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Home / News / Blog
17 USC § 1201, DMCA Exemptions and Software Freedom
byBradley M. Kühn
on December 16, 2020
We at Conservancy spent much in the last week preparing our Long Commentsinour DMCA exemptions requests for this round.
When we announced these exemption filings, many of our Supporters asked
us to “back up and explain” what this whole process is
and why Conservancy participates. These are excellent questions and so we provide below a simple explanation of the DMCA exemption process, why it exists, and why FOSS-friendly organizations like us chose to participate in what is ultimately a flawed process.
The provisions of the DMCA were designed to support DRM
with the power of civil (and in some cases, criminal) law. Media companies, seeing that digital
distribution of content would likely become the standard, sought an iron grip on their business models and gain absolute control of their copyrighted works — making it effectively impossible for FOSS to exist for reading books, watching movies,
or listening to podcasts or music. The law is morally wrong because it it seeks to criminalize publication of some
software techniques and knowledge, and, moreover, the law creates “chilling effects” for everyone in the USA who might consider writing
FOSS that is on the edges of such the law's technological restrictions. We saw just in the last few months how organizations like the RIAA
can use the DMCA to harm FOSS projects. Since the law has been enacted, DRM has become ubiquitous. Those who write FOSS that even
comes near the job of circumventing DRM live in fear.
The dangers of such regulation are obvious to most FOSS activists and technologists. However, to people less savvy about technology,
the purported “compromise” struck in the DMCA can seem perfectly
reasonable. 17 USC § 1201 prohibits “circumvention [of]
technological measures” put in place to stop acts that were otherwise
illegal. To those not well versed in copyright policy, this would of
course seem no different than other updates to laws for the digital area
— such as assuring existing crimes in real life were also crimes when
committed over the Internet. For those of us who understand technology and software, the compromise is not reasonable; DMCA made a digital action a crime that had never been a crime when done in analog — publishing
technological know-how to improve and repair devices that we own.
The DMCA ultimately gave carte blanche and the force of law to ubiquitous DRM.
The main part of the statute that accomplishes this is 17 USC § 1201(a)(1)(A). Ostensibly, §1201(a)(1)(B-C) provide limitations that rein (A) back. Take a read
of these sections and then follow along here in parallel. (A) uniformly forbids “circumvention of” a DRM measure implemented by a copyright holder. (B) tells us that we, the public,
can come forward once every three years to to identify technological measures we
should have the right to circumvent. If we can prove (per (C)), that
there are legitimate non-infringing activities that we could imagine
engaging in by circumventing the technology restrictions and we can convince the
Copyright Office that those circumventions would indeed
legitimately aid in non-infringing uses of the DRM'd copyrighted works, then — and only then —
can we c
ircumvent a technological measur
e that effectively controls acce
ss to a work
. That's the basics of the
exemption process.
For a more detailed understand of how the process works, there are three videos from the Copyright Office:
●
A Legal Overview of § 1201 (PDF slides only).
● The Triennial Rulemaking Process for §1201 (PDF slides only).
● Streamlined Petitions for Renewed Exemptions (PDF slides only).
While the material unfortunately includes significant pro-DRM propaganda, it does explain 17
USC §1201 quite well. The TL;DR summary is as follows:
Basic Overview of 17 USC §1201
●First, §1201 is primarily concerned with so-called “Technological
Protection Measures” (generally abbreviated “TPM” in DMCA
policy circles). A TPM is defined broadly to include any access
control, including scrambling, encryption, password protection and the
like.
●§1201 prohibits circumvention of a
TPM
implemented for access controls to a copyrighted work.
●§1201 prohibits dissemination of information (both commercially
and non-commercially) that explains how to circumvent a TPM put in place
for either access controls, or copy prevention of work. (The
statute and the Copyright Office use the pro-DRM term, “trafficking”, for such activity. We use the term “dissemination” to avoid
supporting that propaganda.) If you've heard us and others talk about how the DMCA squelches Free Speech (or are familiar with
the phrase “chilling effects” that we activists have argued are produced by DMCA's mere
existence), this is the part of §1201 that relates to those issues.
●Exemptions to these rules exist. The law itself has some permanent
exemptions, listed in §1201(d-j). These permanent exemptions are useful but certainly don't permit unbridled development
of FOSS software that might be considered a circumvention technique.
●All other exemptions are temporary. The exemption process
happens every three years — hence the term
“Triennial Rulemaking”. There is a rulemaking process
occurring right now, and here's a summary of how that works:
The Triennial Rulemaking Process
●A temporary exemption is only granted for uses of copyrighted works that are
otherwise non-infringing (i.e., only §1201 restrictions cause
infringement, and there must be no infringement due to any other part of
the copyright act).
●The Copyright Office Exemptions are never permitted to the
“dissemination prohibitions”, only for use and access. (Only Congress can
change anything regarding actual dissemination of circumvention techniques. This is particularly troubling
for many reasons, including that the WCT, the international treaty that DMCA intended to implement, only mandated
the access control issue, and does not speak to dissemination of general circumvention information. Most DMCA-like laws in other countries are not as strict. But in the USA, there is simply no way to get an exemption for dissemination of circumvention techniques — other than lobbying for legislative change.)
●Exemption applicants must show that there is current adverse impact due to
TPMs for the public regarding the non-infringing uses that the exemption
would allow. (Alternatively, the applicant, may show that there will be such adverse impact within
three years.)
●Hypothetical and theoretical arguments are not
accepted. Applicants must show that specific people will (or soon will)
suffer adverse effects when unable to engage in real-world non-infringing
uses that are directly prevented by a specific TPM and that circumvention
would enable those non-infringing uses to resume and/or continue.
●The Rulemaking process itself proceeds as follows:
●The Office issues an
NPM, which is
the standard method by which any Administrative Branch agency announces a process where
new rules will be made.
●Round1: Petitioners make an initial filing to indicate that they'll apply for
an exemption and its primary impetus. These are short, and
were filed on 2020-09-08 for the 2021 Rulemaking.
●Petitioners and others can then make supportive public comments. Those are what were due on Monday (2020-12-14) for the
2021 Rulemaking. (We'll have follow up blog posts about our filings
throughout this week and next.)
●Round 2: opponents may file objections and disagreements. We'll of course expect to see lots of
software-freedom-unfriendly vendors making arguments against our filings
during that period, and we'll point our blog readers to any filed in opposition of our exemption requests.
●Round 3: reply comments from the Petitioners (and neutral comments from others) are allowed.
●Finally, Round 4: public hearings occur, which are
optional. Conservancy participated in the public hearings in
the 2015 year Rulemaking when we successfully requested the exemption for “smart” TVs.
●Note, finally, that there is an expedited process for renewal of temporary
exemptions, which Conservancy also participated in for
the TV exemption originally granted in 2015 and renewed in 2018.
For many activist organizations, the question often becomes whether to
participate in or boycott this process. The process places the burden on
underfunded activist organizations to make a case just to permit what are ultimately extremely
narrow areas of activity. (Remember that the Copyright Office's position is that exemptions are never granted for circumvention dissemination, only access, so the temporary exemptions are both narrowed in that scope and narrowed to specific types of devices or activities.) Conservancy, like EFF, used to be among those
who boycotted this process. Reforms — which were sought by CDT, EFF, Public Knowledge, Public Labs, and other organizations — in recent years have improved the process, but it remains time-consuming and painful. However, given that there is no viable
political will or path to seek repeal of the DMCA, we're stuck with this
process. Just as copyleft is designed to utilize the general copyright
system — which most FOSS activists (at least) find problematic or (in many
cases) oppose outright — we must similarly work, with regard to this
specific part of the Copyright Act, within the system to find our way
through. Conservancy has focused our filings in
the process on those areas that most directly impact software freedom, and
we look forward to telling you more about them this week.
Meanwhile, the dangers we face from the parts of the DMCA that cannot receive exemptions are real. People have been put in prison for “trafficking” under this statue; a company can, as Adobe did,
simply phone the FBI to get someone arrested. Companies
like Sony can
drag in the Feds into civil cases to apply pressure for demand of unreasonable settlements. As long
as we live in a regime willing to tolerate this kind of policy, we have to make use of the process we have
to improve the odds that FOSS developers and researchers don't face both civil and criminal penalties.
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