to be determined de novo.” The Copyright Office in its administration of the rulemaking is not bound by this report language. Thus, it could decide to create a rebuttable presumption in favor of renewal.

Moreover, even if the Office chooses to give weight to this language, the language only states that the Librarian must take a fresh look at whether users of a class of works are likely to be adversely affected by Section 1201’s prohibition. It does not say that proponents must create a new legal and evidentiary record in support of renewal of the exemption. Instead, the Copyright Office and the Librarian could just review the record created in the previous rulemaking, as supplemented by interested parties in the current rulemaking. If opponents of renewal do not offer substantial evidence that renewal would harm the market for or value of their works, see § 1201(a)(C)(iv), the Librarian is likely to reach the same conclusion he reached three years earlier. In short, the Copyright Office could significantly lighten the burden of renewal by indicating that it will incorporate the record created in the previous rulemaking.

Additionally, in the category of policy issues that warrant near-term study and analysis, the Register identifies numerous other potential problems with Section 1201. She notes that some of the permanent exceptions may be too narrow in scope, and that the exemptions created under the rulemaking apply only to the act of circumvention, and not the development and distribution of circumvention tools.

Further, she observes that some stakeholders have suggested “a disconnect between the original purpose of Section 1201—protecting access to creative works—and its effect on a wide range of consumer goods that today contain copyrighted software.” (This was the subject of a DisCo post earlier this year.) She adds that “consumers have voiced discomfort that Section 1201 prevents them from engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implication under copyright law.”

It is true that the Copyright Office cannot change the scope of the existing permanent exceptions, nor extend the exemptions to the trafficking in circumvention tools. It is also true that the Copyright Office cannot unilaterally solve the problem of the application of Section 1201 to embedded software essential to the operation of larger devices and machines.

At the same time, the Copyright Office could take a more pragmatic approach toward exemptions for embedded software. For example, it could consider, and ultimately grant, a broad exemption for all software essential to the operation of hardware in the lawful possession of the user. Regrettably, in this rulemaking cycle the Copyright Office has gone in the opposite direction, drawing up classes as narrowly as possible. For the unlocking of devices from wireless networks, the Copyright Office has identified five separate classes for five different kinds of devices. It has done the same for the “jailbreaking” of devices so that they can access alternate lawful content. For circumvention of TPMs on vehicle software, for the purpose of diagnosis and repair, or after-market customization, the Copyright Office is considering only land vehicles, when the same issue obviously will apply to boats and aircraft.

By balkanizing the embedded software problem in this manner, the Copyright Office places a much greater burden on the applicants of each narrow class to meet the evidentiary standard the Office imposes. Section 1201 certainly does not require the identification of such narrow classes.

Obviously these measures will not address all the ills of Section 1201. Legislation along the lines of the Unlocking Technology Act, H.R. 1587, or the Breaking Down Barriers to Innovation Act, S. 990 and H.R. 1883, are necessary to do that. But the Copyright Office could adopt these measures now, without Congressional action.

The Register’s testimony raises too many other issues to be examined here. But one proposal merits attention. In the category of issues that warrant near-term study and analysis, the Register recommends a “formal and comprehensive study” of the safe harbors in Section 512 “to ensure that it is properly calibrated for the internet as we know it today.” Frankly, the Section 512 safe harbors have been studied to death. They have been the subject of numerous Congressional hearings and were a major focus of the Commerce Department Internet Policy Task Force report on Copyright Policy, Creativity, and Innovation in the Digital Economy. As the Register’s testimony acknowledges, the Internet Policy Task Force’s report led to a year-long process to produce best practices for the notice and takedown system. The safe harbors have been examined in law review articles, economic studies, and Congressional Research Service reports. The Register asserts that “it is time to take stock of Section 512.” In fact, Congress, the Copyright Office, the PTO, the copyright owners, the Internet service providers, and public interest groups have been taking stock of Section 512 continuously since its enactment.

A far better use of government resources would be a formal and comprehensive study of statutory damages, “to consider what is working and what is not, along with possible legislative improvements…to…ensure that it properly calibrated for the internet as we know it today.”

LCA Applauds Re-Introduction of the Unlocking Technology Act

On March 24, 2015, U.S. Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO) re-introduced the bipartisan Unlocking Technology Act, a bill that would permanently allow consumers to unlock their cell phones and also allow the opening of digital locks for other legitimate uses.  LCA applauds the re-introduction of this legislation which would facilitate legitimate uses of digital media and technology.

This bill improves on the Unlocking Consumer Choice and Wireless Competition Act, passed by Congress in July 2014, which renewed the previously granted exemption to allow consumers to unlock their cell phones after the Copyright Office failed to renew the cell-phone unlocking exception in its 2012 triennial rulemaking process.  The Unlocking Technology Act permanently fixes a central flaw of the Digital Millennium Copyright Act (DMCA) which can be interpreted to allow for liability for opening a digital lock even where there is no copyright infringement.  The bipartisan bill would free non-infringing uses of digital media and technology and allow the creation and distribution of the tools necessary to facilitate such legitimate uses.