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NTIA letter to Register of Copyrights regarding DMCA

August 11, 2003

Ms. Marybeth Peters
Register of Copyrights
Library of Congress
James Madison Memorial Building
Washington, DC 20540-3120

Dear Ms. Peters:

The National Telecommunications and Information Administration ("NTIA"), an agency of the United States Department of Commerce, "serves as the President's principal adviser on telecommunication policies pertaining to the Nation's economic and technological advancement."(1) As a matter of policy established by Congress, among other objectives, NTIA seeks to promote "the benefits of technological development in the United States for all users of telecommunications and information facilities."(2) Striking the appropriate balance among the complex and oftentimes competing interests of affected stakeholders is an indispensable component of formulating responsive policies that best serve the interests and needs of all Americans.

This letter continues the consultative process we have undertaken with the Register in connection with Section 1201(a)(1) of the Digital Millennium Copyright Act (the "DMCA" or the "Act").(3) This section provides in pertinent part:

(a) Violations Regarding Circumvention of Technological Measures. -- (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

(B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).

(C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works.(4)

In so doing, the statute instructs the Librarian to consider a number of factors, including those incorporating traditional notions of "fair use," in conducting the rulemaking.(5)

While respecting the non-infringing uses that have long been an integral part of copyright law, NTIA remains a stalwart supporter of protecting copyright interests from threat of theft or piracy. By encouraging the formulation of policies that reflect a sound balancing of the legitimate concerns of both users and creators of content, NTIA seeks to ensure that technological innovation and consumer freedom are promoted, and illegal copying and distribution, ceased. To this end and in accordance with its statutory responsibility, NTIA offers the following advice to the Register that will inform her consideration of the record, and will help to ensure that both the underlying rulemaking proceeding and her recommendation to the Librarian of Congress comply with the intent of Congress as reflected in the statute and its legislative history.

Legal Criteria for Determining Possible Exemptions

a. Standard for Burden of Proof

Development and application of the appropriate standard for the burden of proof in this rulemaking proceeding is critical to the proper analysis of possible exemptions to the prohibition on circumvention of the DMCA. The standard applied must be consistent with the directives set forth in the statute. In this regard, NTIA is concerned that the standard set forth in the Notice of Inquiry (the "NOI") imposes a significantly heightened burden on proponents of an exemption, and is therefore inconsistent with the opportunity that Congress intended to afford the user community.(6)

As a threshold matter, the plain language of the statute does not support incorporation of the qualifier "substantial" to define the level of harm to be demonstrated by such proponents. The NOI provides that the Librarian must base his determination to exempt a class of works from the prohibition on circumvention on a showing that the prohibition has a "substantial" adverse effect on non-infringing uses of a particular class of work.(7)The term "substantial," however, does not appear in the text of Section 1201(a)(1) of the Act. The NOI's arguably more stringent requirement thus appears to add a significant new term to the express language of the statute.(8) Given the clarity of Section 1201(a)(1), no basis exists to justify insertion of a material modifier into its text.(9)

The NOI further requires proponents of an exemption to provide "evidence either that actual harm exists or that it is 'likely' to occur in the ensuing 3-year period."(10) The NOI refines this directive, indicating that "[a]ctual instances of verifiable problems occurring in the marketplace are necessary to satisfy the burden with respect to actual harm and a compelling case will be based on first-hand knowledge of such problems."(11) Again, the NOI's requirement to provide "actual," "first-hand" instances of problems is not articulated in the plain language of Section 1201(a)(1) of the Act.(12) Moreover, as drafted, this requirement cannot logically be applied prospectively, as the refinement would mandate "first-hand knowledge" of future problems in order to sustain a "compelling case" for an exemption. Given these concerns, NTIA believes that the NOI's "refinement" should be abandoned and a standard more consistent with the statutory language should be adopted.

Crafting the proper standard for the burden of proof is equally important when examining possible future harms as contemplated by the statute. Section 1201(a)(1) of the DMCA does not ground a finding of "likely adverse impacts" in a showing of "extraordinary circumstances in which the evidence of likelihood is highly specific, strong and persuasive," as the NOI seems to suggest.(13) Rather, Congressional intent would appear to impose no more of a showing for "likely adverse effects" than for "actual adverse effects."(14) Although NTIA agrees that mere conjecture is insufficient to support a finding of "likely adverse effect," the NOI's implied supplemental and exacting requirements are contrary to the language of the statutory provision.(15)

Accordingly, NTIA urges the Register to reconsider the NOI's burden of proof to ensure consistency with the text of Section 1201(a)(1), and, therefore, the expressed intent of Congress. This section and its legislative history provide that a decision to exempt a class of works from the prohibition on circumvention must be based on a determination that the prohibition has or will likely have an adverse effect on noninfringing use of that particular class of works. To this end, the Librarian's inquiry should focus on "distinct, verifiable, and measurable impacts, and should not be based upon de minimis impacts."(16) Whether an impact is considered to be de minimis should be based on both quantitative and qualitative examinations. Such analysis should consider not only the number of users adversely affected, but also the type and degree of harm that they experience and the potential that such harm could adversely affect the public as a whole. With respect to examination of "likely adverse impacts," these cases would compel no more of a showing than that required for present impacts.

NTIA agrees that proponents of an exemption bear the burden of proof that an exemption is warranted for a particular class of works, and that if the rulemaking has produced insufficient evidence to determine whether there have been adverse impacts with respect to particular classes of copyrighted works, then the circumvention prohibition should go into effect with respect to those classes. Adverse impacts that flow from sources other than technological access control measures, or that are not clearly attributable to the operation of such measures, are outside the scope of the rulemaking. The assessment of adverse impacts on particular categories of works is to be "determined de novo" in the current proceeding.(17)

b. Definition of Class of Works

NTIA agrees with the Register that the "starting point for identifying a particular 'class of works' to be exempted must be one of the section 102 categories."(18) This interpretation is consistent with the legislative history that provides that the term "class of works" was intended to be a "narrow and focused subset of the broad categories of works of authorship . . . identified in Section 102."(19) NTIA believes that it would be beneficial to further define the scope or boundaries of the "class of works" so that targeted exemptions can be crafted that would not only provide specific guidance to both content creator and user, but also remedy the particular harm to noninfringing uses identified in the rulemaking. For example, in some circumstances, the intended use of the work or the attributes of the user are critical to a determination whether to allow circumvention of a technological access control. Section 1201(a)(1) is, however, silent regarding the manner in which and by what criteria "class of works" may be further defined. Given the ongoing debate surrounding this term that forms the very core of this triennial rulemaking proceeding, it would be beneficial for Congress to provide guidance on this issue.

Accordingly, NTIA recommends that the Register carefully consider the comments offered above in reviewing the record and considering any proposed exemption. Strict adherence to the statutory standards of Section 1201(a)(1) of the DMCA is essential to ensure that your recommendation to the Librarian of Congress appropriately balances important public interest concerns in the manner prescribed by Congress.




Nancy J. Victory

cc: The Honorable James H. Billington
Librarian of Congress

1. National Telecommunications and Information Administration Organization Act, 47 U.S.C. § 902(b)(2)(D), (I) (2003).

2. 47 U.S.C. § 901(c)(1).

3. Digital Millennium Copyright Act, Pub. L. No. 105-304, 1998 U.S.C.C.A.N. 112 stat. 2860, codified at 17 U.S.C. §§ 1201-1205 (2003).

4. 17 U.S.C. § 1201(a)(1).

5. See 17 U.S.C. § 1201(a)(1)(C). In conducting this rulemaking, the Librarian must examine the availability for use of copyrighted works; the availability for use of works for nonprofit archival, preservation, and education purposes; the impact that the Section 1201(a)(1)(A) circumvention prohibition has on criticism, comment, news reporting, teaching, scholarship, or research; the effect of circumvention of technological measures on the market for or value of copyrighted works; and such other factors that the Librarian deems appropriate. Id. at § 1201(a)(1)(C)(i)-(v).

6. Notice of Inquiry, Exemption to Prohibition on Circumvention on Copyright Systems for Access Control Technologies, Copyright Office, Library of Congress, 67 Fed. Reg. 63578 (Oct. 15, 2002).

7. "In the last rulemaking, the Register concluded from the language of the statute and the legislative history that a determination to exempt a class of works from the prohibition on circumvention must be based on a showing that the prohibition has a substantial adverse effect on non-infringing uses of a particular lass of works.... For an exemption to be warranted [in the instant proceeding] in a particular class of works, a proponent must show that such problems are or are likely to become of such significance that they would constitute a substantial adverse effect." NOI, 67 Fed. Reg. at 63579 (Oct. 15, 2002).

8. Similarly, while Section 1201(a)(1) specifically provides that an exemption to the anti-circumvention prohibition may be based on a finding of "likely" adverse effects, this criterion neither expressly nor implicitly mandates a "showing of substantial likelihood" of future harm as is required by the NOI in this proceeding.

9. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) ("We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.") The legislative history of the provision is consistent with this reading of the statute. See, H.R. Rep. No. 105-551, pt. 2, (1998), 1998 U.S.C.C.A.N. (112 stat. 2860) 2918.

10. NOI, 67 Fed. Reg. at 63579 (Oct. 15, 2002).

11. Id.

12. See supra note 9.

13. NOI, 67 Fed. Reg. at 63579 (Oct. 15, 2002) (quoting the House Manager's Report at 6).

14. The Librarian of Congress drew the same conclusion in his Final Rule in connection with the 2000 Section 1201(a)(1) rulemaking proceeding:

Although the Commerce Committee Report does not state how future adverse impacts are to be evaluated (apart from a single reference stating that in categories where adverse impacts have occurred or "are likely to occur," an exemption should be made, Commerce Comm. Report at 38), the Committee's discussion of "distinct, verifiable and measurable impacts" suggest that it would require a similar showing with respect to future adverse impact.

Final Rule, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Copyright Office, Library of Congress, 65 Fed. Reg. 64556, 64559 (Oct. 27, 2000).

15. See supra note 9.

16. H.R. Rep. No. 105-551, pt. 2, at 37 (1998), 1998 U.S.C.C.A.N. (112 stat. 2860) 2918.

17. Id.

18. NOI, 67 Fed. Reg. at 63580 (Oct. 15, 2002).

19. H.R. Rep. No. 105-551, pt. 2, at 38 (1998), 1998 U.S.C.C.A.N. (112 stat. 2860) 2918.