Monday, March 07, 2016

Initial comments on 1201: fixing what's broken

I’ve been reading through the initial comments on 1201 for the Copyright Office’s inquiry.  One overarching thought: current “winners”—successful exemption proponents—unanimously say the current process is broken.  Current losers—unsuccessful exemption opponents—occasionally express openness to minor tweaks, such as a meaningless presumption of renewal if there’s no opposition, but say the process is fine.  This rather unusual configuration of complaints suggests something about how inherently skewed the process is: spending roughly 500 hours per exemption (and that’s just on the proponents’ side, excluding opponents and the Copyright Office) to double the word count of last time’s exemption, increasing its complexity and decreasing its utility, is a victory only compared to the even worse alternative.
Also, a small but telling point: The Copyright Alliance touts as a DRM success: “On this site, users are able to search an online library, which as of December 2011 included access to over 12,000 films and over 50,000 clips. The site allows users to compile clips into playlists (as a professor might wish to do for classroom use) and access the library with any API to incorporate clips into an application that the user is developing.”  Except that’s not what the site does in 2016; it’s an ad platform for integrating ads into “premium” clips, not a consumer site allowing users to compile playlists.  I guess DRM didn’t prove all that helpful after all.  More generally: copyright owners’ business models do not take care of fair use, and it’s past time to stop pretending that they can.  (Also, cite checking has relevance beyond law school.  Just sayin’.)


  1. The fact that exemption proponents don't like the process, while opponents do, is not really a big mystery though, right? Exemption proponents generally don't believe there should be anticircumvention rules at all. Therefore any process for an exemption would be an undue burden. Opponents generally think there should be anticircumvention rules, and probably believe there would be more pressure to get rid of the whole thing without the exemption proceedings. So a process requiring a detailed showing to grant limited exceptions to those rules is not an undue burden, even when they lose. I'm not sure you can conclude anything at all about how well the process is working from how those selecting to become participants regard it.

  2. Well, that depends on what you think of the proponents, I'd say. And it does contrast with the usual pattern, either with administrative agencies or with courts, where winners generally declare themselves happy with the entity that has ruled in their favor after dealing with a legislatively imposed framework.

  3. I agree it's not the expected result of opinions on process following success on the merits (although I think there's literature that complicates that, concerning whether litigants think their concerns are being heard). I think what's driving it here though is that the debate over exemptions takes place in a larger framework of continuing debate over the normative desirability of the existence (rather than mere extent) of the underlying law, which I think you don't get in most other circumstances. Those concerns are outside the purview of the process, so if I'm remembering the "procedural fairness" literature correctly, it would make perfect sense that even winners would report the process to be broken.