Technology: DMCA Reform Bill Introduced

Abstract

Sen. Ron Wyden (D-OR) and Rep. Jared Polis (D-CO) on April 16 introduced the Breaking Down Barriers to Innovation Act, a bill that would make significant changes to Section 1201 of the Digital Millennium Copyright Act (DMCA), which gives the Library of Congress (LC) the power to grant exemptions to DMCA's ban on circumventing digital rights management (DRM) software, encryption, or other digital restrictions.

Technology: DMCA Reform Bill Introduced

Bill would automatically renew DMCA exemptions

Sen. Ron Wyden (D-OR) and Rep. Jared Polis (D-CO) on April 16 introduced the "Breaking Down Barriers to Innovation Act," a bill that would make significant changes to Section 1201 of the Digital Millennium Copyright Act (DMCA), which gives the Library of Congress (LC) the power to grant exemptions to DMCA's ban on circumventing digital rights management (DRM) software, encryption, or other digital restrictions.

Since its passage in 1998, DMCA has made it a criminal offense to circumvent copy protection and security technology on consumer products, even when the ultimate use of the protected content does not violate copyright. Critics have long described DMCA as too broad. It was intended to target piracy, but the letter of the law also makes it illegal to circumvent DRM to enable text-to-speech functionality for vision-impaired readers, or to unlock a smartphone, enabling a consumer to switch cellular providers, to cite just two of many issues that have arisen in the past 17 years. Section 1201 was conceived as a "fail-safe" mechanism, giving LC broad powers to grant exemptions to DMCA in a process that occurs once every three years.

A more activist Librarian of Congress might have obviated the need for this legislation. Copyright lawyer and Library Copyright Alliance counsel Jonathan Band noted that the current statute grants the Copyright Office a great deal of leeway for determining how rule-making should be conducted. The problem is that LC has been very conservative in its approach and that the resulting system stacks the deck against those applying for exemptions.

LC already "has the ability to fix a lot of the problems [addressed by the bill] itself," Band said.

The rule-making statute orders the register of copyrights and the assistant secretary for communications and information of the Department of Commerce to consult with each other and offer recommendations for exemptions to the Librarian of Congress once every three years.

The Librarian of Congress is then required to gauge the need for and impact of each potential exemption using four specific standards: the general availability for use of copyrighted work; the availability for nonprofit archival, preservation, and educational purposes; the impact that prohibition of circumvention has on criticism, comment, news reporting, teaching, scholarship, or research; and the effect of circumvention on the market or value of copyrighted works. A fifth standard allows the Librarian of Congress to consider "such other factors as the Librarian considers appropriate."

Broad powers, narrow view

LC and its copyright office is tasked with weighing the access needs of U.S. citizens and organizations such as libraries against the needs of individual rights holders and corporations. But when determining whether exemptions are needed, the office places the burden of proof on the entity requesting that exemption, Band said.

Occasionally, demand for an exemption rises to the level of public outcry, as it did recently when LC let lapse an exemption from 2006 and 2009 that had allowed consumers to "unlock" cellular phones to switch carriers. Congress ultimately intervened to pass the "Unlocking Consumer Choice and Wireless Competition Act," which President Barack Obama signed in August 2014, making the exemption permanent.

Still, generally speaking, citizens are dependent on nonprofit consumer advocacy organizations such as the Electronic Frontier Foundation (EFF) and Consumers Union to write these exemption requests and mobilize support, and these organizations must argue their cases anew every three years, often going up against entrenched corporate interests.

Meanwhile, new fronts on this digital copy protection battlefield continue to emerge. This year, for example, John Deere and General Motors are arguing that altering the software used in tractors and cars should be a considered a violation of DMCA, making it illegal to modify, repair, or use nonapproved diagnostic equipment on these vehicles, explained iFixit founder Kyle Wiens in an April 21 article in Wired . EFF is arguing that car and tractor parts should be exempt for the next three-year period.

Placing the burden of proof on consumer advocates, then requiring those groups to start from scratch every three years and re-petition for previously successful exemptions, is an onerous and unnecessary process, Band argued.

"There's nothing in the statute about burden of proof," he said. And while the legislative history does suggest that these exemption requests should be conducted "de novo" or "from the beginning," Band said that there is nothing preventing the Copyright Office from taking into account that an exemption was granted before, or automatically renewing exemptions unless an opponent presents a compelling case for its cancellation.

"They could do all kinds of things to lighten the burden, but they have chosen not to," Band said. "They have converted the rule-making [process], which is supposed to be policy oriented, very much into an adjudication. Even the notion of burden of proof, that is a concept from an adjudication, not a rule-making."

New approach

The "Breaking Down Barriers to Innovation Act" orders LC to handle the rule-making and exemption process differently. Notably, it would add language to DMCA prohibiting LC from assigning the burden of proof to the proponent of an exemption and ordering exemptions to be automatically renewed unless the Librarian of Congress determines that circumstances have changed. It also orders the Librarian of Congress, the register of copyrights, and the assistant secretary for communications and information of the Department of Commerce to conduct a study on ways to make it easier for people to request exemptions. The bill would also add language clarifying exemptions for encryption research, security testing, strengthening privacy, and reverse engineering and would empower LC, at its own discretion, to conduct rule-making outside of these current three-year reviews.

Regardless of the progress of this bill, the sixth triennial DMCA rule-making proceeding will take place this summer. LC and its copyright office will be considering several exemptions, including "jailbreaking" provisions for tablets and mobile devices to remove unwanted software, permission to circumvent DRM to extract fair use-protected clips from DVDs and Blu-ray discs, and even an exemption request for circumventing the firmware and software used to operate 3-D printers.