Evolving Standards & the Future of the DMCA Anticircumvention Rulemaking

Abstract

Every three years, the Copyright Office conducts a rulemaking to determine temporary exemptions from the Digital Millennium Copyright Act's (DMCA) anticircumvention provision. These exemptions are designed to prevent likely adverse impacts on noninfringing uses created by the prohibition on removing or bypassing technological protection measures that restrict access to copyrighted works. At the conclusion of the third and most recent rulemaking, the Librarian of Congress, acting on the advice of the Register of Copyrights, announced six classes of works exempt from the DMCA's anticircumvention provision for the three-year period ending October 27, 2009. This Article describes those exemptions and argues that the rulemaking signals a significant shift in the Copyright Office's evaluation of proposed DMCA exemptions that suggests an increase in narrowly tailored exemptions in future rulemakings. But despite the Copyright Office's apparent increased receptiveness to exemption proposals, the rulemaking process faces limitations that render it incapable of fully resolving the DMCA's adverse effect on noninfringing uses.

Keywords: DMCA, copyright office, rulemaking, anticircumvention