This summer, the Copyright Office released a study on Section 1201 of the Digital Millennium Copyright Act. Section 1201 is the provision of the law that allows copyright owners to digitally lock you out of your own stuff, preventing everything from connecting your cellphone to a different carrier, to ripping your DVDs to your tablet, to accessing the diagnostic system in your car. We’ve long advocated for reforming this law which unnecessarily limits user rights, and actively participated in the Office’s study of Section 1201. The resulting report is less than we hoped for; while the Office has recommended some important and needed changes to the law and its application, it mostly leaves the law in place and has us asking what could have been. The report does, however, reveal something interesting about how the Copyright Office thinks about Section 1201–namely, when it chooses to believe (or not believe) the users.
As we told the Copyright Office in our written comments and testimony, Section 1201 gave away users’ rights to do what they want with copies of copyrighted works that they own, whether they were expressive works like movies or e-books, or software embedded in their smartphones and farming equipment. For the first time, it required users to get permission to do anything, even if it didn’t infringe the copyright owner’s rights. We’ve always thought that was a bad bargain, and that the law’s limited protections for fair use and other lawful activity were inadequate. Users ranging from filmmakers, to libraries, to repair businesses, to security researchers were unanimous in their criticism of Section 1201, and continued to say so in their submissions to the Copyright Office leading up to this report. Unsurprisingly, the content industries, including the MPAA, RIAA, AAP (the publishing industry), and ESA (the video game industry), claimed that everything was fine and that no changes to the law were needed.
The Office, in keeping with its history of endorsing the views of the content industries, largely accepted the content industries’ position that nothing needed changing, with a few exceptions. What’s telling is which exceptions the Office made. The big news to come out of this report is that the Office has endorsed requests from security researchers and cryptographers to improve the statutory exemptions that those groups of users should be able to rely on, but historically have been unable to because they were drafted too narrowly, as well as requests from the repair community to create a new permanent exemption for diagnosis, repair, and maintenance of computer programs. What those uses have in common is that none of them involve traditional uses of media, like using film clips in documentaries or in the classroom, or libraries making archival copies of born-digital works. When it came to libraries, documentary filmmakers, educators, and other user groups, the Copyright Office wasn’t willing to believe us when we said the law was broken, and was only willing to endorse modest changes that largely leaves the burden on users.
While it’s good to see the Office reject the content industries’ wholly unqualified opinion on what legal protections security researchers and tractor mechanics need, we’d like to see them extend that benefit of the doubt to other users as well. Simply put, we want to see the Copyright Office believe users; believe libraries when they say that the existing statutory exemption is of little value to them unless it’s expanded; believe filmmakers when they say appearing every three years to request permission to engage in obvious fair uses is burdensome; and believe users when they say that the fear of ruinous litigation over ambiguous language discourages them from acting.
Even where the Office did make concessions to the rest of the user community, those concessions are colored by fears of unspecified harms expressed by the content industries. For example, the Office recommended that Congress expressly permit users to get help in making use of exemptions–but not all exemptions. Instead, users would have to prove that they needed help for each exemption category. What is the benefit of this added burden? What harm is being prevented by limiting which users are allowed to get help using exemptions that have already been granted by the Office? This is a limitation for the sake of limitation. Similarly, in a major departure from prior proceedings, the Office has agreed to streamline the process for re-approval of previously granted exemptions. Depending on how the Office implements this process, it could be a substantial improvement, and eliminate some of the most frustrating aspects of the exemption process. But even here, the Office fretted about the possibility of leaving “outmoded” exemptions on the books. Suppose there were an exemption for using film clips from DVDs and Blu-rays in a classroom. The Office is worried that an exemption may still be available for DVDs when the film is also available in Blu-ray. It’s worth remembering that exemptions are only ever granted for non-infringing purposes. So what exactly is the harm here? Again, this is seeking a limitation just in case the copyright industries might be harmed.
Those looking to defend the Office’s report as being balanced may point to the Office’s recommendation that a permanent exemption be granted to allow the visually disabled to use screen reading software on e-books that lack text-to-voice capabilities, over the opposition of the MPAA, RIAA, AAP, and ESA. First, let that sink in. The content industries would rather have people with a visual disability ask for permission every three years than be able to read books that they’ve legally obtained, all to guard against the chance that they might somehow be harmed by giving them permission once and for all. Second, it’s hardly a major concession by the Office, as it itself acknowledges that this permanent exemption is probably required by the Marrakesh Treaty, to which the U.S. is a signatory.
The Office’s recommendations, although containing some welcome reforms, ultimately leave much to be desired. Now it is Congress’s turn to finally take action. Will they give Section 1201 the hard look that the Copyright Office failed to give it, and believe users, whose grievances are meticulously laid out in this report and its record, or will they accept the content industries’ assurances that all is well?
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