Expertise and resources. New policies before modernization overburden the office.

In light of the foregoing discussion, proposals to shift additional authority from the courts and Congress to the Office should be met with skepticism. Recent years have seen suggestions for the Office to adjudicate small claims,226 resolve fair use disputes,227 and craft exemptions to traditional infringement liability.228 But the Office is poorly positioned to take on these additional obligations. 229 It lacks the necessary expertise and resources. Although it continues to make progresses, the Office is struggling to hoist its registration and recordation systems into the twenty-first century.

Rather than expanding the Office’s portfolio, Congress should consider scaling back its duties. The DMCA rulemaking is an obvious place to start. Short of repealing § 1201 altogether—an option that has considerable merit beyond lessening the burdens facing the Office230—there are a number of steps worth considering. Informed in part by the Office’s prior rulemaking efforts, Congress should significantly expand the existing statutory exemptions for reverse engineering, security testing, and encryption research.231 Moreover, Congress should consider crafting new permanent statutory exemptions. Those might address specific concerns, like repair and unlocking, that have emerged since the DMCA’s enactment.232 Or more broadly, Congress could exempt circumvention that lacks any nexus with infringement 233 or circumvention undertaken by the owner of a device or copy.234 After twenty years, the unintended consequences of § 1201 have become abundantly clear to anyone paying attention.235 Rather than force the Office to plug new holes in the dike every three years, Congress should take responsibility for the over breadth of the anticircumvention rules.