DMCA Section 104 Report on "First Sale"
The U.S. Copyright Office issued a report at the end of August 2001 that had been mandated by the Digital Millennium Copyright Act of 1998. That law directed the Copyright Office and the National Telecommunications and Information Administration (NTIA) to make a report to Congress "no later than 24 months after the enactment of DMCA" (October 2000) on the effects on the "first sale doctrine" of the DMCA and the development of electronic commerce. The NTIA released its report in March 2001, concluding that it was "premature to draw any conclusions or make any legislative recommendations at this time."
The "first sale' doctrine limits the copyright holder's "distribution right" by providing that once the owner authorizes the release of lawfully made copies of a work, those copies may in turn be passed along to others by sale, rental, loan, gift or other transfer.
The main question for the Copyright Office was whether it should recommend legislation to expand the first sale doctrine to permit digital transmission of lawfully made copies of copyrighted works. The office acknowledged that the library community had raised "potentially valid concerns," such as the ability to make interlibrary loans and to offer off-site accessibility that "may require further consideration at some point in the future." However, the Copyright Office recommended no change to the copyright law at this time.
The House Judiciary Committee held two hearings on the Copyright Office report in December 2001. A letter to which ALA was a signatory expressing our concerns about the Copyright Office report was sent to Representative Howard Coble (chair of the House Judiciary's subcommittee on intellectual property and the courts). The letter was admitted as testimony at the Dec. 13, 2001 hearing.
In crafting the Digital Millennium Copyright Act (DMCA), Congress tried to resolve many issues, including how the first sale doctrine should be applied to digitally delivered copies and phonorecords of copyrighted works. Lacking an answer sufficiently clear to craft legislative language, Congress directed the U.S. Copyright Office and the National Telecommunications and Information Administration (NTIA) to study the issue. The two were then to report back on the effects on the first sale doctrine of the DMCA amendments to the Copyright Act and the development of electronic commerce.
Title I of DMCA establishes new prohibitions in title 17 of the U.S. Code:
- prohibition on the circumvention of technological measures used by copyright owners to control access to protected works
- prohibitions on manufacturing or "otherwise trafficking
- in" a device designed to circumvent a technological measure that controls access or that protects rights of a copyright owner (copy controls)
- prohibitions on providing false copyright management information and on removing or altering copyright management information with the intent to conceal or facilitate copyright infringement
As set out in Section 104 of the DMCA, the Copyright Office and the NTIA are directed by Congress to evaluate:
- the effects of the above DMCA amendments to the Copyright Act and the development of electronic commerce on Section 109 (first sale doctrine) and Section 117 (allowing copying of a computer program for purposes of maintenance or repair)
- the relationship between existing and emerging technology and the operation of those sections
To carry out their study, the Copyright Office and NTIA requested comments by interested parties on the issues outlined above. ALA and its fellow library associations filed comments in August and September 2000. NTIA and the Copyright Office then held a hearing on November 29, 2000, to solicit testimony.
At the November 29th hearing, two representatives of the Library community testified: James Neal, Johns Hopkins University, and Rodney Petersen, University of Maryland. They urged that the copyright law be updated to ensure that the first-sale doctrine is media-neutral and technology-neutral, and that it apply to digital works.
All of the comments filed with the Copyright Office and NTIA, as well as the hearing testimony and other information about the study, can be found on the Copyright Office web site.
The statute directed the Copyright Office and NTIA to complete their work and make a report to Congress "no later than 24 months after the enactment of DMCA" (October 2000).
The NTIA report found that there are "deep divisions" between the proponents of legislative change and the copyright community. NTIA concluded that there is "very little consensus" among the parties and that it is "premature to draw any conclusions or make any legislative recommendations at this time."
Although the Copyright Office acknowledged that the library community had raised "potentially valid concerns," such as the ability to make interlibrary loans and to offer off-site accessibility that "may require further consideration at some point in the future," the Office recommended no change to the copyright law at that time.