“Congress ‘should address Section 1201’s intrusion into the First Amendment and its broader chilling effects once and for all by codifying the sensible conclusion of the Federal Circuit that there can be no violation of Section 1201’s provisions without a nexus to copyright infringement.’” – Professor Blake Reid
On September 16, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled “Are Reforms to Section 1201 Needed and Warranted?”, which continued the Subcommittee’s year-long series of hearings on the Digital Millennium Copyright Act (DMCA). Chairman Thom Tillis (D-NC) began by explaining that section 1201 was Enacted in 1998 as part of the DMCA to protect against the circumvention of technological protection measures used by copyright owners to prevent unauthorized access to or use of their works, but the “tradeoff has been that consumers have to worry about violating section 1201 when they repair their devices…whether farm equipment, or cars or iPads that happen to rely on software for their operation.” Tillis said Congress needs to ensure that the “correct balance is still being struck.”
The U.S. Copyright Office
The first panel featured testimony by Regan A. Smith, General Counsel and Associate Register of Copyrights at the United States Copyright Office. Smith noted that the Copyright Office completed a comprehensive public study on section 1201 in 2017, wherein the Office considered comments “from stakeholders throughout the copyright ecosystem.” Based on the results of the study, the “Office implemented improvements to its administration of the rulemaking process that have significantly eased burdens on both participants and the Office, creating a more user-friendly process.”
Smith also noted in her written testimony that Section 1201 contains several permanent statutory exceptions for circumvention and, in some cases, trafficking activities for “circumstances involving nonprofit libraries, archives, and educational institutions; law enforcement, intelligence, and other government activities; reverse engineering to facilitate the development of interoperable computer programs; encryption research; protection of minors; protection of personally identifying information; and security testing.” Smith explained that the Copyright Office has sought to improve a common problem faced by petitioners seeking renewal of existing exemptions that required them to resubmit supporting evidence. The Office has implemented a streamlined renewal process wherein “a party seeking re-adoption of a current exemption may petition for renewal by submitting a form available on [the Copyright Office] website.”
Smith also noted that, while the copyright office considered requiring a “nexus” between circumvention of an access control and infringement of a copyright, the Office decided against recommending such an approach, noting that “stakeholders’ concerns are more properly addressed through a reliance upon existing statutory limitations, adjacent doctrines addressing anticompetitive behavior, as well as targeted updates to the permanent exemptions or expansion of the Office’s rulemaking authority.”
Noting that the Copyright Office takes the position that the anti-trafficking provisions provide critical enforcement tools against digital piracy, Smith explained both in her oral and written testimony that “stakeholders expressed concern that the prohibition against circumvention ‘service[s]’ may prevent third parties from offering assistance to exemption beneficiaries, out of a concern that such assistance exceeds the boundaries of permitted circumvention activities and constitutes trafficking activity.” She explained that the Copyright Office recommended amendment of “the statute to grant the Librarian discretion to adopt temporary exemptions that permit third-party assistance ‘at the direction of’ an intended user.” Smith also explained that the Copyright Office supports legislation to provide for presumptive renewal of exemptions adopted in the previous rulemaking cycle and believes that presumptive renewals will go a long way in making renewals easier for stakeholders and the Office.
The second panel included Vanessa Bailey, Global Director of Intellectual Property Policy at Intel Corporation; Professor Blake Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado Law School; Matthew Williams, Partner at Mitchell Silberberg & Knupp LLP; Seth Greenstein, Partner at Constantine Cannon LLP; Morgan Reed, President of the ACT, The App Association; and Aaron Lowe, Senior Vice President of Regulatory and Government Affairs at the Auto Care Association.
Bailey noted that Intel’s interest in section 1201 stems from its role in the integrated system that protects digital content and ensures that all Americans receive high quality content at reasonable prices. She also explained that Intel is a “creator of high quality digital content protection…[HDCP]- the technology that encrypts digital content as it travels over an HDMI connection” and section 1201 provides necessary support for Intel’s HDCP.
She also said that Intel strongly opposes “the suggestion that the only way to facilitate use of existing exemptions is to permit the trafficking of circumventing devices”, explaining that such trafficking threatens the digital content ecosystem and undermines the ability of consumers to access audiovisual content. She also noted that such trafficking could put “the trillion dollar digital industry at risk and abandon decades of cooperative investment and digital infrastructure.” “Anti-trafficking exemptions are a risky solution to a non-existent problem,” she said, adding that the Copyright Office already allows for third party exemptions for non-technical users. For example, the education exemption permits technical staff to circumvent on behalf of teachers. Thus, she said Intel feels anti-trafficking exemptions are more damaging than helpful. Bailey also noted that “the triennial exemption process has guaranteed that rulemaking under Section 1201 appropriately evaluates the need for real world, practical uses for protected content in various fair use contexts in the digital marketplace. The ultimate balance struck between content protection and fair use reflects the input of all interested parties and the expertise of the Register of Copyrights and the Librarian of Congress.”
Reid presented testimony emphasizing that Congress “should address Section 1201’s intrusion into the First Amendment and its broader chilling effects once and for all by codifying the sensible conclusion of the Federal Circuit that there can be no violation of Section 1201’s provisions without a nexus to copyright infringement.” According to Reid, such an action would maintain Section 1201’s protections for rightsholders while also shielding consumers from the burden of seeking prior government approval to engage in indisputably beneficial, non-infringing activities.
Williams testified on behalf of the Entertainment Software Association (ESA), Motion Picture Association, Inc. (MPA), and Recording Industry Association of America, Inc. (RIAA). He argued that “no legislative changes to 1201 are necessary,” explaining that it is “critically important” that the right against unauthorized access stands alone and remains independent from acts of traditional copyright infringement.
Greenstein explained that “congress intended Section 1201 to protect copyrights, not business models” and noted three main points:
(1) Congress should allow the Librarian to make exemptions permanent;
(2) Congress should allow consumers and small businesses to access the means to circumvent so that they may competitively repair consumer products with embedded software; thus, “Congress should amend Section 1201 so that Sections 1201(a)(2) and (b) shall not apply to any person that manufactures or distributes the means to circumvent as used in support of a granted exemption for the purpose of enabling lawful repair of products whose functions are controlled by embedded software”; and
(3) Congress should make the Section 1203(c)(2) provision on “Actual damages” reciprocal in order to provide a meaningful deterrent and remedies for DMCA misuse.
Reed testified on behalf of The App Association and explained that “the technical protection measures (TPM) and legal protections of the DMCA not only secure the economic viability of the business, they also help them to secure software so that their customers, and ultimately the consumer, are safer.” He said the App Association’s view is that the current triennial review process works and the three-year window gives all parties a chance to voice concerns. Thus, he did not recommend amending the statute to require more or less frequent reviews.
Lowe presented the testimony of the Auto Care Association,explaining that the ability for consumers to obtain affordable repairs is being challenged like never before because vehicles have essentially become “computers on wheels.” He said the Auto Care Association “believes that Congress should consider amending [the] DMCA to ensure that the Act cannot be used to provide for otherwise lawful use of software for the production of competitive parts or repair of products.” He added that currently available temporary exemptions “are extremely limited in scope and many entities involved in the vehicle repair process do not have the know how or means to circumvent the TPMs being utilized by manufacturers.”
Lowe further explained that the Association recommends that the DMCA be amended to ensure that the law cannot be used to prevent aftermarket companies from carrying out legal activities necessary to build compatible replacement parts or to undertake repairs. He concluded by noting that the “Association strongly encourages that the exemption process be revised such that exemptions be permanent subject to review every three years if they are challenged[, and absent] any challenge, the exemption remains in place without any action needed by the Copyright Office.”