Consequences of Our Lack of Understanding of the DMCA

The final speaker in this AoIR 2018 session is Aram Sinnreich, whose interest is in the continuing consequences of the U.S. Digital Millennium Copyright Act (DMCA) – and in particular its anti-circumvention elements that criminalise the bypassing of copyright protection mechanisms such as encryption, even in contexts where ‘fair use’ exceptions apply.

But there are some exceptions; the U.S. Copyright Office engages in triennial rulemaking processes that grant exemptions for particular, tightly defined cases of bypassing. However, do such exemptions work? While copyright users are by now well aware of the DMCA, they are less aware of the bypassing prohibitions it stipulates, and even less aware of the exemptions that apply to them.

As a result, exemption usage is low, and creators who would be entitled to DMCA exemptions are avoiding the use of copyrighted work that they could use under an exemption ruling, and are therefore adjusting their own works accordingly. There is therefore a significant need to better educate copyright users about the actual scope of the law in this context. This should also be a task for the U.S. Copyright Office, which is very good at promoting the law’s prohibitions, but does not similarly emphasise its exemptions.

This is in spite of the Copyright Office’s current location under the Library of Congress, which is tasked to spread knowledge throughout society, and likely to be even worse if – as mooted – the Copyright Office moves under the direct supervision of Congress, itself now a deeply compromised institution.