Section 1201 Rulemaking – The Process Is Moving Along

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Section 1201 Rulemaking – The Process Is Moving Along

Update (May 7, 2018) : Public hearings on the 1201 rulemaking process were held  in Washington DC on April 10-13, and in Los Angeles on April 23-25, 2018. These all-day sessions included discussion about each  of the 12 proposed classes of exemptions, with groups on each side of each proposed exemption provided with time to argue for their view of the best policy to adopt. These groups included: Association of American Publishers (AAP), the Electronic Frontier Foundation (EFF), various Universities, the Library Copyright Alliance, the Software & Information Industry Association, Public Knowledge, International Game Developers Association, and the Motion Picture Association of America (MPAA).

In the next stages of the process, the Copyright Office staff will (in effect) go into a huddle and sort it all out, preparing recommendations which will then work their way up to the Acting Register of Copyright, Karyn A. Temple, whose responsibility is to make the final recommendations to the Librarian of Congress, Carla Hayden. This final step will likely occur sometime in the fall of 2018.

Further information about the status of the current 1201 rulemaking may be accessed here.

This article was originally published in March, 2018. 

Section 1201 is a curious little section of the US Copyright Act, added by the Digital Millennium Copyright Act (DMCA) of 1998. But the matter covered in that section is of great importance in our digital age and, due to its triennial rulemaking requirement, ‘1201’ exceptions are a topic of considerable discussion every few years. As it turns out, 2018 is one of those years.

For this (seventh) round the Copyright Office is trying out a “new, streamlined procedure for the renewal of exemptions that were granted during the sixth triennial rulemaking.” For this round, the Copyright Office has signaled its intent to streamline by taking into account exemptions which have been previously granted, and providing them a bit of a fast lane.

But let’s provide some context before digging in to these updates. One of the things that Congress realized at the time of passing the DMCA (1998)– and it’s something that Congress realizes all too infrequently – is that it was likely that technology would develop more quickly than laws and rules could be written to manage how the new technology would interact with everyone else’s rights and privileges. So Congress included within the DMCA a provision that became Section 1201 of the Copyright Act, under which the Copyright Office is instructed to update some of the ways in which technology and the law interact, by undertaking a rulemaking process every three years. That means hearing evidence and then granting – or denying –  specific exemptions from the limitations that the Copyright Act imposes on what users might do with works protected by copyright. The Copyright Office is now already in the middle stages of the seventh cycle of Section 1201 rulemakings (its conclusions are due to be published and effective at the end of October 2018).

This time through, twelve exemptions have been requested, with dozens of organizations weighing in. Among the exemptions requested are those that apply to different types of copyrighted works: audiovisual works (towards improving accessibility for specified purposes), computer programs (including unlocking smartphones for ‘jailbreaking’ and repair, as well as video game preservation) and two entirely new ones, one for flight-related software, and one involving an aspect of 3D printing. Some of these (particularly ‘jailbreaking’) have been frequently requested, and sometimes granted, before.

Some of these examples make immediate sense – for example, making licit the jailbreaking of phones has been written up quite a few times and nearly everyone (other than phone companies and manufacturers, of course) favors that in principle. Some video games and other older (consumer-facing) software are at risk of becoming completely inaccessible if the ability to ‘crack’ them open for examination, and running on modern devices, is somehow walled off by law. I myself favor, in general, what is sometimes called “the right to tinker,” which is to say that if I buy myself (for instance) a tractor, and I have alternative software that I wish to run on it in order to repair it, I should be able to do just that – at my own risk. It seems like overreach of copyright to use the all mighty c-in-a-circle to make me stick with what came shipped with the tool. I should be able to take my own chances with my own toy – even if it is a big toy, like a car or a tractor. The wisdom of this approach, however, is subject to debate. As a manufacturer, or a more cautious consumer, might point out, these are complicated machines, and if you don’t know who was writing that code you are installing, you might be opening yourself, and other people, up to problems you are not anticipating.

Of the 12 requested exemptions, two are new (to me at least): Class 11, Avionics, and Class 12, 3D Printing.

The proposed exemption for access to avionics data reads “A proposed exemption for access to aircraft flight, operations, maintenance and security data captured by computer programs or firmware. The digital avionics systems lock out access to collected aircraft flight, operations, maintenance and cyber security data necessary to comply with flight safety, maintenance and cyber security regulations and to maintain the safe and secure operation of an aircraft.” I don’t know enough about the field of avionics, including what are sometimes referred to as “e-Enabled aircraft,” to weigh in on the details, but as long as it doesn’t materially affect airplane safety I can see a valid argument for opening up the data systems and outputs here. Frankly, not to do so might amount to an anti-competitive policy (as well as a possible safety issue), and one that unnecessarily impedes technology innovation. But again, I don’t claim any expertise on these matters; it’s simply interesting, to me, to see the insertion of copyright issues into this mix. Did they anticipate such applications of copyright law at all, back in 1998?

The final request for exemption, in the domain of 3D Printing, reads, A proposed exemption for owners of 3D printers to circumvent technological protection measures on firmware or software in 3D printers to run the printers’ operating systems to allow use of non-manufacturer-approved feedstock.” I’ve long been fascinated with 3D printing. “Feedstock” is a jargon term for the raw materials used by the various 3D printer technologies, the most common of which are Selective laser sintering (SLS), Fused deposition modeling (FDM), and Stereolithography (SLA). Which is to say, plastics, metal powders and resins. The argument here seems like a descendant of the “toner wars” from traditional (2D) printing, whereby anticircumvention rules were used to prevent users from substituting aftermarket toner cartridges for laser printers. Under a 2017 Supreme Court Ruling, this sort of anti-consumer shenanigans are no longer allowed, and I’d expect a case focused on the supplies used in 3D printing to go the same way.

The next round of public hearings before the Copyright Office is coming up in mid-April. I’m looking forward to it; maybe we’ll see you there.

A version of this post originally appeared in IP Watch.

Dave Davis

Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as research analyst. He previously held directorships in both public libraries and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. Dave is fascinated by copyright issues, content licensing and data. Also, rock and roll music.
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