Section 1201 of the Digital Millennium Copyright Act (DMCA) of 1998 prohibits users from circumventing technological protection measures (TPMs) that control access to copyrighted works (think encryption or password protection). This prohibition applies even when the underlying use is otherwise lawful.
The only way to get around this prohibition is for advocates and users to petition for temporary exemptions through the triennial rulemaking process—a process that is burdensome, lengthy, and at times adversarial. And these exemptions last only three years, forcing advocates to repeatedly demonstrate the continuing need and justification for the exemption. For instance, every three years since 2003, disability rights advocates and library associations have petitioned the US Copyright Office for permission to access lawfully acquired ebooks using assistive technology.
To fix this, Congress could amend Section 1201 to permit TPM circumvention and distribution of circumvention tools that applies to all disability types and content formats, as follows.
Potential amendment to Section 1201:
Section 1201 of title 17, United States Code, is amended by adding at the end the following:
“(l) Accessibility for Individuals With Disabilities.—
“(1) DEFINITION.—In this subsection, the term ‘disability’ has the meaning given the term in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).
“(2) CIRCUMVENTION PERMITTED.—Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure that effectively controls access to a work protected under this title, if the act of circumvention is carried out solely for the purpose of enabling access to the work, or the use of the work, by an individual with a disability in a format or manner that makes the work accessible to that individual.
“(3) TECHNOLOGICAL MEANS FOR ACCESSIBILITY.—Notwithstanding the provisions of subsections (a)(2) and (b)(1), a person may manufacture, import, offer to the public, provide, or otherwise traffic in a technology, product, service, device, component, or part thereof, if that technology, product, service, device, component, or part is used to make copyrighted works accessible to individuals with disabilities.”
Who would this amendment help?
Currently, two separate DMCA exemptions apply to people with disabilities: one for people with print and visual disabilities, and another for disabilities that require captions or audio descriptions. People with other disabilities have no explicit legal assurance when they need to circumvent technological protection measures to access digital materials.
Under the current exemptions, a deaf student at a university can access captioned films only through their disability services office — they cannot do it themselves. A blind independent researcher unaffiliated with a university can circumvent ebook TPM on their own, but has no legal pathway to access a technologically -protected film. In contrast, the proposed amendment would permit any person to circumvent technological protection measures for the purpose of enabling access to or use of copyrighted works by an individual with any disability. The amendment would also permit the creation of the tools necessary to perform these acts of circumvention. The amendment thus would replace a patchwork of narrow, expiring exemptions with a single, stable legal foundation.
This matters urgently for students, researchers, and faculty. Even when accessible formats exist, publishers use TPMs and license terms to block screen reader access and caption support — cutting off people who cannot use standard formats from materials they are otherwise entitled to read. And accessible formats are scarce to begin with: only ten percent of works are published in accessible versions, forcing many users to rely on circumvention just to access ordinary content. And the problem is growing: college students reporting disabilities increased more than 50 percent over the last decade, according to a New York Times analysis of federal data, meaning more people are encountering these barriers every year.
Why now?
The tenth 1201 rulemaking cycle will start in the summer of 2026, kicking off months of petitions by disability rights advocates, library associations, and civil society organizations. Any petition to expand the current regulations beyond the narrow limited circumstances will require hours of work, with uncertain outcomes.
Congressional action now would provide a durable solution for people with disabilities that does not depend on a regulatory process.
What new uses could this amendment unlock?
Clarifying the lawful use of technologies to make copyrighted works accessible to people with disabilities can lead to new uses of accessibility-specific TPM circumvention tools. This could mean tools that automatically generate audio descriptions for TPM-protected films, or that convert locked digital music scores into braille notation for blind musicians.
Under this amendment, legal certainty could incentivize the development of non-commercial research applications with no viable market incentive.
What other policy advantages are there?
In addition to improving outcomes for people with disabilities, these legislative changes would bring the US into full compliance with Article 7 of the Marrakesh Treaty, which requires ratifying countries to ensure that TPMs do not block accessibility features. The triennial rulemaking produces only partial and temporary compliance with this provision, as exemptions expire, coverage remains narrow, and the status of creating unlocking tools is uncertain. A statutory fix would provide comprehensive compliance.
The changes would also align US law with the European Accessibility Act (EAA), which requires that ebooks be accessible, and that digital rights management measures do not block accessibility features.
DMCA § 201.40 Accessibility Exemptions: Coverage Comparison
| Question | Ebooks: 37 CFR § 201.40(b)(6) | Motion pictures: 37 CFR § 201.40(b)(2) | Proposed amendment: 17 U.S.C. § 1201(h) |
|---|---|---|---|
| Who may circumvent | An eligible person or authorized entity | Only an institutional disability services office or equivalent unit affiliated with a K-12, college, or university unit | Any person |
| Which disabilities does the exemption apply to | Print/visual disabilities as defined in the Chafee amendment | Any disability requiring captioning or audio description | Any disability |
| What content does the exemption apply to | Literary works or previously published musical works, distributed electronically, that are protected by TPMs that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies | Motion pictures (including TV shows and videos), as defined in 17 USC 101, where the motion picture is lawfully acquired on a DVD protected by the Content Scramble System, a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure | Content in any category coveted by 17 USC 102 |
| Duration of exemption | Three years—must be re-petitioned each triennial cycle | Three years—must be re-petitioned each triennial cycle | Permanent—no expiration, and no re-petitioning required |
| Tools and technologies | DMCA prohibits distribution of tools | DMCA prohibits distribution of tools | Explicitly permits manufacture, import, offering, and distribution of tools used to make works accessible to people with disabilities |
Read More
- How Congress Can Improve Accessibility and Digital Access
- Bridging the Gap: How Congress Can Codify the Rights of People with Disabilities to Access Digital Works, International Journal of Disability Policy and Advocacy ($16)
- H.R.1587 – Unlocking Technology Act of 2015
- The issue: 17 U.S.C. Section 1201
