On Wednesday, the Senate IP Subcommittee held a fifth hearing in its ongoing investigation into the viability of the Digital Millennium Copyright Act (DMCA) twenty-two years after its enactment. Titled Are Reforms to Section 1201 Needed and Warranted?, the hearing featured two panels of copyright experts from government, industry, and academia discussing the current state of Section 1201 of the DMCA, which deals with the circumvention of copyright protection systems.
Subcommittee Chairman Thom Tillis (R-NC) opened the hearing by explaining that the goal of the meeting was to explore potential reforms of the “self-help provision” of the DMCA, which gives copyright owners a cause of action when someone circumvents the technological protection measures (TPMs) employed to prevent unauthorized access to copyright protected works. Stressing the importance of Section 1201 in striking a balance between the needs of copyright owners and consumers, Tillis said that he was particularly interested in hearing from the witnesses about ways to streamline 1201’s triennial rulemaking process and the possibility of amending the statute to permit expanded exemptions for third-party assistance.
Ranking Member Chris Coons (D-DE) also delivered brief opening remarks, echoing Tillis’s concern for balancing the needs of copyright owners and consumers. Coons also explained that the drafters of the DMCA had the foresight to craft a flexible framework to establish reasonable exemptions, and he welcomed input from the witnesses about whether the existing flexibility is sufficient.
After opening remarks, witness testimony began with Regan Smith, General Counsel and Associate Register of Copyrights at the U.S. Copyright Office. Smith was the sole witness on the first panel, which was designed to allow the Subcommittee to draw on the deep experience of the agency in charge of administering the 1201 rulemakings. Describing the protections of Section 1201 as integral to discouraging piracy over the past 20 years, Smith also explained that the law has allowed innovative companies to provide consumers with a wide array of content delivery systems at a variety of price points.
Smith also recognized that much has changed since the enactment of the DMCA, and 1201 now applies to a number of activities not previously implicated by copyright. Notwithstanding advances in technology that could not have been anticipated in 1998, Smith explained that 1201 was designed to be flexible and that the triennial rulemakings were put in place to ensure that lawful uses are not impeded. Smith referenced the Copyright Office’s comprehensive 2017 policy study on Section 1201, after which the Copyright Office implemented a streamlined renewal system for non-controversial exemptions. The study also considered narrowing the statute to require a nexus between circumvention and copyright infringement, but ultimately found the overall scope and structure of 1201 remains sound and did not recommend any legislative reform. (see the Copyright Alliance’s comments in response to the Copyright Office 1201 study here and here)
Smith went on to say that the Copyright Office recommends that Congress provide discretion in the rulemaking to adopt exemptions that would permit third-party assistance at the direction of an intended user—an exemption that would benefit those who lack expertise to lawfully circumvent protection measures themselves. Finally, Smith explained that the Copyright Office has recommended new permanent exemptions for activities that have been repeatedly found to be exempt or where there is a broad base need, including access for the visually impaired, the repair of computer programs, and the unlocking of mobile devices. Smith’s written testimony can be found here.
Tillis then opened up the question session by asking Smith if she was aware of any suggested changes to 1201 that the Copyright Office does not believe would be beneficial. Smith said that the Office does not believe a change to the overall structure of 1201 to require a nexus between circumvention and copyright infringement is needed, as it does not fit with Congress’s intent in creating an independent anti-circumvention right that complies with the World Intellectual Property Organization (WIPO) internet treaties.
Tillis then asked if there was anything Congress should consider in order to lessen the burden on the Copyright Office and the participants in the 1201 rulemaking process. Smith said that the Copyright Office believes the newly implemented streamline procedures have gone a long way towards lessening the burden on those seeking exemptions and that it would be helpful if the law was amended to provide for a burden shifting framework so that there is a presumption of renewal for exemptions adopted in the previous rulemaking cycle.
In response to Tillis final question on how the rulemaking process has changed in the five years since she has been with the Copyright Office, Smith said that there has been a large increase in exemptions being sought related to interoperability and the Internet of Things, and that this shift resulted in the streamlined procedures now in place.
Ranking Member Coons then asked Smith what safeguards are in place to prevent third parties from exploiting a possible loophole in an exemption meant to allow them to assist with legitimate circumvention. Smith said that the Copyright Office’s recommendation is that it have discretion to make proposals to the Library of Congress on a case-by-case basis, rather than create an across-the-board exemption that may be subject to abuse.
Coons followed up by asking what policy concerns influenced the Copyright Office’s decision not to permit a blanket exemption for “any lawful or non-infringing use.” Smith said that the Copyright Office looked into what Congress intended in enacting 1201’s separate rights and found that ultimately the rulemaking is set up to provide specific, rather than blanket, exemptions. She noted that the rulemaking has been largely successful, that exceptions like fair use are always applicable, and there are serious concerns that broad exemptions may undermine the ability of 1201 to provide a separate anti-circumvention right.
Coons then asked how else the Copyright Office would suggest streamlining the rulemaking process for stakeholders who have to participate every three years and for the Office charged with managing the rulemakings. Smith responded by again referencing the presumptive burden rule that may make the process more efficient for stakeholders as well as the possibility of expanding some permanent exemptions in order to focus the rulemakings on new technological and marketplace developments. She also reiterated that allowing the Copyright Office discretion to make recommendations to the Library of Congress with regard to third party assistance would help the exemptions reach their intended beneficiaries.
Senator Blumenthal then shifted the discussion towards election security, asking Smith whether a permanent exemption for research involving voting machines and election technology should be considered in an attempt to guard against cybersecurity threats from foreign adversaries. Smith responded by reminding the Subcommittee that 1201 already includes an exemption for security testing and that Copyright Office has recommended statutory exemptions for security research generally.
Blumenthal then asked whether 1201’s limitations on the use of consumer products have expanded beyond the scope of what Congress intended and how the Internet of Things has changed how consumers approach circumvention. Smith explained that 1201 was purposely structured to a be flexible in the face of changing technology and innovative consumer products, and that it has been largely successful in addressing questions of interoperability and the repair of consumer products—specifically through exemptions granted for the repair of agricultural machines in the most recent rulemaking. Smith also noted that existing exceptions to copyright law, including fair use, accommodate many of the new circumvention activities related to computer software and consumer products.
Tillis concluded the first panel by thanking Smith for her testimony and noting that the Subcommittee members may submit additional questions for the record.
The second panel began with testimony from Vanessa Bailey, Global Director of Intellectual Property Policy at Intel Corporation. Bailey opened her remarks by explaining that, as a leading manufacturer of high-quality digital content protection technologies, Intel relies on Section 1201 to effectively guard the content ecosystem. She stressed that the combination of technological protections measures (TPMs) and the legal protections provided by the anti-circumvention provisions of Section 1201 allow companies like Intel to broadly distribute their products without fear of infringement.
Bailey also suggested ways that Section 1201 could be improved, including granting the Copyright Office discretion to remove the requirement that petitioners justify the renewals of the same exemption. She also recommended that after two consecutive exemptions are granted, the Copyright Office should have the power to suspend additional petitions and create a continuing exemption absent objections. Finally, Bailey made clear that Intel is strongly opposed to any expansion of exemptions to anti-trafficking provisions, as users can already employ tools through existing exemptions, and any change would be a “risky solution to a non-existent problem.” Bailey’s written testimony can be found here.
Next to testify was Professor Blake Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado School of Law. Reid argued that 1201’s primary effect has been to chill the activities of people involved in non-infringing activities and that participation in the triennial review is overly burdensome. He also claimed that there should be a nexus requirement between copyright infringement and circumvention activities, which, as Regan Smith pointed out during the first panel, was rejected by the Copyright Office after thorough examination of Congress’s intent in enacting Section 1201.
Reid also said that the current 1201 framework does not effectively take into consideration the needs of security researchers, whose work depends on overriding digital protections to fix vulnerabilities in voting machines. But, as Smith noted in her testimony, 1201 already provides permanent exemptions for voting machine related circumvention under 1201(e) for “Law Enforcement, Intelligence, and Other Government Activities.” Reid’s written testimony can be found here.
Matthew Williams, a Partner at Mitchell, Silverberg & Knupp specializing in copyright and entertainment industry matters, testified next on behalf of the Entertainment Software Alliance (ESA), the Motion Picture Association (MPA), and the Recording Industry Association of America (RIAA). Williams focused on the tremendous benefits Section 1201 has created for copyright owners and consumers by providing protections against piracy while at the same time allowing for the development of innovative business models and a variety of content delivery systems at different price points. He explained that it is critical that the right against unauthorized access continue to stand alone and independent from acts of traditional copyright infringement, as unauthorized circumvention often does not involve acts of infringement.
Williams also stressed the critical importance of anti-trafficking provisions, which prevent the growth of businesses designed to profit from enabling unauthorized access to copyright protected works. He strongly recommended against any weakening of these provisions that would result in the widespread availability of tools that would enable mass infringement. Ultimately, Williams said that the organizations he represents do not recommend any legislative changes to the current rulemaking process or other provision of Section 1201. Williams’ written testimony can be found here.
Next to testify was Seth Greenstein, a Partner at Constantine Cannon LLP, who began by stating that his views on Section 1201 have been informed by his representation of clients who have both benefitted from and been harmed by an “effusive” statute. Greenstein claimed that 1201 has been misused by manufacturers to prevent lawful diagnosis or repair of consumer products, and that the problem will get worse as software becomes ubiquitous in the Internet of Things. Arguing that Congressional action is needed, Greenstein suggested that the Librarian of Congress should be authorized to make certain exemptions permanent after two consecutive approvals.
Greenstein also claimed that Section 1201 “suffers a legal fiction” that an exemption to circumvent somehow bestows the ability to circumvent, arguing that ordinary users often lack the expertise create and make use of circumvention tools. But Greenstein’s testimony failed to recognize that the intent of Section 1201 was never to provide users with the easiest possible avenues to override protection measures, but rather to ensure that the use of certain technologies will be exempted from violations when used for a lawful purpose.
Finally, Greenstein suggested Congress provide a deterrent and remedies for DMCA misuse by making 1203(c)(2) provision on actual damages reciprocal, yet no evidence that 1201 misuse is a problem worthy of Congressional intervention was cited in his oral testimony or written remarks, which can be found here.
Morgan Reed, President of ACT (or The App Association), then testified on behalf of the roughly 5,000 small-to-mid sized software and connected device companies his organization represents. Reed explained that ACT members rely on strong copyright laws to protect their businesses, and they rely specifically on Section 1201 to secure their software and provide safe products to customers and consumers. Turning to technological protections measures, Reed said they have taken on an even greater importance during the global pandemic when data activities related to health care, education, and finance have moved almost entirely online.
Reed went on to list a number of leading software companies located within members of the Subcommittee’s home states, emphasizing that their innovative growth is dependent upon the flexible and effective 1201 rulemaking process. In Reed’s view, Section 1201 continues to work as Congress intended, and he made no recommendations for change. Reed’s written testimony can be found here.
Last to testify was Aaron Lowe, Senior Vice President of Regulatory and Government Affairs for the Auto Care Association, who argued that Section 1201 is being used by manufacturers to prevent lawful vehicle software repairs. Lowe claimed that DMCA could never have contemplated current vehicle control software systems, and 1201 is now being wielded offensively by manufacturers to stop competition in the vehicle repair marketplace. He recommended that Congress amend the DMCA to ensure that Section 1201 cannot be used to stop otherwise lawful use of software by allowing for broad exemptions for third party assisted circumvention. In Lowe’s view, the exemptions granted in the triennial rulemaking are limited, and Congress should consider making exemptions related to auto repair permanent absent any challenges. Lowe’s written testimony can be found here.
In an abbreviate question and answer session, Ranking Member Coons began by asking Matthew Williams the extent to which the industries he represents rely on 1201 to thwart piracy and how he responds to those who say 1201 interferes with free speech. Williams answered that 1201 has enabled creative industries to protect against unauthorized access through the use of TPMs, and that has in turn led to the continual roll out of innovative products while at the same time deterring piracy. He also noted that while First Amendment concerns have been raised in multiple lawsuits, courts have so far found Section 1201 to be constitutional.
Coons then asked Vanessa Bailey and Morgan Reed whether the Librarian of Congress should be provided the flexibility to allow consumers to seek third party help. Reed said that a robust ability for customers to hack devices already exists through authorized repair centers, and that opening the door to further legislative action would threaten a flexible system that is already working. Bailey agreed that legislation isn’t necessary given the existing exemptions that serve the needs of users and private ordering that continues to solve real word problems. Both Reed and Bailey reiterated that any expansion to the anti-trafficking provisions is unwarranted and the negative effects on the marketplace would be permanent.
Senator Blumenthal then returned to the election security issue, asking the panel whether in light of the threat to voting machine integrity, that promoting research on election security warrants granting a permanent 1201 exemption. Blake Reid responded by claiming that voting machine vendors interfere with good faith security research, and that a permanent exemption is critical to cybersecurity. Morgan Reed then said that while ACT would ultimately be supportive of voting machine exemptions, it could be handled by the Copyright Office and there is no need for a legislative fix. After Bailey said that the current triennial rulemaking process should be respected, Reid argued that the issues related to election integrity are too urgent to wait for the next rulemaking. Finally, Williams said that while his clients would likely be supportive of broader exemptions related to voting machine technology, any proposed statutory change would need to be carefully considered for unintended consequences.
The question and answer session was cut short due to a vote, but Tillis concluded by thanking the witnesses and assuring the panel that he would follow up with written questions for the record.
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