Washington DC
29 June 2017
Reporter: Barney Dixon

DMCA anti-circumvention is fine as it is


No significant changes should be made to the basic framework of Section 1201 of the US Copyright Act, according to the US Copyright Office.

Section 1201, which is a part of the Digital Millennium Copyright Act (DMCA), prohibits the circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works.

The section was enacted to tackle music and movie piracy by banning the circumvention of software that restricts access to lawfully purchased copyrighted material.

Advocacy group the Electronic Frontier Foundation (EFF) launched a lawsuit against the US government in 2016, challenging the provisions and arguing that Section 1201 has “long served to restrict people’s ability to access, use, and even speak out about copyrighted materials—including the software that is increasingly embedded in everyday things”.

The Copyright Office began a public study into the operation of Section 1201 in December 2015 and took comments from various interested parties throughout the process.

Commentators raised concerns that Section 1201 hinders open innovation and that users who hack their smartphone or their car stereo could face criminal proceedings under the DMCA.

Others, including the Association of American Publishers, the Motion Picture Association of America and the Recording Industry Association of America said that Section 1201’s provisions were “only growing in importance”.

“Over the last several years, we have entered an ‘access economy’ wherein consumers demand and prefer business models that provide on-demand access on a subscription or rental transaction basis rather than buying and owning copies of works,” the groups said in a joint comment.

“In this access economy, technological measures that enforce the terms of access-based transactions are the tools by which copyright owners and their distributor licensees meet consumer expectations.”

After reading the comments and conducting its own studies, the US Copyright Office concluded that the overall structure and scope of Section 1201 “remain sound”. However, the office did recommend certain legislative updates, including the expansion of existing exemptions for security and encryption research and adding new provisions to allow circumvention for other purposes, such as assistive reading technologies and the repair of devices.

In a blog post commenting on the conclusion of the study, senior staff attorney at the EFF, Mitch Stoltz, said that the group was sorry the office didn’t take a “stronger stance”, and described the study as a “piecemeal approach”.

“Although [Section 1201] was pitched as a new legal protection for copyright holders to prevent infringement, the law has given major entertainment companies and other copyright owners lots of control over non-infringing uses of technology, allowing them to lock out competition in repair and re-sale businesses and to threaten and silence security researchers.”

“The law has some exceptions, but they are far too narrow and complicated.”

He added: “It’s too bad the Copyright Office won’t address the fundamental flaws of Section 1201, especially given the multitude of problems that the report acknowledges.”

“A piecemeal approach will solve just a few of the current problems, at the cost of ever more complexity and a continuing demand for massive public interest resources to make the exemption process work. Congress, or the courts, should do more.”

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