Jonathan Band
PolicyBandwidth
In March 2015, I published The Complexity Dialectic: A Case Study From Copyright Law, where I argued that the nature of the U.S. political system encourages increasingly complex regulatory frameworks, which benefit those with more resources to navigate those frameworks. I used the triennial rulemaking under the Digital Millennium Copyright Act (“DMCA”) as a case study to demonstrate this point.[1] I showed that the rule issued by the Librarian of Congress (upon the recommendation of the Copyright Office) had grown increasingly complex. The number of words in the exemptions increased from 35 words for two exempted classes of works in the 2000 rulemaking cycle to 1,172 words for five exempted classes in the 2012 cycle.
The most recent set of exemptions continues this trend. The 2021 rule consists of 4308 words describing 21 exempted classes. Thus, the rule has expanded from 35 words in two classes in 2000 to 4308 words in 21 classes in 2021. The two new exemptions for text and data-mining, one for motion pictures and the second for literary works, have a combined length of 756 words.
| Rulemaking Cycle | Total Number of Words | Number of Exempted Classes | Average Words Per Class |
| 2000 | 35 | 2 | 17.5 |
| 2003 | 239 | 4 | 59.75 |
| 2006 | 567 | 6 | 94.5 |
| 2010 | 961 | 6 | 160 |
| 2012 | 1172 | 5 | 234.5 |
| 2015 | 2290 | 10 | 229 |
| 2018 | 2494 | 14 | 178 |
| 2021 | 4308 | 21 | 205 |
The growing complexity of the rule is the result of two factors. First, the increase in the number of exempted classes reflects the growing adverse impact of the DMCA on lawful uses as digital works protected by technological measures become more pervasive throughout the economy.[2] Second, the complexity of the rule reflects the conflicting pressures stakeholders place on the Copyright Office. Libraries, educators, and consumers request the expansion of existing exemptions, as well as the adoption of new ones. The rightsholders, for their part, vigorously oppose the exemptions and their modification. The Copyright Office attempts to reconcile these conflicting pressures through increasingly convoluted exemptions full of caveats and provisos.[3]
I won’t repeat here the rest of my argument about how the growing complexity increases inequality, which is only partially offset in the DMCA context by the participation of law clinics and advocacy groups; nor how the complexity (and the resulting inequality) is a result of the nature of our political system, with its high level of responsiveness to active stakeholders. Nonetheless, one can only hope that after eight rulemaking cycles with rightsholders claiming the sky would fall if a particular exemption were granted, and the sky never falling, the Copyright Office in the next cycle would ignore the rightsholders’ protestations and recommend straightforward exemptions that the intended beneficiaries could understand without a lawyer.
[1] Every three years, the Copyright Office conducts a rulemaking to identify classes of works that should be exempt for the next three years from the DMCA’s prohibition on the circumvention of technological measures that protect access to copyrighted works. After consulting with the National Telecommunications and Information Administration, the Copyright Office recommends the exempted classes to the Librarian of Congress, who has the statutory authority to issue the rule. 17 U.S.C. § 1201(a).
[2] More content consumed for both educational and entertainment purposes is distributed only in digital format. Further, software controls an ever-growing range of products. Rightsholders employ technological measures to prevent unauthorized access to these copyrighted works.
[3] The average number of words per exemption dropped between the 2015 and 2018 cycle in response to an admirable effort by the Copyright Office to streamline the exemptions. In particular, the Office managed to shrink the exemption for short portions of motion pictures from 958 words in 2015 to 450 words in 2018.
