The 1201 Hearings- Protecting Business Models or Promoting Creative Progress?
The 1201 Hearings- Protecting Business Models or Promoting Creative Progress?
The 1201 Hearings- Protecting Business Models or Promoting Creative Progress?

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    week, a revolving door of digital media users took turns pleading with the
    Copyright Office for permission to use their content. Teachers and
    documentarians sought the right to create high-quality video clips for use in
    their classrooms and documentaries; the visually impaired argued for the right
    to enable read-aloud functionality on eBooks and enjoy movies with narrated visual
    descriptions; and Public Knowledge, advocating for the public at large, sought a
    right to copy lawfully owned DVDs for personal use (e.g. to play a DVD movie on
    an iPad, or similar device).

    did we arrive at this place, where copyright users must ask permission to use lawfully
    acquired content in non-infringing ways? The short version of the story goes
    like this:

    1998, Congress enacted Section 1201 of the Copyright Act as part of the Digital Millennium Copyright Act (DMCA), making it illegal to circumvent access controls to copyrighted works. Section
    1201 was a simple answer to a complex issue: by making copying easier than
    ever, digital media threatened to undermine the copyright industries’ ability
    to control and sell copies of creative content – the foundation of their business

    only safety valve to this provision is the requirement for a triennial
    rulemaking proceeding. During this proceeding, the Copyright Office accepts
    proposals for exemptions to the anticircumvention rule, hears testimony from the
    proponents (and opponents) of proposed exemptions, and issues final recommendations
    for the Librarian of Congress’ approval (prior recommendations can be found here).

    In the
    current rulemaking proceeding, Public Knowledge proposed an exemption for consumers
    who circumvent access controls to create personal copies of lawfully owned
    DVDs. Just as ripping music from a lawfully owned CD to an iPod – i.e. “space
    shifting” – for personal use is non-infringing, presumably, so too is space
    shifting a movie from a lawfully owned DVD to an iPad. In effect, the only
    thing standing between the purchaser of a DVD movie and his or her right to
    watch that DVD on a tablet is Section 1201.

    At the
    final rulemaking hearing, Public Knowledge Staff Attorney Michael Weinberg contended,
    “people already believe that [making personal copies of DVDs] is legal. […] I can’t
    think of any harm that would result from exempting this common practice.” When
    the Copyright Office asked the lawyers representing the content industry (i.e.
    the opponents) to respond, they argued that the exemption threatened to harm
    the market for online digital movie sales.

    another way, the opposition claimed that their clients would suffer harm without the legal right to charge consumers
    a second time for the exact same movie they had already purchased on DVD. Public
    Knowledge rebutted, “for there to be a legitimate harm, there must be a
    legitimate benefit to begin with, and the Copyright Office would be wise to
    avoid legitimizing this practice.” Still, the Copyright Office seemed content
    that the opponents had identified a potential harm, regardless of its relative

    to the dialogue at these hearings – to documentarians impeded in their ability
    to use high quality content in their films and books; to technology enthusiasts
    unable to install the operating system of their choice on a computer they
    legally own; to educators unable to create and customize high quality content to
    improve their lessons; and the list goes on – one must question whether the
    existing copyright regime is doing more to protect business models than to promote
    the progress of creativity for the public good (i.e. the constitutional purpose
    of copyright).

    combination of digital media and the Internet have given rise to what some
    refer to as the “participation age.” In this participation age, creativity and
    the public good might both be better served by a copyright framework that grants
    users affirmative rights, as opposed to a system that requires users to plead
    for narrow exemptions every three years.

    In the
    aftermath of this latest round of rulemaking, much attention will be paid to
    which exemptions were approved, and which were set aside. Such analysis is
    important, as these exemptions will become the law of the land. However, as we
    wait to learn whether it is legal to jailbreak a smartphone, or to make a
    personal copy of a DVD, it is also important that we not lose sight of the forest
    for the trees.