We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
Copyright law is slow. Whenever you hear about a case of alleged copyright infringement and you think, “What was illegal about this?” consider that the law probably came many, many years before anyone conceived of the activity it’s being used to target. Then it starts to make a little bit more sense.
Look at how U.S. copyright law treats DRM, the annoying array of methods that digital content providers use to restrict their customers’ behavior. Passed in 1998, Section 1201 of the Digital Millennium Copyright Act made it illegal to bypass DRM or give others the means of doing so. When Congress passed Section 1201, it was mostly thinking of restrictions intended to stop users from making infringing copies of music and movies. The DMCA passed well before manufacturers began putting digital locks on cars, microwaves, toilets, and every other electronic product. We’re now living in a world where it might be a crime to modify the software on your rice cooker. If that sounds absurd, that’s because it is.
You can almost forgive Congress for this mess—it didn’t know that DRM would soon crawl into every aspect of your life. On the other hand, Congress helped bring the infestation on. The DMCA encouraged manufacturers to build DRM into their products, because doing so gave them ammunition to fight people using their products in ways they didn’t approve of. Can’t compete with unauthorized repair shops? Make them illegal.
Every three years, the public can ask the Copyright Office for exceptions to some of the DMCA’s prohibitions on bypassing DRM. We earned some very important exceptions last time around, including the right to circumvent DRM for the purposes of security research and auto repair.
But the exemption process is so onerous and limited that it does not effectively protect speech and innovation. That’s why we have brought a lawsuit explaining why it and the underlying regime of Section 1201 violate the First Amendment. Not to mention that the whole ordeal of the rulemaking is exasperating. Why are we asking the government for permission to bypass DRM? Why is it illegal in the first place?
If your child’s toy is recording their voice and sending it to the manufacturer, you should be able to find out. You should be able to remove that feature or connect it to a service of your choice, one that you trust. If your car needs repairs, you should be able to do those repairs or take it to a mechanic of your choice without copyright law getting in the way.
Innovation thrives where people have broad leeway to experiment and explore. The public’s right to sell and rent videos created competition among video stores. Blockbuster dominated the market until Netflix disrupted the business model with its switch to mail-order rentals. That kind of evolution-through-competition doesn’t happen when people and businesses aren’t allowed to tinker.
That’s a shame. New innovations come from edge cases, the “aha” moments that happen when someone first tries to use a product in a way in which the manufacturer hadn’t imagined. When entrenched players can make it illegal to modify their products and devices, then those players can slow innovation to a crawl.