Coons Doesn’t See Easy DMCA Legislative Path; Tillis Presses Tech Industry

Senate Intellectual Property Subcommittee ranking member Chris Coons, D-Del., told us he doesn’t see an easy path forward for drafting text for updating the Digital Millennium Copyright Act by December (see 2006090063). Chairman Thom Tillis, R-N.C., told us he’s hoping to get the tech industry to the negotiating table, after the Internet Association said it doesn’t want the DMCA amended.

Copyright Office General Counsel Regan Smith suggested Tuesday that stakeholders submit any relevant testimony from the subcommittee’s upcoming hearing on DMCA Section 1201 rules (see 2006220041). CO officials relayed technical information during a webinar on its triennial rulemaking process for granting exemptions to Section 1201, which makes it illegal to circumvent digital locks that control online access to copyrighted material. Section 1201 is the subject for one of several hearings before the subcommittee, which is conducting a comprehensive DMCA review.

Nothing before Congress is easy, “but I don’t see an obvious path toward a legislative improvement of the DMCA, given how little time is left in this Congress,” Coons said in an interview. Draft text by the end of the year would “be a good contribution,” but he doesn’t yet “see the pathway.” Coons suspects other priorities -- like COVID-19, immigration, gun violence and policing reform -- could take precedence.

Tillis addressed IA’s recent stance. “If they just take an intransigent position, they won’t be able to table the negotiations,” he said. “We’ll work out bipartisan consensus that we can.” He noted his office is constantly meeting with industry officials: “I’d like for them to be on the train because there’s a lot of issues in their industry I’m sympathetic to and supportive of.”

The DMCA has “incentivized” IA members to “exceed basic statutory standards” in addressing copyright holders’ concerns, while “taking appropriate steps to guard against the erosion of fair use,” IA interim CEO Jon Berroya said in a statement to us Tuesday evening. “IA will continue to share this unique perspective as we engage constructively with lawmakers and other stakeholders on this important issue."

The CO will hold hearings after a last round of comments on Section 1201. Then, the Register of Copyrights will consult NTIA and provide a recommendation to the Librarian of Congress, according to materials distributed Tuesday. The librarian will issue any exemptions as a final rule in the Federal Register.

Entities that gained exemptions through the rulemaking process can apply to renew, not expand, that exemption through a streamlined process. If there's “meaningful opposition,” the application will be moved to the full rulemaking process, CO officials said. Section 1201 provides permanent exemption to entities like libraries, schools, police, researchers and others.

The section prohibits circumventing a technological measure and trafficking circumvention technologies. In terms of access controls, 1201 prevents circumvention and trafficking. Access controls are technological measures that prevent unauthorized access to copyrighted works. With copy controls, 1201 bars trafficking, not circumvention. Copy controls are technological measures that protect exclusive rights granted to copyright owners.

Exemptions must relate to at least some works protected by copyright, according to materials. Uses must be noninfringing. Users must within three years be “adversely affected in their ability to make such noninfringing uses,” and the technological protection measure “must be the cause of such adverse effects.”