The attached brief was co-signed by Ryan Hagemann of the Niskanen Center and Wayne T. Brough of FreedomWorks. 

The signatories listed below are libertarian organizations whose mission is to engage in policy research and outreach to promote free markets, individual liberty and limited, effective government. As part of that mission, we regularly advocate for the removal of arbitrary legal and regulatory barriers that threaten free and open technological innovation.

In furtherance of that mission, we hereby submit this comment to “Section 1201 Study” (“1201 study”) (Docket No. 2015-8), noting its additional relevance to the “Software-Enabled Consumer Products Study” (“software study”) (Docket No. 2015-6). We submit in this way because of the degree the two studies interrelate, thereby requiring them to be addressed together. When contemplating the role copyright law has in affecting innovation policy, overly segregating related issues creates artificial barriers that prevent the effective telling of what is one coherent story and which needs to be treated as such.

Although certain aspects discussed below may be more specific to one study or another, the entirety of this comment should be considered part of the record of this study. If the Copyright Office finds it necessary to ascribe this comment to a specific question posed, it is most applicable to Question #11 of the 1201 study (“Please identify any pertinent issues not referenced above that the Copyright Office should consider in conducting its study.”).[1]  We also highlight where portions of this comment may also be applicable to other questions asked, such as Question #2 of the 1201 study (“How should section 1201 accommodate interests that are outside of core copyright concerns, for example, in cases where circumvention of access controls protecting computer programs implicates issues of product interoperability or public safety?”), to which we respond unequivocally, for the following reasons, that it should not.[2]

[1] It is also applicable to Question #2 of the software study (“Whether, and to what extent, the design, distribution, and legitimate uses of products are being enabled and/or frustrated by the application of existing copyright law to software in everyday products”).

[2] Question #3 of the 1201 study asks whether Section 1201 should be adjusted to allow for a presumption of renewal of previous exemptions, to which we would say yes.  In fact, there should be a presumption of validity for all sought exemptions.  Relatedly, Question #4 of the 1201 study contemplates shifting burdens from proponents of a class to opponents, which we would also agree is a needed improvement.  However, small changes like these are mere Band-Aids that do not adequately address the fundamental problem of copyright inserting itself in how technology is used and developed, which is what our comment challenges.

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