New Media Rights Testifies at the Copyright Office Hearings on § 1201 Anti-circumvention Exemptions

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).

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