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Challenges to openness under U.S. copyright law

The Mozilla Manifesto has as its second principle, “The Internet is a global public resource that must remain open and accessible.” The Internet is the most significant social and technological medium of our time, and an invaluable public resource that must be protected and supported. Yet, Internet openness is at risk all around the world, from a number of different directions. One of these is copyright law, and the restrictions that are, at times, imposed on socially and economically beneficial activity. Mozilla has been engaging in various copyright reform processes in the European Union over the past several months, advocating for a European wide framework that promotes competition and innovation online. Now, we are bringing that advocacy across the Atlantic to the United States.

The U.S. Copyright Office is currently seeking comment on part of the Digital Millennium Copyright Act, Section 1201 of Title 17, which prohibits the circumvention of technical measures that effectively control access to copyright protected works. In response, we have submitted comments articulating our view of the problems associated with this law as it stands today, and have offered suggestions that promote openness online, within the general framework of the law.

In practice, Section 1201 implements a different balance of interests than copyright law. It allows copyright holders to impose more severe restrictions on user freedoms than copyright law alone permits. The combination of technical measures and circumvention liability is unable to distinguish between infringing and non-infringing uses of content – so, in service of the ostensible goal of limiting infringement, innovative and positive activities, that do not violate copyright law, get caught up as well. The statute includes some limitations to try to alleviate this harm, including a few specific permanent exceptions as well as a process for requesting additional temporary ones, but these measures fall short. As a result, Section 1201 stifles fair use and other legitimate activities, posing risk of long-term harm to competition, innovation, and culture.

The notice of inquiry asks for suggestions for both general improvements, and for specific changes to the statute’s exceptions. In our filing, we identified gaps where the permanent exceptions have fallen short of accomplishing their ostensible objectives. We also offered three suggestions to help improve the 3-year exemption review process:

The changes we propose would not “fix” Section 1201. It’s hard to conceive of anything that would be a complete fix, so long as the law allows a different balance of interests to be imposed than that set under copyright law. However, the changes we propose, if implemented, would help protect openness to a greater degree than the current approach.