EFF to the FTC: DMCA Section 1201 Creates Anti-Competitive Regulatory Barriers

Summary

As part of multi-pronged effort towards deregulation, the Federal Trade Commission has asked the public to identify any and all “anti-competitive” regulations. Working with our friends at Authors Alliance, EFF answered, calling attention to a set of anti-competitive regulations that many don’t recognize as such: the triennial exemptions to Section 1201 of the Digital Millennium Copyright Act, and the cumbersome process on which they depend. Copyright grants exclusive rights to creators, but only as a means to serve the broader public interest. Fair use and other limitations play a critical role in that service by ensuring that the public can engage in commentary, research, education, innovation, and repair without unjustified restriction. Section 1201 effectively forbids fair uses where those uses require circumventing a software lock (a.k.a. technological protection measures) on a copyrighted work. Congress realized that Section 1201 had this effect, so it adopted a safety valve—a triennial process by which the Library of Congress could grant exemptions. Under the current rulemaking framework, however, this intended safety valve functions more like a chokepoint. Individuals and organizations seeking an exemption to engage in lawful fair use must navigate a burdensome, time-consuming administrative maze. The existing procedural and regulatory barriers ensure that the rulemaking process—and Section 1201 itself—thwarts, rather than serves, the public interest. The FTC does not, of course, control Congress or the Library of Congress. But we hope its investigation and any resulting report on anti-competitive regulations will recognize the negative effects of Section 1201 and that the triennial rulemaking process has failed to be the check Congress intended. Our comments urge the FTC to recommend that Congress repeal or reform Section 1201. At a minimum, the FTC should advocate for fundamental revisions to the Library of Congress’s next triennial rulemaking process, set ...