Band, Butler, and Decherney Respond to Post-Hearing Questions from the Copyright Office

Today, in collaboration with Library Copyright Alliance counsel Jonathan Band, the IP Clinic’s practitioner-in-residence Brandon Butler and long time clinic client professor Peter Decherney submitted responses to a series of questions from the Copyright Office. The responses are the latest development in the rule making process whereby the Copyright Office inquires into whether the law’s ban on breaking digital locks (such as the encryption that prevents copying DVDs) has caused hardship for lawful users.

In this cycle of rule making, which started in the fall of 2014, student attorneys from the Clinic have represented Professor Decherney, the Library Copyright Alliance, the American Association of University Professors, and a wide range of other higher education interest groups in this rule making. Mark Patrick and Sarah O’Connor took the lead in researching and drafting a series of submissions to the Copyright Office detailing the needs of higher education in this area; you can read more about their work here. Since Sarah and Mark graduated, professor Butler has been working with Band and Decherney to continue our clients’ participation in the rule making process.

The latest round of comments addresses a series of follow-up questions from the Copyright Office seeking clarification of subjects discussed at the hearings held in late May. Specifically, the Office asked questions about three core issues. Below is a quick summary of what we had to say on each topic.

The extent and import of the inability of screen capture software to record protected audio and video on a Mac.

Screen capture software is often invoked as a viable alternative to breaking encryption to copy the digital video files stored on DVDs, Blu-Ray discs, and in streams. We told the Copyright Office that screen capture software is terrible on any platform, but it appears to be especially useless on a Mac, due to additional protections built into OS X. We explained that we are not optimistic about workaround solutions like dual booting (installing Windows on a Mac – yuck!) and emulation (a resource hog that doesn’t leave enough power to allow playing and recording video). Our full response to these issues is available here. This response was a collaboration between us and two other groups: Jack Lerner and his students RJ Szuba and Aaron Johnson at the UCI IP, Arts, and Technology Clinic, and Blake Reid and his student Molly McClurg at the Samuelson-Glushko Technology Law and Policy Clinic at CU Boulder.

Whether and how MOOCs might comply with the byzantine requirements of the TEACH Act (Section 110(2) of the Copyright Act).

We told the Copyright Office that TEACH (a garbled compromise bill passed in the late 1990s to facilitate distance education) has several provisions that cause uncertainty and doubt in the higher education world, such that the meanings of key terms are not widely agreed upon. We expressed concern that educators and platform providers would be stymied if an exemption for MOOCs were limited to uses that complied with TEACH, rather than also allowing for fair use. Our full response to these issues is available here.

Whether the exception for “non-commercial video” makers could or should be clarified to explicitly include educational users.

Here we were reaching out to answer a question that wasn’t directed to us, but rather to the advocates for proposed Class 7, which is generally described as an exemption for “non-commercial video.” The Copyright Office seemed to suggest that some educational uses might be adequately protected by this exemption, which may be true. However, we wrote separately to stress that the Office would probably serve all stakeholders by avoiding making the scope of this exception explicit as regards educational users. Our concern was that any effort to police the boundaries of these exceptions could unwittingly lead to narrowing their application and excluding intended beneficiaries. Our short intervention on this matter can be found here.

What’s next for this Rulemaking Process?

This is likely the last opportunity for formal intervention in the rule making process. The Copyright Office will now formulate its recommendations as to which classes of works should be excluded from the ban on breaking digital locks, and deliver that recommendation to the Librarian of Congress. The final decision rests with the Librarian, who is set to retire in January 2016, so this may be one of his last official acts.

About Brandon Butler

Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic.
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