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Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses

DEEPLINKS BLOG
October 27, 2015

The new rules for exemptions to copyright's DRM-circumvention laws were issued today, and the Librarian of Congress has granted much of what EFF asked for over the course of months of extensive briefs and hearings. The exemptions we requested—ripping DVDs and Blurays for making fair use remixes and analysis; preserving video games and running multiplayer servers after publishers have abandoned them; jailbreaking cell phones, tablets, and other portable computing devices to run third party software; and security research and modification and repairs on cars—have each been accepted, subject to some important caveats.

The exemptions are needed thanks to a fundamentally flawed law that forbids users from breaking DRM, even if the purpose is a clearly lawful fair use. As software has become ubiquitous, so has DRM.  Users often have to circumvent that DRM to make full use of their devices, from DVDs to games to smartphones and cars.

The law allows users to request exemptions for such lawful uses—but it doesn’t make it easy. Exemptions are granted through an elaborate rulemaking process that takes place every three years and places a heavy burden on EFF and the many other requesters who take part. Every exemption must be argued anew, even if it was previously granted, and even if there is no opposition. The exemptions that emerge are limited in scope. What is worse, they only apply to end users—the people who are actually doing the ripping, tinkering, jailbreaking, or research—and not to the people who make the tools that facilitate those lawful activities.

The section of the law that creates these restrictions—the Digital Millennium Copyright Act's Section 1201—is fundamentally flawed, has resulted in myriad unintended consequences, and is long past due for reform or removal altogether from the statute books. Still, as long as its rulemaking process exists, we're pleased to have secured the following exemptions.

Car Security Research, Repair, and Modifications

The Librarian recognized the need for vehicle owners to circumvent access restrictions in order to repair, modify, and tinker. The exemption removes the uncertainty of whether 1201 liability would attach to a range of activities that have been clearly lawful throughout most of the hundred-year history of automotive tinkering, but were called into question as an unintended consequence of copyright law. We are also pleased by the exemption for security research, which covers vehicles and many other devices. The Librarian included unnecessary limits and delays in the exemptions, but overall the ruling represent a victory for the public that will help independent security researchers evaluate automotive software, will promote competition in the vehicle aftermarket, and will support vehicle owners who wish to learn about or improve on their own cars.

Jailbreaking Phones, Tablets, and More

The Librarian renewed the existing exemption for jailbreaking smartphones, to allow them to run any software the user chooses. The Librarian also expanded the exemption to cover “portable all-purpose mobile computing devices,” including tablets and smartwatches. This exemption clears up a lot of legal uncertainty for the vibrant alternative software communities that have sprung up to customize and enhance portable computing devices. We are pleased that the Librarian has erased the prior rule’s arbitrary distinction between phones and tablets.

Archiving and Preserving Video Games

The Librarian granted part of EFF’s new proposal for an exemption to preserve abandoned video games. The new exemption allows players to modify their copy of a game to eliminate the need for an authentication server after the original server is shut down. Museums, libraries, and archives can go a step further and jailbreak game consoles as needed to get the games working again. Disappointingly, the Librarian limited the exemption to games that can’t be played at all after a server shutdown, excluding games where only the online multiplayer features are lost. Still, this exemption will help keep many classic and beloved video games playable by future generations.

Remix Videos From DVD and Blu-Ray Sources

The Librarian effectively renewed the existing exemption for noncommercial remix videos, and expanded it to cover circumvention of DRM on Blu-Ray discs. Opponents had argued (as they have before) that remix videos are “generally infringing” and that artists should make do with whatever they can acquire through video capture or by pointing their smartphone at a screen. In fact, remix is widely recognized as a thriving genre of fair use used for all kinds of valuable political and cultural commentary and expression. Equally obviously, high quality source is essential to making the creation of persuasive, compelling works, whether those works be documentaries, Hollywood blockbusters, or short form videos. Thanks to today’s exemption remixers will be able to continue to make their art using the best quality source material.

The new rules are long and complicated, and we'll be posting more details about each as we get a chance to analyze them. In the meantime, we hope each of these exemptions enable more exciting fair uses that educate, entertain, improve the underlying technology, and keep us safer.

A better long-terms solution, though, is to eliminate the need for this onerous rulemaking process. We encourage lawmakers to support efforts like the Unlocking Technology Act, which would limit the scope of Section 1201 to copyright infringements—not fair uses. And as the White House looks for the next Librarian of Congress, who is ultimately responsible for issuing the exemptions, we hope to get a candidate who acts—as a librarian should—in the interest of the public's access to information.

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