The Digital Millennium Copyright Act (DMCA) was enacted by Congress in 1998 to, among other things, encourage the growth of the Internet and many other related technologies. At the time, Congress set up some relatively “big-picture” rules of the road for how the rights and privileges of copyright holders, technology providers, Internet service providers, consumers, businesses, government agencies, and others would be managed. The intent was to minimize friction among all the parties and still encourage new technologies.
One of the things Congress realized at the time of the DMCA—and something Congress realizes all too infrequently—is it was likely 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 Section 1201, under which the Copyright Office is supposed 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 identifying specific exemptions from the limitations of copyright and the DMCA, which the Office is given the power to enact.
The Copyright Office is already in the middle stages of the seventh cycle of Section 1201 rulemakings (conclusions due at the end of October, 2018). In past cycles, the number of exemptions granted has gradually grown from a small handful to about a dozen.
The multiple cycles have proven a few things:
- Some exemptions (such as certain ones for the disabled), once granted, tend to be granted over and over.
- A few other exemptions (such as the right to jailbreak an iPhone) have been granted in one cycle and then retracted in a later one (although the jailbreaking exemption, once retracted by the Copyright Office, was later reinstated by Congress).
- A few exemptions have been turned down repeatedly.
But the law requires each rulemaking must look anew at each exemption (given changes in technology and society) if someone in the public asks for it and the Copyright Office considers it a serious request. As a result, over time, the rulemaking process has become longer and longer and taken more and more Copyright Office resources to administer.
On June 22, 2017, the Copyright Office itself announced in a Report that it has some suggestions for changing the rulemaking process (click here to access the full report). The Office would like to hear public comments on its suggestions by September 13, 2017, and then will shape them into a final set of suggestions for Congress to change the law (and, at a minimum, streamline the rulemaking process). It is not clear how long it will be before legislation is introduced, but experience suggests it will not be before mid-2018.