The DMCA Rulemaking Mechanism: Fail or Safe?

Abstract

This Article analyzes seventeen years under the Digital Millennium Copyright Act (“DMCA”) rulemaking mechanism and suggests changes to reinforce its successes while remedying its failures. Part I briefly discusses the legislative history of the rulemaking mechanism and policy justifications for its adoption within the DMCA scheme. Part II reviews legal and evidentiary standards of the rulemaking and recent changes to its administrative procedure. Part III provides an overview of the prior rulemakings and their impact on non-infringing uses, with a particular focus on the “e-book” and “cellphone unlocking” exemptions. Part IV applauds the Breaking Down Barriers to Innovation Act of 2015 — which suggests numerous improvements to the rulemaking mechanism — and then recommends other possible changes. Part V emphasizes the continued need for the rulemaking mechanism, but concludes with some modifications and restructuring.

Keywords: DMCA Rulemaking, Section 1201 Rulemaking, DMCA Rulemaking Mechanism, Digital Millennium Copyright Act, DMCA exemptions, rulemaking exemptions, cellphone unlocking exemption, ebook exemption, copyrights, copyright law, intellectual property law