Trademark Legislation Takes Precedence Over DMCA Goals: Tillis

Trademark modernization takes legislative priority over efforts to update the Digital Millennium Copyright Act, Senate Intellectual Property Subcommittee Chairman Thom Tillis, R-N.C., told us Wednesday before a hearing on the DMCA. The Trademark Modernization Act recently passed the House Judiciary Committee unanimously. Getting that bill enacted into law this Congress is one of Tillis' “top priorities,” his office said. “We’ll be working with them to make sure that whatever we lay down has got consensus,” the lead Senate sponsor said.

Tillis said he’s still tracking toward December for a discussion draft on the DMCA (see 2006230068). He plans to release the draft the last week of December, his office said: It “will form the basis of a bill to be introduced in the next Congress. Reforming the DMCA and passing a DMCA reform bill into law will be his top IP priority in his second term.”

Congress needs to ensure DMCA Section 1201 is still striking the proper balance between protecting against piracy and allowing consumers to repair their devices, said ranking member Chris Coons, D-Del., during the hearing. Modern technology means consumers are at risk of violating 1201 when repairing devices, Tillis said.

The protections have been integral to discouraging piracy for more than two decades, but they now apply to activity not previously implicated by copyright, testified Copyright Office General Counsel Regan Smith. Section 1201 is overall functioning as intended, but the CO concluded the system would benefit from updates to rulemaking procedures and targeted legislative reforms, she said.

The office recommended Congress provide discretion through rulemaking to adopt exemptions that permit third-party assistance at the direction of an intended user. This could help consumers service automobiles, for example, Smith said. Statutory exemptions for security testing and encryption research could be amended to reflect a more modern approach, she testified.

Tillis asked if Smith is aware of any suggested changes that wouldn’t be helpful. The CO considered but didn’t recommend the overall structure of 1201 be amended to “require a nexus to infringement,” she said: It’s one proposal the CO believes doesn’t fit with what Congress intended when enacting the section. Asked by Coons about safeguards to prevent third parties from exploiting exemptions for illegal purposes, Smith noted the importance of allowing exemptions through the intended user of the device being repaired or unlocked.

Richard Blumenthal, D-Conn., asked if Smith would support making a proposed cybersecurity and voting machine exemption permanent, noting the importance of election security. CO has recommended a statutory exemption for security research generally, which would include voting machine research, Smith said. In response to another Blumenthal question, Smith said IoT and the expansion of VPNs with consumer products is the biggest change in how consumers interact with the statute. The rulemaking built in some flexibility to deal with these unforeseen changes, but the exemptions could be expanded, she said.

Be wary of proposing legislative fixes to the exemption process that the CO could likely handle, testified ACT|The App Association President Morgan Reed and Intel Intellectual Property Policy-Global Director Vanessa Bailey. Coons asked about the CO’s suggestion for allowing expanded third-party assistance. There’s plenty of flexibility, Reed said, citing Android’s open-source technology. The network of authorized repair centers is large, so it’s unnecessary, he added. He warned against opening the door to constant legislative action. Bailey agreed, saying third-party flexibility already is built into the statute for certain classes of users like educators.

Coons asked about claims that 1201 interferes with free speech. There have been several First Amendment lawsuits regarding the statute, but not one case resulted in the section being found unconstitutional, said Mitchell Silberberg’s Matthew Williams.