Revving Our Engines on DMCA Reform in 2016January 13, 2016
One of our top issues we tackled in 2015 was reforming Section 1201 of the Digital Millennium Copyright Act (DMCA). To recap, Section 1201 makes it illegal to break digital locks in order to access copyrighted works (like the movie on a DVD or software in a device), even for legitimate purposes. Every three years, public interest groups spend time and money petitioning the Copyright Office to exempt certain uses and technologies from this law. The Library of Congress released the most recent decisions for this triennial process in October 2015.
This process is increasingly problematic. Over time, more and more uses of technology have fallen under this law, each one requiring the blessing of the Copyright Office via the triennial process. Notable examples include installing software that allows blind people to use e-readers, getting data off of a personal heart monitor, and switching your cell phone to a new provider. Fortunately, advocates, including Public Knowledge, were successful in winning a number of exemptions this year. But the exemptions expire at the end of three years, so advocates will have to start the long and arduous petitioning process all over again in just a couple years.
Unfortunately, not every exemption decision came out as we had hoped. We’ve touched on this a little, but one example that affects many people that we have yet to touch on is vehicle use. You may not have thought about how copyright law regulates your car. However, cars are increasingly powered as much by software as they are by motors.
Modern cars are equipped with a system of mini-computers, called Electronic Control Units (ECUs), which monitor and control a variety of functions. The Electronic Frontier Foundation listed several examples in their exemption request to the Copyright Office, including ECUs that determine fuel amounts and ignition timing, and ECUs that regulate hydraulic pressure in order to prevent brakes from locking up and skidding. In addition, EFF also identified reasons car owners and mechanics would want to access the software code on car’s ECUs, including making software modifications that improve fuel efficiency and enhance suspension, accessing vehicle diagnostic information, and performing repairs that require firmware adjustments in order for a car to function after replacing engine components.
As cars are more connected and have more software, security research is another important reason for accessing software code in vehicles. We can thank the car industry for providing some particularly clear-cut examples of the need for car security research exemptions this year. You may remember that in June of this year, Chrysler recalled 1.4 million cars due to a security vulnerability that endangered drivers. One month later, independent security researchers discovered a similar vulnerability in Volkswagen vehicles. Another month after that, Volkswagen made the news again when researchers discovered software in cars used to cheat emissions tests. Researchers have explained that they need exemptions in order to engage in good faith research without facing the severe penalties imposed by the copyright law. Removing the legal hurdles to doing this kind of research would make it easier for more of it to take place, hopefully finding and fixing more problems before they cause harm.
The Library of Congress, which bases its decisions on the recommendations of the Copyright Office, did indeed grant the vehicle exemptions this year. But there are still significant barriers. First, there is an unprecedented one-year delay on the exemption, “to allow other agencies with expertise in vehicle safety, environmental issues, and other relevant areas an opportunity to consider and react to the new rule.” (But as the above examples demonstrate, it is unreasonable to keep researchers waiting for a year, while leaving consumers at risk.) Second, it only applies to systems that do not interact with your car’s entertainment system (This means car manufacturers have a year to simply merge all other systems with the entertainment system in order to get around this rule.) Third, only you can access the software on your car for repair or diagnosis – your mechanic would be violating copyright law, even if she had your permission. (So hopefully you paid attention during your high school auto shop class!)
The vehicle exemptions are a prime example of the problem with the Section 1201 triennial review system. The limitations that the Library of Congress put on the vehicle exemptions prevent researchers from getting started for a year, and even then leave the scope of permitted activities vague. In the decision, the Librarian of Congress notably recognizes the similarities between this year’s vehicle exemption and the last review’s cell phone unlocking exemption, which resulted in public outcry and Congressional action to remove unreasonable limitations. This seems to be an effective approach, especially when the alternative is preparing for the next round of Section 1201 petitioning, which will likely result in similarly problematic limitations.
Cell phone unlocking legislation was a limited success, but it treated a symptom of the Section 1201 problem while leaving the cause untouched. It’s clear that the Section 1201 triennial review process needs to be reformed completely. Consumers should be able to use their devices in ways that don’t infringe a copyright (no one is pirating their engine software, as far as we know) without the fear of legal repercussions. It is inefficient to spend time and resources having the same debates with the Copyright Office and Library of Congress every three years.
So what can we expect for 2016? The Public Knowledge team will continue to dedicate time and effort to this issue. Congress has already started introducing bills to change this ineffective and inefficient process. Tomorrow, we will be hosting a luncheon with an expert panel discussion of what’s ahead. The decisions released in October apply to nearly every consumer, and these make it clear that the public needs to push for reform now, before work on the next round of petitions begins.
RSVP here to Thursday’s event, “DMCA Reform: Lessons from the Copyright Office’s Triennial Review.”
Contact your representative in Congress here to tell them it’s time to revise Section 1201 of the DMCA.
Image credit: Wikimedia Commons