Moderator: Marcia Hofmann, Electronic Frontier Foundation
Rob Kasunic, U.S. Copyright Office
Concern over the effect of the prohibition on noninfringinguses, given the newness of 1201. Congress didn’t prohibit direct circumvention of rights controls—where therewas legal access, under the law they’d be free to circumvent a TPM protecting a§106 right if they had the wherewithal to do so. Statutory exemptions also exist. Triennial rulemaking was a failsafe forunforeseen consequences. Originally designed to be “on the record” rulemaking,which would have been much more formal. Subsequentlychanged to be less formal. Exemptions can be made for a class of works; withconsultation with NTIA, the Register would make a recommendation to theLibrarian of Congress. The idea was thateach three years would be a de novo review of the evidence.
2000 was particularly difficult because the prohibition hadn’tgone into effect, so anticipating its problems was a challenge. Lolly Gasaway: if it would be nice iflegislation could be understood by the public, but short of that it would benice if copyright lawyers could understand it. There were challenges ininterpreting the statute! Looked at thelegislative history. Congress didn’tdefine key terms such as “a particular class of works.” Much of our history hasbeen developing that interpretation. Also challenging because Congress createdan access/rights control dichotomy.
Hoffman: having been involved in every rulemaking, what arethe characteristics of a successful campaign for an exemption?
Kasunic: there are written documents—Seth Finkelstein,obtained a few exemptions, published a piece that really went through the stepsof what he did in 2000 and 2003 on censorware. Look at the people who’ve been successful; don’t have to be alawyer/sophisticated firm; some people like Finkelstein or Joe Montoro—the dongleman—who received an exemption 3-4 times were individuals. They presented a verystrong factual case. We get a lot of legal argument but the most importantthing is the identification of facts in the marketplace. Coming to the hearinghelps too.
Rebecca Tushnet, Organization for TransformativeWorks/Georgetown Law
Our exemption: noncommercial remix video. Alice in Wonderland quality to many of thearguments: big copyright owners argue that circumvention tools are so widelyavailable, that screen capture software is also so widely available, and thatthey would never go after a remix that wasn’t fair use even though the remixerwas breaking the law, so no exemption is necessary.
[My thoughts on representing a group that by its nature isfluid, not organized, highly diverse, and not able to hire lobbyists; that isculturally disadvantaged; that is made up primarily of women and entirely ofnoncommercial artists, with all that entails for perceptions of the worthinessof our endeavors; the barriers are many and yet this is a group that isrequired to go to policymakers and argue its legitimacy and will be required todo so in perpetuity unless there is a change.] [Do works have to begood/intelligible to outsiders to look worthy of protection? Who gets to say what tools an artist can use? Discussion of opponents about how we didn’treally need high quality footage, and that if we were really good at digitaltechnology we could use screen capture to get good results, so obviously it wasthe artists’ problem and not the problem of anticircumvention]
Many have agreed with Ed Felten about the process: documentariansand people with perceptual disabilities, who continue to show up, have still notedover time, people have been discouraged from proposing new exemptions in lightof how the system has been set up: the Copyright Office's overall stinginess incutting down proposals and ignoring ones that don’t have live people come to DCor to San Francisco to testify for them. The process just keeps getting more extensive—I participated in 3comment rounds, hearings, technical hearings, letter correspondence, and remainedready to answer more questions from the Copyright Office. The Copyright Office’scharacterization of the burden of proof and the standards the Office hasimposed are, in my opinion, higher than what the statute requires—to show "substantial"adverse effects to the Office’s standard often requires breaking the law todemonstrate what you want to do and thenconvincing the Office that there are a bunch more of you out there. The Office otherwise says the proposed use isjust hypothetical—but of course in many cases it is hypothetical because peopledon’t want to break the law. As Ed Feltensaid, many legitimate security researchers now just stay away from DRM becausegoing back every eighteen months—for a triennial exemption—is just tooburdensome. In the first two roundsthere were many proposals, and many denials; the number has gone down notbecause DRM isn’t used to do things that suppress lawful uses but because peoplestopped applying.
Bruce Lehman told us about the process of enacting the DMCA:the people who make the next generation of creative works and technologies don’thave lobbyists on K Street. The peoplewho will be innovating 10 years from now generally don’t even have driver’slicenses right now! The law should be open to technologies that surprise us.
Christian Genetski, Entertainment Software Association(successfully opposed a request to allow videogame console jailbreaking)
In the past, represented companies to protect TPMs thatprotect the game experience by using 1201. Didn’t have much awareness of rulemaking. Actively practicing; not part of hisconsciousness until he became general counsel of a trade association.
His experience was that it was a fair process. Came in with a proposed exemption that lookedanalogous to an exemption that had been granted in the prior proceeding. Neededto marshal facts to show differences. Didn’t have difficulty marshalling resources. There was substantial evidence on EFF’s side,but we tried to demonstrate that the record was different for mobile phones—functionalityand competition issues dressed up in DMCA/fears of overreaching. By contrast,we made the case that game consoles: closed ecosystem to protect 3d partyworks, at the core of the works the DMCA was designed to protect.Homebrew/independent games—we didn’t try to contest their legitimacy, but rathershow that manufacturers were well on the way to accommodate those consistentwith the need to protect investment in other works that made themarket/platform viable. The results of the process validated that not everyissue is the same. With us, our evidenceshowed that circumvention used for homebrew opened the doors to the entireplatform and the tools were mostly being used to promote infringement, and thatwe were making a real accommodation of the noninfringing uses. Our exemptionwas denied, while the mobile phone exemption was granted.
The process can work. Doesn’t think the DMCA is necessarily broken. Flaws & imperfections, sure. With anystatute, edge, aggressive uses of the statute by creative litigators whoseclients want an activity stopped aren’t unique to the DMCA. You wouldn’t find 1-count DMCA complaints—contracts,torts also pursued (ed. note: with very different risks/remedies). Adjust to abuses versus faithful applciation. A fresh look every 18 months at themarketplace seems like a better, more flexible idea than going to Congress fora legislative fix with meetings on K Street. Congress moves slowly and then you have to go back. There’s an executionissue and maybe a burden-shifting, but every 3 years might not a bad idea.
Hoffman: burden properly allocated on requesters?
Kasunic: we’ve thought that this should be considered w/r/texisting exemptions, to allocate the burden to opponents. One thing to keep inmind is that rulemaking isn’t necessarily and can’t by design be the answer toall these interests. Adjunct to thestatute.
What we’re looking for is how to improve the design, not therulemaking itself—but for the rulemaking, vidders would have been left out inthe cold.
Copyright Office isn’t assessing good quality/legitimateart. Looking for noninfringing use. Not raising the bar beyond what the statute:when we use the term “substantial” we aren’t using it in the APA sense of a higherburden of proof, but rather that the evidence can’t be mere inconvenience oranecdotal evidence, but rather must show there’s substance to the problem. With vidding, it was questionable whether theunderlying use was noninfringing, but there were enough examples that it wasreasonably probable that they were noninfringing. Sufficient evidence. Might still be appropriate for Congress tostep in, or to shift the burden to opponents on an existing exemption. Two exemptions in 2006 and 2009 related tosecurity testing, one related to the Sony rootkit and another related tovideogames. When Congress crafted the statutory exemption, it didn’t foreseethese situations when TPMs themselves would be the source of the problems. Brewster Kahle’s preservation exemption: alsonot something that would change every 3 years so wouldn’t need revisiting—Congresscould look at that.
You have to have adequate authority to actually deal withthe problem that you’re addressing. One thing is that the exemptions onlyaffect 1201(a)(1)—if you obtain exemption, you need the personal wherewithal tocircumvent—you end up needing a tool to do the circumventing. In a bizarre twist, there are so many toolsthat do enable decryption, and since copyright owners haven’t wiped those offthe internet, when an exemption issued for DVDs it made it possible to purchaseunlawfully distributed tools to lawfully accomplish exempted purposes. This isbizarre.
RT: I well understand that vidders would’ve been left out inthe cold absent the rulemaking—which was my point about the inflexibility of thelegislation.
The Copyright Office is in general committed tonondiscrimination against artists; of this I have no doubt. However, the exemption for remix requires usto show that we couldn’t have used source of lesser quality, which is a judgmentabout artistic merit and need, made by someone other than the artist.
Kasunic: there are certain situations where it’s a hardercall where we talk about artistic versus educational use. Less need for quality for educational use.(Which is my point about content judgments.)
Q: has this been used in court?
Genetski: we used rulemaking as precedent in some cases,recognizing that it had limited value as precedent was still helpful.
Granick: Tracfone still sued bulk unlockers under theargument that the exemption was “solely” for purposes of connecting to network,and unlocking for purposes of resale wasn’t qualified—Tracfone has won thosecases. How a recycler would fare incourt is unclear.
Q: what in 1201 makes you think Congress is needed onburden-shifting? Why not reform the proceeding?
Kasunic: there’s very little in the legislation about therulemaking process. But the legislative history was clear that every year was aclean slate and the default would be that 1201 would stay in place. Congressdidn’t necessarily believe there’d be a need for exemptions, but created thisas a failsafe. Turns out, it does playmore of a role than Congress anticipated, and we’d be happy to have Congressgive us more information—we’ve asked a couple of times, beginning in 2000. We’ve tried to keep it flexible. But sometimes we’ve seen evidence that themarket has changed and we’ve responded to it, for example on the definition of “classof works” considering the nature of the users or the use.
Q: Copyright protects against copying and the creation ofderivative works. Preventing actual copying is important, derivative works isnot. If you narrowed copyright down to an anticopying rule, would that becost-justified.
Kasunic: I don’t know you can go that far—there arecertainly situations where derivative rights are important—translation, movies.But it’s worth thinking about especially with the line between derivativenessand transformativeness for fair use being a fine one.
Genetski: you’d quickly run into similar and familiarlinedrawing problems when talking about what level of reproduction is necessary.Longrunning and successful franchises and expansion packs, new iterations ofgreat stories in games: there’s real value in certain contexts to derivativeworks.
RT: people have been thinking about good definitions ofderivative works, like ChristinaBohannon, and I wrote anarticle about why we should get rid of “substantial similarity.”
Lehman: Pallante didn’t mention revisiting the DMCA in herproposals; is it time for a significant overall review of copyright law?
Kasunic: the speech Pallante gave at Columbia was anabbreviated version of a longer written work, and part of what needs to occuris reconsideration of DMCA; could think about Title I and Title II both, as a delicatecompromise. In particular, the Register’srecommendation to the Librarian has singled out 1201 issues for Congress torevisit.
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