22 Pages Posted: 20 Jun 2016 Last revised: 2 Sep 2016
Date Written: May 1, 2016
The Digital Millenium Copyright Act (DMCA) Section 1201 Anti-Circumvention provisions are unnecessarily prohibiting lawful speech by making circumvention for otherwise lawful uses of copyrighted content illegal under federal law. The current rulemaking process for creating exemptions is ineffective and cumbersome. The Copyright Office is currently conducting a comprehensive study of section 1201, providing an opportunity to identify reforms at the legislative and regulatory levels that can ensure 1201 avoids unnecessarily restricting lawful speech. This article is divided into two broad categories: Part 1 addresses key problems with section 1201 and examines key potential legislative reforms. Part 2, acknowledging that legislative reform may take time, focuses on ways in which the triennial rule-making process can be improved more quickly by regulatory change at the Copyright Office.
Specifically, Part 1 (A) begins by providing an overview of the specific problems with section 1201’s Anti-Circumvention provisions and the triennial process, including 1) the high demands on time and resources for proving exemptions; 2) the unnecessarily high burden for proving exemptions; 3) examples of the ways in which exemptions routinely fail creators making lawful uses of content; and 4) lastly, the significance of excluding fair use from exempt status. Next, Part 1(B) proposes an amendment to section 1201 that accounts for fair uses of copyrighted works, addressing many of the problems listed above. To conclude, Part 1 (C) explains how such an amendment is compatible with U.S. international treaty obligations.
Part 2 focuses on ways in which the triennial process should be reformed at the regulatory level while we await legislative reform. Part 2 (A) suggests changes to the interpretation of the burden of proof for proponents of exemptions; Part 2 (B) examines possible replacements for the current de novo standard for review; and Part 2 (C) provides suggestions for dealing with issues of confidentiality in the rulemaking process.
Keywords: Copyright, DMCA, Section 1201, Digital Millenium Copyright Act, anti-circumvention
Suggested Citation: Suggested Citation
Neill, Arthur H., Fixing Section 1201: Legislative and Regulatory Reforms for the Digital Millenium Copyright Act Anti-Circumvention Provisions (May 1, 2016). Tulane Journal of Technology & Intellectual Property, Vol. 19, 2016; California Western School of Law Research Paper No. 16-09. Available at SSRN: https://ssrn.com/abstract=2791198