OT: 2018 DMCA anti-circumvention exemption process: some progress, but not enough

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Fernando Paredes García

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Dec 20, 2018, 3:45:47 PM12/20/18
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Read and share online: https://www.defectivebydesign.org/blog/2018_dmca_anticircumvention_exemption_process_some_progress_not_enough


Dear Fernando Paredes García,

The anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are still a threat. The latest round of its exemptions process showed some successes, and where the work needs to continue.

The DMCA has quite a few troubling provisions in it, but the nastiest of them all are the anti-circumvention rules. These provisions create legal penalties for anyone trying to control their own software or devices, and potential criminal risk when users try to share tools for avoiding Digital Restrictions Management (DRM). These rules are grossly unfair, and deprive users of the right to repair the devices that they own, to study or research potential security flaws, or to make or modify their own copies of works to meet their needs. As paltry compensation, Congress carved out a complicated process run by the US Copyright Office for reclaiming the ability to control your computing in narrow circumstances. As we wrote previously:

Every three years, supporters of user rights are forced to go through a Kafkaesque process fighting for exemptions from the anti-circumvention provisions of the DMCA... In short, under the DMCA's rules, everything not permitted is forbidden. Unless we expend time and resources to protect and expand exemptions, users could be threatened with legal consequences for circumventing the Digital Restrictions Management (DRM) on their own devices and software, and could face criminal penalties for sharing tools that allow others to do the same. Exemptions don't fix the harm brought about by the DMCA's anti-circumvention provisions, but they're the only crumbs Congress deigned to throw us when they tossed out our rights as users.

Even when exemptions on avoiding DRM are approved, the ability to share tools to make use of the exemptions is not covered, rendering most exemptions practically useless for most users. 2018 saw yet another round of this silly process come to a close. While we will keep fighting to eliminate the anti-circumvention rules, making this process obsolete, we do want to take a moment to review this year's results (PDF).

In this latest round, we supported all twelve newly proposed classes. While we can celebrate some limited success in that nine classes received some level of expanded or new exemptions, some classes were outright rejected. Calls for broader-based exemptions were also rejected, and the Copyright Office once again narrowly tailored their exemptions, leaving the landscape difficult to navigate and needlessly complex.

There was some procedural progress made in this round. First, the Copyright Office simplified the process of renewing existing exemptions. In previous rounds, every three years activists and users would have to claw and scratch to make sure that previously granted exemptions were maintained. For anyone wanting to make use of these exemptions, having them called into question so frequently left users in an uncertain position. Under the new system, the process for supporting existing exemptions is simpler, and led to every single preexisting exemption being renewed. This a nice step in the right direction. The exemptions process unfairly burdens smaller organizations and individuals, who don't have the resources to constantly be providing the type of in-depth information and research that the Copyright Office favors in its reviews. While we give voice to the rights of users in this process, the Copyright Office's public response is that we do not provide enough "data." Rights aren't numbers on a spreadsheet. Anything that reduces this artificial burden is beneficial, but the best way to improve the system is to get rid of it altogether.

Another procedural improvement this year was how the Copyright Office intends to deal with other governmental regulatory bodies interfering with the exemptions process. DRM is about copyright in name only; it has always simply been about controlling the user. But one of the most malicious aspects of the exemptions system was a growing trend of other governmental agencies trying to use DRM in order to restrict users based on regulations having nothing to do with copyright. We've repeatedly called out these DRM Drones for what they are: enemies of user rights. On this front we can celebrate some measure of success, as the Copyright Office explicitly denounced this act. It said it will no longer consider other governmental agencies' attempts to expand the DMCA's anti-circumvention provisions for reasons having nothing to do with copyright. The Copyright Office tying its exemptions review back to copyright is again beneficial, in that it hopefully means they will grant more exemptions and prevent other agencies from mangling an already convoluted system. It's good that they have rebuffed these attempts for now, but that still leaves us in a situation where users don't have full control over their own computing based on a false claim of upholding copyright.

None of these improvements to the exemptions process resolve the fundamental unfairness of threatening users with legal repercussions for trying to live their lives without outside interference. And none of the successes that we enjoyed this year allow users to share the tools necessary to enjoy that success. We cannot stop here. We must continue to fight for the end of DRM and the DMCA's anti-circumvention provisions.

Will you help us win this fight? Help spread the word about the dangers of the DMCA's anti-circumvention provisions by sharing this article with your friends.


Sincerely,
Donald Robertson, III
Licensing and Compliance Manager


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Adam Sanchez

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Dec 20, 2018, 3:59:55 PM12/20/18
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@debugcuy is still alive!

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