Tag Archives: tpm

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.

New WikiLeaks of the Trans-Pacific Partnership Agreement Intellectual Property Chapter — Analysis of Copyright Provisions

The United States is currently negotiating a large, regional free trade agreement with eleven other countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. On October 16, 2014, WikiLeaks published a new leak of the Trans-Pacific Partnership Agreement’s (TPP) negotiating text for the intellectual property chapter. This text, dated May 16, 2014, contains some substantial changes from last year’s November leak of the text (which revealed the state of negotiations as of August 2013).

The chapter is now shorter and numerous brackets (brackets denote areas of the text which have not yet been agreed to) have been removed. The text also includes some new provisions. Some differences between the copyright provisions from last year’s leak to today’s leak are highlighted below. However, given that the leaked text is from May, further changes may have been made in the last five months and bracketed issues may have been resolved. TPP negotiations will continue in Australia next week where issues may reach further resolution.

Copyright Term

In the prior leak, New Zealand, Brunei, Malaysia, Vietnam, Canada and Japan supported a proposal allowing the copyright term of protection to be determined by “each Party’s domestic law and the international agreements to which each Party is a party.” The current leak reveals that this proposal has been eliminated.

The new text suggests that the copyright term will be specified in the TPP, though the exact number of years has not yet been agreed to. Bracketed language around the period of years reveals that the three options being discussed are life of the author plus fifty, seventy or one-hundred years. The United States, along with the countries with which the United States already has bilateral trade agreements with—Australia, Chile, Peru and Singapore—currently have a period of protection of life plus seventy years. Mexico is the only country that provides for life of the author plus one hundred years. The other countries in the agreement use the international standard of life plus fifty years.

For corporate works that have been published, the bracketed text includes periods of protection of fifty, seventy, seventy-five or ninety-five years.

In addition to these specified periods of years, a new proposal similar to the Berne rule of shorter term appears in the leaked text. This rule would essentially allow parties to limit the term of protection provided to authors of another party to the term provided under that party’s legislation. For example, if the final TPP text required a period of copyright protection of life plus fifty years, the United States would not be required to provide its period of life plus seventy years to authors in New Zealand if New Zealand continued to provide a term of life plus fifty years. The United States currently does not implement the Berne rule of shorter term.

Formalities

Another new provision in the text is a rule against formalities. Article QQ.G.X is unbracketed and therefore appears to be agreed to by the TPP negotiating parties. It reads, “No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.”

This language could be problematic if the United States, or other TPP parties, wanted to re-introduce formalities for copyright protections granted that go beyond minimum international standards. Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States. If adopted, such a proposal would violate the TPP and subject the United States to investor-state dispute settlement, under which a corporation could sue the Unites States government for failure to comply with the TPP.

Limitations and Exceptions

Parties to the TPP have agreed to include language on limitations and exceptions, including a provision that has not been included in prior U.S. free trade agreements. This language reads:

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including those for the digital environment, giving 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 [AU oppose: published] works for persons who are blind, visually impaired, or otherwise print [AU propose: or perceptually] disabled.116 117

116 {In particular,} As recognized by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (June 27, 2013).
117 For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.16.3.

Most of this language had already been agreed to in the November 2013 leak. However, the new leak reveals that parties have now agreed to include facilitating access for persons who are blind, visually impaired or otherwise print disabled. Additionally, footnote 116 specifically referencing the Marrakesh Treaty is a new addition. While the Marrakesh Treaty has not yet been ratified by any of the TPP countries and has not yet entered into force (the treaty requires twenty ratifications; India and El Salvador are currently the two countries that have ratified it), several of the TPP negotiating parties have signed the treaty including the United States, Australia, Chile, Mexico, and Peru.

Technological Protection Measures

The language on technological protection measures (TPMs) in last year’s leak was heavily bracketed, highlighting the lack of agreement in this area. The United States initially proposed a closed set of limitations and exceptions to allow circumvention of TPMs, with additional limitations and exceptions possible through a three-year rulemaking process modeled off of Section 1201 of the United States Copyright Law.

The new TPP text eliminates the specific limitations and exceptions and three-year rulemaking process. It now allows limitations and exceptions through legislative, regulatory or administrative processes. Additionally, the United States’ proposed “substantial evidence” burden (proposed in conjunction with allowing new limitations and exceptions through the rulemaking process)—a standard not found in the United States Copyright Law—has been eliminated. This new text, with the exception of a few clauses, has been agreed to by the TPP parties.

The text now provides that:

Each Party may provide [MY/MX/PE oppose: certain] exceptions and limitations to the measures implementing subparagraphs (a)(i) and (ii) in order to enable non-infringing uses where there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions under that Party’s law [in accordance with Article QQ.G.16] [CL propose:, as well as the evidence presented by the beneficiaries with respect to the necessity of the creation of such exception and limitation]

This language is an improvement over the United States’ previous proposal because it would allow for new permanent limitations and exceptions that would allow for circumvention of TPMs—for example, for cell-phone unlocking. However, the language seems to assume that parties need to provide for limitations and exceptions even for non-infringing uses. As noted in a recent Library Copyright Alliance (LCA) statement, one of the flaws of Section 1201 in the United States Copyright Law is that this section could be interpreted to prohibit circumvention of a TPM even for the purpose of engaging in a lawful use of the work.

Additionally, it may be difficult to create a general permanent limitation and exception allowing for circumvention for any non-infringing use, such as was proposed in the Unlocking Technology Act due to the language requiring consideration of an “actual or likely adverse impact” of TPMs and evidence presented, including “whether … measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions under that Party’s law.” Requiring such considerations could be interpreted as allowing new permanent or temporary limitations and exceptions, but only on a case-by-case basis rather than by a general rule.

Internet Service Provider Liability

The latest leak of the TPP text also includes several new non-papers attached as addenda. The non-paper on Internet service provider liability is included as Addendum III and heavily bracketed.

LCA Submits Testimony to House Judiciary Subcommittee for Copyright Review Hearing on Technological Protection Measures

On September 17, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on Chapter 12 of the Copyright Act, which governs technological protection measures (TPM). The hearing included four witnesses: Mr. Mark Richert, Director of Public Policy, American Foundation for the Blind; Mr. Jonathan Zuck, President, ACT | The App Association; Mr. Christian Genetski, Senior Vice-President and General Counsel, Entertainment Software Association; and Ms. Corynne McSherry; Intellectual Property Director, Electronic Frontier Foundation.

The Library Copyright Alliance (LCA) submitted a statement to the Subcommittee in advance of the hearing.

The LCA testimony points out that overly-broad anti-circumvention language was initially proposed in 1994 and 1995 over objections that these prohibitions could prevent circumvention for lawful purposes. After the 1996 adoption of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), PTO Commissioner Lehman proposed new anti-circumvention language to implement the treaties. Again, the proposals were overly broad, regulating both tools and conduct, regulating circumvention apart from underlying infringement and governing circumvention for both access-control technologies and copy-control technologies rather than only prohibiting copying. Significantly, the WIPO treaties did not require these overly-broad features, as Commissioner Lehman himself conceded when testifying before the House Judiciary Subcommittee.

Despite the fact that alternative proposals were made to address these overly-broad proposals, “Congress instead created a set of complex exceptions and limitations to the administration’s sweeping language, resulting in the convoluted, inconsistent section 1201 we have today. Some of these limitations are of limited effectiveness.” Additionally, Congress, in recognition that additional exceptions other than those explicitly included in Section 1201 may be desirable, directed the Librarian of Congress to conduct a rulemaking process every three years to determine additional classes of works that should be granted an exemption for the subsequent three-year period. However, as the LCA testimony points out, “A narrower section 1201 limited to circumvention that led to infringement would have obviated the need for the rulemaking procedure altogether.”

Over the years, there have been several efforts to amend section 1201 to address the potential problems resulting from an interpretation of this section as prohibiting circumvention of access controls or the manufacture and distribution of circumvention tools, even if they are for non-infringing purposes. These bills have varied from creating additional specific exceptions to requiring a nexus between circumvention and infringement. Most recently, controversy over the Librarian of Congress’ 2012 decision not to renew an exemption for cell phone unlocking that had been granted in previous rulemakings, resulted in renewed efforts to address flaws in Section 1201. Although Representatives Lofgren (D-CA), Massie (R-KY), Eshoo (D-CA) and Polis (D-CO) introduced a broad bill, the Unlocking Technology Act of 2013, that would have permitted circumvention for non-infringing uses, ultimately Congress took a narrower approach and adopted a temporary fix specific to the problem of cell phone unlocking.

The LCA testimony also includes a summary of litigation over Section 1201, explaining that currently a circuit split exists as to whether the language of 1201 requires a nexus between infringement and circumvention for liability to attach.

Additionally, the LCA testimony covers the three-year rulemaking process, which LCA members have participated in during each cycle. The testimony points out some of the absurdities of the process as well as the high costs and burdens of participating in the rulemaking cycle. The testimony points out that “From start to finish, the process can take more than a year” and that the inefficient system places burdens on not only the proponents of exemptions, but the Copyright Office, as well.

The testimony concludes with several proposed amendments to Section 1201 including:

  • Attaching liability to circumvention only if it enables infringement
  • Placing the burden of proof on those opposing renewal of exemptions to demonstrate why it should not be renewed or should be modified
  • Making exemptions permanent if a second renewal is granted
  • Shifting final rulemaking authority from the Librarian of Congress to the Assistant Secretary for Communication and Information of the Department of Commerce