Consumer Groups Ask Copyright Office to Enact DMCA Section 1201 Exemptions

Consumer and open source software advocates urged the Copyright Office to implement its proposed exemptions for Digital Millennium Copyright Act Section 1201, which prohibits the circumvention of technological protection measures. Parties filed comments Friday on proposed exemptions for 27 classes of goods under Section 1201, including 3D printers, audiovisual works and the unlocking of a number of electronic devices. The comments, which were due Friday, were made available Tuesday. It was the first round of comments within the CO's sixth triennial rulemaking process for Section 1201. Those comments were limited to parties in favor of such exemptions. Comments by those opposing the exemptions are due March 27. Comments by those who support or oppose specific proposals and neutral parties wishing to reply to other comments are due May 1.

Groups like the Electronic Frontier Foundation have criticized the technology protection measures in Section 1201, saying the law curbs consumer innovation (see 1501200062). Such groups believe the licensing of software, as opposed to ownership, disallows consumers from fixing or adding to software or electronics.

The Librarian of Congress has “granted an exemption for jailbreaking mobile phones in each of the last two triennial proceedings, and that exemption has now been in place for nearly five years,” said EFF. “During that time, the prevalence of mobile devices as a computing platform, the need for security, privacy, and customization on those devices, and the demand for lawful, nonmanufacturer-approved software have all increased dramatically,” it said. “But access controls affecting the vast majority of devices, whether phones, tablets, or small multipurpose devices, continue to stand in the way of owners’ ability to run the lawfully acquired software of their choice, to remove software from their devices, to prolong the useful life of their devices, and to maintain the security of their personal information.”

"We support the petitions for exemption to allow a reseller to unlock an eligible phone on behalf of a selling consumer, or on behalf of a reseller as its rightful owner, so as to be able to re-insert the phone into the stream of lawful domestic and international commerce," said eBay and Gazelle in joint comments. "This is consistent with the Office’s current treatment of phones, as established by the Unlocking Consumer Choice and Wireless Competition Act ... but would clarify that the exemption covers phones in the hands of legitimate sellers as well as phones in hands of purchasers," they said. "Any limitation or specification of the networks to which an unlocked phone can be connected would be anticompetitive and would neither protect nor achieve any public benefit."

“A number of barriers to data, device firmware, and media access can colorably be classified as technological protection measures controlling access to copyrighted works,” said Public Knowledge. “Such possible TPMs include encryption on the software or of the signal produced; specially designed cables, plugs, or ports designed to frustrate access; proprietary or deliberately obscure formats for data; or even the simple denial of a programming or user interface to access the software,” PK said. “Copyrighted works being accessed through digital devices will frequently require some form of ‘copying’ … to merely be used.”

The proposed unlocking exemption for wireless phones would “properly” enable users “to take control over the use of their wireless handsets,” and “permit them the choice of which network they will be connected to,” said the Competitive Carriers Association. “Rather than relying on the presumed goodwill of wireless carriers, or the availability of unlocking codes from manufacturers, with this exemption consumers will be empowered to retain their current handsets when selecting the wireless service provider of their choice.”

“Consumers should have the right to use their mobile phones and other mobile devices on the wireless communications networks they choose,” said Consumers Union. “Given the right to unlock their devices, owners can continue to use the devices for as long as they continue to function, maintaining their useful life.” For example, CU said consumers should have "the right to sell or give away their used devices, or new devices they receive as upgrades if they choose to continue using their old devices themselves.”

Smart TV owners should be allowed to circumvent TPMs that “control access to the software on their TVs and that prevent the installation of user-supplied software,” said the Software Freedom Conservancy. “This exemption will enable Smart TV owners to access” open source software “applications pre-installed on their TVs -- including those produced by Conservancy's member projects -- and to exercise their corresponding rights to study, modify, and share these applications.” The exemption also would “enable Smart TV owners to produce and share new applications for their TVs and thereby expand their access to copyrighted works,” said SFC.

“Music librarians cannot adequately support the fair, non-infringing uses of audiovisual materials by researchers without the ability to circumvent digital locks that prohibit otherwise legal fair uses of copyrighted works,” said the Music Library Association. It responded to the proposed exemption for educational uses of audiovisual works.