The FTC’s Right to Repair Inquiry and the Copyright Office’s Section 1201 Proceedings

(by Blake Reid, TLPC Director and Kayla Enriquez and Sarah Rippy, Colorado Law 2Ls)

The Federal Trade Commission is conducting a workshop entitled Nixing the Fix, which is aimed at exploring issues around the right to repair. In our submission to the Commission, we have submitted a curated archive of the record developed during the Copyright Office’s various proceedings that have raised repair-related issues, including its 2012, 2015, and 2018 triennial reviews of exemptions from Section 1201 of the Digital Millennium Copyright Act, its 1201 Policy Study, and its Software-Enabled Consumer Products Study.

TLPC Presents on Disability and Copyright at WIPO SCCR/38

(by Colleen McCroskey, Colorado Law 2L)

From left to right: TLPC Student Attorney Kevin Doss, Prof. Blake Reid, Prof. Caroline Ncube, TLPC Student Attorney John Schoppert, UCT Doctoral Candidate Charlene Musiza, UCT Post-Doctoral Researcher Desmond Oriakhogba, and TLPC Student Attorney John Schoppert

TLPC student attorneys Colleen McCroskey, Kevin Doss, and John Schoppert, along with TLPC Director Blake Reid and colleagues from the University of Cape Town, including Prof. Caroline Ncube recently presented to the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) on the intersection of copyright law and disability.

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Analysis of Rulemaking and Multimedia Ebook Authorship Exemption to the DMCA in 2018

(cross-posted from Authors Alliance)

The following analysis was written by Harrison Grant and Brian Trinh of UCI Intellectual Property, Arts, and Technology Clinic and Colleen McCroskey and Corian Zacher of Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, under the supervision of Professors Jack Lerner and Blake Reid. Authors Alliance is grateful to the student attorneys and their supervisors for their tireless work securing exemptions to Section 1201 for authors and for this careful analysis of the results of recent rulemaking proceedings related to multimedia e-books.

On October 26th, the Library of Congress announced important new exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA) that will improve authors’ ability to create in the digital environment. Thanks to the work of a coalition of authors’ organizations including Authors Alliance and two law clinics who represented them, today authors of any non-fiction multimedia e-book can use content from DVDs, Blu-ray, and digitally transmitted video to make fair uses of copyrighted material in their own works.

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Section 1201 Security Research Exemption

On October 26, 2018, based upon the recommendation of the Acting Register of Copyrights, the Librarian of Congress adopted exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits circumvention of technological measures that control access to copyrighted works. On behalf of its clients Ed Felten and Alex Halderman, and working together with the Center for Democracy and Technology, the TLPC helped secure a set of important changes to a pre-existing exemption for good-faith security research, expanding the ability for security researchers to legally test device and system software for cybersecurity vulnerabilities without violating the DMCA and risking criminal liability.

Important caveat: this post is intended only as general information and does not constitute legal advice. If readers wish to utilize the new exemptions granted by the Librarian, they should consult independent legal counsel before doing so.

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Section 1201 Exemption for Disability Services Professionals

In 2017-2018, the TLPC, including student attorneys Sophia Galleher and John Schoppert, represented the Association of Transcribers and Speech-to-Text Providers (ATSP) before the U.S. Copyright Office’s Seventh Triennial Section 1201 Proceeding in Washington, DC. in an effort to empower disability services professionals to circumvent technological protections measures (TPMs) to provide accessible captioned and described video to students with disabilities . To do so, the Clinic argued in comments and at the hearing that  accessibility purposes were quintessential fair uses and should be the subject of an exemption from liability under Section 1201 of the Digital Millennium Copyright Act.

In late October 2018, the Copyright Office issued its Recommendation and the Librarian of Congress implemented final rules shortly thereafter, largely granting ATSP’s request, as summarized below.

Important caveat: this post is intended only as general information and does not constitute legal advice. If readers wish to utilize the new exemptions granted by the Librarian, they should consult independent legal counsel before doing so.

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Authorship and Accessibility in the Digital Age

(cross-posted from Authors Alliance)

The Internet has opened up the opportunity for creators to reach worldwide audiences. Authors can transmit digital creations in a matter of seconds by simply uploading an article or ebook, sharing a video, or posting a blog entry. But authors can reach an even wider audience if their digital creations are accessible to those with disabilities. Notwithstanding significant strides made toward making digital content more accessible over the past decade, the prevalence of inaccessible digital content continues to be problematic.

Last fall, Authors Alliance, the Silicon Flatirons Center, and the Berkeley Center for Law and Technology convened a group of content creators, technologists, attorneys, academics, and advocates to discuss the role of creators in making digital works more widely accessible to people with disabilities, reported by TLPC student attorneys.

The roundtable discussion focused on the unique role authors, educators, and libraries play in making digital works accessible; the benefits, obligations, and barriers around accessibility; the availability of authoring tools that facilitate accessibility; and the gaps for digital accessibility that technology and policy might fill.

That conversation led to the creation of the report, Authorship and Accessibility in the Digital Age, which distills these topics into a concise summary of the current landscape, as well as recommendations for further action. We gratefully acknowledge the support of Authors Alliance, Silicon Flatirons Center and the Berkeley Center for Law and Technology in making the roundtable and the report possible. We also thank Angel Antkers, Susan Miller, and Sophia Galleher, student attorneys in the TLPC, for their role in authoring this report; and Rob Haverty at Adobe Document Cloud for his assistance in creating an accessible PDF.

Last Week in Tech Policy #68A: Who Needs the Right to be Forgotten?

(by Kristine Roach, Colorado Law 2L)

The right to erasure, colloquially known as the right be forgotten, has been adopted by the EU General Data Protection Regulation (GDPR). It gives individuals the right to have their personal data erased:

  • Where the personal data is no longer necessary in relation to the purpose for which it was originally collected/processed.
  • When the individual withdraws consent.
  • When the individual objects to the processing and there is no overriding legitimate interest for continuing the processing.
  • The personal data was unlawfully processed (i.e. otherwise in breach of the GDPR).
  • The personal data has to be erased in order to comply with a legal obligation.
  • The personal data is processed in relation to the offer of information society services to a child.

However, the right is not absolute and the requestee can refuse to erase data of the requestor for the following reasons:

  • to exercise the right of freedom of expression and information;
  • to comply with a legal obligation for the performance of a public interest task or exercise of official authority.
  • for public health purposes in the public interest;
  • archiving purposes in the public interest, scientific research historical research or statistical purposes; or
  • the exercise or defense of legal claims.

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Fair Use and the Digital Millennium Copyright Act

(by Angel Antkers & Susan Miller, Colorado Law 2Ls—cross-posted from the Authors Alliance blog)

The fair use doctrine allows the unlicensed, unpermissioned use of a copyrighted work in certain situations. It functions, in part, to safeguard First Amendment interests in freedom of speech. But as the world moves toward more digital authorship and online content, fair use is encountering various obstacles.

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Last Week in Tech Policy: #60 Skating Around Copyright

(By Sophia Galleher, Colorado Law 2L)

First, think figure skating. Then, watch this—at minute 2:45 Jimmy Ma brings it, unzipping his jacket and giving a tongue wag à la Michael Jordan as his music breaks into a hip hop-electronic dance mix of “Turn Down For What” by DJ Snake and Lil Jon. Surprised? Welcome to figure skating in 2018, where Tchaikovsky’s “Swan Lake” and Beethoven’s “Moonlight Sonata” are remnants of the past.

Ma’s routine epitomizes the impact of a 2014 rule change where the International Skating Union, in an attempt to inject life into a sport with waning popularity, agreed to allow skaters to use music backed by vocals in their routines. And the move has proven to be a success: within hours of his performance, Ma, an otherwise unremarkable figure skater—an 11th place finish at the U.S. National Championships in an Olympic year is hardly newsworthy—became an internet sensation, lighting up the Twitter feeds of both skaters and non-skaters alike. Ma’s routine is not alone. In 2017 a French pair team’s bone-chilling performance set to Disturbed’s rendition of “The Sound of Silence” went viral, generating over 30 million views.

But while the figure skating world is abuzz with excitement over the sport’s future, the 2014 rule change has simultaneously ushered in a host of copyright questions.

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