The Center for Democracy & Technology (CDT) thanks the Copyright Office for initiating this inquiry into possible amendments and procedural modifications to section 1201 to improve the effectiveness of permanent exemptions and the triennial review process. The time is ripe for a hard look at section 1201’s potential adverse effects on legitimate activities that do not implicate copyright concerns of rightsholders. As access-controlled software and firmware increasingly pervade and interface with nearly every facet of our lives, so, too, do copyright issues and the ability to leverage section 1201 to further interests wholly unrelated to copyright.
The following comments propose changes to section 1201 that would move us closer to that long-term solution. They also focus on the precise questions raised in the Notice of Inquiry and propose changes to the triennial rulemaking process to make it more efficient and predictable for the Copyright Office and all participating parties. Many of the potential obstacles to making these improvements are largely imaginary or self-imposed, premised on readings of section 1201 and its and legislative history that are neither required nor fully consistent with the statute’s purpose. We look forward to working with the Copyright Office, Congress, and all parties to overcome those obstacles and arrive at a more predictable application of section 1201 to noninfringing and beneficial uses of copyright works that require circumvention of access controls.