(by Rachel Hersch, Colorado Law 2L)
On April 5, 2021, the TLPC, on behalf of its client the American Council for the Blind (ACB), and joined by a broad coalition of disability organizations, appeared at a hearing before the Copyright Office to urge adoption of a broad accessibility exemption from the anti-circumvention provisions of Section 1201 of the Digital Millennium Copyright Act (DMCA). The proposed exemption would remove roadblocks to access to digital works for people with disabilities. TPMs limit people with disabilities’ access to digital works because TPMs often block assistive technology. For example, a person may be prevented from watching a lawfully acquired video because the video’s TPMs block color-shifting technology, which the person needs to be able to watch the video. The proposed exemption would allow that person to lawfully circumvent this TPM in order to utilize the assistive color-shifting technology.
The proposed exemption also would reduce people with disabilities’ reliance on the triennial rulemaking process. Currently, people with disabilities must undergo a burdensome process to seek and refine exemptions for narrow classes of works and uses, forcing them to wait for lawful access, unlike people without disabilities who are able to access lawfully acquired works immediately. The proposed exemption mitigates this discrimination by allowing circumvention whenever a person with a disability is denied access.
The hearing was the final component of a year-long project that TLPC student attorneys Rachel Hersch, Dakotah Hamilton, and Scott Goodstein carried out over the course of the 2020-2021 academic year. Advanced senior student attorney Mikaela Colvin drafted the initial exemption proposal over the summer. Rachel, Dakotah, and Scott then spent the fall 2020 semester writing the initial comment, which illustrated the exemption’s integral role in securing people with disabilities’ lawful access to digital works, and wrote a reply comment to respond to opponents’ arguments in February. Throughout the year, The TLPC team worked closely with a broad coalition of organizations in addition to ACB, including the American Foundation for the Blind, Association for Education and Rehabilitation of the Blind and Visually Impaired, Association of Late-Deafened Adults, Association of Transcribers and Speech-to-Text Providers, Association on Higher Education and Disability, Gallaudet University Technology Access Program, HathiTrust, Hearing Loss Association of America, Library Copyright Alliance, National Association of the Deaf, National Federation of the Blind, Perkins Braille & Talking Book Library, and Telecommunications for the Deaf and Hard of Hearing, Inc. The proposed exemption, long-form initial comment, and reply comment are available for download below.