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

June 11, 2012 ,

Last
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).

How
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:

In
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
model.

The
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.

Put
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
legitimacy.

Listening
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).

The
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.