Unbalanced Interests: How the § 1201 Process Ate Itself

"Unbalanced Interests: How the § 1201 Process Ate Itself," (April 2026)

"Unbalanced Interests: How the § 1201 Process Ate Itself," (April 2026)

Michael Weinberg, Unbalanced Interests: How the § 1201 Process Ate Itself (N.Y.U. Engelberg Ctr. on Innovation Law & Policy, Apr. 2026)

Dozens of organizations, spending thousands of hours, to write thousands of pages. For a period spanning 2023 and 2024, that's what it took for public interest groups to request the government's permission to engage in perfectly legal activities: using short clips of videos in media studies classes, enabling assistive technologies to make ebooks accessible to the blind, or accessing software to perform security research-all lawful under US copyright law's fair use exception. Why all the extra bureaucratic hassle? Because the materials in question all come with an additional constraint-they are protected with digital locks. A professor hoping to show movie clips in her media studies class must first break those digital locks to copy the clips in question. And that's a problem. Breaking a digital lock can be a violation of the law, even if done to make otherwise-lawful use of a copyrighted work. And this is why 96 nonprofit organizations, law school clinics, trade associations, academics, companies, and individuals submitted over 1,000 pages of petitions, comments, opposition comments, and reply comments (in addition to participating in three days of public hearings) to the United States Copyright Office during this period, asking for permission to do things that they already are allowed to do under fair use. Nor is it the first time everyone has come together for this ritual. Since 2000, every three years they must come together to request-and oppose-limited exemptions to a law designed to protect the digital locks that prevent copying of digital works. These exceptions act as an additional round of permission for activities that, but for the use of digital locks, would already be protected under copyright law's fair use exception. This exercise exists because of 1998 's Digital Millennium Copyright Act (DMCA). That law created a specific provision-section 1201(a)(1)-giving additional legal protection to digital locks that prevent copying of digital works, independent of the copyright protection those works already enjoy. Circumventing the locks is a stand-alone violation of the law, even if the reason for the circumvention is perfectly legal. In order to prevent that additional protection from undermining socially beneficial activity, Congress created a process whereby temporary exemptions to the rules could be granted every three years. 1 Congress originally intended this triennial process to act as "a 'fail-safe' mechanism" to "ensure that access [to works] for lawful purposes is not unjustifiably diminished." 2 While the process does serve that goal, it has also become a central focus of copyright policy advocacy in its own right. 3 It now claims countless hours of effort from the participants, as well as from Copyright Office staff and other parts of the federal government, on behalf of an ever-expanding collection of exemptions. At the same time, the law these exemptions are from is only occasionally used in court. Only 12 suits with a meaningful nexus to 1201(a)(1) were filed during the period covered by the previous triennial rules, five of which came from a single manufacturer of high-end design software. Each of these included underlying copyright claims, arguably making the law redundant. If the intended purpose of the law was the protection of creative works in the digital economy, the actual effect of the law is the creation of a bureaucratic sinkhole that draws in public interest organizations, academics, industry organizations, and the public every three years. They must do this, in part, because the government does not see its role as acting on behalf of the public interest itself. 3 The reasons for this are many, and largely beyond the scope of this paper. One may be that the process is a rare forum where debates around copyright policy actually result in a concrete outcome. If the intended purpose of the law was the protection of creative works in the digital economy, the actual effect of the law is the creation of a bureaucratic sinkhole that draws in public interest organizations, academics, industry organizations, and the public every three years. Ultimately, the resources devoted to the bureaucratic process of exemption-granting almost certainly dwarf those devoted to enforcing the law itself. It is time to reexamine how well this provision "maintain [s] balance between the interests of content creators and information users"foot_0 and consider reforming it or abolishing it entirely. The prohibition against circumventing digital locks is contained in 17 U.S.C § 1201(a)(1), itself enacted as part of the larger Digital Millennium Copyright Act (DMCA). Section 1201(a)(1) establishes a violation for "circumventing a technological measure that effectively controls access to a work [protected by copyright]". 5 Essentially, this prohibits breaking or otherwise circumventing a digital lock that protects a work protected by copyright. 6 (The provision describes digital locks used to limit the use of copyright-protected works as "technological measures," and in other contexts they are referred to as "Technological Protection Measures (TPMs)." However, as most people know these locks as Digital Rights Management (DRM), in the interest of simplicity, that is the term used in this report.) Section 1201(a)(1) creates an additional cause of action against copyright infringers. For example, making unauthorized copies of a movie in order to sell those copies to others infringes on the copyright in the movie itself. If that movie happens to be on a DVD, and is therefore protected by DRM, 1201(a)(1) creates an additional violation for breaking the digital lock that What Was Section 1201(a)(1) Designed to Do? protects the movie as stored on the DVD. Because 1201(a)(1) is an additional violation, the bootlegger in question would be liable for both copyright infringement (making unauthorized copies of the movie) and circumvention (breaking the digital locks designed to prevent unauthorized copying in the first place). 7 Congress recognized that this new circumvention-based violation could also impose significant burdens on the public and act as a barrier to socially beneficial (and perfectly lawful) activity. In recognition of this, Congress wrote exceptions into the law itself for specific activities of libraries, archives, and educational institutions 8 ; law enforcement, intelligence, and other government activities 9 ; reverse engineering 10 ; encryption research 11 ; and security testing 12 . Congress understood that the prohibition against circumventing DRM would impact lawful uses of works beyond those explicitly listed in the statute. However, it did not create a general "fair use exemption" that would allow the breaking of digital locks in order to achieve otherwise legal ends. Instead, in addition to an enumerated list of specific exceptions, Congress created a triennial process to identify additional activity harmed by the prohibition against circumventing digital locks. 13 As described in the legislative report accompanying the bill, "[t]he primary goal of the rulemaking proceeding is to assess whether the prevalence of these technological protections [DRM], with respect to particular categories of copyrighted materials, is diminishing the ability of individuals to use these works in ways that are otherwise lawful." 12 17 U.S.C. § 1201(j). 13 "Section 1201(a)(1) . . . creates a rulemaking proceeding in which the issue of whether enforcement of the regulation should be temporarily waived with regard to particular categories of works can be fully considered and fairly decided on the basis of real marketplace developments that may diminish otherwise lawful access to work." House Report at 36. from groups asserting that their noninfringing uses of copyright-protected works "are, or are likely to be, adversely affected" by rules preventing them from breaking digital locks. 15 This process is intended to "balance the interests of copyright owners and users, including the personal interests of consumers, in the digital environment." 16 Although 1201(a)(1) sets a presumption that breaking digital locks is illegal, the triennial review process is an opportunity to allow the breaking of those locks for legitimate purposes. 17 Notably, exemptions granted through this process remain valid only until the completion of the next triennial review process-meaning they are good only for three years. The mechanics of the review process have evolved over the past two decades, becoming somewhat more streamlined in recent years. Although intended as a backstop to ensure that the public interest remains protected, the triennial review of proposed exemptions to 1201(a)(1) instead imposes significant costs on the public. 21 Every three years, organizations and individuals must petition the Copyright Office to propose new exemptions to reflect the evolving state of technology and society. And, because all previously granted exemptions expire at the end of their three-year cycle, petitioners also have to request renewals or alterations for prior exemptions. These petitions are sometimes challenged by parties opposed to the exemptions, and they must be reviewed by Copyright Office staff. Although Congress established a framework for the review process, there does not appear to be any record of it seriously considering the costs involved in its operation. 22 Instead, it appears to have simply assumed that the petitions for exemptions in the public interest would materialize before the Copyright Office every three years. In practice, the work of drafting, supporting, and arguing for these petitions largely falls to 21 This report focuses on the costs of the triennial process itself. It does not attempt to quantify the larger impact of 1201(a)(1)'s prohibitions on legitimate activity, or of 1201(a)(2)'s anti-trafficking provisions on activities deemed to be noninfringing during the process. 22 The Budget Office Estimate included in the Committee Report considers various governmental and private costs of the bill, but does not mention the costs of requesting the exemptions. House Report at 32-34. The bill's Committee Report also fails to consider the burdens of participating in the process. uncompensated nonprofit organizations, academics, and law school clinics. Collectively, they represent thousands of hours spent advocating for the public's ability to do what is already allowed under copyright law. This combined effort may be 1201(a)(1)'s most significant impact-an impact that is felt not by the copyright holder, who is already well protected by copyright law without it, but instead by public interest organizations that must find the capacity and time to participate in an extra bureaucratic procedure. Every three years, the review process requires the mobilization of dozens of organizations and individuals for a multi-month adjudication process. 23 The most recent proceeding involved 96 parties engaged with 22 renewal petitions and nine new exemption requests.foot_4 foot_5 Each of these petitions and requests involves hours of research, drafting, and coordination with similarlysituated individuals and groups. This collective effort is required in part because the Copyright Office, although it recognizes its own authority to engage in independent fact-finding, does not exercise that authorityfoot_6 or see itself as a In practice, the work of drafting, supporting, and arguing for these petitions largely falls to uncompensated nonprofit organizations, academics, and law school clinics. Collectively, they represent thousands of hours spent advocating for the public's ability to do what is already allowed under copyright law. representative of the public interest in this proceeding. Instead, it positions itself as balancing the interests of the broader public against the interests of a smaller group of rights holders. 27 The structure of the proceeding assumes that the public interest will be represented by uncompensated third parties, not the government itself. 28 It also means that, unless these uncompensated third parties find a way to act, no one represents the public interest at all. The structure of the proceeding-spread out across multiple phases over more than a yearrequires sustained, specialized engagement from anyone requesting an exemption. Simply raising an issue in the hopes that the Copyright Office itself will use its authority to explore it further is not enough. For example, in 2021, FloSports, Inc. petitioned the Copyright Office for an exemption related to recording livestreamed sporting events. 29 As per the Copyright Office's instructions, the petition provided information about the proposed exemption, the copyrighted works sought to be accessed, technological prevention measures (DRM) preventing such access, the noninfringing uses involved, and the adverse effects that the absence of the circumvention imposed. 30 Although FloSports provided this information during the petition round of the proceeding, it did not participate in the more formal comment round that followed months later. The Free Software Foundation did engage with the petition in the comment round, submitting a comment in support of FloSports' petition that was co-signed by 111 The structure of the proceeding assumes that the public interest will be represented by uncompensated third parties, not the government itself. It also means that, unless these uncompensated third parties find a way to act, no one represents the public interest at all. Nonetheless, the Copyright Office determined the description of the class to be "insufficiently clear" and declined to recommend its adoption. 32 Notably, the Copyright Office did not take any steps on its own to further explore the context surrounding the exemption request. FloSports' inability to commit to fully participating in every step of the process proved fatal for its request. While this report focuses on the efforts involved with the 2024 proceeding, many of this round's renewal petitions reflect efforts by the organizations involved that go back decades. Although most of the renewal requests have not been challenged in this cycle, almost all of them were subject to opposition when they were introduced and for a number of cycles thereafter. Proponents of these exemption requests had to engage with the process over multiple triennial cycles before managing to avoid being challenged (again) in 2024. As one typical example, the 2024 proceeding includes a request to renew the exemption for motion picture excerpts for use in documentary or other films where use is "in parody or for a biographical or historically significant nature." (This single exemption renewal required work and time from two nonprofit organizations and two law school clinics: the International Documentary Association and Kartemquin Educational Films (represented by the UCI Intellectual Property, Arts, and Technology Clinic and private counsel), 33 as well as New Media Rights.). 34 No one opposed this exemption request during the current proceeding. However, the exemption request draws on decades of previous work, with many participants repeating their engagement during each cycle. In the first three cycles, there were a number of requests related to accessing motion pictures on DVD: These nonprofit and academic groups share one important characteristic: They do not stand to receive a direct financial benefit from the exemptions they support (and, indeed, engaging in the exemption process costs them both time and resources). Instead, in most cases, such groups represent a broader public interest. 87 This ad hoc collection of participants organizes itself to petition for exemptions. The Copyright Office notice that kicks off the triennial review simply states that it will receive and review exemption requests "from the public" and "interested parties," assuming that such parties will have the means to engage in the entirety of the exemption process. Chart 1 thus makes a distinction between nonprofit trade associations and other nonprofits. Nonprofit trade associations often participate in the proceeding on behalf of members that have direct financial interest in the outcome. While trade associations do not themselves directly benefit from the exemptions requested, they represent commercially interested members who would. That separates them from nonprofit organizations working in the public interest more broadly. Chart 2 illustrates the trade association/nonprofit distinction more clearly, revealing that a significant majority of the participants (both exemption proponents and opponents) do not have a direct or indirect financial benefit in the outcome. Participants without any kind of financial stake in the outcome, such as public interest organizations, academics, or individuals, generally engage in the exemption process in order to advocate on behalf of a larger set of principles. Such principles-including the notion that people with visual impairments should be able to use text-to-speech technologies to read their ebooks, or that film studies professors should be able to prepare movie clips to show in classlead to no direct monetary gain. As a result, any exemptions the Copyright Office grants will not directly pay for the effort involved in securing it. Nonetheless, the triennial process imposes a specific cost on these participants in order to create a diffused benefit for the public. Participants without a direct financial interest in the outcome act as both proponents and opponents of exemptions, although they tend to skew toward being proponents. Trade associations form the majority of the exemption opponents, largely representing commercial members that will be directly impacted by the exemption. Only two participants without a direct financial benefit in the outcome opposed exemptions. 88 In some cases, the organizations and individuals advocating for exemptions have the internal capacity to do so themselves. However, many of the exemption advocates rely on pro bono representation by law clinics to represent their interests in the proceeding. This structure creates a double burden for advocates of the public interest-once for the organization itself, and a second time for the law clinic providing it with free representation. All told, the effort organizations, companies, and individuals devote to the triennial 1201(a)(1) exemption process likely represents thousands of work hours every cycle. 90 (Many beneficiaries of this effort, such as patients monitoring data output from medical devices implanted in their bodies, will never know that this process occurred.) This estimate does not consider the time of the Copyright Office staff who must review the petitions they receive. Clearly, Section 1201(a)(1) places a significant burden on the public-a burden it must bear simply to maintain its existing rights. And yet, even this accounting does not fully capture the burden 1201(a)(1) imposes on legitimate uses of copyright-protected work, because it cannot capture all of the legitimate uses that simply never happened because of 1201(a)(1)'s prohibitions. 91 89 Although they did not do so as part of a clinic, law professors Andrea Matwyshyn and Rebecca Tushnet also represented exemption proponents. 90 The nature of the participants makes a precise number of hours impossible to quantify. Law school clinics and advocacy organizations do not strictly track hours worked on a specific matter. Law firms working on the matter (usually for opponents) do track hours for billing purposes but do not publicly disclose this information. How does the burden imposed on the public by 1201(a)(1) compare to the benefits it provides? One way to measure the benefit is to look at how often copyright holders exercised the rights granted to them by 1201(a)(1) during the time that the previous exemptions were in effect. The previous exemptions were adopted on October 26, 2018, and remained in place until they were superseded by new exemptions on October 28, 2024. 92 During that period, plaintiffs filed a total of 34 lawsuits that included a 1201(a)(1) claim. 93 Of those, as explored below, only 12 (and arguably only eight) include 1201(a)(1) claims with a reasonable connection to the purpose of the provision. Each of these suits also included underlying copyright claims. That prohibition on distributing circumvention tools, even to users who seek to circumvent DRM for legitimate and socially productive purpose, likely imposes an even larger burden on the public because it imposes barriers to non-technical users interested in using the exemptions. 93 This section focuses on cases that were initiated during the relevant period. It does not include cases that were initiated prior to the relevant period, even if they were active during that period. The cases discussed were identified with searches in widely-used legal databases. While this approach is likely to identify most of the relevant cases, it is not guaranteed to capture all cases with 100% accuracy. means that the plaintiffs had the ability to bring each of the suits even in the absence of 1201(a) (1). It is unclear how, if at all, the addition of the 1201(a)(1) claim impacted the outcome of the cases. Lawsuits with Facts Matching the Original Intent of 1201(a)(1) Mostly Relate to Enterprise Software The majority of cases with fact patterns that would likely be familiar to the drafters of 1201(a) (1) involve allegations of unauthorized use of high-end engineering software. 94 95 Of the eight cases that fall into that category, six were brought by a single manufacturer of high-end engineering software against allegedly infringing users. In some sense, the entirety of the effort expended during the triennial review process is in service of Dassault Systèmes bringing an additional claim against companies that use its CAD software without a license. An additional four cases involve allegations of unauthorized use of photographs. In each of these cases, plaintiffs allege facts that facially support claims of copyright infringement. However, each of them struggles to describe "a technological measure that effectively controls access" to the photographs in their complaints. One case identifies the technical measure as unspecified features of Instagram and Twitter "that restrain users from downloading content uploaded by other users." 96 94 For example, a license for electronic design automation involved in one of the cases costs $240,000 per year. Compl. ¶ 44, Cadence Design Sys., Inc. v. Fenda USA, Inc., No. 3:23- 95 Such vendors have a wide range of legal and other tools available to punish unlicensed use. In one example noteworthy for its creativity, the Ain Shams Engineering Journal retracted two articles after the company behind the FLOW-3D software used in the analysis complained that the authors had used it without an appropriate license. In some sense, the entirety of the effort expended during the triennial review process is in service of Dassault Systèmes bringing an additional claim against companies that use its CAD software without a license. The plaintiff bringing two others identifies disabling "the right-click copy feature on its images" as the measure. 97 The fourth, a pro se plaintiff, describes storing the disputed images "on a commercial ISP configured, managed, maintained, with technological security measures." 98 The information available in filings related to these photograph cases makes it hard to determine if there are 1201(a)(1)-cognizable technical protection measures involved at all. Defendants appear to have a limited incentive to parse the specifics of these measures, as the larger threat of statutory damages for copyright infringement is likely to shape their strategy and settlement negotiations. Six additional suits involve video games. However, they do not include the type of "piracy"related fact patterns that were so important to the creation of 1201(a)(1). 99 Four of these suits are against creators and distributors of various pieces of software used to cheat in online video games. One of these suits appears to be less interested in addressing the cheating software itself, and instead seems motivated by a hope that the lawsuit will convince the parents of a 16-year-old Canadian teenager to make him stop bullying and harassing other players. 100 A fifth suit targets the creator of a video game emulator program, which does not directly involve reproducing or distributing games. 101 The sixth is against an individual who allegedly streams himself playing pre-release video games on a range of online platforms. 102 It is easy to understand why plaintiffs are motivated to take action to stop the behavior alleged in each of these complaints. It is less clear if the outcomes of any of these cases would change if they did not also include 1201(a)(1) claims. One additional suit was brought by DISH Network against a defendant who allegedly retransmitted DISH broadcasts without authorization and sold set-top boxes that provided unauthorized access to DISH programming. 103 This suit did not involve an underlying copyright claim, presumably because DISH is merely a licensee of the programming it carries, not the copyright owner. Perhaps more relevant to this analysis, the complaint's first two claims are grounded in sections of federal communications law that govern unauthorized publication or use of communications. 104 The third (and final) claim invokes 1201(a)(1). Most Cases that Include 1201(a)(1) Claims Are Unrelated to Copyright or 1201(a)(1) There are an additional 15 cases from the period that included 1201(a)(1) claims at any point in the proceeding. 105 However, an examination of the facts underpinning those cases makes it clear that the majority do not have a connection to the underlying purpose of 1201(a)(1), or even involve 1201(a)(1) issues at all. Most of these cases have a tenuous connection, if any, to copyright law. They are truly a grabbag of suits, with 1201(a)(1) claims included in a haphazard manner, involving: • counterfeit computer networking equipment, 107 105 This report counts cases where a 1201(a)(1) claim was raised at any point in the proceeding. In many cases, these claims dropped out or were resolved prior to the full resolution of the suit. 106 BakersBodega, Inc. v. Rodriguez, No. 3:24-cv-00046, 2023 WL 9057671 (S.D. Cal., 2023). 107 Cisco Systems, Inc. v. Dexon Computer, Inc., No. 3:20-cv-04926, 2023 WL 5674788 (N.D. Cal., 2023). • a counterclaim in a patent dispute between two services that remove objectionable content from Hollywood movies, 109 • a dispute over the true owner of a piece of software, 110 • impersonation on Facebook and Tinder, 111 • a prisoner losing access to the books they authored, 112 and • an inheritance dispute. 113 There are also a collection of suits that are more closely related to copyright or the intended purpose of 1201(a)(1), while still being relatively far afield. This includes a suit involving accusations that employees created a shadow code base during their work hours that they ultimately used to start a rival company, 114 two cases related to scraping data from a competitor's website, 115 one centered on trafficking in credentials to access The Wall Street Journal online, 116 and one involving the creation of counterfeit event tickets. 117 Whatever their merits, these disputes are unlikely to represent the types of fact patterns envisioned by the drafters of 1201(a)(1) and are not really related to the purpose of 1201(a) (1) at all. Perhaps notably, only one of the cases (The Wall Street Journal credentials case) leads with the 1201(a)(1) claim in the complaint, which may further suggest that 1201(a)(1) claims in all other cases were secondary to the primary cause of action and potentially less critical to the outcome sought by the plaintiff. In many of these cases, the 1201(a)(1) claim was dropped by the plaintiff at some point in the process (either on their own motion or because they were dismissed by the court). All Cases Connected to 1201(a)(1)'s Core Purpose Include Underlying Copyright Claims The 12 cases involving the unauthorized use of enterprise software or photographs appear to be closest to the original intent of 1201(a)(1). Assuming the facts in the complaints are true, all involve defendants circumventing digital rights management controls to reproduce an underlying copyright-protected work without authorization. In each of these cases, plaintiffs also include claims of copyright infringement against defendants. This means that none of them are relying on 1201(a)(1) for the ability to bring a claim against the defendants. Plaintiffs in these cases appear to have a high rate of success. Two of the cases ended with results in the plaintiff's favor, with an additional eight having resulted in confidential settlements (two disputes remain ongoing as of this report's publication deadline). There are no cases with a public resolution where the plaintiff succeeded on its 1201(a)(1) claims and failed on its copyright infringement claims. The Reality of 1201(a)(1) Litigation 1201(a)(1) is rarely litigated. When it is the subject of litigation, more than half the time the case has a limited connection to the intended purpose of the original provision, with the 1201(a) (1) claim added to a laundry list of other claims. For the small number of 1201(a)(1) cases that do have a nexus with its intended purpose, its primary use appears to be as an additional claim to bring against infringers of enterprise software. By volume of litigation, the primary utility of 1201(a)(1) is to give Dassault Systèmes a second claim to add to copyright infringement suits. The 1201(a)(1) exemption process imposes a significant burden on a wide range of actors, from nonprofit organizations to law clinics to individual users. In return, in the past three years it has provided an additional cause of action in eight cases of enterprise software infringement, four cases of unauthorized use of photographs, four cases of video game cheating, one case of video game system emulation, and one case of publicly playing unreleased video games. All of these cases also included claims of copyright infringement, claims that offer a robust set of options to vindicate the rights of plaintiffs. It appears that the benefits of 1201(a)(1) are limited and largely redundant with existing prohibitions against copyright infringement. In contrast, the burdens imposed by its exemption process are significant and critical to a wide range of socially beneficial activities. Congress devoted significant attention to attempting to balance the diffuse costs and benefits to copyright owners and users of copyrighted works created by 1201(a)(1). 118 It spent very little, if any, time considering the administrative burden imposed on the public seeking to prevent 1201(a)(1)'s provisions from interfering with legitimate activities. Today, the administrative burden that 1201(a)(1) imposes on the public and the government is its most significant impact. This burden far outweighs the marginal benefit that the provision brings to a small number of rights holders. Congress should take steps to reduce that burden by reducing the scope of 1201(a)(1) and streamlining the exemption request process. The unbalanced impact that 1201(a)(1) imposes on the public also presents a number of opportunities for reform. 119 These could include: Part of Congress' original justification for 1201(a)(1) was an interest in promoting electronic commerce. 120 While electronic commerce has unquestionably thrived since the provision was enacted, the volume of litigation involving it suggests that there is unlikely to be a causal link between the two or real, ongoing value to maintaining 1201(a)(1) at all. A review of litigation initiated during the most recent exemption period indicates that rights holders would not be harmed by an absence of 1201(a)(1). With the exception of the DISH Network unauthorized retransmission case (which also included claims drawn from the Communications Act), every case reviewed as part of this study also included underlying copyright claims. Copyright infringement itself brings the possibility of significant civil penalties. 121 None of the case fact patterns suggest that the plaintiff would have been significantly disadvantaged in vindicating their rights without the ability to bring an additional claim under 1201(a)(1), or that 1201(a)(1) meaningfully contributed to the damages recovered. Nonetheless, 1201(a)(1) clearly imposes a burden on a range of public interest organizations and individuals, as well as on activities that are not themselves infringing. A quarter century after its passage, the "balance between the interests of content creators and information users" 122 that Congress attempted to strike is deeply askew. Removing the provision entirely would represent a significant step toward restoring that balance. By design, the current triennial process grants additional permission to engage in otherwise infringing work. It therefore creates a burden on activity that is permitted under the law (at worst) and socially beneficial (at best). A review of litigation from the previous period fails to identify cases where rights holders require the flexibility to bring 1201(a)(1) cases absent an underlying copyright infringement. Instead of forcing advocates to seek additional permission for otherwise-permitted activities during the triennial process, Congress could revise 1201(a)(1) to require an underlying infringement. This would maintain the original intent that 1201(a)(1) act cumulatively to Such models have been discussed for decades 126 and would represent an acknowledgment that 1201(a)(1) shifts the burden of representing the public interest away from the government and onto a collection of private actors without a direct financial stake in the outcome. The fate of the FloSports exemption request discussed above highlights the unfunded burden that the current exemption process places on requesters. FloSports submitted an initial request for an exemption to cover recording of live sporting events. However, it was unable or unwilling to continue to participate in the subsequent steps required by the current process. The Copyright Office was unable or unwilling to engage in its own investigation, and no public interest organization assumed responsibility for it. As a result, a potentially useful exemption was not fully explored. Support for this advocacy could change that dynamic and help guarantee that the public interest is well represented during the triennial process. See US Copyright Office, Exemptions To Permit Circumvention of Access Controls on CopyrightedWorks, 88 Fed. Reg. 72013, at 72015 (Oct. 19, 2023) (to be codified at 37 C.F.R. pt. 201), https:// www.govinfo.gov/content/pkg/FR-2023-10-19/pdf/2023-22949.pdf [https://perma.cc/5KHH-YBFU]. 20 In 2010, the Librarian of Congress overruled the recommendation of the Register of Copyrights to deny an exemption proposed by the American Federation for the Blind that would allow people who are blind, visually impaired, or print disabled to use text-to-speech software with DRM-protected ebooks. US Copyright Office, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. Reg. 43825, at 43838-39 (July 27, 2010) (to be codified at 37 C.F.R. pt. 201), https://www.govinfo.gov/content/pkg/FR-2010-07-27/pdf/2010-18339.pdf [https://perma.cc/P68M-HUAX]. Although this review focuses primarily on the public participants in the review process, the review also requires staff at the Copyright Office and Library of Congress to manage the process, review the petitions, and draft the final exemptions. These documents run in the hundreds of pages. The Copyright Office revised its rules governing renewal petitions as part of the 2018 triennial process, creating a presumption in favor of petitions to renew. See US Copyright Office, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 82 Fed. Reg. 29804, at 29805 (June 30, 2017) (to be codified at 37 C.F.R. pt. 201), https://www. govinfo.gov/content/pkg/FR-2017-06-30/pdf/2017-13815.pdf [https://perma.cc/FS3K-G6NK].As a result of that change, many opponents have abandoned the process. Although the Copyright Office numbered the exemption requests 1-7, it also broke out exemption 3 and 6 into (a) and (b) subparts, for a total of nine exemption categories. These subparts attracted independent engagement. "Although the Office has discretion to engage in independent fact-finding and take administrative notice of evidence, the primary way that most evidence supporting an exemption will get into the record will continue to be through the submissions of proponents, who are usually in the best position to provide it." See US Copyright Office, Section 1201 of Title 17: A Report of the Register of See US Copyright Office, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556, at 64567-70 (Oct. 27, 2000) (to be codified at 37 C.F.R. pt. 201), https://www.govinfo.gov/content/pkg/FR-2000-10-27/pdf/00-27714.pdf [https://perma.cc/XRH5-8N9K]. US Copyright Office, Recommendation of the Register of Copyrights in RM 2002-4; Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems (Oct. 27, 2003), https://cdn.loc.gov/copyright/1201/docs/registers-recommendation.pdf [https://perma.cc/FPX8-K7BT]. Kartemquin Educ. Films, Inc. & The Int'l Documentary Ass'n, Comment on Exemption to Prohibition on Circumvention of Copyright Protection Systems For Access Control Technologies, Docket No. RM 2008-08 (Dec 2, 2008), https://cdn.loc.gov/copyright/1201/2008/comments/ kartemquin-ida.pdf [https://perma.cc/KKY3-SA4A]. Advanced Access Content Sys. Licensing Adm'r, Reply Comments on Exemption to Prohibition on Circumvention of Copyright Protection for Access Control Technologies, Docket No. RM 2008-08 (Feb. 2, 2009), https://cdn.loc.gov/copyright/1201/2008/responses/advanced-access-contentsystem-36.pdf [https://perma.cc/KZ49-C4VA]. DVD Copy Control Ass'n, Inc. ("DVD CCA"), Reply Comments to Exemption to Prohibition on Circumvention of Copyright Protection for Access Control Technologies, Docket No. RM 2008-08 (Feb. 2, 2009), https://cdn.loc.gov/copyright/1201/2008/responses/dvd-cca-inc-38.pdf [https:// DVD CCA, Comments on Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Docket No. RM 2011-7 (Feb. 24, 2012), https://cdn.loc. gov/copyright/1201/2012/comments/DVDCCA.pdf [https://perma.cc/LG57-NSAB]. "Instead, they prohibit certain actions and create exceptions to permit certain conduct deemed to be in the greater public interest, all in a way that balances the interests of copyright owners and users of copyrighted works." House Report at 24. 31 Free Software Found., Comment Regarding a Proposed Exemption Under 17 U.S.C. 1201, Docket www.copyright.gov/1201/2024/petitions/renewal/Renewal%20Pet.%20-%20Documentary%20 Films%20-%20Joint%20Filmmakers.pdf [https://perma.cc/4P6U-P8AW]. 34 New Media Rights, Petition to Renew a Current Exemption Under 17 U.S.C. § 1201, 9th Triennial Rulemaking, Docket No. 2023-5 (July 6, 2023), https://www.copyright.gov/1201/2024/petitions/ renewal/Renewal-Pet-Documentary-Films-New-Media-Rights-1.pdf, [https://perma.cc/YK4Y-DCB2]. * New Media Rights advocated for exemptions on behalf of its clients generally. Other law clinics advocated for exemptions on behalf of specific clients, which represented a larger public set of beneficiaries. 97Compl. ¶ 145, Simon J. Burchett Photography, Inc. v. Alibaba Group, Inc., No. 1:23-cv-09853-LLS (S.D.N.Y. Nov. 8, 2023), https://storage.courtlistener.com/recap/gov.uscourts.nysd. 119 Many parties have suggested their own menu of reforms. See, e.g. Kathleen Burke, Everything About the Section 1201 Process is Mad, PublicKnowledge (Oct. 7, 2021), https://publicknowledge.org/everything-about-thesection-1201-process-is-mad/ [https://perma.cc/B33T-8CWJ]; US Copyright Office, Section 1201 of Title 17: A Report of the Register of Copyrights (June 2017), https://www.copyright.gov/policy/1201/section-1201-fullreport.pdf [https://perma.cc/3F7X-BA2V]; US Copyright Office, 120 House Report at 22-23. 121 17 U.S.C. § 504.

Dozens of organizations, spending thousands of hours, to write thousands of pages.

The reasons for this are many, and largely beyond the scope of this paper. One may be that the process is a rare forum where debates around copyright policy actually result in a concrete outcome.

If the intended purpose of the law was the protection of creative works in the digital economy, the actual effect of the law is the creation of a bureaucratic sinkhole that draws in public interest organizations, academics, industry organizations, and the public every three years.

The prohibition against circumventing digital locks is contained in 17 U.S.C § 1201(a)(1), itself enacted as part of the larger Digital Millennium Copyright Act (DMCA).

Congress recognized that this new circumvention-based violation could also impose significant burdens on the public and act as a barrier to socially beneficial (and perfectly lawful) activity.

In recognition of this, Congress wrote exceptions into the law itself for specific activities of libraries, archives, and educational institutions 8 ; law enforcement, intelligence, and other government activities 9 ; reverse engineering 10 ; encryption research 11 ; and security testing 12 .

The Triennial Review Process as Backstop

Congress understood that the prohibition against circumventing DRM would impact lawful uses of works beyond those explicitly listed in the statute. However, it did not create a general "fair use exemption" that would allow the breaking of digital locks in order to achieve otherwise legal ends.

The Triennial Review Process Imposes Significant Costs on the Public

This collective effort is required in part because the Copyright Office, although it recognizes its own authority to engage in independent fact-finding, does not exercise that authorityfoot_6 or see itself as a

PARTICIPANTS MUST HAVE RESOURCES FOR SUSTAINED ENGAGEMENT

The structure of the proceeding-spread out across multiple phases over more than a yearrequires sustained, specialized engagement from anyone requesting an exemption. Simply raising an issue in the hopes that the Copyright Office itself will use its authority to explore it further is not enough.

PARTICIPANTS ENGAGE REPEATEDLY OVER DECADES

Proponents of these exemption requests had to engage with the process over multiple triennial cycles before managing to avoid being challenged (again) in 2024.

In the first three cycles, there were a number of requests related to accessing motion pictures on DVD:

MOST PARTICIPANTS HAVE NO DIRECT FINANCIAL INTEREST IN THE OUTCOME

1201(a)(1) is Rarely Used by Rights Holders

means that the plaintiffs had the ability to bring each of the suits even in the absence of 1201(a) (1). It is unclear how, if at all, the addition of the 1201(a)(1) claim impacted the outcome of the cases.

Lawsuits with Facts Matching the Original Intent of 1201(a)(1) Mostly Relate to Enterprise Software

The majority of cases with fact patterns that would likely be familiar to the drafters of 1201(a)

Suits Involving Video Games and Unauthorized Retransmission Have Limited Connection to 1201(a)(1)'s Original Intent

Most Cases that Include 1201(a)(1) Claims Are Unrelated to Copyright or 1201(a)(1)

Most of these cases have a tenuous connection, if any, to copyright law. They are truly a grabbag of suits, with 1201(a)(1) claims included in a haphazard manner, involving:

• counterfeit computer networking equipment, 107 105 This report counts cases where a 1201(a)(1) claim was raised at any point in the proceeding. In many cases, these claims dropped out or were resolved prior to the full resolution of the suit.

106 BakersBodega, Inc. v. Rodriguez, No. 3:24-cv-00046, 2023 WL 9057671 (S.D. Cal., 2023).

107 Cisco Systems, Inc. v. Dexon Computer, Inc., No. 3:20-cv-04926, 2023 WL 5674788 (N.D. Cal., 2023).

• a counterclaim in a patent dispute between two services that remove objectionable content from Hollywood movies, 109

• a dispute over the true owner of a piece of software, 110

• impersonation on Facebook and Tinder, 111 • a prisoner losing access to the books they authored, 112 and

All Cases Connected to 1201(a)(1)'s Core Purpose Include Underlying Copyright Claims

In each of these cases, plaintiffs also include claims of copyright infringement against defendants. This means that none of them are relying on 1201(a)(1) for the ability to bring a claim against the defendants.

The Reality of 1201(a)(1) Litigation 1201(a)(1) is rarely litigated. When it is the subject of litigation, more than half the time the case has a limited connection to the intended purpose of the original provision, with the 1201(a)

It appears that the benefits of 1201(a)(1) are limited and largely redundant with existing prohibitions against copyright infringement. In contrast, the burdens imposed by its exemption process are significant and critical to a wide range of socially beneficial activities.

Balancing the Costs and Benefits of 1201(a)(1)

The Copyright Office was unable or unwilling to engage in its own investigation, and no public interest organization assumed responsibility for it. As a result, a potentially useful exemption was not fully explored.

Support for this advocacy could change that dynamic and help guarantee that the public interest is well represented during the triennial process.

See US Copyright Office, Exemptions To Permit Circumvention of Access Controls on CopyrightedWorks, 88 Fed. Reg. 72013, at 72015 (Oct. 19,

Although this review focuses primarily on the public participants in the review process, the review also requires staff at the Copyright Office and Library of Congress to manage the process, review the petitions, and draft the final exemptions. These documents run in the hundreds of pages.

Although the Copyright Office numbered the exemption requests 1-7, it also broke out exemption 3 and 6 into (a) and (b) subparts, for a total of nine exemption categories. These subparts attracted independent engagement.

US Copyright Office, Recommendation of the Register of Copyrights in RM 2002-4; Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems (Oct. 27, 2003), https://cdn.loc.gov/copyright/1201/docs/registers-recommendation.pdf [https://perma.cc/FPX8-K7BT].

DVD Copy Control Ass'n, Inc. ("DVD CCA"), Reply Comments to Exemption to Prohibition on Circumvention of Copyright Protection for Access Control Technologies, Docket No. RM 2008-08 (Feb. 2, 2009), https://cdn.loc.gov/copyright/1201/2008/responses/dvd-cca-inc-38.pdf [https://

DVD CCA, Comments on Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Docket No. RM 2011-7 (Feb. 24, 2012), https://cdn.loc. gov/copyright/1201/2012/comments/DVDCCA.pdf [https://perma.cc/LG57-NSAB].

"Instead, they prohibit certain actions and create exceptions to permit certain conduct deemed to be in the greater public interest, all in a way that balances the interests of copyright owners and users of copyrighted works." House Report at 24.

31 Free Software Found., Comment Regarding a Proposed Exemption Under 17 U.S.C. 1201, Docket

* New Media Rights advocated for exemptions on behalf of its clients generally. Other law clinics advocated for exemptions on behalf of specific clients, which represented a larger public set of beneficiaries.

97Compl. ¶ 145, Simon J. Burchett Photography, Inc. v. Alibaba Group, Inc., No. 1:23-cv-09853-LLS (S.D.N.Y. Nov. 8, 2023), https://storage.courtlistener.com/recap/gov.uscourts.nysd.

120 House Report at 22-23. 121 17 U.S.C. § 504.