On April 24, New Media Rights joined the Electronic Frontier Foundation and the Organization for Transformative Works to testify in support of a streamlined class 1 video exemption to the anti-circumvention provisions of the DMCA (17 USC § 1201).

Section 1201 outlines the DMCA’s anti-circumvention provisions that make it illegal to bypass technological protection measures (TPMs) (also known as Digital Rights Management (DRM)) that restrict access to copyrighted content. However, if the reason for breaking encryption on the content falls under an exemption to the statute, then the circumventor is relieved of liability for breaking the encryption.

Every 3 years, the Copyright Office considers exemptions to the anti-circumvention provisions. Last year in September and December, we submitted comments to the Copyright Office, as well as reply comments in March of 2018 that supported streamlining the language of these exemptions in a way that would allow individuals to circumvent TPMs on audio-visual content in order to use short clips from those videos for the purposes of commentary and criticism. These comments are in addition and separate to petitions we filed last summer to continue protection of fair use for documentary filmmakers, remix creators, and consumers who want to install software of their choice on smartphones and tablets. These earlier petitions were preliminarily granted last fall and mirror 2015’s exemptions, but the current structure of 8 confusing subclasses can be improved.

At the hearings, we asserted that our proposed class 1 simplifies the existing language of the class and ties the class to the four factors of fair use. Our proposed class 1 also: (a) removes language in the existing class that distinguished the exemptions based on types of users while maintaining a variety of limits such as requiring “short portions” for “commentary and criticism” to closely align with fair use, and (b) adjusts the language that identifies particular TPMs to account for future improvements in technology.

Our goal is to streamline the exemption for video excerpts – removing confusion while maintaining critical protections for educators, libraries, professional filmmakers (including documentarians), remix artists, and others.

From left to right: Art Neill (NMR), Erika Lee (NMR), Jack Lerner (UC Irvine Intellectual Property, Arts, Technology Clinic), Betsy Rosenblatt (OTW), Tisha Turk (OTW), Cory Doctorow (EFF), and Katharine Trendacosta (EFF).

New Media Rights has advocated for net neutrality for nearly a decade through comments (our most recent comments defending net neutrality were submitted last summer) and our work with the Consumer Advisory Committee at the Federal Communications Commission. While the FCC repealed net neutrality protections in December, the fight to preserve a free and open internet does not end with the federal government. A number of states have recently introduced legislation to ensure that net neutrality protections survive, and in California, it has taken the form of a handful of bills that would offer comprehensive protection.

Today, New Media Rights sent a letter to senators Ben Hueso and Mike Morrell, the chair and vice-chair of the California Senate Standing Committee on Energy, Utilities, and Communications urging them to support SB 822.

The bill puts the full weight of state authority behind promoting a free and open internet by conditioning ISP receiving franchises, state subsidies, and use of utility poles on adherence to net neutrality principles, including a ban on a form of self-dealing not included in the FCC’s 2015 Open Internet Order.

This is an opportunity for Californians to make a decision about the kind of Internet they want to see. Our letter urges California legislators to enact net neutrality rules under SB 822 to protect the interests of California citizens.

Without net neutrality, small businesses cannot compete if large corporations can receive paid prioritization from ISPs, and disfavored communities lack the protections they need to create and share their expressions online without having their content throttled or blocked.

You can read our letter at the attachment below.

Tomorrow, April 11, 2018, is a day of action to tell California state senators on the Utilities and Energy Committee and the Judiciary Committee to support SB 822. To learn more about how you can help California secure net neutrality protections, visit this site to show your support for SB 822.