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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