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It’s Time to Fix the DMCA.
In October 2015, the Librarian of Congress issued its rulings in the sixth triennial rulemaking under Section 1201 of the Digital Millennium Copyright Act (DMCA) – the section that makes it unlawful to circumvent technological protection measures. In a limited victory for the public interest, the Librarian granted many of the requests for exemptions, more than in past rulemakings.
But advocates for consumer and public interests have criticized the rulings for imposing potentially burdensome and confusing limitations on the exemptions, and are calling for reform of an administrative process and legal regime that place a heavy burden on exemption seekers, and that chill legitimate uses of technologies and expressive works. Here’s what they’re saying:
Public Interest Advocates
Sherwin Siy, Vice President for Legal Affairs, Public Knowledge:
"These results continue to show the flaws in the law and the process of the DMCA. Even though the law clearly allows consumers to move their media between their personal devices, the Librarian of Congress and the Register of Copyrights allow the smallest mote of uncertainty to keep a common-sense activity illegal.”
"While we are glad to see that important exemptions like security research and patient access to medical devices were granted, the rules limit them in ways that leave their uses uncertain. For instance, they do not include, as cellphone unlocking does, the explicit ability for patients to get help from others in accessing their data, and they place vague restrictions on security researchers that can continue to chill their research[...]Even the exemption to allow 3D printer users to select their own feedstock contains conditions that potentially undermine the exemption's usefulness.”
Corynne McSherry, Legal Director, Electronic Frontier Foundation:
“It’s absurd that we have to spend so much time, every three years, filing and defending these petitions to the copyright office. Technologists, artists, and fans should not have to get permission from the government—and rely on the contradictory and often nonsensical rulings—before investigating whether their car is lying to them or using their phone however they want. But despite this ridiculous system, we are glad for our victories here, and that basic rights to modify, research, and tinker have been protected.”
“I think a number of us agree that this process has been onerous, so I don't think that the fact that the Librarian of Congress granted these exemptions means it’s working. The system is still fundamentally broken."
Mark Richert, Esq., Director, Public Policy, American Foundation for the Blind:
"While we are relieved to see the Librarian of Congress adopt the Copyright Office's recommendation to once again recognize a DMCA exemption that allows people with vision loss to read their lawfully obtained books, there is something fundamentally wrong with a process that makes people who are blind or visually impaired have to, over and over again, beg for protection from potentially significant civil and criminal penalties just for finding a way to access books they have a right to read. Consumers shouldn't be on the hook for needing to repeatedly explain themselves; our copyright law should reward those rights owners who don't shut out people with disabilities and should penalize those who do. How about we set up a triennial process wherein rights owners have to demonstrate, to the essentially arbitrary satisfaction of the Copyright Office, that people with disabilities can fully use their works or else copyright protection in those works would be forfeited to the extent they cannot? No doubt rights owners would object to such an onerous and risky scheme fraught with uncertainty. So do we."
Tina Pelkey, Spokeswoman for Re:Create Coalition:
“The core issue is that the presumption of infringement in the statute is backwards. Consumers shouldn’t need to seek an exemption for lawful activities just because those activities require circumventing DRM they didn’t ask for and don’t want. This is one area we should all be able to agree on.”
Adam Eisgrau, American Library Association
“The triennial 1201 rulemaking is a statutory ‘Rube Goldberg’ contraption for which there should never have been a need in the first place. Prioritizing ‘technological protection measures’ over the Framers’ goal of promoting ‘progress of science and useful arts’ by maximizing the public’s ability to lawfully use copyrighted material was a major mistake when the DMCA was passed. It’s past time to correct it.”
Erik Stallman, Director of Open Internet Project, Center for Democracy and Technology:
“Looking to the proceeding as a whole, the Librarian granted a number of exemptions that respond to consumers’ growing expectations to use, repair, and modify the content, vehicles, and other devices they own in the manner they choose. At the same time, many of the granted exemptions contain complicated qualifications and limitations that could undermine their usefulness. The sheer complexity of some of the granted exemptions — and the need to re-request them every three years — suggests that DMCA rulemaking proceedings are simply not the best vehicle for industrial policymaking where copyright infringement is, at most, a tangential concern. While there is a lot to like in the rule released today, it also points to the need for a broader conversation on the purpose and scope of the DMCA triennial review.”
Wayne Brough, FreedomWorks:
“While it's good to see the exemptions that have recently been granted, a much larger concern is the overall exemption process. The DMCA turns the notion of permissionless innovation on its head. As the internet expands and smart technology is embedded in more and more consumer products, the Copyright Office is quickly moving into territory far beyond its original purview and is struggling to address concerns such as unlocking cell phones or tinkering with cars. Broader reforms are required to ensure consumer choice is not unnecessarily restricted.”
Laura Moy, Senior Policy Counsel, Open Technology Institute:
“Although they include improvements, ultimately these updated rules don’t eliminate the need for educators, researchers, medical patients, and consumers to agonize over complicated rules to determine the legality under copyright law of activities that don’t infringe copyright. Owing to a broken process and the outdated nature of a 20-year-old ‘digital’ law, the rules contain a number of odd distinctions that defy common sense. It’s time for Congress, the Copyright Office, rights-holders, and the public to work together to update the DMCA.”
Kyle Wiens, iFixit Repair Coalition:
“There are some downsides: users and researchers won’t actually be allowed to tinker with vehicle programming until a year after the ruling goes into effect (in order to give government organizations time to adjust). Unfortunately, that truncates these three-year exemptions to two-years. The Copyright Office also denied a lot of exemptions outright—including one that would have allowed users to jailbreak their game consoles[…]There are a number of additional products (like hearing aids and wheelchairs) that we wanted to apply for exemptions to repair, but didn’t because we couldn’t afford the legal fees. The application process is incredibly onerous. In the absence of pro bono representation, it costs tens of thousands of dollars to hire a legal team to apply for each exemption. Which means the process favors Big Copyright interests that have the money (and the lawyers) to spend[…] Congress must act to repeal Section 1201, so we don’t have to fight this battle all over again in three years.”
“Even this good news points out the absurdity of the process. There were 27 petitions at this year's proceedings; as the Internet of Things comes, and brings with it DRM-locked firmware for everything from pacemakers to thermostats, there will be far more petitions in three years -- 100? 500? Each one will have to be written and argued, at great expense, by donation-supported public-interest groups, while the companies that profit by locking you out of the lawful enjoyment of your property get to divert some of those gains to fighting the public interest groups.”
Andy Sellars, Berkman Center for Internet and Society:
“The concerns of regulatory creep in the anticircumvention rulemaking have been around since its inception nearly twenty years ago, but have arisen with newfound vigor in this last rulemaking cycle. The dangers of an overbroad view of the DMCA are now extensively documented; as a recent U.C. Berkeley study highlighted, overbroad use of the DMCA has been one of the main threats to independent research in the technology space. This threat is only augmented by the Copyright Office’s desire to not only embrace this breadth, but use it in determining whether and how exemptions should be granted. A remarkable number of limitations and qualifications were placed on many of the exemptions granted in this proceeding, for reasons that have little to do with copyright or piracy.”
Matthew Green, security researcher, Johns Hopkins University:
“By creating an exemption for good-faith computer security research, the Librarian has taken an important step towards a more secure digital future. This new exemption will allow researchers to identify and repair security vulnerabilities before the "bad guys” can exploit them. While I’m grateful that the Librarian has chosen to grant the exemption, I am troubled by some of the newly-added limitations. First, the Librarian has added an unnecessary 12-month delay before the exemption takes effect. This means that my graduate students, for example, remain in legal jeopardy for conducting good-faith research over the coming year. (And quite frankly, they don’t get paid well enough to deserve that.) Moreover, limiting the exemption to “consumer devices” only, may lead to more confusion and expensive litigation -- since many common devices straddle the line between consumer and industrial. Despite these concerns, this exemption is still a huge step in the right direction. I’m hopeful that someday soon, we’ll see these protections more permanently enshrined into law.”
Members of Congress
Senator Ron Wyden:
“[…]the fact remains that no matter how many exemptions are granted, the process for granting exemptions to the DMCA is broken. For example, a review every three years simply does not keep up with the pace of innovation and places burdens on users who have to repeatedly ask permission for the same activity. Congress must bring copyright into the 21st century and make common-sense reforms to the triennial review process.”
Representative Jared Polis:
“Unfortunately copyright law has failed to be updated over time to reflect a vastly changed world and the role that technology plays in our everyday lives."
We will continue to add onto this page with more quotes. Contact your representative in Congress here to tell them it’s time to revise Section 1201 of the DMCA.