Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works
(Closes Nov 3, 2014)
The Copyright Office has initiated the sixth triennial rulemaking proceeding under the Digital Millennium Copyright Act, 17 U.S.C. § 1201, which provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls. When such classes are identified, the Librarian publishes a rule exempting the classes from the prohibition against circumvention for the succeeding three-year period.
The Notice of Inquiry requests written petitions for proposed exemptions from interested parties. Unlike in previous rulemakings, the Office is not requesting the submission of complete legal and factual support for such proposals at the initial stage of the proceeding. Instead, in the first step of the process, parties seeking an exemption may submit a petition setting forth specified elements of the proposed exemption, as explained in the notice.
As referenced in the Notice of Inquiry, Congress enacted the Unlocking Consumer Choice and Wireless Competition Act (“Unlocking Act”) into law on August 1, 2014. Pub. L. No. 113-144, 128 Stat. 1751 (2014); see also 79 FR 50552 (Aug. 25, 2014). The Unlocking Act makes clear that in addition to any proposals to allow unlocking of wireless telephone handsets, the Register is to consider proposals to allow unlocking of other types of wireless devices (e.g., tablet computers, dedicated e-book readers, mobile “hotspots,” etc.). The Notice therefore specifically solicits such proposals.
Petitions requesting a proposed exemption should be limited to five pages in length (which may be single-spaced but should be in at least 12-point type). To assist those who seek to propose exemptions, the Office is providing the following recommended template form for petitions.
A separate petition must be filed for each proposed exemption. A single party may submit multiple separately filed petitions. Once completed, petitions may be uploaded via the petition submission page. Proponents of exemptions should carefully review the Notice for additional instructions.
After receiving petitions for proposed exemptions, the Office will consider the petitions, group and/or consolidate related and overlapping proposals, and issue a notice of proposed rulemaking setting forth the list of proposed exemptions for further consideration. The notice of proposed rulemaking will invite full legal and evidentiary submissions and provide further guidance as to the types of evidence that may be expected or useful vis-à-vis particular proposals, with the aim of producing a well-developed administrative record.
The changes to the section 1201 rulemaking process are designed to enhance the public understanding of the process, including its legal and evidentiary requirements, and facilitate more effective participation om the proceeding.
The records of the previous Section 1201 rulemakings are available for reference. The first rulemaking concluded in 2000. The second concluded in 2003, the third in 2006, the fourth in 2010, and the fifth in 2012.