The 2012 DMCA Rulemaking: A Primer
Every three years the U.S. Copyright Office considers granting exemptions to the Digital Millennium Copyright Act’s prohibition against circumventing measures that control access to digital copyrighted works. The first hearing in the 2012 DMCA rulemaking proceeding is set for this Friday, May 11, and we thought folks might want to know a bit about how the process works.
Let's start with some background. In a nutshell, the DMCA anti-circumvention provisions forbid the making, distribution and use of technologies that allow people to "circumvent," i.e., break, digital rights management (DRM) and "other technical protection measures" used to lock down copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. But Congress did create a kind of safety valve, authorizing the Copyright Office to consider granting exemptions to the DMCA's ban on circumvention where the DMCA is interfering with otherwise lawful, non-infringing uses.
Now, some nitty gritty: The exemption consideration process, or “rulemaking,” is generally conducted every three years. Exemptions that are not renewed will expire. The Copyright Office can’t grant exemptions for the creation or distribution of circumvention tools – only acts of circumvention. The process involves several steps.
First, folks seeking exemptions (“proponents”) submit proposals for specific classes of works they think should be exempt from the DMCA’s anti-circumvention provisions. In this year’s rulemaking, EFF asked the Copyright Office to protect the jailbreaking of smartphones, electronic tablets, and video game consoles to allow them to run operating systems and applications not approved by the manufacturer. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or lawful online services to create new, remixed works. These requests build on exemptions EFF won in the 2009 rulemaking proceeding for smartphone jailbreakers and remix artists.
Second, members of the public can submit responses supporting or opposing the proposals, to which the proponents can reply. Nearly 700 people submitted comments in support of EFF’s exemption requests earlier this year.
Third, the Copyright Office holds hearings to allow public testimony about the exemptions. For this round, the Copyright Office has scheduled four days of testimony. The May 11 hearing is devoted to technical demonstrations. Further hearings are set for May 17, May 31, June 4, and June 5, and will involve testimony from proponents, supporters, and opponents. Three EFF experts will testify at these hearings.
Finally, we wait for the Register of Copyrights to issue a report on which recommendations she believes should be granted, and the Librarian of Congress makes a final decision.
All in all, the process takes many months, and many hours of hard work. Let’s hope it pays off for innovation and creative expression.