Public Knowledge Urges Anti-Circumvention Exceptions

May 13, 2010. The Public Knowledge (PK) released the third paper [71 pages in PDF] in a series on reforming copyright law. This paper is titled "Updating 17 U.S.C. § 1201 for Innovators, Creators, and Consumers in the Digital Age".

This paper proposes to create exceptions to the anti-circumvention provisions of 17 U.S.C. § 1201, which was enacted as part of the Digital Millennium Copyright Act (DMCA). It proposes to allow circumvention for any non-infringing purpose, and the manufacture, importation and sale of circumvention devices for any non-infringing purpose.

Currently, Section 1201(a)(1) provides, in part, that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Section 1201(a)(2) provides, in part, that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title ..."

The PK proposes to amend Section 1201 to provide that notwithstanding the above quoted provisions, "it shall not be a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention is for the purpose of engaging in noninfringing use of a work protected under this title", and "it shall not be a violation of this section to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof capable of enabling substantial noninfringing use of a work protected under this title".

These proposals, if enacted, would have the effect of rendering ineffective this anti-circumvention statutory regime.

For example, any device manufactured for the purpose of allowing users to circumvent technological measures to engage in fair use copying of protected works would also be purchased and used to circumvent for infringing purposes, and injured copyright holders would have no effective recourse under under the DMCA.

This paper argues that "The anticircumvention provisions of the DMCA are overbroad, have had numerous unintended consequences for creators, consumers, educators, innovators and the public generally, and have not solved the problems Congress targeted in creating them. Congress should enact the reforms proposed in this Report in order to remedy these unintended consequences and restore balance to copyright law, protecting the rights of copyright owners while supporting the public’s interest in access to copyrighted works, diversity of expression, research into and development of innovative products, and marketplace competition."

This PK proposal is similar to bills introduced in past Congresses by Rep. Rick Boucher (D-VA). None of these bills have been approved by any Committee. See:

• HR 5544 (107th Congress), the "Digital Media Consumers' Rights Act of 2002", and stories titled "Reps. Boucher and Doolittle Introduce Digital Media Consumer Rights Act" and "Summary of the Digital Media Consumer Rights Act" in TLJ Daily E-Mail Alert No. 532, October 4, 2002.
• HR 107 (108th Congress), the "Digital Media Consumers' Rights Act of 2003", and story titled "Reps. Boucher and Doolittle Introduce Digital Fair Use Bill" in TLJ Daily E-Mail Alert No. 582, January 14, 2003.
• stories titled "Chairman Barton Says Commerce Committee Will Mark Up Boucher Doolittle Bill in July", "House Commerce Committee's Primary Jurisdiction Over HR 107", and "Judiciary Committee Leaders Condemn Jurisdictional Power Grab" in TLJ Daily E-Mail Alert No. 924, June 23, 2004.
• HR 1201 (109th Congress), the "Digital Media Consumers' Rights Act of 2005", and story titled "Reps. Boucher, Doolittle and Barton Reintroduce Digital Media Consumers' Rights Act" in TLJ Daily E-Mail Alert No. 1,111, April 8, 2005.
• story titled "House Commerce Subcommittee Holds Hearing on Fair Use" in TLJ Daily E-Mail Alert No. 1,256, November 18, 2005.
• HR 1201 (110th Congress) [LOC | WW], the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007" or "FAIR USE Act", and story titled "Rep. Boucher Introduces FAIR USE Act" in TLJ Daily E-Mail Alert No. 1,545, February 27, 2007.

The authors of this latest PK paper are Pan Lee, Daniel Park, Allen Wang, and Jennifer Urban.

The PK released the first two papers in this series in February. See, paper [15 pages in PDF] titled "Introduction to the Copyright Reform Act", and paper [37 pages in PDF] titled "Report 1: Updating Fair Use for Innovators and Creators in the Digital Age: Two Targeted Reforms". See also, story titled "Public Knowledge Proposes Changes to Copyright Law" in TLJ Daily E-Mail Alert No. 2,045, February 16, 2010.