The Software Preservation Network is pleased to share updates on the status of our work on the DMCA triennial rulemaking and on reform to the DMCA more generally. The DMCA rulemaking process unfolds every three years, and we successfully petitioned for two broad exemptions favoring preservation of software and video games in the last cycle, which saw rules published in 2018. The latest cycle of rulemaking began this year. In addition to this regular rulemaking, this year also saw a series of Senate hearings on reforming the DMCA itself, followed by a letter from Sen. Thom Tillis (R-NC) seeking input on possible changes to the law. Read on to learn more about SPN’s engagement with both of these processes.
In the DMCA Rulemaking, SPN has already secured an important win this year: our existing exemptions have been recommended for renewal through 2024, as there was no opposition from our rightsholder friends to having it continue. In addition to securing renewal, our goal this cycle was to seek an expansion of the rule to permit access to preserved software beyond the premises of the library where the collection is held. The 2018 rule limits access to circumvented software to the premises of the collection where the software is held. We believe this is an unduly conservative rule that threatens to undermine software preservation, research, and teaching. The COVID pandemic has made it clearer than ever that providing remote access to resources is a crucial way to support researchers, teachers, and students, so we hope to meet more sympathetic ears this cycle.
Please read the first major filing in this process, our long comments in support of our proposed new exemption, which removes the premises language from the 2018 rule. The comment was drafted by Mayze Teitler and Madeline Woodall, our student attorneys at the Cyberlaw Clinic at Harvard Law School, under the supervision of their clinical prof., Kendra Albert. The Clinic team did a great job synthesizing a lot of information about software preservation, gathering stories, making the most of the stories they got, and then working with me and the Law and Policy Working Group, as well as Jonathan Band from the Library Copyright Alliance, to finalize the draft. We are really fortunate to have their help with this, and I’m proud of the work they did.
The next steps in this rulemaking process will unfold in the spring. First, we will hear from opponents of our petition in early February. We will then get an opportunity to reply in writing. Then there will be a series of live hearings (via Zoom this cycle, almost certainly), which typically take place in May. The Copyright Office then prepares a recommendation (in consultation with another agency, the Nat’l Telecomm and Information Administration in the Commerce Dept), which forms the basis for a set of final rules published by the Librarian of Congress. There are typically several months between the hearings and promulgation of a final rule, so I wouldn’t expect to see a new rule before September or October of 2021.
Other DMCA news broke in November as Senator Thom Tillis (R-NC) sent out a letter seeking responses to a series of questions and proposals for reforming the DMCA. Tillis is currently the chair of the IP subcommittee of the Senate Judiciary Committee, which hosted a series of hearings this year on potential reform to both Section 1201 (protecting digital locks—hearing here and here) and 512 (protecting online platforms and service providers—hearing here, here, here, and here), the two main portions of the DMCA. The letter alludes to broader reform of the copyright system, however, and suggests that Tillis may introduce legislation this year aimed at starting a broader copyright reform conversation. SPN submitted brief comments explaining that the copyright system in general, and Section 1201 in particular, is indeed outdated and ill-suited to the needs of SPN members. You can read our letter here.