70 Pages Posted: 14 Nov 2005
17 U.S.C. §1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.
Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for §1201 were laundered through international treaties, obscuring the anticircumvention clause's domestic origins. Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts' ability to exonerate them via the traditional defenses to copyright infringement.
We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law's intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights' interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a Catch-22 for many who earnestly wish to engage in otherwise legal activities.
(NOTE: This is the final version as appeared in Cardozo AELJ. For previous versions as have appeared on SSRN, please contact the author.)
Keywords: copyright, Digital Millennium Copyright Act, DMCA, Register of Copyrights, technical protection measures, TPM, digital rights management, DRM
JEL Classification: K39, D71, D72, D73
Suggested Citation: Suggested Citation
Herman, Bill D. and Gandy, Oscar, Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings. Cardozo Arts & Entertainment Law Journal, Vol. 24, pp. 121-190, 2006. Available at SSRN: https://ssrn.com/abstract=844544