Getting on the same page

Image of a bookIt can be difficult to respond to a question asked by a Member of Congress at a hearing when that person is talking about a different subject than you are and doesn’t know it. One observes a lot of talking past one another and frustration. One wants to stand up and say “wait a minute, you guys are talking about two different things,” but this kind of outburst is not appropriate at a Congressional hearing.

That happened today at the hearing called by U.S. House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet. The topic was Chapter 12 of the copyright law and in particular, an administrative process conducted every three years by the U.S. Copyright Office called the 1201 rulemaking. But some thought the topic was digital rights management, and things got a little tense near the end of the hearing. Watch it for yourself.

There is a connection, and for clarity’s sake, let’s explore. The 1201 rulemaking was included in the Digital Millennium Copyright Act (DMCA) as a “safety valve” to ensure that technological protection measures (also known as digital rights management!) employed by rights holders to protect content would not also prevent non-infringing uses of copyrighted works, like analyzing software for security vulnerabilities, for example. Ask anyone, and they will tell you that the rulemaking is brutal. It’s long, convoluted and borders on the ridiculous. During this process, the U.S. Copyright Office evaluates specific requests for exemption from Section 1201’s otherwise blanket prohibition on “circumvention,” e.g., breaking pass codes, encryption or other digital rights management schemes in order to make a non-infringing use of a particular class of copyrighted works. In order to make such an argument, however, one who wants an exemption to the anti-circumvention provision must already have broken the anti-circumvention provision in order to make a non-infringing use of the work because you cannot speculate that a non-infringing use is possible without demonstrating that it is so.

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The process can last eight months and includes writing detailed comments for submission, a reply comment period, two days of roundtables sometimes held in two or three places in the United States, and finally time for the U.S. Copyright Office in collaboration with the National Telecommunications and Information Administration (NTIA) to write a lengthy report with recommendations to the Librarian of Congress what class of works with technological protection measures can be circumvented for the next three years. Whew!

The Library Copyright Alliance (LCA) submitted comments arguing that the process certainly can be improved. Key LCA recommendations included that exemptions be permanent instead of lasting only three years, and that the NTIA (which has a better understanding of technology and innovation) administer the 1201 rulemaking process instead of the U.S. Copyright Office.

The good news. A baby step may have been taken. All of the witnesses agreed that some exemptions should be permanent so people do not have to reargue their case every three years. In addition, the Copyright Office already has made a suggestion to improve the rulemaking process, writing recently in the Federal Register:

Unlike in previous rulemakings, the Office is not requesting the submission of complete legal and factual support for such proposals at the outset of the proceeding. Instead, in this first step of the process, parties seeking an exemption may submit a petition setting forth specified elements of the proposed exemption and review and consolidate the petitions naming the list of proposed exemptions for further consideration.

Stay tuned for more news on the Copyright Office’s so-called “triennial” 1201 rulemaking which gives new meaning to the adage that “god (or the devil, if you prefer) is in the details.”

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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