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New “Breaking Down Barriers to Innovation Act” Targets Many of DMCA Section 1201's Problems

DEEPLINKS BLOG
April 20, 2015

New “Breaking Down Barriers to Innovation Act” Targets Many of DMCA Section 1201's Problems

On Thursday, Senator Ron Wyden and Representative Jared Polis introduced a new bill to fix many of the problems that Section 1201 of the Digital Millennium Copyright Act causes for free speech, privacy, security research, and innovation. Called the “Breaking Down Barriers to Innovation Act,” the bill would make it a little easier to get three-year exemptions to the DMCA’s ban on circumventing digital restrictions. It also expands and clarifies the exemptions for encryption research, security testing, strengthening privacy, and reverse engineering.

This bill is an important step in the ongoing struggle for a balanced copyright system. Seventeen years ago, Section 1201 created a broad legal ban on “circumventing” any “technological measure” that “effectively” controls access to a copyrighted work, and on selling hardware or software tools that can break or bypass DRM. Ostensibly meant to reduce copyright infringement by give giving an extra layer of legal force to technologies like DVD encryption, the law is actually much, much broader. It’s used to shut down fair use, inhibit add-on innovation, threaten security researchers, and enforce incompatibility in hardware and software.

The main source of protection from this overbroad law is the triennial exemption process.  Thanks to a small carveout in the law, people who want to make lawful uses of digital devices and media can ask the Copyright Office and the Librarian of Congress for permission every three years. But the exemption process stacks the deck against lawful users. The process is time-consuming, obscure and expensive, effectively excluding many digital consumers.  It doesn't apply to "tools" which means that while you can personally jailbreak your phone, you can't make and share a tool to help others do so without legal risk.  And as DRM-laden software shows up on more and more types of devices and equipment, it gives the Librarian of Congress a veto right on an increasingly broad array of innovative technologies.  What is worse, even if you manage to obtain an exemption, you have to come back three years later and start the process all over again.

The new “Breaking Down Barriers To Innovation Act” attempts to fix some of these problems. It would allow exemptions to be renewed automatically if DRM is still inhibiting lawful uses. It would make it harder for the Copyright Office to reject exemptions on a technicality. And it emphasizes that exemptions should be granted for repair, recycling, security research, and accessibility for people with disabilities.

We're glad lawmakers are recognizing the need to fix 1201.  That said, much more needs to be done. Unfortunately, the “Breaking Down Barriers” bill doesn’t fix the fundamental problem with Section 1201 - that it interferes with important, legal uses of digital technology and media, based on the false assumption that breaking DRM in one’s own devices and software is harmful to society. If the “Breaking Down Barriers” bill passes, getting temporary exemptions will get a little easier and some permanent exemptions for security testing and reverse engineering will give a little more protection. But artists, speakers, and innovators will still have to ask the government for permission to use their own digital media, hardware, and software. The chilling effect of the DMCA will continue to prevent new artwork and inventions from reaching the public, or ever being created. And the Librarian of Congress will still be an official regulator of digital technologies from phones to cars to medical implants.

There’s another bill that strikes at the root of the problem. Just a few weeks ago, Representative Zoe Lofgren, along with Representatives Massie, Polis, and Eshoo, re-introduced the Unlocking Technology Act. It makes a simple and straightforward change to Section 1201 of the DMCA: circumventing DRM would only be illegal if a person intends to infringe copyright. With that change, extracting video clips from digital media to make fair uses, as well as modifying our own digital devices and making work more accessible would all be free from legal threats under the DMCA.

We applaud the efforts of everyone in Congress who is working to fix the DMCA. You can help by telling Congress that you support the Unlocking Technology Act.

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