A new report from the US Copyright Office on Section 1201 of the Digital Millennium Copyright Act — a controversial law that bans breaking DRM, even for legitimate purposes — calls for sweeping, welcome changes to the DMCA.
DMCA 1201 says that bypassing a computer program that controls access to a copyrighted work is a potential felony, punishable by a five-year prison sentence and a $500,000 fine (for a first offense!). This has allowed entertainment companies to take away many of the public's rights under copyright — for example, by locking your ebooks to your account and your ebook reader, so you can't lend or sell your used books when you're done with them.
But DMCA 1201 goes much farther than this: because any "smart" device has software in it, and because that software is copyrighted, device manufacturers have used DRM and DMCA 1201 to control who can diagnose and repair your gadgets (from phones to cars and beyond), and also who can make parts for them, who can make or remanufacture their consumables (from coffee-pods to inkjet cartridges), and how you can use them.
This goes beyond money-saving or convenience: DRM also prevents technologists from adapting technologies to see the needs of disabled people, locking whole sections of the country out of full participation in technological society.
Worse still: merely reporting on defects in DRM has been treated as a criminal offense under 1201, so security researchers are routinely prevented from revealing dangerous flaws in technologies that can leak your personal information, spy on your in your home, or even kill you.
Every three years, the US Copyright Office holds hearings on DMCA 1201, and grants some limited "use exemptions" to the statute. These temporary rulings allow Americans to bypass DRM for specific purposes, but they have to be renewed every three years, an expensive and time-consuming legal process.
Critically, these exemptions only cover "uses" and not "tools," meaning that no one is allowed to sell you a product that allows you to bypass the DRM in order to make the permitted uses — even sharing information that would help you make such a tool is banned. This renders many of the Copyright Office's exemptions effectively useless: for example, an exemption that lets you break the DRM on your car in order to repair it does not allow a mechanic to use such a tool when working on someone else's car.
The Copyright Office is about to open up its 2018 DMCA rulemaking for public comment, and ahead of that, it has published this new report, which addresses many of the defects in DMCA 1201, including:
* A recommendation to make some granted exemptions permanent, so that once a farmer gets the right to fix their own tractor, the exemption sticks and no further work has to be done to keep it intact
* A limited right to offer "assistance" — possibly in the form of a DRM-breaking tool — to people who have been granted the right to break DRM
* Making the triennial rulemakings "clearer" and more "streamlined" so that everyday people have an easier time participating in them
This is all great stuff, but it stops pretty far short of the mark. The best rule would be one that says, "Breaking DRM for a lawful purpose (anything that is not banned under copyright law) is legal, and providing a tool to make that happen is also legal." That's what EFF's lawsuit against the US government over DMCA 1201 will do when we get our day in court.
Section 1201 of Title 17 [Register of Copyrights/US Copyright Office]
The US Government Wants to Permanently Legalize the Right to Repair