·  by Krista Cox

1201 Rulemaking for a New Era?

Originally Posted On: ARL Policy Notes

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.