Yesterday’s Copyright Office ruling on when you are allowed to break DRM went further than any such ruling in the DMCA’s 20-year history, and that’s swell, but when you drill into the ruling, it’s still a flaming pile of garbage.
Section 1201 of the Digital Millennium Copyright Act bans breaking DRM, even for lawful purposes: repairing your car, say, or installing third-party apps on a phone, or using third-party ink in your printer.
Back when the DMCA was passed in 1998, everyone warned Congress that this was an invitation to abusive behavior, but Congress decided the best way to address this would be to tell the Copyright Office to hold hearings every three years in which the public could ask for temporary, limited exceptions to this rule (very limited exceptions: the Copyright Office can grant you the right to bypass DRM to do something legit, but can’t give anyone the right to make a tool to exercise that right: you’re expected to hand-whittle your own Iphone or car jailbreaking gadget, with no help from anyone else).
The Copyright Office likes to make these exceptions ridiculously narrow, with so many terms and conditions that you have to hire a lawyer just to figure out if they apply to you.
This year, the Electronic Frontier Foundation applied for a slate of exceptions designed to get the lawyers out of the picture, making them wide and clear enough that Americans could read the rules, figure them out, and apply them.
And while the Copyright Office granted some really great exceptions for repair, preservation, security research, and more — but larded these exceptions with so much copyrightese that the average person is going to struggle to figure out what they really permit.
EFF is suing the US government to kill Section 1201 of the DMCA altogether. It was a terrible idea in 1998 and it’s only gotten worse every day since.
Yet despite these exemptions, the agencies denied EFF’s broader proposal that would end this expensive, piecemeal approach requiring individual repair requests on behalf of each new kind of device, and instead create an exemption to permit repair of all devices that contain software. They also rejected EFF’s proposal to allow for lawful modification and tinkering with digital devices that goes beyond repair.
“Software-enabled machines and devices surround us. Most of us own and use several every day. Section 1201 prevents people from tinkering with products they purchase, and prevents researchers, scientists, educators, and creators from looking for new ways to improve, create, and innovate,” said EFF Senior Staff Attorney Mitch Stoltz. “This expensive regulatory process of seeking individual permission for each kind of device is a tremendous drag on innovation. We will continue to advocate for exemptions to Section 1201 so that people—not manufacturers— control the appliances, computers, toys, vehicles, and other products they own, but this process is unreasonable.
Section 1201 of the Digital Millennium Copyright Act bans bypassing “access controls” for copyrighted works — that is, breaking DRM.
For years we have chronicled the tireless fight of rogue archivist Carl Malamud (previously) whose Public.Resource.org has devoted itself to publishing the world’s laws, for free, where anyone can see and share them.
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