Agency Regulation in Copyright Law: Rulemaking Under the DMCA and Its Broader Implications

Abstract:     
On July 27, 2010, the Library of Congress and the U.S. Copyright Office issued the final rule for the fourth round of the triennial rulemaking process under the Digital Millennium Copyright Act ("DMCA"). The new exemptions created by the final rule indicate that agency regulation could re-infuse flexibility in both the DMCA specifically and copyright legislation generally. Although some have criticized the triennial rule-making process as too narrow, the latest round was broader than the first three rounds, particularly in the number, scope, and importance of the exemptions. If this expansion continues, together with modifications to the rule-making process and with more authority vested in the Copyright Office, the DMCA triennial rule-making process could set a precedent for implementing greater agency involvement in an increasingly regulatory form of copyright law.

This Note first outlines copyright’s transition to a regulatory model, the reasons for this change, its benefits and harms, and the DMCA’s fit within the regulatory scheme. It then illustrates the mechanics of § 1201 and focuses on the rule-making provision’s notice-and-comment process. It then outlines each round’s exemptions, the positive trend from round to round, criticisms of the DMCA rule-making process, and proposals for addressing these criticisms in order to bolster expansion in round five. Overall, this analysis suggests that expanding the Copyright Office’s role in copyright law may be beneficial, due to the tension between regulatory copyright legislation and rapid technological advances as well as the Register’s performance in the DMCA rule-making process.

Number of Pages in PDF File: 57

Keywords: DMCA, Copyright, Rulemaking, Copyright Office, Anticircumvention, Regulatory Copyright

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