As I’ve written about before, last year’s Section 1201 triennial rulemaking exposed quite a few flaws in the rulemaking procedure. The process itself left much to be desired, as did the eagerness of the Copyright Office to take it upon itself to get to decide whether and how people can be allowed to explore the computing technology they legitimately possess.
For background, Section 1201 is a provision inserted into the copyright statute that makes it a separate, independent criminal offense to bypass any “technical protective measure” (aka “TPM”) that prevents a technology use, irrespective of whether that use infringes a copyright. Because, however, this prohibition will inevitably interfere with non-infringing uses, neighboring provisions in the statute instruct the Librarian of Congress to issue exemptions to the otherwise blanket prohibition following a rulemaking process held every three years by the Copyright Office.
The most recent rulemaking concluded last year and left nearly all parties dissatisfied. At minimum it was a long, messy, expensive process, overly burdensome on everyone who participated, the public in general, and even the Copyright Office itself. It also further raised questions of whether and to what extent it was appropriate to have the Copyright Office get to decide how people are allowed to use their computing technology.
In the wake of this past rulemaking Congress called upon the Copyright Office to conduct two studies, one considering potential improvements to the 1201 rulemaking process, and the other considering the role of copyright in governing the use of software-enabled consumer electronics. These were two separate studies, but as we argued in a comment I submitted on behalf of the R Street Institute in both of them, they are inherently interrelated. While the 1201 rulemaking process itself is still unjustifiably obstructive to non-infringing uses of copyrighted works, when it prevents people from using the computing devices they legitimately possess as they would choose to use to use them, the result is particularly perverse.
And so we counseled that both studies’ questions should be considered in light of each other. After all, the essential question in both stories is, what is copyright law doing here?