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DEEPLINKS BLOG

EFF to Congress: Get Rid of DMCA's "Anti-Circumvention" Provisions

September 17, 2014

At a congressional hearing this morning, EFF Intellectual Property Director Corynne McSherry urged lawmakers to abandon the failed “anti-circumvention” provisions of the Digital Millennium Copyright Act (DMCA)—provisions that harm researchers, innovators, and technology users of all kinds.

In recent years, concerns about the anti-circumvention provisions have hit the mainstream, as cell phone users realized that something as simple as unlocking their device to use a rival carrier could get them threatened with a crime. Congress has clarified that unlocking your cell phone is legal, at least for now—but there's still a real problem when EFF and other groups (like the American Foundation for the Blind, who also testified today) have to return to the rulemaking process every three years to exhaustively argue and re-argue for temporary carve-outs.

This anti-circumvention language codified in Section 1201 of the DMCA is nominally about copyright infringement. But in practice, it's not been shown to be effective for those purposes, and instead has been used to prop up in myriad preposterous efforts to block aftermarket competition and customer choice. In her testimony today, McSherry argued that because of the countless ways the law is abused, it’s time to get rid of Section 1201 entirely. Short of that, McSherry urged reform of the anti-circumvention language so that it is limited to instances where people are actually engaging in copyright infringement.

Today—as in the other ongoing copyright reform hearings—Congress members continually stressed a need to reduce piracy. But an anti-circumvention provision that ensnares legitimate non-infringing activity does nothing for that goal, and hinders otherwise lawful innovation as well. Even if you grant at face-value the dubious claims that DRM is effective towards those goals, that's no argument that Section 1201's overbroad legal backing of DRM is worthwhile—especially given its many drawbacks.

Fortunately, today's hearing seemed to acknowledge that reality; while there's not yet agreement on how it should be reformed, Congress members and witnesses alike seemed to be in widespread consensus that there are problems with DMCA's Section 1201 as it exists.

EFF has been fighting Section 1201 for years, keeping an ongoing tally of the unintended consequences of the DMCA in a regularly updated whitepaper. But that’s only the beginning of what’s needed for real reform.  We’re grateful that lawmakers are listening, and we hope they soon start serious work on fixing the DMCA.

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