Friday, March 15, 2013

DMCA conference: rulemaking

Panel 2: 1201 Rulemaking

Moderator: Marcia Hofmann, Electronic Frontier Foundation

Rob Kasunic, U.S. Copyright Office

Concern over the effect of the prohibition on noninfringing uses, given the newness of 1201.  Congress didn’t prohibit direct circumvention of rights controls—where there was legal access, under the law they’d be free to circumvent a TPM protecting a §106 right if they had the wherewithal to do so. Statutory exemptions also exist.  Triennial rulemaking was a failsafe for unforeseen consequences. Originally designed to be “on the record” rulemaking, which would have been much more formal.  Subsequently changed to be less formal. Exemptions can be made for a class of works; with consultation with NTIA, the Register would make a recommendation to the Librarian of Congress.  The idea was that each three years would be a de novo review of the evidence.

2000 was particularly difficult because the prohibition hadn’t gone into effect, so anticipating its problems was a challenge.  Lolly Gasaway: if it would be nice if legislation could be understood by the public, but short of that it would be nice if copyright lawyers could understand it. There were challenges in interpreting the statute!  Looked at the legislative history.  Congress didn’t define key terms such as “a particular class of works.” Much of our history has been developing that interpretation. Also challenging because Congress created an access/rights control dichotomy.

Hoffman: having been involved in every rulemaking, what are the characteristics of a successful campaign for an exemption?

Kasunic: there are written documents—Seth Finkelstein, obtained a few exemptions, published a piece that really went through the steps of what he did in 2000 and 2003 on censorware.  Look at the people who’ve been successful; don’t have to be a lawyer/sophisticated firm; some people like Finkelstein or Joe Montoro—the dongle man—who received an exemption 3-4 times were individuals. They presented a very strong factual case. We get a lot of legal argument but the most important thing is the identification of facts in the marketplace. Coming to the hearing helps too.

Rebecca Tushnet, Organization for Transformative Works/Georgetown Law

Our exemption: noncommercial remix video.  Alice in Wonderland quality to many of the arguments: big copyright owners argue that circumvention tools are so widely available, that screen capture software is also so widely available, and that they would never go after a remix that wasn’t fair use even though the remixer was breaking the law, so no exemption is necessary.

[My thoughts on representing a group that by its nature is fluid, not organized, highly diverse, and not able to hire lobbyists; that is culturally disadvantaged; that is made up primarily of women and entirely of noncommercial artists, with all that entails for perceptions of the worthiness of our endeavors; the barriers are many and yet this is a group that is required to go to policymakers and argue its legitimacy and will be required to do so in perpetuity unless there is a change.] [Do works have to be good/intelligible to outsiders to look worthy of protection?  Who gets to say what tools an artist can use?  Discussion of opponents about how we didn’t really need high quality footage, and that if we were really good at digital technology we could use screen capture to get good results, so obviously it was the artists’ problem and not the problem of anticircumvention]  

Many have agreed with Ed Felten about the process: documentarians and people with perceptual disabilities, who continue to show up, have still noted over time, people have been discouraged from proposing new exemptions in light of how the system has been set up: the Copyright Office's overall stinginess in cutting down proposals and ignoring ones that don’t have live people come to DC or to San Francisco to testify for them.  The process just keeps getting more extensive—I participated in 3 comment rounds, hearings, technical hearings, letter correspondence, and remained ready to answer more questions from the Copyright Office. The Copyright Office’s characterization of the burden of proof and the standards the Office has imposed are, in my opinion, higher than what the statute requires—to show "substantial" adverse effects to the Office’s standard often requires breaking the law to demonstrate what you want to do and then convincing the Office that there are a bunch more of you out there.  The Office otherwise says the proposed use is just hypothetical—but of course in many cases it is hypothetical because people don’t want to break the law.  As Ed Felten said, many legitimate security researchers now just stay away from DRM because going back every eighteen months—for a triennial exemption—is just too burdensome.  In the first two rounds there were many proposals, and many denials; the number has gone down not because DRM isn’t used to do things that suppress lawful uses but because people stopped applying.

Bruce Lehman told us about the process of enacting the DMCA: the people who make the next generation of creative works and technologies don’t have lobbyists on K Street.  The people who will be innovating 10 years from now generally don’t even have driver’s licenses right now! The law should be open to technologies that surprise us.

Christian Genetski, Entertainment Software Association (successfully opposed a request to allow videogame console jailbreaking)

In the past, represented companies to protect TPMs that protect the game experience by using 1201.  Didn’t have much awareness of rulemaking.  Actively practicing; not part of his consciousness until he became general counsel of a trade association. 

His experience was that it was a fair process.  Came in with a proposed exemption that looked analogous to an exemption that had been granted in the prior proceeding. Needed to marshal facts to show differences.  Didn’t have difficulty marshalling resources.  There was substantial evidence on EFF’s side, but we tried to demonstrate that the record was different for mobile phones—functionality and competition issues dressed up in DMCA/fears of overreaching. By contrast, we made the case that game consoles: closed ecosystem to protect 3d party works, at the core of the works the DMCA was designed to protect. Homebrew/independent games—we didn’t try to contest their legitimacy, but rather show that manufacturers were well on the way to accommodate those consistent with the need to protect investment in other works that made the market/platform viable. The results of the process validated that not every issue is the same.  With us, our evidence showed that circumvention used for homebrew opened the doors to the entire platform and the tools were mostly being used to promote infringement, and that we were making a real accommodation of the noninfringing uses. Our exemption was denied, while the mobile phone exemption was granted. 

The process can work.  Doesn’t think the DMCA is necessarily broken.  Flaws & imperfections, sure. With any statute, edge, aggressive uses of the statute by creative litigators whose clients want an activity stopped aren’t unique to the DMCA.  You wouldn’t find 1-count DMCA complaints—contracts, torts also pursued (ed. note: with very different risks/remedies).  Adjust to abuses versus faithful applciation.  A fresh look every 18 months at the marketplace seems like a better, more flexible idea than going to Congress for a legislative fix with meetings on K Street.  Congress moves slowly and then you have to go back. There’s an execution issue and maybe a burden-shifting, but every 3 years might not a bad idea.

Hoffman: burden properly allocated on requesters?

Kasunic: we’ve thought that this should be considered w/r/t existing exemptions, to allocate the burden to opponents. One thing to keep in mind is that rulemaking isn’t necessarily and can’t by design be the answer to all these interests.  Adjunct to the statute.

What we’re looking for is how to improve the design, not the rulemaking itself—but for the rulemaking, vidders would have been left out in the cold.

Copyright Office isn’t assessing good quality/legitimate art.  Looking for noninfringing use.  Not raising the bar beyond what the statute: when we use the term “substantial” we aren’t using it in the APA sense of a higher burden of proof, but rather that the evidence can’t be mere inconvenience or anecdotal evidence, but rather must show there’s substance to the problem.  With vidding, it was questionable whether the underlying use was noninfringing, but there were enough examples that it was reasonably probable that they were noninfringing.  Sufficient evidence.  Might still be appropriate for Congress to step in, or to shift the burden to opponents on an existing exemption.  Two exemptions in 2006 and 2009 related to security testing, one related to the Sony rootkit and another related to videogames. When Congress crafted the statutory exemption, it didn’t foresee these situations when TPMs themselves would be the source of the problems.  Brewster Kahle’s preservation exemption: also not something that would change every 3 years so wouldn’t need revisiting—Congress could look at that. 

You have to have adequate authority to actually deal with the problem that you’re addressing. One thing is that the exemptions only affect 1201(a)(1)—if you obtain exemption, you need the personal wherewithal to circumvent—you end up needing a tool to do the circumventing.  In a bizarre twist, there are so many tools that do enable decryption, and since copyright owners haven’t wiped those off the internet, when an exemption issued for DVDs it made it possible to purchase unlawfully distributed tools to lawfully accomplish exempted purposes. This is bizarre.

RT: I well understand that vidders would’ve been left out in the cold absent the rulemaking—which was my point about the inflexibility of the legislation.

The Copyright Office is in general committed to nondiscrimination against artists; of this I have no doubt.  However, the exemption for remix requires us to show that we couldn’t have used source of lesser quality, which is a judgment about artistic merit and need, made by someone other than the artist.

Kasunic: there are certain situations where it’s a harder call where we talk about artistic versus educational use.  Less need for quality for educational use. (Which is my point about content judgments.)

Q: has this been used in court?

Genetski: we used rulemaking as precedent in some cases, recognizing that it had limited value as precedent was still helpful.

Granick: Tracfone still sued bulk unlockers under the argument that the exemption was “solely” for purposes of connecting to network, and unlocking for purposes of resale wasn’t qualified—Tracfone has won those cases.  How a recycler would fare in court is unclear.

Q: what in 1201 makes you think Congress is needed on burden-shifting? Why not reform the proceeding?

Kasunic: there’s very little in the legislation about the rulemaking process. But the legislative history was clear that every year was a clean slate and the default would be that 1201 would stay in place. Congress didn’t necessarily believe there’d be a need for exemptions, but created this as a failsafe.  Turns out, it does play more of a role than Congress anticipated, and we’d be happy to have Congress give us more information—we’ve asked a couple of times, beginning in 2000.  We’ve tried to keep it flexible.  But sometimes we’ve seen evidence that the market has changed and we’ve responded to it, for example on the definition of “class of works” considering the nature of the users or the use.

Q: Copyright protects against copying and the creation of derivative works. Preventing actual copying is important, derivative works is not. If you narrowed copyright down to an anticopying rule, would that be cost-justified.

Kasunic: I don’t know you can go that far—there are certainly situations where derivative rights are important—translation, movies. But it’s worth thinking about especially with the line between derivativeness and transformativeness for fair use being a fine one.

Genetski: you’d quickly run into similar and familiar linedrawing problems when talking about what level of reproduction is necessary. Longrunning and successful franchises and expansion packs, new iterations of great stories in games: there’s real value in certain contexts to derivative works. 

RT: people have been thinking about good definitions of derivative works, like Christina Bohannon, and I wrote an article about why we should get rid of “substantial similarity.”

Lehman: Pallante didn’t mention revisiting the DMCA in her proposals; is it time for a significant overall review of copyright law?

Kasunic: the speech Pallante gave at Columbia was an abbreviated version of a longer written work, and part of what needs to occur is reconsideration of DMCA; could think about Title I and Title II both, as a delicate compromise.  In particular, the Register’s recommendation to the Librarian has singled out 1201 issues for Congress to revisit.

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