DMCA, 17 U.S.C. §1201

Signed into law by President Clinton on October 28, 1998

§1201(a) states that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title."

§1201(a)(1) establishes an ongoing administrative rule-making procedure to evaluate the impact of the prohibition.  Every three years the Register of Copyrights makes a recommendation of exemptions to the Librarian of Congress., who then must determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works.

The Librarian of Congress examines the following factors when making her determination:

          (i) the availability for use of copyrighted works, §1201(a)(1)(C):

          (ii) the availability for use of works for nonprofit archival, preservation, and                           educational purposes;

          (iii) the impact that the prohibition on the circumvention of technological measures               applied to copyrighted works has on criticism, comment, news reporting, teaching,               scholarship, or research;

          (iv) the effect of circumvention of technological measures on the market for or value             of copyrighted works; and

          (v) such other factors as the Librarian considers appropriate.

REQUIREMENTS

for granting an exemption

The exemption must relate to at least some works protected by copyright

The use of the works must be noninfringing

Users must currently or in the next three years be adversely affected in their ability to make such non infringing uses

 

The technological protection measure ("TPM") must be the cause of such adverse effects

PEtition phase

Submitter's petition must include:

The type of copyrighted work needed to be accessed;

The physical media or device on which the works are stores or the service through which the works are access; and

The type of users who want access

First Round:

Legal & evidentiary submissions from proposed exemption supporters and pertinent information from neutral parties

Second Round: 

Legal & evidentiary submissions from 

opponents of proposed exemptions

Third Round:

Legal & evidentiary submissions from supporters of particular proposals or neutral parties (cannot raise new issues)

PUBLIC COMMENT PHASE

PUBLIC HEARINGS PHASE

Held by Copyright Office to identify specific issues for parties to address during the hearings 

May offer participants the opportunity to demonstrate technologies

 

May ask for written post-hearing questions 

Recommendations

& final rule

Register consults with the National Telecommunications and Information Administration and presents recommendations to the Librarian of Congress 

The Librarian reviews the recommendations and issues any exemptions

Main reasons for not accepting a proposed exemption:

  • Submitter failed to meet the necessary requirements:

    • Exemption for a work consisting of matter unprotected by copyright

    • No showing of adverse impact, but merely an inconvenience  

  • Exemption would lead to decreased incentive to distribute works

  • Rule-making procedure is not the right forum to consider the matter – should let Congress make the decision

  • Librarian of Congress acts cautiously before broadening exemptions already expressed in the statute

  • A review of the factors in §1201(a)(1)(C)(i)-(v) doesn't warrant an conclusion