Section 1201 of the Digital Millennium Copyright Act bans bypassing
“access controls” for copyrighted works – that is, breaking DRM.
This was stupid when the DMCA passed in 1998, and it only got stupider
since: back in 1998, DMCA 1201 was used to punish people who made
region-free DVD players or homebrew Sega Dreamcast games. Today, every
gadget has thousands of lines of copyrighted code, putting any “access
control” on the gadget within reach of the DMCA, which has led
manufacturers to claim that the DMCA gives them the right to decide who
can make software for your stuff, how you can use your stuff, and who
can fix your stuff. DMCA 1201 has been used to intimidate and even jail
security researchers who found defects in products with DRM, which means
that the people who want to warn you about problems with the gadgets
you trust can’t come forward without permission from the companies that
stand to lose money if the news gets out.
Every three years, the Copyright Office hears petitions for “use
exemptions” to the DMCA: these exemptions let you break DRM to engage in
some kind of legit activity, like jailbreaking a phone or conducting
security research.
This year, many groups petitioned the Copyright Office for a wide
variety of exemptions and the Copyright Office just published its detailed conclusions setting out which exemptions were granted, which ones were denied, and which ones were partially granted.
It’s an extremely encouraging document! The Copyright Office granted the
majority of exemptions, including key exemptions around the right to
repair and legal protection for security research. They did partially or
completely deny some vital petitions, unfortunately, including ones
related to jailbreaking media to make fair uses, and some related to
preserving old video games.
Encouraging as this all is, there is one important and infuriating
element to keep in mind: while the Copyright Office grants “use
exemptions,” it does not believe it has the right to make “tools
exemptions” – exemptions that would allow an expert to make a tool for
disabling DRM so that you can make the uses they’ve permitted you to
make. In other words, the Copyright Office says, “You’re allowed to
jailbreak your Iphone, but no one is allowed to give you an Iphone
jailbreaking tool, and if you make a tool for your own use you can’t
share it or even tell people how it works.”
That’s pretty weird, but the infuriating part is when you bring this up
with DRM advocates and the Copyright Office: they say, “Well, once the
law is out of the way, people will just figure it out.” In other words:
“DRM is actually kinda bullshit and people who want to get around it
will.” But if that’s the case, what is DRM supposed to be for? If any
“bad guy” (someone who doesn’t care about permission from the Copyright
Office) who wants to get around DRM can do so, who is the DRM supposed
to restrict?
That’s right: honest people. People who want to do legitimate
things, like fix their stuff, or format-shift their stuff, or just buy
some third-party ink and have it work with their printer. These are the only
people DRM works against (otherwise, granting “use exemptions” would be
pointless). If these people wanted to do things that broke the law –
like making infringing copies of Bluray movies – the law already allows
companies to punish them. DRM doesn’t exist to protect companies’
rights, it exists to let them invent new rights (the right to
decide which screen you can watch a movie on, for example), and then
make those rights legally enforceable, by adding illegal-to-remove DRM
to their products.
