The Copyright Office's Protection of Fair Uses Under the DMCA: Why the Rulemaking Proceedings Might Be Unsustainable and Solutions for Their Survival

Elizabeth F. Jackson, American University Washington College of Law

Abstract

This Comment considers the recent exemptions to the Digital Millennium Copyright Act announced in July 2010. Part I surveys the history and controversy of the DMCA and the Copyright Office’s interpretation of applicable exemptions. Part II argues that in considering classes of work to be exempted in 2006 and most certainly in 2009, the Copyright Office has outgrown its self-imposed restrictive interpretation of exemptions under the DMCA in two respects. The Office now focuses on the user of the class of work to be exempted rather than the work itself, and the Office lowered its standard of proof of harm to lawful uses. Part III lauds the Copyright Office’s expanded interpretation as finally protecting fair uses and bringing the DMCA in line with traditional copyright law but states a caveat: the success of the Copyright Office’s rulemaking proceedings might not be sustainable. Part IV offers possible solutions if the rulemaking proceedings overwhelm the Copyright Office’s time and resources. Either Congress must intervene and exempt some classes of work permanently or the Copyright Office should give existing exemptions a rebuttable presumption of exemption.