Advancing Innovation in a Software-Enabled World: Decoding the Complex Section 1201 Rulemaking

October 28, 2024

By: Luis Zambrano Ramos, Acting Deputy Associate Administrator, Office of Policy Analysis and Development, NTIA

Every three years, the U.S. Copyright Office reviews and occasionally recommends expanding legal protections rooted in Section 1201 of the Digital Millennium Copyright Act of 1998 for circumventing access controls on copyrighted works. Last week, the Copyright Office concluded its most recent review and issued its recommendations.

NTIA congratulates the Copyright Office and the Librarian of Congress on completing this important rulemaking, which can help prevent copyright law from getting in the way of vehicle repair, film studies classes, and a plethora of other important activities. We also support the Librarian of Congress' conclusion that there are issues involving copyright-protected technology that "may require a broader solution" beyond this process.

Why a Triennial Review?

Because more and more devices have embedded software, this Section 1201 proceeding affects a range of activities, including security research, unlocking cellphones to switch wireless carriers, and repairing products.

The sheer number of exemptions that have been considered in the past 25 years shows how critical this process has become to the use of technology in today's society. For example, prior to the conclusion of this latest rulemaking, there were already more than 20 temporary exemptions in place. Some of the current temporary exemptions permit beneficiaries to circumvent technological protection measures to:

• Make copies of short portions of movies for classroom use;
• Maintain, diagnose, and repair motorized land vehicles, marine vessels, medical devices and systems, and consumer devices;
• Access patient data in medical device and corresponding monitoring systems;
• Make certain copyrighted works accessible for people with disabilities; and
• Engage in security research to test, investigate, and correct security flaws or vulnerabilities.

NTIA's Role

By law, the Copyright Office must consult with NTIA when the Office conducts this proceeding, and the Librarian of Congress ultimately decides whether to grant or deny proposed exemptions. In this rulemaking, NTIA supported enabling AI trustworthiness research, commercial and industrial equipment repair, digital preservation, and other activities that should not be hindered by copyright law.

What's New?

We appreciate the Office's continued partnership and expert handling of the Section 1201 rulemaking. The renewal of most of the temporary exemptions from the previous rulemaking and adoption of new exemptions in this cycle-such as the exemption for the repair of retail-level commercial food preparation equipment-provide some relief to people who seek to make lawful uses of these works while helping protect the interests of copyright holders.

Other important developments from this rulemaking include the expansion of existing exemptions that facilitate important academic research using text and data mining techniques, a new exemption enabling vehicle owners and lessees to access operational data, and an important clarification that key AI trustworthiness research activities likely do not implicate the prohibition against circumvention.

The Office and the Librarian of Congress, however, did not adopt NTIA's recommendations to exempt repair of the full range of commercial and industrial equipment, as well as to expand the exemptions for computer program and video game preservation. Granting exemptions such as these would have helped more people make lawful uses of copyrighted works.

While there exist disagreements about specific exemptions, NTIA believes the Copyright Office and the Librarian of Congress may lack the requisite authority in the rulemaking process to fully address some of the shortcomings and side effects of Section 1201. Moreover, some of the issues raised in the latest rulemaking speak to matters of vital national importance - for example, participants this year discussed the need to protect researchers from liability for engaging in AI trustworthiness research at a time when independent research into the latest AI technologies is critical. Since the rulemaking takes place once every three years, it will not be until 2027 at the earliest that this process could consider new challenges that may emerge in the interim.

Improving the Section 1201 Rulemaking Process

We think there are some areas where the Office itself can improve the rulemaking, such as simplifying exemption language to make it easier to understand. The Copyright Office over the years has taken significant steps to ensure that the rulemaking process evolves with the times (e.g., enabling remote participation). We encourage the Copyright Office to take any further actions that it believes to be within its current authority to further address these issues and to clarify where it lacks the ability to fully mitigate these concerns.

But ultimately, after almost 25 years and nine triennial rulemakings, and in light of the evolving role of technology in society, we believe this process has nearly reached the limits of what can be done under the statute to balance the interests of rights holders and people seeking to make lawful use of copyrighted works.

Looking Ahead

We wholeheartedly agree with the Librarian's assessment that, "as a regulatory process focused on technological protection measures for copyrighted content, section 1201 is ill-suited to address fundamental policy issues with new technologies." We join the Librarian in urging a whole-of-government approach to considering the limitations of current law.

NTIA's 2024 consultation letter highlights three areas of concern about the current rulemaking process:

• Lack of clarity about third-party assistance in light of the anti-trafficking provisions (from which the rulemaking cannot offer an exemption);
• The often-granular scope of exemptions granted under the process; and
• The ambiguity about what a "technological protection measure" and method of circumvention entail.

We continue to believe the prohibition against circumvention must not be allowed to harm competition, repair, or repurposing of software-enabled devices. And importantly, Section 1201 must not transform the free expression enabled by fair use principles into a luxury reserved for those with sufficient means. NTIA stands ready to work with the Copyright Office, Library of Congress, and other stakeholders on this vital task.