Digital Locks on Copyright: Room for Reform?

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Last Wednesday’s copyright hearing in the House IP Subcommittee may have borne the soporific title of “Chapter 12 of Title 17,” but the debate involved was lively. The titular Chapter 12 involves the anticircumvention provisions of the Digital Millennium Copyright Act (“DMCA”), the source of the crisis over phone unlocking. With those events as a background, there was more urgency and direct recognition of potential problems with the law in this hearing than there has been in many others.

The focus of the problems lies in section 1201, which makes it illegal to circumvent digital locks to gain access to copyrighted works. Unfortunately, you can be sued for that even if the purpose for which you’re accessing the work is completely legal and noninfringing.

Several members of the Subcommittee, including its chairman, made statements noting that the law has been abused—by printer companies trying to quash the market for replacement toner cartridges, or by garage door manufacturers trying to kill the market for universal remotes. And, of course, the recent experience with phone unlocking had shown the Committee that cell phone companies could try to use copyright law to lock customers to their networks.

That sense that the law had, at best, potential for abuse, was furthered by a statement from Representative Goodlatte, the Chairman of the full Judiciary Committee, who noted that there were several ways to proceed with reforming the law—some with a scalpel, some with a sledgehammer. How those lines could be drawn wasn’t clear. Corynne McSherry from EFF testified that her ideal preference would be a repeal of section 1201, but that less ambitious reforms than that, like Representative Lofgren’s Unlocking Technology Act, would also be welcome.

But one clear theme in the hearing was just how difficult it is to get exemptions to the circumvention law in the rulemaking process that the Library of Congress has every three years. Despite witnesses from the Entertainment Software Association and ACT saying that this process served as an important safety valve, both McSherry and Mark Richert, from the American Foundation for the Blind (AFB), both testified to the many barriers receiving an exemption—a perpetually repeating process that could all be for naught, even if no one opposes a request. This actually happened to AFB, who, even though no one opposed their exemption to be able to read ebooks, were told by the Copyright Office in 2010 that their case hadn’t been made forcefully enough. Though this decision by the Copyright Office was soon overturned by the Librarian of Congress, it shows how unpredictable and arbitrary the process can be.

Representative Darrell Issa picked up on the difficulties of this process, noting that in the process of overturning the last clearly bad decision to come out of the rulemakings—the cell phone unlocking ban—bills had to be drafted, voted out of committees and then the main bodies of the House and Senate, reconciled in conference, and then ultimately signed by the President. In other words, the full scope and scale of passing legislation should not be something that has to happen every three years to ensure that people have the rights they should have had in the first place.

All of this points to a clear motivation for reforming the anticircumvention provisions. To what extent remains unclear. Certainly, opponents of reform will be eager to cast any change to the law as a sledgehammer, but somewhere in between a wholesale repeal of the section and doing absolutely nothing lies the possibility of fixing not just a broken rulemaking process, but also the flaws in the law that lie beneath it.

 

Image credit: Flickr user Carlos Luz

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