How Section 1201 Of The Copyright Statute Threatens Innovation

from the breaking-computers dept

It would take many, many blog posts to fully articulate all the ways that modern copyright law threatens innovation. But one notable way is through Section 1201 of the copyright statute.

As discussed previously, Section 1201 is ostensibly supposed to minimize copyright infringement by making it its own offense to bypass the technical protective measures (TPMs) controlling access to a particular copy of a copyrighted work. (Sometimes these sorts of TPMs are referred to as DRM, or Digital Rights Management.) It is a fair question whether forbidding the bypass of TPMs is at all an effective approach to minimizing infringement, but it?s an even more important question to ask whether the portion of the copyright statute that forbids the bypassing of TPMs does so at the expense of other sections of the statute that specifically entitle people to make certain uses of copyrighted works.

The answer to this latter question is clearly no, and in fact Congress anticipated that it would be ?no,? when it put into Section 1201 the requirement that the Copyright Office consider afresh, every three years, whether certain types of TPM bypassing should be deemed specifically permissible, notwithstanding Section 1201?s general prohibition against it. Unfortunately these triennial rulemakings are an extremely cumbersome, expensive, and ineffective way of protecting the non-infringing uses of copyrighted works the public is entitled to make. But the even bigger problem, and the one that I will focus on here, is that Section 1201?s prohibition against bypassing TPMs is increasingly standing in the way of not just non-infringing uses of copyrighted works but non-infringing uses of computing devices as a whole.

In the triennial rulemaking underway members of the public petitioned for a number of exemptions to Sections 1201?s prohibition, which the Copyright Office distilled into 27 classes of exemptions. The first 10 classes generally sought to allow people interact with copies of copyrighted works in ways they were entitled to but that the TPMs controlling the interaction prevented. But the latter classes, 11 through 27, were notable in that, rather than involving the sort of consumption of copyrighted media content DRM is designed to control, they all were classes designed to allow people to interact with computing logic itself.

Some of these classes, like 23 (?Abandoned software ? video games requiring server communication?) and 24 (?Abandoned software ? music recording software?), sought to allow people to bypass TPMs so that they could actually run the copies of software they legitimately had access to. But for many of these classes petitioners found themselves needing to ask not for exemptions to use copyrighted works in ways that they that the legitimate right to but for exemptions allowing them to use computers in ways they had the legitimate right to use them.

Because particularly for the classes seeking exemptions to modify the functionality of, or perform security research on, devices like phones (Classes 11 and 16), tablets (Class 12), TVs (Class 20), vehicles (Classes 21 and 22), and even computer-chipped medical devices (Class 27), that?s what these devices all are: computers. They just happen to be phone, TV, car, and pacemaker-shaped computers. Like a home PC (which Congress had not explicitly sought to regulate access to in 1998 when it codified Section 1201) they are pieces of computing hardware with circuitry that gets controlled by software. And, just like the home PC, people should be able to use the processing power of their computing devices as they would choose to, regardless of the shapes they come in.

Unfortunately, unless they bypass the TPM they can?t, and unless the Copyright Office grants the exemption they can?t bypass the TPM legally. And that?s a problem, because when people?s exploration of the full contours of their computing devices is limited by the threat of legal sanction, all the innovation and discovery that exploration would have yielded is chilled.

But to the extent that it is copyright law that is causing this chilling, it is a particularly bizarre result. Copyright law is inherently about promoting the progress of the arts and sciences, or, in other words, stimulating innovation and knowledge-sharing. It is completely anathema to copyright law?s constitutional mandate for Section 1201 of the copyright statute to explicitly impose barriers to that discovery.

This contradiction was an important point I made in two sets of comments and testimony submitted as part of this rulemaking process. In them I argued that these exemptions, particularly for classes 11-27, should be granted liberally in order that people?s freedom to tinker with the tools they legitimately possessed not be impinged upon just because those tools happened to contain a TPM. If the Copyright Office were to do nothing and simply let these TPMs continue to block this free exploration with the threat of legal sanction it would be particularly unjust because none of those TPMs were implemented to limit the infringement of copyrighted works. While the software running a device may itself be a copyrighted work, the TPM bypass would not be about violating any of the exclusive rights in that work?s copyright. Rather, the TPM bypass would simply be about getting the device itself to work as its user would choose.

Opponents to these classes argued that, even if the TPMs were not guarding against copyright harms, they prevented other sorts of harms that might result if people could use computing technology with unfettered freedom. For instance, they fretted, with regard to vehicles it was argued that if people could study or modify the software on their cars then brakes would fail, pollution would increase, and other terrible consequences would befall the world. But something important to remember is that by limiting this sort of discovery we also limit all of its benefits as well. If people cannot legally do security research on their cars, for instance, it doesn?t make those cars more secure. It just makes it harder to make them more secure.

Also, it is not the role of copyright to regulate technology use and development (except to the extent that it is designed to stimulate innovation). When the Copyright Office suddenly gets to be the gatekeeper on how people can use their computing technology, while it may forestall some potential negative outcomes to that use, it also forestalls any good ones. Furthermore it prevents any other more appropriate authority better equipped to balance the costs and benefits of technology use to craft more nuanced and effective regulation to address any negative ones. As they would ? after all, it?s not like we have been living in the Wild West up until the Copyright Office managed to become inserted into the technology regulation space. For instance, even in the analog world if people modified the physical attributes of their cars ? something they never needed the Copyright Office?s blessing to do ? other regulators could still speak to whether they would be allowed to drive their modified cars on open roads. These other regulators have not become enfeebled just because the modifications people may choose to make to their cars may now be digital, particularly when the consequences to these modifications are not.

But even when the consequences to how people use their machines are digital, regulators can still address those outcomes. The problem has been that regulating computing use is tricky and up to now we haven?t done it very well. Instead we?ve ended up with laws like the Computer Fraud and Abuse Act (CFAA), laws that are very powerful and just as blunt, which punish beneficial computer uses as much as negative ones. But just because we have not perfected laws governing computer use does not mean that the Copyright Office should simply say no to these uses. In fact, it?s actually reason that the Copyright Office should say yes to them.

One of the problems with the CFAA is that it construes the question of wrongfulness of a computer use based on the permissibility of that action. As a result, without the exemptions we are left in a situation where barriers erected under the auspices of copyright could threaten to become the sole basis by which the CFAA gets its teeth to sanction the very sort of inherently non-infringing activity that copyright law was never intended to prevent. And that?s the bitter irony, because while laws like the CFAA sadly lack any adequate mechanism to assess whether a computer use is a beneficial or otherwise fair use, copyright law by design can, and, indeed, pursuant to its Constitutional origins, must.

For these reasons the Copyright Office should grant all the sought after exemptions, particularly for these latter classes. And it?s also for these reasons that it?s time to amend the copyright statute to remove the bottleneck to innovation Section 1201 has become given how it requires the permission of the Copyright Office before any of this computer use can be allowed.

Thanks to Jeffrey Vagle and others for their help preparing these comments and testimony.

Reposted from Digital Age Defense

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Comments on “How Section 1201 Of The Copyright Statute Threatens Innovation”

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united9198 (profile) says:


General Motors is a big fan of protecting THEIR computer software. They are now asserting that when you buy a new GM car, you are renting THEIR software which is highly restricted. They would love nothing more than to force every GM owner to come back to an authorized GM dealer or repair shop to get repairs. There is a huge competitive issue here. Independent repair shops are more convenient, lower in price, and fully capable of repairing your GM car. If GM gets their way, those independents will either have to pay GM a lot of money for the rights to work on their vehicles or they will be driven out of business. In either case, the cost to the consumer will increase dramatically.

Derek Kerton (profile) says:

Re: Re:

But isn’t this one of the big problems, “distribute this work”?

It’s illegal, but “sorta OK” for one to break Sec 1201 in the privacy of their own home, on their own devices. No SWAT team is likely to crash down your door for messing with your own stuff.

But that SWAT attack becomes far more likely when you start to distribute your hacks, enhancements, APIs, code, and solutions to others. The Sec 1201 chilling effects on this role are massive, since these are the people enforcement will target.

But sharing that kind of innovation in an open environment is exactly how progress most often gets made. This way many hands can make light work. And sharing is how the code gets used, and advances the useful arts and sciences.

Instead of every user having to re-invent the wheel by making the same hack for each of their own devices, we need to be able to share the solutions that work. But we’re not allowed.

For example: I’m not likely going to be bothered to write the original code to hack my DVD player so that I can play disks I legitimately purchased while living in the EU. But let’s say you did hack it, and had the code available. In a free world, you could either share the code for me for free, but also I would be willing to pay you for it to solve my problem. In a Sec 1201 world, you could find yourself in a heap of trouble for providing (or worse, selling) hacks to TPM or DRM locks, and improvements to my hardware of software.

This is why the market for “unlocker” software is not USA based, is nomadic, is fraught with malware, etc. It has been pushed underground. If I, as a DVD Player owner, choose to use my DVD player as I choose, I either need to either deal with shady unlocker products, or hack the code myself (and still be in violation of the DRMA).

First of all, it pisses me off that Hitachi (or whoever) sold me a DVD player with solutions for the studios prioritized over solutions for me, the paying customer. Second, it pisses me off that I have to break the law to get the functionality I want (to play DVDs!), and third, it pisses me off that I can’t just outsource that job to a reliable Independent Software Vendor.

Anonymous Coward says:

Re: Re: Re:

DVD players are probably a bad example as circumvention of regions isn’t illegal in some countries.
It’s not illegal in New Zealand because in the 90’s our government recognised that we were getting shafted with expensive imports, so they made parallel importing and DRM circumvention legal.
So when you buy a DVD/BluRay here there is usually a slip of paper in the box with the code to make it region free.
Doesn’t happen with American stuff though, no code with an Xbox or a Mac

MrTroy (profile) says:

Re: Re: Re:

The region locking is the main reason I’ve never owned a Blu-ray player. I was living in Singapore when BR was really becoming popular, but I was slated to move to the UK soon, and I always expected to return to my home country of Australia at some point. It never made sense to buy a player locked to any particular region, because I’d always have trouble playing or sourcing movies… so I didn’t.

Now I’m back in Australia, and just used to not having a Blu-ray player; and really, between the DVDs I still own and the various streaming options available, I don’t feel like I’m missing anything.

Anonymous Coward says:

Some thoughts on GM/DRM

GM also belives they owns all the data you create when driveing your car, which they extract via Onstar and openly sell. Allready you can’t buy some models without Onstar, and they’re moveing towards puting it in all there cars. You can’t get NAV without onstar. Onstar has some great safety features- but you can’t get those features without a total (technologicly unessasary) loss of privacy/authority, and their copyrights/patentents/tradmarks keep anyone from fixing/improving such a grossly flawed product.

I worry this sort of thing is just the tip of the iceburg of what we’re looking at in the future. Efective monopolies are too prevelent and powerful for bypass entitlements to contine to have the effect they have generally had so far; Consumers are too nieve and ignorant to correct the market, and laws/lawmakers are woefully inadaquite to keep up, let alone tame the pace of technology increasingly designed with the the sellers interests placed over that of the consumer.

TPM- when I read that acronym I think of “trusted platform modual”, something that’s relevent to the topic and worth knowing about if you don’t. That ‘TPM’ hasn’t yet come close to it’s potential- it’s the sort of hardware level DRM which should concern everyone. Having the ‘right’ to bypass DRM, is not the same thing as having the ‘ability’.

The reason that alot of DRM has been so easily bypassed is that DRM makers aren’t putting in much effort to safeguard it. So far there hasn’t been much reason for them to, but that’s slowly changing. There are many many unexploited digital ‘toll boths’ and other various consumer exploitations which can be implimented with DRM, and I see no reason to doubt they won’t be thoughly explored in the future.

Rekrul says:

I remember when companies advertised solutions specifically designed to bypass the protection on computer games. At first it was “nibble” copiers, then parameter copiers for specific titles, then hardware devices said to make backup copies of any disk, freezer cartridges that could dump the entire computer’s memory to disk to be loaded back in later and pick up right where it left off, etc.

Now it’s considered “stealing” if you save a Flash game to your local drive so that you can play it offline. 🙁

Anonymous Coward says:

DRM over out of band networks is coming,

and at that point you’ll be looking at the completion of Orwells vision. The first time I ever saw an HDMI cable, I thought to myself: “Digital video is transmitted serially, WTF do they need that many pins for?”, and it’s becoming clearer every day.

DRM will be done via dedicated out of band networks that will extend from the MPAA/RIAA all the way to the display appliance. So it is time to hold on to any old display hardware you already have, since in the future you won’t be able to buy any that doesn’t have built in surveillanceware.

The reason for restricting the right to remove DRM, is to prevent _disclosure_, not the actual act. Most people couldn’t do it if they wanted to. So there will be some arrests, and people will be sentenced to life or very near it. Then it will be accepted that removing DRM is done in the dark, so it must be criminal.

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