You’d be hard pressed to find a more controversial piece of legislation in tech policy circles than the Digital Millennium Copyright Act. Written in 1998 to purportedly protect American intellectual property from infringement, the law has long been criticized as an overbroad mess, hamstringing everything from security research to a user’s right to repair products they own. But the law teeters from cumbersome into the realm of the ridiculous every three years thanks to something called the triennial rulemaking process. As it stands, DMCA section 1201 is a provision of the DMCA that states that you can't circumvent technological protection measures and digital rights management (DRM), or you’ll be considered guilty of copyright infringement.
But again, the terribly crafted provision routinely prevents consumers and researchers from being able to do some fairly fundamental things, like repairing their own vehicles. In short this "anti-circumvention" part of the law is overbroad, effectively arguing that anything that bypasses DRM is itself infringement. Apparently semi-aware this could cause problems, Congress included a so-called “safety valve” dubbed the triennial review. As part of this arguably absurd process, every three years activists and concerned citizens are forced to beg and plead with the Copyright Office and the Librarian of Congress to craft explicit exemptions from the law to ensure select circumvention of DRM won't be considered infringing.
So, like clockwork, every three years digital rights groups and individuals like author and activist Cory Doctorow—often with the help of briefs written by law school students—are forced to defend what should be fundamental consumer rights, whether that’s the ability to repair your own car, preserve older abandoned video games for posterity, or unlock smartphones and tablets to make it easier to switch mobile carriers.
“DMCA 1201, fundamentally, is about giving corporations the power to force customers to arrange their affairs for the benefit of the shareholders, rather than the benefit of the people who buy the product,” Doctorow, who is among a stable of consumer advocates and consumers participating in ongoing reform efforts, told me. “Repair is an important frontier for several reasons: it creates local jobs that are at risk from monopolization; it diverts waste from landfills; it increases the longevity and value of our property, and creates secondary markets that benefit people with low incomes—making it key to bridging the digital divide in an age of mass inequality,” Doctorow argues.
The process isn’t an enjoyable one. Exemptions are granted through an elaborate and cumbersome rulemaking process that often needs to be repeated every three years, regardless of whether exemptions have been granted in the past. And often, this involves fighting company lobbyists and lawyers eager to keep things like repair monopolies in place.
Efforts to fix the problem have had mixed results. In 2012, the Librarian rejected an already-approved exemption making it easier to unlock phones. The backlash forced the White House to acknowledge the mistake and demand it be fixed. But instead of fixing Section 1201, Congress passed a law specific to phone unblocking that didn’t address the core dysfunction.
This year’s exemption efforts are varied, including one that would allow agricultural vehicle owners to diagnose, repair, and modify computer systems embedded in their farm equipment. This effort is of particular importance given the obnoxious DRM employed by companies like John Deere, which is driving a grassroots effort for right to repair laws in the States. One of this year’s proposed exemptions aims to expand the allowed circumvention of movie DRM to aid the hearing impaired or other disabled individuals. Another proposed exemption would expand existing exemptions related to cellular phones, tablets, and smart watches, making it easier for consumers to tinker with their devices or switch carriers. As activists, researchers and consumer advocates pitched their proposals at a hearing at UCLA this month, they were greeted with the usual assortment of absurd arguments by companies attempting to prevent common sense from impacting employer revenues. Attendees of the hearings note this month’s event was rife with the usual breathless hysteria about how allowing exemptions will cause all manner of harm. For example Harman International, which pegs itself as “a global leader in connected car technology,” spent its time trying to claim that all data generated by you as you drive your car is owned by the manufacturer and its commercial licensors, not you. That’s a problem in an era when such data could potentially be used against you by insurance companies. Any attempts to allow consumers to access their own data—generated by their own automobile—would facilitate piracy and hurt people, Harman representatives claimed.
“Permitting an exemption for telematics or entertainment systems would enable rampant piracy of copyrighted works like music and films—the very core of protected copyrighted works that Section 1201 intended to protect,” the company insisted. “Further, the many unknowns attendant in circumvention could result in significant risk or danger to consumer safety, elevating the potential for vehicular accidents.” Representatives from entertainment industry lobbying groups also spent a notable portion of the hearings trying to claim that giving consumers access to their car diagnostic data would somehow result in soaring piracy and a myriad of untold consumer safety issues. Needless to say, those fighting for consumer rights weren’t particularly impressed. “I really didn’t buy a car to steal music from Spotify, that really doesn’t make sense to me,” argued Cydia developer Jay Freeman. “There is no pirate who is sitting around in their garage in a car trying to steal music from Spotify,” he added, noting that these kinds of absurd abuse scenarios deserve far greater scrutiny than they’ve traditionally received. And while this battle has routinely been a decidedly uphill one, activists tell me they are slowly but surely seeing progress in several key areas. For example, the Copyright Office now seems to be taking more seriously the need for third parties (like say, your mechanic) to be covered by any exemption they grant. “The copyright lobby previously had them convinced they didn't have the legal authority to do this, but we and our allies have explained that they do have authority to make some important changes that will enable your mechanic to service your car and other electronic devices,” says Electronic Frontier Foundation (EFF) attorney Kit Walsh. While under-appreciated activists continue to push for exemptions and improvements, efforts to reform the DMCA section 1201 provisions that created this bizarre dysfunction continue. The EFF sued the government in July of 2016 to invalidate Section 1201 of the DMCA entirely.
“The lawsuit has been awaiting a decision from the judge since October of 2016,” Walsh says. “We don't have any ability to predict when a ruling will come down or to spur it to happen sooner rather than later. It could be tomorrow, or it could be after the rulemaking concludes, or any time, really.”
Until some genuine reform takes root, a wide variety of companies will continue to use a the law as a bludgeon to hamstring everything from your right to repair to security research, and under-appreciated activists will continue jumping through hoops to defend your right to access and tinker with products you bought and paid for.