{"id":7726,"date":"2020-09-24T15:37:19","date_gmt":"2020-09-24T15:37:19","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=7726"},"modified":"2026-02-03T20:21:56","modified_gmt":"2026-02-03T20:21:56","slug":"senate-ip-subcommittee-hearing-addresses-section-1201-reform","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2020\/09\/24\/senate-ip-subcommittee-hearing-addresses-section-1201-reform\/","title":{"rendered":"[Archived Post] Senate IP Subcommittee Hearing Addresses Section 1201 Reform"},"content":{"rendered":"

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.<\/em><\/strong><\/p>\n

\"U.S.By Liz Velander<\/em><\/strong><\/p>\n

Last week, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing<\/a> entitled \u201cAre Reforms to Section 1201 Needed and Warranted?\u201d The hearing explored Section 1201\u2019s operation, as well as potential reforms to improve the effectiveness of Section 1201 in the administration of the triennial rulemaking proceeding that establishes temporary exemptions. Chairman Tillis was particularly interested in hearing proposals to further streamline the rulemaking process and to amend the statute so that exemptions permit third-party assistance.<\/p>\n

The hearing consisted of two panels. First, the U.S. Copyright Office, who administers Section 1201 rulemaking. Second, industry and academic experts who shed light on how Section 1201 has been working for copyright owners and users, and the practical implications of potential reforms. Regan Smith, General Counsel and Associate Register of Copyrights, U.S. Copyright Office, was the sole panelist on Panel I. Panel II included: Vanessa Bailey, Global Director, Intellectual Property Policy, Intel Corporation; Professor Blake Reid, Director, Samuelson-Glushko Technology Law & Policy Clinic, University of Colorado Law School; Matthew Williams, Partner, Mitchell Silberberg & Knupp LLP; Seth Greenstein, Partner, Constantine Cannon LLP; Morgan Reed, President, ACT | The App Association; and Aaron Lowe, Senior Vice President, Regulatory and Government Affairs, Auto Care Association.<\/p>\n

Section 1201 of the Digital Millennium Copyright Act (DMCA) protects<\/a> \u201ctechnological measures,\u201d also known as \u201ctechnological protection measures\u201d (TPMs), employed by copyright owners to protect their works from unauthorized access or use. Section 1201 gives copyright owners a cause of action when someone circumvents TPMs that have been employed to prevent unauthorized access or use of their copyrighted works. Common examples of TPMs include password systems that prevent nonsubscribers from accessing streaming services, code that prevents DVDs from playing on unauthorized devices, and code that prevents a purchaser from copying the text of an e-book or sending the file to others.<\/p>\n

Congress enacted Section 1201 to foster a lawful online market for copyrighted works while providing several statutory exemptions to avoid impeding lawful uses. For additional flexibility, the law authorizes the Librarian of Congress to adopt temporary exemptions following a rulemaking proceeding administered by the Copyright Office every three years. During the triennial rulemaking, the Copyright Office solicits<\/a> exemption petitions from the public and develops a comprehensive administrative record using information submitted by interested parties. Based on the evidence submitted, the Register of Copyrights provides a written recommendation to the Librarian of Congress as to which exemptions are warranted, along with proposed regulatory text. Upon the Librarian\u2019s approval, the exemptions are published in the Federal Register and remain in effect for three years.<\/p>\n

In the seventh triennial rulemaking (2017-2018), the Copyright Office instituted a new \u201cstreamlined\u201d process for renewing existing exemptions. In this streamlined process, proponents of an existing exemption can petition to have the exemption renewed by certifying that they are not aware of material changes in fact, law, or other circumstances that would justify reevaluating the basis for the exemption. If the Copyright Office does not receive an objection outlining relevant new circumstances, the exemption will be renewed without going through the traditional three-step commenting process. These changes have greatly improved the efficiency of the rulemaking process.<\/p>\n

On the first panel, Ms. Smith, representing the U.S. Copyright Office, explained the crux of the dispute about Section 1201 reform. On the one hand, \u201csome Section 1201 stakeholders credit the subsequent explosion of legitimate digital dissemination models to the protection established by section 1201 in 1998.\u201d On the other hand, \u201cstakeholders express that the growing ubiquity of software-enabled products in American life\u2014automobiles, refrigerators, medical devices, and so on\u2014raises concerns that Section 1201 may be operating with an unintended reach that the permanent exemptions and the triennial rulemaking only partially address.\u201d In 2017, the Copyright Office \u201ccompleted a comprehensive study<\/a> in the operation of the law, taking into account stakeholder perspectives throughout the copyright ecosystem.\u201d It concluded that \u201cwhile the overall framework of Section 1201 appears to be functioning as intended, the system would benefit from certain updates to the rulemaking procedures, as well as targeted legislative reforms.\u201d<\/p>\n

Ms. Smith listed the recommended legislative reforms in order of priority. First, for Congress to provide discretion in the rulemaking to adopt exemptions that permit third-party assistance at the direction of the intended user. Second, for reconsideration of several changes to the permanent exemptions for security testing and encryption research, \u201cincluding expanding the types of permitted activities, easing the requirements to seek authorization from the owner of the relevant system or technology, and eliminating or clarifying the multifactor eligibility tests for certain statutory exemptions.\u201d Third, for Congress to adopt new permanent exemptions, such as: \u201can exemption to enable blind, visually impaired, or print disabled person to utilize assistive technologies; an exemption for unlocking used mobile devices; and an exemption to allow diagnosis, repair, or maintenance of a computer program, including to circumvent obsolete access controls.\u201d Finally, Ms. Smith recommended legislation to provide for presumptive renewal of exemptions adopted in the previous rulemaking cycle.<\/p>\n

On the second panel, stakeholders argued for and against legislative reform. Ms. Bailey, representing Intel Corporation, testified that \u201cthe Librarian of Congress has struck the right balance between ease of use and content protection under the existing regulatory framework.\u201d She described Section 1201 as \u201cthe bedrock on which the digital content ecosystem is built.\u201d She urged against legislative revision, arguing that \u201cthe reliable protection provided by Section 1201 is essential to the maintenance of industry-standard TPMs and the digital content ecosystem.\u201d<\/p>\n

The next panelist, Prof. Reid, strongly disagreed with Ms. Bailey. He represented \u201cpeople who are blind, visually impaired, or print disabled, educational disability services professionals, and security researchers.\u201d Prof. Reid argued for expansive changes to the triennial rulemaking process, asserting that \u201cthe triennial review regularly imposes an unnecessary and unfair burden on decent, hard-working people who play by the rules and who merely seek to go about their livelihoods and serve their communities without fear of breaking a law that could subject them to ruinous liability in federal court litigation or even criminal charges.\u201d Mr. Greenstein echoed many of Prof. Reid\u2019s concerns about Section 1201\u2019s overreach. He proposed a number of legislative reforms to the Subcommittee, such as allowing third parties to obtain the means to circumvent access in order to repair consumer products at the direction of the intended user. \u201cCongress intended Section 1201 is protect copyrights, not business models,\u201d stated Mr. Greenstein.<\/p>\n

Senator Chris Coons (D-DE) sought feedback from other panelists about the suggestion that Congress provide the Librarian flexibility to allow consumers to seek third-party help. Mr. Reed, representing the App Association, asserted that we already have a \u201crobust ability\u201d to conduct authorized repair. Ms. Bailey agreed, stating \u201cthe Copyright Office has already taken steps to make the exemptions more usable.\u201d She pointed out that \u201cunlike anti-circumvention exemptions, which can be modified or abandoned if they prove less useful than expected, should an anti-trafficking exemption be improvidently granted, the effects on the marketplace would be permanent because the tools can\u2019t distinguish between permissible and impermissible use.\u201d<\/p>\n

Senator Richard Blumenthal (D-CT) was specifically concerned about voting machine integrity, asking the panel whether they would support a permanent cybersecurity and voting machine exemption. Prof. Reid stated that such an exemption is \u201ccritical to the cybersecurity of this country and the future of our democracy.\u201d Mr. Reed and Ms. Bailey both reiterated their position that a legislative change was unnecessary because the Copyright Office already had the flexibility to address the issue.<\/p>\n

The hearing was cut short by a live vote, and Chairman Tillis concluded the hearing by thanking each panelist and stating that they may submit further comments to the record.<\/p>\n","protected":false},"excerpt":{"rendered":"

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP. By Liz Velander Last week, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled \u201cAre Reforms to Section 1201 Needed and Warranted?\u201d The hearing explored Section 1201\u2019s operation, […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10],"tags":[77,276,336,337,883,896,1213,1235,1309,1456,1486],"class_list":["post-7726","post","type-post","status-publish","format-standard","hentry","category-copyright","tag-access-controls","tag-chris-coons","tag-copy-controls","tag-copyright-2","tag-librarian-of-congress","tag-liz-velander","tag-register-of-copyrights","tag-richard-blumenthal","tag-section-1201","tag-thom-tillis","tag-triennial-rulemaking"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7726","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=7726"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7726\/revisions"}],"predecessor-version":[{"id":15668,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7726\/revisions\/15668"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=7726"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=7726"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=7726"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}