Recognizing that the progress of technology could change the DMCA’s impact, Congress built into the law a provision whereby the Librarian of Congress and the Register of Copyrights can review the law and propose temporary exceptions to it every three years. Since its passage, the Copyright Office has explored several such exceptions, including exceptions to permit circumvention of video for educational purposes, to preserve video games, and to “jailbreak” cell phones.>
Now, in a very lengthy report, the Copyright Office has proposed substantive changes to copyright law to incorporate some of these exceptions permanently. Unsurprisingly, these suggestions are quite modest. In general, the report reaffirms the fundamentals of the DMCA and most of its provisions. It then goes on to suggest a few permanent exemptions, including exemptions for legitimate security research and testing, to enable blind or visually impaired people to use assistive technologies, to diagnose and repair computer programs, and to permit the unlocking of mobile devices.
Unfortunately, however, the Copyright Office does not go any further than these proposals. For example, it does not recommend exemptions for things like preservation by libraries and archives or for educational and derivative uses. As such, it only begins to address the concerns raised by critics of the DMCA, and does not really cure the problem that the law prohibits otherwise legitimate fair uses of copyrighted works. As such, the video parody mentioned above would still be blocked by the law.
The Electronic Frontier Foundation (EFF) has been frustrated by the DMCA for a long time. In response to the new report, EFF argues that the agency doesn’t go nearly far enough. “[I]f a Section 1201 violation can happen without any connection to copyright infringement, then Section 1201 gives copyright holders (and DRM vendors) vast control over technology users, beyond what copyright law already gave them.” Moreover, the EFF points out that there is no evidence that a ban on breaking DRM is necessary at all. “[T]he Internet contains many lifetimes worth of amazing creative works of all kinds, made available by creatives without any DRM.” So, it’s not clear DRM and the DMCA’s anti-circumvention provisions actually serve their intended function — to encourage creators to create without worry of massive digital piracy.
So why should you care about this? From an academic standpoint, it is certainly disappointing that the Copyright Office does not want to extend the DMCA’s exemptions to make room for educational and preservation uses. Sure, the agency has addressed these issues on temporary bases, but a permanent exemption seems to make sense. Does it really discourage creation by allow students and professors to circumvent DRM for their academic work? Does it really discourage creation to permit schools to circumvent DRM to archive video games? Without evidence, I doubt it does.
But I think the bigger issue this report raises, and the reason I think we should pay attention to it, is something that should be uncontroversial: it is far past time we seriously consider broad-scale copyright reform. Our current copyright law is now 41 years old, and though it has been amended many times since 1976, it clearly shows signs of age. Simply stated, the law was designed for the analog world and doesn’t always mesh with our new digital reality. Indeed, former register of copyrights Maria Pallente herself said as much in a paper she wrote in 2013 entitled The Next Great Copyright Act. These exemptions to the DMCA are a step in the right direction, but they do not solve the more fundamental question of whether the copyright law as it currently stands makes sense in 2017. Indeed, the DMCA specifically acknowledges that we should look at how at least part of the law is working at least every three years. Now, it’s time to look at how the law is working more broadly.
Of course, with all the animosity in Washington, it seems doubtful that major copyright reform will happen anytime soon. So, perhaps the Copyright Office’s modest proposals are the best we can hope for at the moment. Still, we should reassess whether copyright law continues to ensure the balance between authors and the public that the Constitution calls for, and to make the changes necessary to create a law that works for today and the future.