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Library of Congress issues limited exemptions to DMCA anti-circumvention provisions but leaves users without full control over their own computing

by Free Software Foundation Contributions Published on Oct 30, 2015 05:13 PM
On October 27th, 2015, the Library of Congress published its list of exemptions to the Digital Millennium Copyright Act (DMCA), denying many of the proposed exemptions and modifying or limiting others. Because of this, users of a wide variety of software and devices, such as ebook readers and video game consoles, still do not have the right to control their own computing. Even for the areas where the exemptions permit users some additional control, they do not permit sharing of methods for obtaining it, and last only three years.

The DMCA contains provisions penalizing the circumvention of "technological protection measures". These measures are digital jails denying users access to the software and other digital works they possess, preventing them from examining or changing the software on their devices. While such measures are nominally meant to protect copyrighted works, in reality they function as unacceptable restrictions on computer user freedom. The Free Software Foundation (FSF) opposes such Digital Restrictions Management (DRM) systems. The FSF further opposes the DMCA's anti-circumvention provisions, and demands that Congress repeal those provisions. Other countries with similar laws should follow suit.

Every three years, the Library of Congress reviews proposals granting limited exemptions from the DMCA's broad ban on users controlling the software and data on devices encumbered with DRM. This flawed process is meant to lessen the DMCA's harm by giving user rights advocates an opportunity to request exemptions allowing circumvention in particular cases. Even when such petitions succeed, the resulting exemptions last only three years, meaning that advocates must repeatedly fight to retain the limited ground they won.

In the round that just concluded, the Free Software Foundation demanded that the Library of Congress grant every proposed exemption. In each comment, we explained the importance of free software; software that "users are free to study, share and improve," which enables users to enjoy the universal right of controlling their own computing. Users have the right to modify and access all software they possess, regardless of its purpose or on what device it runs. Since DRM requires proprietary software to take control of a user's computer away from her, it is fundamentally incompatible with a fully free world. Users cannot enjoy their rights so long as DRM cages them and the DMCA threatens them to stay in the cage. There should be no penalties for users controlling their own software or for sharing tools to help others do the same.

Before outlining the list of exemptions, the Library of Congress provides a clear warning (one that did not appear in previous exemption rulemaking documents) that the potential scope of its exemptions is limited by law. Specifically, it makes clear that under Section 1201, it cannot make it legal for a person to share her methods for circumventing some digital restriction technology, including "products and services that are used to circumvent technological measures that control access to copyrighted works (for example, a password needed to open a media file)," or "products and services used to circumvent technological measures that protect the exclusive rights of the copyright owner in their works (for example, technology that prevents the work from being reproduced)." (p. 5) It claims that the sharing of passwords and software is illegal trafficking and that it will take an act of Congress to change this. Even if the Library of Congress believes it cannot grant such exemptions, it does have the power to recommend that Congress to correct this fatal flaw.

Advocates did succeed in securing several important exemptions. The Software Freedom Conservancy successfully won back some rights for Smart TV owners. Although the exemption granted for Smart TVs is narrower than what was requested, it allows users to circumvent DRM for the sole purpose of enabling interoperability of programs on their Smart TVs. The Electronic Frontier Foundation was also victorious in several proposed exemptions. Users of tablets and multi-player video games run via servers, for example, now have exemptions protecting some of their uses. Many other users had their previously granted exemptions maintained, such as those related to cell phones. The FSF supported these exemptions because they carve out a little more space for user freedom. These victories are a testament to the dedication and hard work of advocates in the face of a difficult system. In other areas, however, change was even more limited.

For example, while the Library of Congress granted an exemption related to software on motor vehicles and farming equipment, it limited this exemption to only the owners of the vehicles. Thus, while users may circumvent DRM on their own vehicles, they may not ask third parties to do the work. For many users, not being able to have third parties access software for them is in practice just as bad as not being able to do it themselves, and denies them fundamental rights of association and expression. The exemption also does not extend to "computer programs primarily designed for the control of telematics or entertainment systems" (p. 43), therefore blocking installation of many legitimately useful free software programs.

Further, the Library of Congress limited the exemption in light of regulations unrelated to copyright . In its statement, it says "while from a copyright perspective proponents had made the case for an exemption, based on the record, the exemption needed to be carefully tailored". (p. 42) The Environmental Protection Agency (EPA) opposed any exemption for motor vehicles, attempting to shoehorn its own duties regarding emissions control into what is nominally an act related to copyright. This is despite the fact that the anti-circumvention provisions of the DMCA actually helped hide unlawful activity by Volkswagen in which they used proprietary software in order to trick EPA tests on emissions. If users and researchers had been permitted to access the software on their own vehicles, they may have discovered Volkswagen's fraud years earlier than the EPA did.

Interference from other government agencies, such as the Food and Drug Administration, is found throughout the statement on exemptions. These agencies are not tasked with enforcing copyright. Instead, they are trying to use the DMCA's penalties to control users regardless of whether any crime occurs. The government should not presume that all users are guilty of violating the law, and should not punish all users in its quest to enforce the law against the few who might break it. But using DRM to enforce the law does just that, as DRM blocks ethical and lawful activities. That government agencies are attempting to use the DMCA to punish and control users based on regulations wholly unrelated to copyright demonstrates that DRM has nothing to do with rights, and everything to do with restriction.

While users might feel relief in receiving some exemptions, we cannot endorse a process that leaves so many out in the cold. While we do celebrate our victories and those of our allies in this process, the very real danger is that these exemptions will be used to argue against us, on the grounds that such "safety valves" are enough to solve the problems with DRM or the DMCA's anti-circumvention provisions. They are not. The exemptions process allows users to partially control some of their devices and software, but robs them of the necessary tools and the help of third parties. This process further allows government agencies to co-opt a law nominally about copyright to implement restrictions wholly unrelated to that area of law. The FSF calls on Congress to end this broken process and repeal the anti-circumvention provisions of the DMCA.

Media Contacts

Joshua Gay Licensing & Compliance Manager Free Software Foundation +1 (617) 542 5942

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