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FTC and DOJ Urge Exemptions from DMCA Restrictions

April 4, 2024

Chances are you know the Digital Millennium Copyright Act (“DMCA”) from the widely deployed DMCA take-down notices that copyright owners use to remove putatively infringing content from the Internet.  Enacted in 1998, the DMCA is more, however, with provisions scattered throughout the Copyright Act (the “Act”) addressing many copyright owner concerns.

One such provision comes into play once every three years.  Section 1201 of the Copyright Act prohibits circumvention of technological protection measures (“TPM”) associated with software and devices embodying software.  Many such TPMs are well known: password protection being the most commonplace.  All manner of digital locks are widely deployed by device manufacturers.  Subsection 1201(a)(1)(C) of the Act provides exemptions from circumvention prohibitions.  It mandates that the Librarian of Congress, advised by the Register of Copyrights, advised in turn by federal agencies and the public, shall determine triennially whether users of copyrighted works are, or are likely to be, adversely affected by the imposition of TPMs in the coming three-year period.  Not every circumvention is an infringement of copyright.  Section 1201 exemptions are intended to prevent unlawful expansion of a copyright owner’s monopoly to incorporate unprotected aspects of otherwise protectable computer programs like the data collected and stored in a software-assisted device.  Data is not subject to copyright protection.

Three years ago, in the eighth triennial DMCA rulemaking, the Librarian loosened the reins on the “Internet of Things” (defined online as “the interconnection via the Internet of computing devices embedded in everyday objects, enabling them to send and receive data”).  By way of example, access to computer programs contained in and controlling automobiles was previously restricted to authorized dealers and automobile owners for purposes of diagnosis, repair and modification of vehicles.  Whether independent vehicle repair shops had similar access remained unsettled.

Now there is support for resolving the access question.  Two federal agencies, the Federal Trade Commission (“FTC”) and Antitrust Division of the Department of Justice (“DOJ”) (collectively, the “Agencies”) recently submitted a joint recommendation to the Copyright Office supporting broadening exemptions from TPM-enhanced monopolies.  The Agencies claim that expanding repair-related exemptions would promote competition in markets for replacement parts as well as repair and maintenance services and facilitate competition in the market for repairable products.  Commerce in other fields, including among others medical data storage devices, would also be affected.

The exemptions proposed by the Agencies, if granted by the Librarian of Congress in this year’s rulemaking, would extend TPM-circumvention privileges previously granted to consumers for the repair and maintenance of “everyday objects” to users of industrial and commercial equipment as well.

The Agencies’ comment can be found at https://www.ftc.gov/system/files/ftc_gov/pdf/ATR-FTC-JointComment.pdf.

This client alert is for informational purposes only.  It is not intended to constitute legal advice.  In the event of a legal issue, we would need to evaluate all the facts in light of existing law in order to provide legal advice.


Mitch Tuchmann - Copyright Lawyer Durham - Intellectual Property Attorney
Attorney Mitch Tuchman