In the second part of its Copyright Reform Act project, Public Knowledge (PK) today suggested critical changes to the Digital Millennium Copyright Act (DMCA) to correct crucial flaws in the law’s section that covers permissible circumvention of technological protection measures.
The latest PK report about Section 1201 of the DMCA found that the law “fails to appropriately distinguish between circumvention for lawful purposes and circumvention for unlawful purposes, causing a range of harmful effects to befall creators, consumers, researchers, innovators, and competitors.” At the same time, the report found, that the “anti-circumvention provisions have failed to provide copyright owners adequate relief from large-scale infringement.”
To remedy the situation, PK proposed two simple changes to the DMCA. First, Section 1201(a)(1), which now bans circumventing a technological protection measure which that “controls access” to a copyrighted work would should be changed “to allow circumvention for the purpose of making a non-infringing use of the protected work.”
Second, Section 1201(a)(2) and Section (b)(1), which ban the making and distribution of circumvention tools, should be amended to permit the making and distribution of tools capable of enabling substantial non-infringing use of a work, in order to give those making lawful uses the practical ability to circumvent.
PK said those these reforms “refocus the anti-circumvention provisions on preventing and punishing circumvention for the purpose of infringement; they also reinstates copyright law’s longstanding balance between rewarding authors on the one hand, and supporting the public’s interest in innovation, creativity, and access to information, on the other hand.” The changes would allow the DMCA to conform to the 1984 U.S. Supreme Court case Sony v. Universal, which established the right to make devices that have both infringing and non-infringing uses, such as video recorders.
According to the proposals, “The proposed reforms both aligns with Congress’s intent to distinguish between devices that serve legitimate and non-legitimate purposes, and preserves liability for tool manufacturers who distribute tools that would not pass muster under secondary liability rules. The proposed reforms thus creates a safety valve that allows honest users to be separated out from bad actors, while leaving § 1201’s core protections in place.”
The report was drafted on behalf of PK by students Pan Lee, Dan Park and Allen Wang of the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law.
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