Update on the 2018 Triennial 1201 Rule-Making

The Copyright Office has once again opened its triennial rulemaking proceedings for exemptions to the anti-circumvention clauses of the Digital Millennium Copyright Act (“DMCA”). This will be the seventh iteration of the rulemaking proceedings for the Copyright Office since Congress enacted 17 U.S.C. § 1201 in 1998 to reinforce copyright protection against an envisioned increase in piracy due to technological advancement. The anti-circumvention law prohibits the use of technology to bypass technology protection measures (“TPM”) that copyright owners implement, such as encryption tools that prevent consumers from copying movies or songs off a disk or simple password systems for website content or software “locking” mechanisms that prevent copying. Unfortunately, the broad reach of 17 U.S.C. § 1201 also jeopardized many otherwise non-infringing and publicly-beneficial activities that may require circumventing TPMs.

An artificial pacemaker (serial number 1723182) from St. Jude Medical, with electrode. By Steven Fruitsmaak, CC BY 3.0  http://creativecommons.org/licenses/by/3…), via Wikimedia Commons.

In an effort to rescue circumvention for lawful purposes, Congress identified certain classes of permanent exemptions to the anti-circumvention law, allowing, for example, reverse engineering research and security testing to be valid reasons for circumventing technological protections measures. In addition to the permanent exemptions, Congress also created the triennial rulemaking mechanism which creates 3-year temporary exemptions as a catch-all to prevent the anti-circumvention law from prohibiting lawful practices.

For the upcoming 2018 rulemaking proceedings, the Cyberlaw Clinic has submitted an anti-circumvention exemption request on behalf of the Software Preservation Network (“SPN”) and a renewal request on behalf of a coalition of medical device patients and researchers (“Medical Device Coalition”) for the Copyright Office’s seventh triennial rulemaking proceedings for anti-circumvention exemptions under the Digital Millennium Copyright Act (“DMCA”). SPN seeks an exemption for libraries and archival institutions to circumvent technology protection mechanisms for the preservation of software for future research or usage. The Medical Device Coalition seeks a renewal for an exemption that the Cyberlaw Clinic successfully helped to secure in the 2015 rulemaking proceedings, which permits patients and security researchers to circumvent technological measures in medical devices to access output data. The SPN petition and medical device renewal request join 22 other new exemption petitions and 38 other exemption renewal requests submitted for the 2018 rulemaking proceedings.

Updating the DMCA Exemption Rulemaking Process

To improve the rulemaking process for the upcoming seventh triennial rulemaking proceedings, the Copyright Office recently conducted a study of 17 U.S.C. § 1201 by receiving public comments on the statute’s effectiveness, the permanent exemptions, and the rulemaking process. The criticisms targeting the rulemaking process generally addressed two problems: (1) lack of clarity in the criteria used to review the exemptions; and (2) the extensive work required to process a petition seeking renewal of an existing exemption. For the Copyright Office’s study, the Cyberlaw Clinic submitted a public comment requesting increased predictability and clarification of the criteria used in the rulemaking process. In a report generated from the comments from the study, the Copyright Office clarified the criteria it will use for the 2018 rulemaking process and introduced a new streamlined renewal procedure detailed below.

Petitioning for a New Exemption

The basic framework of the 2018 rulemaking process for petitions seeking new exemptions will not be different from that used in the sixth triennial rulemaking proceedings in 2015. The process begins with the submission of petitions detailing only the scope of the exemption requested—the petitioner does not have to submit any background or legal facts in support of the exemption during the petition phase. Following the petitions, the Copyright Office will group the petitions into distinct classes and invite public comments on the proposed exemption classes through a Notice of Proposed Rulemaking. The commentary period is divided into three rounds: (1) comments with legal and evidentiary facts from supporters or neutral parties regarding the proposed exemptions; (2) comments with legal and evidentiary facts from opposing parties regarding the proposed exemptions; and (3) limited comments from supporters or neutral parties in response to arguments raised in an earlier round of comments. The third round of comments will not raise new issues regarding the exemptions. The Copyright Office will hold public hearings following the final commentary round to address specific issues identified in the comments. With the information gathered from the comments and the public hearings, the Register of Copyrights, in consultation with the National Telecommunications and Information Administration (“NTIA”), will then make a final recommendation to the Librarian of Congress, often constricting the scope of many requested exemptions. The Librarian of Congress will then review the recommendations and issue a final list of exemptions in the Federal Register.

The New Streamlined Renewal Process

Prior to the enactment of the renewal process for the seventh triennial rulemaking proceedings, all renewal requests were treated as new petitions that required the same arduous 3-round commenting process even though the existing exemptions had already been filtered through the same commenting process three years prior. Critics of the rulemaking process found the process to be inefficient and redundant.

As mentioned above, the Copyright Office implemented a streamlined renewal process for the seventh triennial rulemaking proceedings in response to the public comments from its DMCA study. Instead of submitting a new petition, renewal proponents submit a separate renewal petition detailing the basis for its request to renew an existing exemption. Specifically, the Copyright Office requires a statement that explains how there has been no changes in the law that would prohibit the exemption and that failure to renew the exemption would lead to the detrimental ban of non-infringing uses of copyrighted works. The renewal process is available only for exemptions as they currently exist—expansion of current exemptions must go through the standard new petition process.

During the collection of renewal requests, the Office will also collect comments regarding any meaningful opposition—“new developments in case law or new factual evidence”—to the renewal requests. Any renewal request facing meaningful opposition will be treated as a new petition and filtered through the standard rulemaking process. If a renewal request is unopposed, the renewal will be automatically granted and published in the Federal Register.

Petitions submitted for the Seventh Triennial Rulemaking Proceedings

In the current round of proceedings, there are 23 new exemption petitions and 39 renewal requests. The new exemption petitions include: (1) expansion requests for current exemptions, such as expansion of the current video game exemption, requested by the Museum of Art and Digital Entertainment, to include multiplayer online games, video games with online multiplayer features, and massively multiplayer online games (MMOs); (2) new classes of exemptions, such as a petition submitted by the Electronic Frontier Foundation (“EFF”) to allow circumvention for the repair and diagnosis of a software-enabled device. All petitions and renewals can be found here.

To general surprise, there was only one opposition comment submitted on behalf of The Software Alliance opposing the renewal of the “jailbreaking” exemption. The Software Alliance cites three claims in its opposition: (1) that “jailbreaking” may compromise the security and integrity of device platforms, increasing risks of privacy violations; (2) that alternatives to circumvention may exist; (3) the exemption may violate § 1201 by facilitating piracy of software applications.

Four other comments submitted on behalf of The DVD Copy Control Association (“DVD CCA”) and The Advanced Access Content System Licensing Administrator (“AACS LA”), the Alliance of Automobile Manufacturers (“AAM”), and an alliance of Joint Creators and Copyright Owners raise concerns with the renewal process. The comments submitted by the DVD CCA, AACS LA, and the AAM raise concerns that certain renewal requests include expansions that should be filtered from the renewal petition or otherwise treated as a new exemption petition. The comment submitted by the Joint Creators and Copyright Owners highlight concerns regarding the streamlined renewal process, requesting that the Copyright Office adhere by five implicit “rules” in the renewal process:

• That the renewal is applicable only to current exemptions without added modification and that any exemption seeking expansion will require a new petition;
• That the renewal is applicable only to the classes of users who request a renewal. The exemption should be repealed for all other classes of users who failed to request a renewal;
• That the renewal should only be granted if the petitioners have personal knowledge or experience with the facts that support renewal. Generalized renewal petitions should not be granted;
• That renewal petitions based on need to offer circumvention assistance should not be considered a renewal request. Instead, these should be considered expansions unless the original exemption specifically immunized the provision of such assistance;
• That renewal petitions facing meaningful opposition should be treated as a new petition.

Next Steps for the Cyberlaw Clinic

The Cyberlaw Clinic is looking forward to submitting a comment in support of the SPN petition when the Copyright Office posts its Notice for Proposed Rulemaking. Since there has been no meaningful opposition submitted against the clinic’s request for renewal of the medical device exemption, it is expected that the renewal will be automatically granted.

Evelyn Chang is a second-year student at Harvard Law School and current clinical student in the Cyberlaw Clinic.