Advancing Innovation in a Software-Enabled World: Decoding the Complex Section 1201 Rulemaking

Every three years, the U.S. Copyright Office reviews and occasionally recommends expanding legal protections rooted in Section 1201 of the Digital Millennium Copyright Act of 1998 for circumventing access controls on copyrighted works. The National Telecommunications and Information Administration (NTIA) congratulates the Copyright Office and the Librarian of Congress on recently completing this important rulemaking, which can help prevent copyright law from getting in the way of vehicle repair, film studies classes, and a plethora of other important activities. We also support the Librarian of Congress’ conclusion that there are issues involving copyright-protected technology that “may require a broader solution” beyond this process. NTIA’s 2024 consultation letter highlights three areas of concern about the current rulemaking process:

• Lack of clarity about third-party assistance in light of the anti-trafficking provisions (from which the rulemaking cannot offer an exemption);
• The often-granular scope of exemptions granted under the process; and
• The ambiguity about what a “technological protection measure” and method of circumvention entail.