Last month the Engelberg Center released Unbalanced Interests: How the § 1201 Process Ate Itself (also hosted on this site). The report is a deep dive into the triennial § 1201 process, which is something of a marquee event in copyright policy circles, although not necessarily a particularly loved one. In the context of this blog, it is the thing that precipitates the unlocking 3D printers posts every three years.
I wrote the report because I have been participating in this process since the 2010 cycle and wanted to dig into just how much collective effort it required, and how to balance that effort against the benefits it produces. The short version is that the process requires a great deal of effort and produces very little benefit for anyone involved or the public in general.
The 1201 process (named after the section of copyright law that establishes it) acts as a giant copyright policy time sink. Of course, by its nature, the government maintains many time sinks. This one just happens to be mine.
Established by Congress, the process assumes that every three years a bunch of third parties have time to represent the public in a proceeding that runs for about a year. The process is managed by the Copyright Office. The Copyright Office sees itself as mediating between a number of competing interests, not as an advocate for the public’s interest.
For reasons I’ll get to at the end of this post, in many ways the enduring relevance of the process is that it provides a rare forum to have policy fights about copyright law. But first, a very quick tour of the findings.
Findings
The 1201 process requires a huge amount of effort from a huge amount of parties.
During the most recent proceeding, which kicked off with an NPRM on October 19, 2023 and ended with a Final Rule just over a year later on October 28, 2024, 96 nonprofit organizations, law school clinics, trade associations, academics, companies, and individuals submitted over 1,000 pages of petitions, comments, opposition comments, and reply comments (in addition to participating in three days of public hearings). Most of the participants involved do not track billable hours, but that corpus probably represents over 10,000 person hours of work.
The process is also in service of a law that is rarely used. The 1201 process technically consists of requests to be exempted from the law that prohibits breaking DRM. Over the three year period covered by the last exemption, only 12 rightsholder suits included an alleged violation of that prohibition as a claim. Five of those came from the same CAD software developer. All 12 included underlying copyright claims, which likely offer penalties that eclipse anything that would be available under 1201.
As a result, one could draw the conclusion that the costs associated with the 1201 process far outweigh any benefits that the provision provides to rightsholders.
Bonus Features
For better or worse, every three years the 1201 process brings together a large swath of players in copyright policy debates. Partially as a way to recognize their work, the report contains three bonus features. Those are:
- Burden of Proof an interactive visualization of triennial comments submitted to the Copyright Office from 2000 to 2024. It was created with the always excellent Jer Thorp who decided to take a break from his otherwise interesting work to dig into triennial comment analytics. In addition to exploring the data with various filters, high-quality prints are available in a range of sizes. That unquestionably makes it the #1 office accessory for every serious 1201 fan.
- The 1201 Commenter Leaderboard, a ranking of all the individuals who have filed comments in a triennial proceeding. Although some individual comments are filed on behalf of multiple organizations or clients, the leaderboard only counts such joint comments as a single comment for ranking purposes. I was heartened to see people in the 1201 community have strong opinions about methodology.
- The 2003 Media Explorer, a way to explore media referenced by commenters during the 2003 triennial proceeding. During that round of the proceeding, a large number of individuals filed comments in support of exemptions allowing circumvention of DRM protecting media. As part of their filings, commenters identified specific DVDs and albums they had purchased and were unable to make full use of because of DRM-based restrictions. This site allows you to explore them.
Why Does This Happen?
If the costs of the process outweigh the benefits, why does it persist? My theory is that it provides one of the few administrative arenas for copyright policy debates.
The evolution of copyright law mostly happens through the courts. While Congress sets the rules (and occasionally spends a year or two considering a major rewrite), 1998’s DMCA is the most recent significant legislative update to those rules (sorry MMA nerds). Whereas issues such as net neutrality are contested at a regulatory agency like the FCC, there is no administrative agency setting copyright rules.
However, every three years, the 1201 process provides a non-ligitation forum to hash out the limits of copyright law. That makes it a best-bad option to at least debate these issues, and everyone runs in to do so. Does that justify its continued existence? Perhaps not, but it may explain it.