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Oceans Rise, Cities Fall, DVD Ban Remains
As sure as the fall follows summer, and the sun rises in the east, the sixth triennial DMCA Section 1201 exemption process resulted in the rejection of our request for an exemption for creating private copies of DVDs and Blu Ray discs (DVD/BRDs). Consumers have long sought exemptions for private copying of DVDs, and more recently Blu Ray discs, for purposes ranging from Linux compatibility, to putting videos on home media servers, to making back-up copies in case discs get scratched, to watching them on devices lacking optical drives, like tablets, smartphones, and most modern laptops.
There’s a strong case for these exemptions, but the Copyright Office rejected these requests in 2000, 2003, 2006, 2010, 2012, and 2015 - every proceeding since the Digital Millennium Copyright Act (DMCA) was enacted in 1998. The Office’s unyielding position on these requests neatly encapsulates the triumph of legalism over common sense in the Section 1201 exemption process.
How Section 1201 Gets in Your Way
Among the DMCA’s many provisions, Congress added Section 1201 to the copyright law, which prohibits circumventing technological protection measures (i.e. digital locks like DRM) without the permission of the copyright owner in order to access a copyrighted work. This is true regardless of the purpose of access. By requiring the copyright owner’s consent for any circumvention, Section 1201 turns copyright law on its head.
Copyright law traditionally reserves a limited number of exclusive privileges to copyright owners, such as the right of reproduction, or the right of public performance. Outside of those exclusive rights, the public is free to do as it pleases. Section 1201 reverses that dynamic - the public always needs the copyright owner’s permission to access the work, suddenly expanding the copyright owner’s power from controlling a few activities, to all activities. Unless the copyright owner has permitted a use (e.g. to view a DVD in a DVD player), you need an exemption (e.g. to use clips from DVD in a documentary - a use that traditionally never required the copyright owner’s permission.)
In crafting Section 1201, Congress recognized this problem and created a process to obtain exemptions to the broad ban. Every three years the public may petition the Library of Congress, through the Copyright Office, for limited exemptions to the ban. Exemption seekers must identify a non-infringing activity that is harmed by the ban -- a legal activity that they would be entitled to engage in if they weren’t banned from getting around the digital lock. But it’s not enough to identify a legal right that the public is being deprived of. The public must also identify additional “adverse effects” of the ban. As the Office’s treatment of the DVD/BRD exemption request illustrates, the process often fails.
When the Law Trumps Common Sense
Both legal precedent and common practice show private copying of DVD/BRDs for certain purposes should be a legal right of the public. For a detailed look at our arguments, see our comments filed in support of the exemption, and our response to opposition comments.
Courts that have addressed this issue have tended to recognize that consumers have a right under copyright law to make private copies for certain uses. In the landmark Sony Betamax case, the Supreme Court ruled that consumers have the right to make copies of TV programs using VCRs. Similarly, in the Diamond Rio case, the Ninth Circuit Court of Appeals effectively blessed the common practice of consumers ripping CDs in order to play their music on MP3 players. And, in the recent DISH Hopper case, the court found that permitting consumers to remotely access programming recorded on their DVRs from Internet-enabled devices such as tablets, smartphones, and laptops, did not infringe copyright.
Unfortunately, the Copyright Office insists on taking a very narrow view of the legal landscape in its recommendations. In their view, the Sony Betamax case only blessed using VCRs to “time-shift” programming (i.e. record it for later viewing), not “space-shift” it (i.e. move it to another device). Similarly, they note that the Diamond Rio case focused on the Audio Home Recording Act to MP3 players, and only addressed CD ripping tangentially. Finally, they dismiss the DISH Hopper case in part because the legal analysis was only a paragraph long.
The Office’s reasoning invites certain questions. Does the Office believe that copyright law was violated every time a VCR recording was used to watch the program in another room of the house? Does the Office believe that converting CDs to MP3s is illegal, and it somehow never occurred to the RIAA, an organization that has literally sued grandmothers over copyright, to bring a lawsuit to enforce its rights? Does the Office expect supporters of exemptions to not only provide legal precedent, but to provide legal precedent that meets some unstated minimum word count?
Converting CDs to MP3s is widely permitted and practiced because it is legal, not because of the gracious indulgence of the RIAA. It should follow that converting DVD/BRDs into purely digital files is also legal. In fact, the National Telecommunications & Information Administration, which is required under Section 1201 to share its opinion on exemption requests with the Office, agrees with our interpretation of the law. Regrettably, it seems that no amount of evidence will move the Office from its unshakeable belief on this issue.
When Inconvenient Facts Are Ignored
The Office’s dismissal of our examples of “adverse effects” of not granting an exemption is similarly disappointing. In order to obtain an exemption in the Section 1201 process, you must show that users experience negative effects because of the law’s ban on otherwise legal activities. The public is negatively affected by the ban on copying DVD/BRDs for private uses in a number of ways, including:
- when users have to pay to replace worn out discs instead of relying on back-up copies;
- when users have to pay multiple times for the same content in order to watch it on different devices or services;
- reduced access because not all video titles that can be purchased on DVD/BRD are available in streaming/downloadable format; and
- reduced access because not all consumers have access to, or can afford, the quality of broadband connection necessary to stream or download videos in high definition formats.
The Copyright Office concluded that even if private use copies of DVD/BRDs are legal, none of these “adverse effects” justified an exemption. As to the first two harms, the Office believes that forcing consumers to unnecessarily spend more money is somehow not a negative effect of the law, and that consumers can just pony up for external drives for laptops, and streaming subscriptions and downloads on their tablets. And, the Copyright Office simply ignored the other two “adverse effects,” stating without further explanation that online platforms are reasonable alternatives to allowing consumers to make private copies of their DVD/BRDs.
This year, 133 members of the public also filed individual comments in favor of the DVD/BRD exemption, describing the negative effects of the circumvention ban for DVDs/BRDs. These commenters demonstrated that the harms are not speculative, but felt in the real world by members of the public. Instead of acknowledging the public’s comments, the Office effectively dismissed them, stating “[t]he Register [of Copyrights] recognizes the consumer and policy appeal of the proposed exemptions.”
Between chalking up public comments to “consumer appeal” rather than legitimate grievances, and ignoring the inability of many Americans to access affordable broadband, the Office has exhibited a discouraging level of disdain towards public participation in the process.
Legislative Change Is Needed
Practically speaking, does the Copyright Office’s refusal to grant the exemption matter? Consumers with a sufficient level of technological savviness already use tools freely available on the Internet to convert their DVD/BRD libraries for transfer to portable devices and storing on home media servers, despite the law saying they don’t have permission. Home media enthusiasts already pair private copying with software like Kodi/XBMC or Plex to access their personal video collections.
However, technology and media enthusiasts are only one segment of the population. Less technology savvy users are left out of the benefits of private copying. What should be a one-touch process integrated into popular and easy to use media programs, the way MP3 conversion is built into iTunes, is now a needlessly complex process because of the law.
As the Copyright Office’s continued refusal to allow consumers to create private copies of their DVDs and Blu Ray Discs illustrates, the law on circumvention is in dire need of change. Attempts to fix Section 1201 are already in the works: the Unlocking Technology Act of 2015 would restore the traditional balance in copyright law by removing the requirement that users seek the permission of copyright owners for every use of the work, would allow users to circumvent digital locks unless they infringe a copyright, and would eliminate the triennial exemption process. An alternative proposal, the Breaking Down Barriers to Innovation Act of 2015, would change the exemption process by shifting the burden of proof from users to copyright owners, by requiring the Library of Congress to consider the totality of the evidence before it, and by authorizing the renewal of previously granted exemptions. We hope that in the wake of this cycle’s rulings Congress will finally turn its attention to fixing what is clearly a broken process.
Contact your representative in Congress here to tell them it’s time to revise Section 1201 of the DMCA.
See what consumer advocates are saying about DMCA reform here.
Check out our latest podcast on the Section 1201 exemption process results here.
Image credit: Flickr user MyCd