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EFF to Copyright Office: It’s Time for Real Reform of DMCA 1201
San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Copyright Office today to protect the public’s right to research and repair everything from phones to refrigerators to tractors, to support the right of people with print disabilities to convert media into an accessible format, and to restore users’ rights to make fair and lawful uses of the software and media they buy.
EFF’s comments are part of the Copyright Office’s ongoing study into whether the “anti-circumvention” provisions of Section 1201 of the Digital Millennium Copyright Act (DMCA) are working for the public. Section 1201 bans anyone from accessing a copyrighted work when a technology like digital rights management software (DRM) is in place to block access. The law is meant to stop illegal copying, but instead, companies use digital locks in all sorts of products to obstruct those who want to look inside for any reason—blocking competition, innovation, security research, and other legal activities. To vindicate these activities, the public must resort to a burdensome exemption process that allows the digital locks to be broken in certain cases. EFF and a host of other public interest organizations must repeatedly plead for temporary exemptions that expire every three years. Moreover, the law expects users to figure out for themselves how to circumvent digital locks to take advantage of exemptions: no one is allowed to give them the technology to do so.
“We are surrounded by computerized devices: our cars, phones, appliances, and more. Software defines what we are able to do with these devices, whether they are safe and secure, and whether they collect or leak our most private information,” said EFF Staff Attorney Kit Walsh. “Right now, you could be sued or even jailed for trying to understand the software in your devices, or for helping others do the same. That has to change.”
The Copyright Office requested comment on whether Congress should permanently exempt certain activities from Section 1201 liability, or exempt software from the sweep of Section 1201. Exempting software would be progress, as would properly worded exemptions for research, repair, and accessibility. In its comments, EFF encouraged the Copyright Office to move forward with these reforms and provided guidance on how to implement them effectively. These comments were supported by over 11,000 signers of a petition calling for reform.
The proposed exemptions should only be a starting point in reform of Section 1201, since they leave a wide range of speech and innovation at the mercy of the law and its flawed rulemaking process – including remix video, documentary filmmaking, media literacy education, or even basic household activities like backing up videos from a DVR or converting an e-book to work on your phone.
A bill in Congress, the Unlocking Technology Act, would protect everyone who wants to break digital locks for reasons that don’t involve infringing copyright. This simple approach would restore the public’s traditional rights to express themselves by building upon copyrighted works and to tinker with their property. It would also bring the law back in line with the limits required by the Constitution to accommodate free speech.
“Section 1201 is unconstitutional, violating the rights of American researchers, entrepreneurs, artists, and in the end, all of us, ” said EFF Senior Staff Attorney Mitch Stoltz. “It’s been in place for 18 long years, and it’s time for real reform.”
EFF is also challenging provisions of Section 1201 as unconstitutional restraints on free speech. EFF and the law firm of Wilson Sonsini Goodrich & Rosati represent security researcher Dr. Matthew Green, software developer Dr. Andrew “bunnie” Huang, and Alphamax LLC, who want to continue their work without legal threats.
For the full comments to the Copyright Office:
For more on DRM and the DMCA: