DMCA Triennial Rulemaking:

Failing the Digital Consumer

During the legislative debates leading up to the Digital Millennium Copyright Act of
1998 (DMCA), critics of the measure worried that copy-protection mechanisms and other
“digital rights management” (DRM) technologies might interfere with fair use (and other
noninfringing uses) of music, movies, television, books and other copyrighted materials. In an
effort to address these concerns, Congress included what it described as a “fail-safe” mechanism
in the DMCA—a rulemaking proceeding to be held every three years—intended to ensure that
DRM technologies would not block the public from making lawful uses of copyrighted works.1
Unfortunately, the DMCA triennial rulemaking has failed to protect digital consumers.
After participating in the first two rulemakings, in 2000 and 2003, and closely examining the
requirements laid out by the Copyright Office for the 2006 proceedings, the Electronic Frontier
Foundation (EFF) has concluded that the DMCA triennial rulemaking is fundamentally unable to
protect the interests of today’s digital media consumers. Congressional action will be required to
reform the DMCA and the rulemaking process, if the harms imposed on consumers by the
DMCA are to be remedied.
I. Background.
The DMCA’s “anti-circumvention” provisions make it unlawful to bypass DRM
technologies that control access to copyrighted works.2 In addition, the DMCA makes it
unlawful to “traffic” in tools that enable individuals to bypass access controls or copy-protection
restrictions.3
In the years since its enactment, the DMCA has proven to be bad policy for a variety of
reasons, discussed in detail in prior EFF reports.4 In particular, it has been the bane of consumers
interested in engaging in fair uses of digital media they have legitimately acquired. According to
some courts, the DMCA forbids bypassing DRM even where necessary to make lawful uses of
copyrighted materials.5 On this view, even if making a personal backup copy of a DVD would be
lawful as a fair use, bypassing DRM measures in order to make such a copy would violate the
DMCA.

1
See Marybeth Peters, Recommendation of the Register of Copyrights in RM 2002-4;
Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems
for Access Control Technologies, Oct. 27, 2003, at 8 (hereafter “Register’s 2003
Recommendation”) (available at <http://www.copyright.gov/1201/docs/registers-
recommendation.pdf>).
2
See 17 U.S.C. § 1201(a)(1).
3
See 17 U.S.C. § 1201(a)(2) & (b).
4
See, e.g., EFF, Unintended Consequences: Five Years Under the DMCA (available at
<http://www.eff.org/IP/DMCA/unintended_consequences.php>).
5
See, e.g., Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 322 (S.D.N.Y. 2000).
 The DMCA triennial rulemaking was meant as a “fail-safe” to prevent DRM from
encroaching on the public’s ability to engage in activities that would otherwise be perfectly legal
under copyright law. According to the Copyright Office, “The primary responsibility of the
Register and the Librarian in this rulemaking proceeding is to assess whether the implementation
of access control measures is diminishing the ability of individuals to use copyrighted works in
ways that are otherwise lawful.”6
Although consumers and public interest groups have repeatedly participated in the
DMCA rulemakings, the Copyright Office has not recommended a single DMCA exception
responsive to the submitted comments of literally hundreds of digital media consumers. Instead,
the rulemaking process has repeatedly discounted consumer concerns.
II. Why the DMCA Rulemaking Fails Digital Media Consumers.
The DMCA triennial rulemaking has failed to protect lawful consumer activities from the
encroachments of DRM restrictions in digital media products, including DVDs, copy-protected
CDs, region-coded video games, and software products relying on activation codes.
The following are the most prominent problems that render the rulemaking process of
little utility to digital consumers.
A. No Tools.
The DMCA provides that the Librarian of Congress can only grant exemptions from the
DMCA’s prohibition on acts of circumvention; exemptions from the DMCA’s prohibition on
distributing tools of circumvention are not within the scope of the rulemaking.7 As a result,
exemptions granted can only be exercised by the very small number of persons who have the
technical know-how to fashion their own software or hardware circumvention tools.
Needless to say, this restriction effectively shuts the door on digital consumers. Only
engineers, computer scientists, and those who can afford to hire them, need apply. The ability of
consumers to circumvent DRM restrictions depends almost entirely on the ready availability of
tools in the marketplace, as demonstrated in DMCA cases involving DVD copying, garage door
openers, and laser printer toner refills. In contrast, average consumers denied access to
circumvention tools are not able to make use of the 6 exemptions that have been granted by the
Librarian in prior DMCA rulemakings.
Currently, the rulemaking proceeding holds out, at best, an empty promise to digital
consumers: a legal right to circumvent, without access to the tools necessary to make that right a
reality. Until this structural problem is addressed by Congress, digital consumers will obtain no
relief through the rulemaking procedure.
B. Impenetrable Complexity, Impossible Burdens.
Any digital consumer interested in participating meaningfully in the DMCA rulemaking
process must first decipher a bewildering array of legal arcana and independently gather
considerable evidence. Rather than receiving public comments and engaging in independent fact-
finding, as many administrative agencies do, the Copyright Office has instead laid a heavy
burden on the shoulders of those seeking DMCA exemptions: “[P]roponents must show by a

6
Register’s 2003 Recommendation at 6.
7
17 U.S.C. § 1201(a)(1)(C).

2
preponderance of the evidence that there has been or is likely to be a substantial adverse effect
on noninfringing uses by users of copyrighted works.”8
For example, any individual interested in participating meaningfully in the 2006
rulemaking procedure must begin by reading the 6-page 2005 Federal Register Notice9, the 30-
page 2003 Determination and Final Order10, the Register’s 200-page recommendation
memorandum11 in the 2003 proceeding, and the 18 page Final Rule issued in 2000. Each of these
documents is written by and for those familiar with many of the most complex and arcane
provisions of the Copyright Act.
Moreover, the Copyright Office requires that those seeking DMCA exemptions:
• Define a “class of works” independently of the characteristics of particular
users12;
• demonstrate that their activities are noninfringing13;
• identify the technological protection measure and establish that it is an “access
control” within the meaning of the DMCA14;
• establish that the noninfringing activity cannot be undertaken without
circumventing the DRM in question15;
• show by a preponderance of evidence that the DRM has, or will have, a
substantially adverse effect on noninfringing uses beyond “mere inconveniences
or individual cases”16; and
• be prepared to address the potential impact of an exemption on the market for,
and availability of, the DRM-protected copyrighted works in question17.
Simply put, this does not facilitate participation by members of the public. Meeting these
onerous requirements generally requires the assistance of specialized copyright attorneys,
technical experts, researchers, and industry analysts. Without expert assistance, individual digital
consumers cannot reasonably gather the expertise and devote the time necessary to participate
successfully in the DMCA rulemaking process.
Even with expert assistance, the burdens imposed by the Copyright Office on participants
often prove nearly insurmountable. For example, during the 2003 rulemaking, 51 initial
comments requesting exemptions were filed, and 337 reply comments were filed. Of these, 254

8
Register’s 2003 Recommendation at 10.
9
Available at <http://www.copyright.gov/fedreg/2005/70fr57526.html>.
10
Available at <http://www.copyright.gov/fedreg/2003/68fr2011.pdf>.
11
Available at <http://www.copyright.gov/1201/docs/registers-recommendation.pdf>.
12
Register’s 2003 Recommendation at 11-13.
13
Notice of Inquiry, Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies, 67 Fed. Reg. 63578, 63581 (Oct. 15, 2002) (hereafter
“2003 Notice of Inquiry”).
14
Id.
15
Id.
16
Register’s 2003 Recommendation at 17.
17
2003 Notice of Inquiry at 63581.

3
reply comments were filed by consumers in support of the consumer-oriented exemptions
proposed by the EFF and Public Knowledge (PK). EFF devoted considerable resources to
assisting members of the public in formulating their submissions, in hopes that the submissions
would meet the Copyright Office’s stringent guidelines.
In the end, none of the 4 classes of consumer-oriented exemptions requested by EFF and
PK were granted. In each case, the Register and Librarian of Congress determined that any harm
to consumers was “de minimis” based on the evidence presented by proponents. EFF and PK,
even with the assistance of sophisticated attorneys and technical experts, nevertheless faced
difficulties in shouldering the evidentiary burdens imposed by the Copyright Office. For
instance, EFF and PK were asked to identify (1) the number and volume of all copy-protected
audio CDs available in the United States, in support of a request for circumvention to enable
playback of malfunctioning copy-protected CDs, and (2) all public domain motion pictures
released either alone or bundled with other copyrighted works, on DVDs protected by Content
Scramble System (CSS) encryption, and which were not available on VHS cassette, in support of
an exemption to access public domain works.18 In both cases, the information was effectively
unavailable to consumers, EFF, or PK. Ironically, the music and movie industry participants who
were opposing the exemptions were in a much better position to provide this evidence than were
the consumers facing DRM restrictions, yet were not required to provide it.
C. Costs and Impediments Imposed on Consumers are “Mere Inconveniences.”
The Copyright Office has also established a number of presumptions that discount the
legitimate concerns of digital consumers.
First, the Copyright Office has said that exemptions will not be granted so long as a work
remains available in an unprotected format, even if that unprotected format imposes additional
costs and inconvenience on consumers: “Unless one can show that a particular noninfringing use
can only be accomplished by using the digital version, the existence of a public domain or other
work in alternative, unprotected formats provides a safety valve for noninfringing uses.”19 For
example, in denying exemptions involving DVDs, the Copyright Office has emphasized that
movies released on encrypted DVDs are also frequently released on unencrypted analog VHS
cassettes.20 This ignores the obvious advantages of digital formats and fails to address whether
average consumers are likely to have ongoing access to analog VHS alternatives or the players
needed to watch them.
Second, the Copyright Office has been stubbornly indifferent when DRM restrictions
impose increased costs on lawful activities. Most motion pictures released on DVD, for example,
are subject to a “region coding” system that is enforced through DRM technologies. Many
consumers who have legitimately purchased a DVD in one geographic region suddenly discover
that those DVDs are not playable on DVD players purchased in other regions. The Copyright
Office admits that playing a DVD you have legitimately purchased is a noninfringing activity.
However, the Copyright Office has concluded that this is “a mere inconvenience” so long as

18
See EFF post-hearing comments, dated June 20, 2003, in response to letter from Mr. David
Carson, Copyright Office General Counsel, dated June 5, 2003 (available at
<http://www.eff.org/IP/DMCA/copyrightoffice/EFF_post_hg_062003.pdf>).
19
Register’s 2003 Recommendation at 101.
20
Id.

4
consumers are able to purchase multiple DVD players from multiple regions (along with
associated adapters to convert the resulting video between international PAL and NTSC
standards)—the fact that this “solution” means that a digital consumer will likely have to spend
much more on equipment than she spent on the original DVD is apparently irrelevant to the
Copyright Office’s analysis.21
Third, the Copyright Office has effectively established a general presumption against all
lawful consumer activities that do not strike the Office as being sufficiently “important,”
repeatedly dismissing consumer concerns as “mere inconveniences.” For example, when asked
to approve an exemption that would allow consumers to skip over “unskippable” promotional
material included on DVDs, the Copyright Office concluded that “being forced to play (not
necessarily watch) the promotional material constituted no more than a mere inconvenience for
users in possession of such works.”22 Similarly, responding to complaints regarding the inability
to play copy-protected CDs on certain computers, the Copyright Office concluded that “where
someone could not listen to a sound recording on a computer or some other device, the Register
cannot find that this is more than a mere inconvenience.”23 Rather than using the rulemaking to
protect the lawful activities of digital consumers (i.e., simply playing the CDs and DVDs they
had purchased), as mandated by Congress, the Copyright Office has arbitrarily relegated the
concerns of digital consumers to the realm of “mere inconveniences.”
Finally, the Copyright Office routinely presumes (on the basis of no independent
evidence and contrary to the logic of the free market) that, but for the continued legal
inviolability of the DRM technologies that protect them, many forms of digital media would
simply be withheld from the market by copyright owners. According to this pretzel logic,
granting any consumer-oriented DMCA exemption would (paradoxically and counterfactually)
reduce the availability of copyrighted works.24 When confronted with the fact that many of the
“commentary tracks” and “bonus features” contained on movie DVDs are not available in
alternative unprotected formats, the Copyright Office concluded that these ancillary features
“likely would not exist at all but for [the protected DVD] format, due both to its greater storage
capability over VHS tapes and the greater security it offers.”25 The Copyright Office went on to
blithely assert that “the motion picture studios’ willingness to distribute their works [on DVD] is
due in part to the faith they have in the protection offered by CSS.”26 Similarly, where copy-
21
Register’s 2003 Recommendation at 120-23.
22
Register’s 2003 Recommendation at 113.
23
Register’s 2003 Recommendation at 157.
24
Register’s 2003 Recommendation at 141 (“The effect of circumvention of the protection
measures employed on [DVDs] would likely be to decrease the digital offerings for these classes
of works, reduce the options for users, and decrease the value of these works for copyright
owners.”)
25
Register’s 2003 Recommendation at 118-19.
26
Register’s 2003 Recommendation at 145. Where DVDs are concerned, not only is this
assertion unsupported by any independent evidence, but it is almost laughable—notwithstanding
the DMCA, the encryption on movie DVDs was broken long ago and provides no meaningful
protection against widespread infringement. It borders on the absurd to think that movie studios
would not be issuing movies and “bonus materials” on DVDs but for their faith in the “security”
provided by CSS. See generally Fred von Lohmann, Measuring the DMCA Against the Darknet,
24 Loyola Entertainment L. Rev 635 (2004).

5
protected CDs are concerned, the Copyright Office simply asserts that “[a]n exemption from the
prohibition on circumvention in cases where sound recordings on compact discs are protected …
would have great potential for massive negative effects on the market for copyrighted sound
recordings.”27
In other words, the Copyright Office has chosen to privilege hypothetical, counterfactual
assumptions about the impact that DRM has on the availability of works, over the demonstrated
impediments faced by consumers attempting to make lawful uses of DVDs and CDs that they
have legitimately acquired. This logic sets the consumer’s interests to naught, since any
impediment of a lawful use caused by DRM restrictions will be deemed inconsequential, in light
of the assumption that the work would not exist at all but for the DRM restrictions in question.
This circular logic is not only inconsistent with the purpose of the rulemaking, but it is also
virtually impossible for a consumer to refute—how can a consumer hope to prove what the
copyright owner would have done in a counterfactual world without DRM?
D. Fair Use in the Deep Freeze.
Fair use is a critical and necessary element of American copyright law—without it, the
broad exclusive rights granted by our copyright law might violate the First Amendment.28
Among other things, fair use operates as a “safety valve” that allows courts to adjust copyright
law in response to new technologies. Rather than treating every unauthorized copy, distribution,
performance, or derivative work as infringing, the Copyright Act delegates to courts, acting on a
case-by-case basis, the responsibility to apply and evolve the principles of fair use.29 Although
the fair use doctrine plainly protects scholarly, research, and educational activities, it also applies
to noncommercial, personal consumer uses, as made clear by the Supreme Court’s landmark
1984 “Sony Betamax” ruling holding that recording broadcast television programming for “time-
shifting” purposes was a fair use.30
The Copyright Office has turned these settled fair use principles on their head in the
DMCA rulemaking process. Rather than treating fair use as a forward-looking, evolving regime,
the Copyright Office has made it backward-looking, effectively barring courts from addressing
the fair use implications of new digital consumer technologies in the 21st century.
New digital technologies are making new kinds of consumer activities possible every
day, including time-shifting (e.g., TiVo), space-shifting (e.g., Slingbox), and format-shifting
(e.g., iPod). In this environment, it is critically important that courts be allowed to perform the

27
Register’s 2003 Recommendation at 158. This assertion also borders on the absurd, in light of
the fact that these “copy-protection” technologies have proven to be abject failures at reducing
the incidence of infringing activity, while simultaneously exposing digital consumers simply
trying to play their legitimately acquired CDs to serious computer security risks. See Edward
Felten, What Does MediaMax Accomplish?, Freedom-to-Tinker Blog, Nov. 23, 2005
(<http://www.freedom-to-tinker.com/?p=935>).
28
See Eldred v. Ashcroft, 537 U.S. 186, 221 & n.24 (2003).
29
The fair use doctrine is codified at 17 U.S.C. § 107. See also H.R. Rep. No. 94-1476, 94th
Cong., 2d Sess, 65-66 (1976) (“The [1976 Copyright Act] endorses the purpose and general
scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the
statute, especially during a period of rapid technological change.”).
30
Sony v. Universal City Studios, 464 U.S. 417 (1984).

6
duty delegated to them by Congress—to decide, on a case-by-case basis, whether these new
digital consumer activities are within the ambit of fair use. But DRM restrictions, buttressed by
the DMCA, interfere with the ability of the courts to perform this function. After all, if accessing
the work in the first place violates the DMCA, how will we ever find out whether making a
personal backup copy of a DVD qualifies as a fair use? Or whether making a digital copy of a
DVD you own for your iPod is a fair use? How about copying DVDs in order to extract public
domain material that has been mingled with newer content? So long as DVDs are DRM-
protected and circumvention is prohibited by the DMCA, digital consumers will stumble over the
tripwire of DMCA liability before courts can address these 21st century fair use questions.
In light of this, the Copyright Office should be liberally construing consumer (as well as
other) fair use claims in the context of the DMCA rulemaking, erring on the side of approving
DMCA exemptions, and thereby permitting courts to perform their traditional role in applying
fair use principles to new noncommercial, personal-use consumer activities. After all, it is not for
the Copyright Office to decide what uses are fair—that is a task expressly delegated by Congress
to the courts. Rather, the Copyright Office should be administering the DMCA rulemaking so as
to facilitate the judicial testing of the fair use claims of today’s digital consumers. Because
DMCA exemptions must be renewed every 3 years, the Copyright Office can easily refuse to
renew exemptions should courts decide that activities made possible by the exemptions do not
qualify as fair uses.
Instead of this forward-looking approach, the Copyright Office has expressly embraced a
backward-looking posture with respect to fair use, dismissing the fair use claims of digital
consumers, and arrogating to itself the authority expressly reserved to the courts to decide what
uses are fair. Rather than admitting the possibility that courts may recognize new digital
consumer activities as lawful under the fair use doctrine, the Copyright Office will approve
exemptions only for “lawful uses of copyrighted works that the public had traditionally been
able to make prior to the enactment of the DMCA.”31 The Copyright Office has further observed
that “this rulemaking is not the forum in which to break new ground on the scope of fair use.”32
The correct forum, of course, would be the courts. But, without a DMCA exemption, digital
consumers will be found liable for circumvention and may have no opportunity to present their
fair use claims in court.
The Copyright Office, however, has not been content to simply freeze fair use
jurisprudence in 1998. It has gone even further astray, arrogating to itself the power to decide
what 21st century activities are not fair use. So, for example, the Copyright Office opined in the
2003 rulemaking that “space-shifting” (making personal-use copies of an e-book, DVD, or CD in
order to enjoy them on multiple devices, ) does not qualify as a fair use.33 The Copyright Office
similarly concluded that making personal backup copies of DVDs would not qualify as a fair use,
stating that “such reproductions of convenience are infringing under the Copyright Act.”34 These
determinations are simply not for the Register of Copyright to make; Congress expressly
delegated the development of the fair use doctrine to the courts. If a new consumer activity might

31
Register’s 2003 Recommendation at 9.
32
Register’s 2003 Recommendation at 106.
33
Register’s 2003 Recommendation at 130.
34
Register’s 2003 Recommendation at 108.

7
plausibly qualify as a fair use, the Copyright Office should grant a 3-year DMCA exemption,
thereby leaving it to the courts to continue to develop fair use law in the 21st century.
III. What Should be Done?
Congressional action is necessary to fix the defects in the DMCA rulemaking. The
simplest solution is also the best one: amend the DMCA to permit circumvention for
noninfringing purposes. This is the approach taken by Rep. Barton and Rep. Boucher in the
Digital Media Consumers’ Rights Act (DMCRA), currently pending before the 109th Congress
as H.R. 1201. In addition, Congress would need to reform the DMCA’s ban on the distribution of
circumvention tools to give consumers marketplace access to the tools necessary to enable
noninfringing uses of DVDs, copy-protected CDs, and other digital media products.
In the alternative, Congress could revise and clarify its instructions to the Copyright
Office and Librarian of Congress regarding the DMCA rulemaking procedure. The following
immediate reforms should be considered:
• Independent Fact-Finding. As part of the triennial rulemaking, the Copyright Office
shall actively solicit input from users and undertake independent fact-finding to
determine whether lawful uses of copyrighted works are being impaired by DRM
technologies. The Librarian shall undertake regular survey research designed to monitor
the attitudes and experiences of digital consumers in connection with DRM-restricted
media and shall report to Congress regarding its findings.
• Reduce Complexity and Re-assign Burdens of Proof. The complexity and burden now
imposed on consumers should be replaced with a regime that imposes the burden of proof
on those best positioned to shoulder it. Accordingly, once a petitioner comes forward
with a concern regarding a lawful use that appears to be impaired by DRM restrictions,
the burden should then shift to the copyright owner to (1) describe how the DRM
technology functions and how widely it is deployed; and (2) demonstrate by a
preponderance of the evidence that continuing DMCA protection for the DRM in
question is necessary to the market viability of the work.
• Leave Fair Use to the Courts. Where a petitioner comes forward with a use, otherwise
impeded by DRM restrictions, that might plausibly be viewed by a court as a fair use, the
Copyright Office shall presume that the use in question is a fair use for purposes of
considering whether an exemption should be granted. This presumption shall not be
construed as the expert opinion of the Register, but rather as a presumption favoring
DMCA exemptions for potential fair uses intended to funnel those uses into court for
judicial resolution.
• Authorize Exemptions to Include Distribution of Circumvention Tools. As noted
above, consumers must have access to circumvention tools if they are to be able to take
advantage of any DMCA exemptions granted in the rulemaking. Congress should expand
the scope of the rulemaking proceedings to expressly authorize the Librarian to grant
exemptions to the DMCA’s prohibitions on trafficking in circumvention tools to the
extent necessary to permit technically unsophisticated consumers take advantage of any
exemptions to the DMCA’s circumvention prohibition granted in the rulemaking.
Fred von Lohmann, Senior Staff Attorney Gwen Hinze, International Affairs Director
[email protected] [email protected]