This week, the Copyright Office held hearings on exemptions to §1201 of the Digital Millennium Copyright Act (DMCA), which prohibits the circumvention of certain technical measures that protect copyrighted material. Every three years, the Copyright Office reviews petitions for exemptions to §1201 and evaluates whether any classes of non-infringing use are likely to be harmed by the DMCA’s prohibition. Granted exemptions would allow users to bypass technical measures for specific purposes, even though such actions would generally be prohibited under the DMCA. Examples of exemptions granted in the past include good faith encryption research, film screenings in K-12 schools, and reverse engineering for interoperability.
During the fall semester, clinical students Jaime Gordon and Jonathan Saloman drafted and filed initial comments, on behalf of the Software Preservation Network (SPN) and Library Copyright Alliance (LCA), requesting the expansion of two exemption classes. The Clinic (1) advocated for the removal of the single-user restriction on software outside the physical premises of an eligible institution (Exemption Class 6(a)) and (2) argued that preserved video games should be available to scholars remotely (Exemption Class 6(b)). Several organizations filed opposition comments.
This semester, clinical students Farha Hanif and Isabelle Pride drafted and filed replies in both classes. With regard to Exemption Class 6(a), the Clinic argued that opposition comments provided no significant rebuttals, and that the removal of the single user requirement was well supported by case law and factual need. With regard to Exemption Class 6(b), the Clinic argued that the restrictions it proposed were sufficient to ensure that uses of preserved video games are non-infringing and, based upon statements from two major re-release companies, that the market for retro games would not be harmed by the kinds of access that preservation institutions are likely to provide.
Clinical students Farha Hanif and Isabelle Pride and clinical instructor Wendy Chu were also heavily involved in preparing witnesses for this week’s public hearings. Kendra Albert, a clinical instructor, supervised the work product both semesters and, on Thursday, appeared before the Copyright Office to testify on behalf of SPN and LCA.