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DEEPLINKS BLOG

EFF Filings to Copyright Office Highlight Unintended Consequences of the DMCA

May 6, 2015

It’s International Day Against DRM, which means folks around the world bring attention to the dangers of the so-called “technical protection measures” embedded in their stuff.  But DRM (which stands for Digital Rights Management) isn’t the whole problem; equally pernicious are the laws that prevent folks from circumventing the DRM in order to do otherwise perfectly legal things. 

For example: perhaps you want to get your car in shape for that summer road trip. Maybe you’re looking forward to a summer project where you make a fan video.  Or perhaps you are organizing a reunion with friends that will include a gaming night, and you’d like to dig up some of the old games you used to play in high school.

The problem is, every one of these noncontroversial activities may require circumventing DRM.  And that means it may be illegal, thanks to an outdated copyright law that, in the name of stopping infringement, makes it unlawful to break digital locks on any copyrighted content, including the software embedded in your stuff. Manufacturers are now using it to try to control all kinds of ordinary uses of the goods they sell, from cars to games to medical devices. We call it “copyright creep”: relying on copyright law not to stop people from copying, but to reduce competition, impede research and innovation, and generally control how you use the devices and content you “buy.”

We’re trying to remedy that. Late last week EFF filed comments calling on the Librarian of Congress to protect these ordinary activities.  Our filing is one of the final steps in an elaborate months-long process to convince the government to repair the damage done by Section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits unlocking digital rights management systems built into software and devices.

The 1201 exemption process was designed as a safety valve  for lawful uses that require circumvention, but it’s not a very satisfactory answer to copyright creep. We’re fighting for some pretty basic stuff, namely vehicle tinkering and safety research, jail breaking smartphones, using snippets from Blu-ray disks for remixing, and letting people play video games no longer supported by manufacturers. And it’s abundantly clear that our opponents aren’t driven by legitimate copyright concerns.

Take the exemption for jailbreaking.  Every three years, consumers must ask the Librarian of Congress, to extend the exemption for jailbreaking phones so people can install and remove software. Most of the hundreds of millions of smartphones in use in the U.S. require jailbreaking to add or remove security or privacy fixes or install alternative operating systems. This year, not a single smartphone provider has opposed extending the exemption. Jailbreaking was first allowed five years ago, and we haven’t seen one real case of illegal copying as a result. The cell phone industry has continued its meteoric growth, while a robust market for independent software for jail broken devices has developed. No infringement, a healthy industry and innovation—who’s not happy?

The trade group BSA/The Software Alliance, that’s who. But the organization hasn’t tried to argue or present any evidence that the ability to jailbreak leads to copyright infringement. Rather BSA opposes the exemption because it claims there are “alternatives” to jailbreaking—presumably the small number of phone models for which manufacturers provide a means of jailbreaking. In papers filed May 1, we told the Copyright Office that users wanting to install new software on their phones shouldn’t be forced to ditch their existing device and fork over more money for a new one when the practice doesn’t involve copyright infringement.

We’ve also requested that existing exemptions allowing fair use copying of DVDs and streaming video for remix be extended to include copying from Blu-ray discs. The remix artists that need this exemption aren’t scofflaws: they simply want the ability to reuse the content they’ve lawfully acquired. Opponents, which include the industry group that licenses copy protection on Blu-ray, take the position that most remix videos are infringing and if creators want a clip from a Blu-ray disc they can record it with their smartphones. As we explained in our comments, the exemption doesn’t cover infringing works and remix artists need high-quality source material just as much as Joss Whedon does. And, those same artists would be shocked to discover that the legality of their work depends entirely on whether they took source material from a Blu-ray disc in stead of a DVD.

The 1201 ban on circumvention also has implications for video games. We’ve requested an exemption that would allow people to legally modify games to keep them working after the official servers have been shut down.  It’s pretty simple—you paid for the game and you should be able to keep using it.  In comments we submitted to the Copyright Office, one gamer expressed frustration that the multiplayer functionality of a game he owned was shut down a year after purchase.

“I would love to share this game with my kids, but I can’t anymore because the corporation didn’t want to expend the resources to keep the servers up,” he said. “I understand that but let me continue to host the servers even if they don’t want to.”

The Entertainment Software Association has told the Copyright Office that letting game enthusiasts restore the functionality of older video games is hacking and leads to the harder drug of the tinkering world: piracy.  Along with the MPAA and RIAA, the group says modifying games to connect to a new server after publisher support ends will leave the video game industry in ruins.

It’s hard to ignore the obvious here. The exemption would cover only abandoned games. Allowing people to reverse-engineer the server communication technology of those games can’t possibly harm the overall market.

Auto maker trade groups have came out in force against our exemption requests that would allow vehicle owners to circumvent restrictions on accessing the computer systems that run in their vehicles. A wide range of important tasks require access to the code on those computers, called electronic control units (ECU). These tasks include many kinds of repair, as well as the development of diagnostic tools and new functionality. We also asked the Copyright Office to allow independent security and safety research to look at vehicle code so they could identify issues that might make drivers less safe. But auto companies insist that that they, not you, own the software that controls many of the functions of your car. They told the Copyright Office that letting car owners have access to the code would mess up your vehicle, cause safety problems, and even lead to music pirating through on-board entertainment systems.

In our reply last week we noted that the industry opposes the exemption because it might increase competition for repair work and and products that interface with vehicle computers like diagnostic equipment. We shared real stories from automobile aftermarket innovators about the features they don’t implement out of fear of the DMCA, about how independent mechanics need to outsource computer repairs to dealers due to a lack of necessary information and tools, and how resourceful individuals with the knowledge and expertise to fix their own vehicle problems are chilled from doing so out of concern that a manufacturer could sue them for fixing their own car.

People shouldn’t have to hire a copyright lawyer before opening the hood of their car. What really needs repair is the broken state of our copyright laws.

 

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