Section 1201 of the Digital Millennium Copyright Act bans bypassing “access controls” for copyrighted works — that is, breaking DRM.
This was stupid when the DMCA passed in 1998, and it only got stupider since: back in 1998, DMCA 1201 was used to punish people who made region-free DVD players or homebrew Sega Dreamcast games. Today, every gadget has thousands of lines of copyrighted code, putting any “access control” on the gadget within reach of the DMCA, which has led manufacturers to claim that the DMCA gives them the right to decide who can make software for your stuff, how you can use your stuff, and who can fix your stuff. DMCA 1201 has been used to intimidate and even jail security researchers who found defects in products with DRM, which means that the people who want to warn you about problems with the gadgets you trust can’t come forward without permission from the companies that stand to lose money if the news gets out.
Every three years, the Copyright Office hears petitions for “use exemptions” to the DMCA: these exemptions let you break DRM to engage in some kind of legit activity, like jailbreaking a phone or conducting security research.
This year, many groups petitioned the Copyright Office for a wide variety of exemptions and the Copyright Office just published its detailed conclusions setting out which exemptions were granted, which ones were denied, and which ones were partially granted.
It’s an extremely encouraging document! The Copyright Office granted the majority of exemptions, including key exemptions around the right to repair and legal protection for security research. They did partially or completely deny some vital petitions, unfortunately, including ones related to jailbreaking media to make fair uses, and some related to preserving old video games.
Encouraging as this all is, there is one important and infuriating element to keep in mind: while the Copyright Office grants “use exemptions,” it does not believe it has the right to make “tools exemptions” — exemptions that would allow an expert to make a tool for disabling DRM so that you can make the uses they’ve permitted you to make. In other words, the Copyright Office says, “You’re allowed to jailbreak your Iphone, but no one is allowed to give you an Iphone jailbreaking tool, and if you make a tool for your own use you can’t share it or even tell people how it works.”
That’s pretty weird, but the infuriating part is when you bring this up with DRM advocates and the Copyright Office: they say, “Well, once the law is out of the way, people will just figure it out.” In other words: “DRM is actually kinda bullshit and people who want to get around it will.” But if that’s the case, what is DRM supposed to be for? If any “bad guy” (someone who doesn’t care about permission from the Copyright Office) who wants to get around DRM can do so, who is the DRM supposed to restrict?
That’s right: honest people. People who want to do legitimate things, like fix their stuff, or format-shift their stuff, or just buy some third-party ink and have it work with their printer. These are the only people DRM works against (otherwise, granting “use exemptions” would be pointless). If these people wanted to do things that broke the law — like making infringing copies of Bluray movies — the law already allows companies to punish them. DRM doesn’t exist to protect companies’ rights, it exists to let them invent new rights (the right to decide which screen you can watch a movie on, for example), and then make those rights legally enforceable, by adding illegal-to-remove DRM to their products.
The Copyright Office decision also does nothing to address the many ways that manufacturers have monopolized repair that have nothing to do with copyright or software. Companies have made it difficult to acquire parts or repair tools needed to fix the things you own, and many companies have weaponized the Department of Homeland Security to crack down on grey market and aftermarket parts that are imported from places like China. Two prominent right to repair activists, Louis Rossmann and Jessa Jones, have had their Apple repair parts seized by customs in recent months.
The win demonstrates that right to repair advocates are making progress, but there’s still a long way to go until repair becomes easier for everyone.
“Companies use the anti-piracy rules in copyright laws to cover things that are nowhere near copying music or video games,” Proctor said. “We just want to fix our stuff. We’re pleased with the progress being made, and ultimately we want to settle this by establishing Right to Repair.”
In Groundbreaking Decision, Feds Say Hacking DRM to Fix Your Electronics Is Legal [Jason Koebler/Motherboard]