How Bad Copyright Law Makes Us Less Safe… And How Regulators Have It All Backwards

from the fix-1201-now dept

For quite some time we’ve pointed out how problematic Section 1201 of the DMCA is. That’s the part of the law that says it’s copyright infringement to simply circumvent any kind of “technological protection measure” even if the reasons for doing so are perfectly legal and have nothing to do with infringement at all. And, of course, we now have the big “1201 Triennial Review” results that are about to come out. That’s the system that was put in place because even Congress realized just how stupid Section 1201 was and how much innovation and research it would limit — so it created a weird sort of safety valve. Every three years, the Copyright Office and the Librarian of Congress would work together to come up with classes of technology that are magically “exempted” from the law. Now, normally, you’d think that if you have to come up with exemptions, there’s probably something wrong with the law that needs to be fixed, but that’s not the way this worked.

The latest triennial review results are about to come out, and a lot of people are focused on it — in part because of current events. As you may recall, earlier this year, we wrote about one of the exemption requests in particular: over whether or not you can tinker with the software in your car. GM was fighting against this, and we were shocked to then see the EPA side with GM (!?!?) on this issue, claiming that it’s a perfectly reasonable use of copyright law to stop tinkering with cars on the off chance that some of that tinkering might lead to changing emissions to illegal levels.

Of course, just a few weeks later, we discovered that VW had been playing games with its software to avoid emissions tests and pollute the world at a much greater rate than is legal (or healthy). Many people have pointed out that, if the software wasn’t all locked up, it seems likely that people would have discovered this problem much earlier. The latest to weigh in on this is Senator Ron Wyden, in a WSJ op-ed, where he explains how the EPA has this whole thing completely backwards:

This year the Environmental Protection Agency submitted comments to the Copyright Office requesting that no exemptions should be granted for car owners or researchers to access and modify the software in their vehicles. The EPA says you shouldn?t be allowed to tinker with your car because it might increase emissions from your tailpipe.

This would block any researcher who would study software in automobiles to make them safer or more environmentally friendly. This summer, security researchers demonstrated that a hacker could take over a Jeep?s systems?GPS, transmission and brakes, among others?over the Internet. This could lead to crashes and even sabotage. In this case at least, Chrysler recalled 1.4 million vehicles to patch that vulnerability, which otherwise could have gone unnoticed.

The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future. Volkswagen?s falsified emissions reports were discovered by independent testing?yet the source of the problem was in the automobile?s software. Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.

In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.

And it’s not just the EPA. As Wyden notes, the FDA is doing something similar, which may be even more dangerous:

The Food and Drug Administration also is getting in on the copyright game. It is telling the Copyright Office that modifying software in medical devices, and then providing them to patients without FDA approval, could put people in danger. But the distribution of untested devices is already illegal. Copyright law should not prevent researchers from taking a look at the software and thinking about how to make devices more effective and safer.

Wyden (along with Rep. Jared Polis) introduced a bill earlier this year to try to deal with this on a permanent basis, rather than through this ridiculous triennial review process. Of course, if the TPP is approved, it may be more difficult to actually make such a change.

But, really, the fact that the FDA and the EPA are making these arguments is a real sign of just how broken our copyright law is and how little many regulators understand innovation, technology and intellectual property. The EPA and the FDA come from a world of “permission-only innovation.” They are both focused solely on setting up laws that “prevent bad stuff” usually through setting up testing regimes. But those regimes can be gamed — and they don’t seem to recognize that by allowing permissionless innovation to happen, it also opens up worlds of useful research and beneficial innovations, both of which could do a lot more to prevent the kinds of harm that the EPA and the FDA think they’re preventing by opposing these exemptions.

There’s a fundamental misunderstanding of the nature of innovation in this setup — where regulators think that the unknown must be “dangerous” and should be prevented until proven okay. But, as history has shown, such a setup only opens up all sorts of games that the big knowledgeable players can use to dance around those regulations, and no real way for outsiders to call them on it (or to create better alternatives). Permissionless innovation is not just a slogan, it’s incredibly effective — and misusing copyright law to prevent it, out of the fear that something bad might possibly happen, without recognizing all the good that is much more likely to come from it, is really dangerous. We’re only just learning that now because of what’s finally come out in the news about VW, but getting rid of the stupid anti-circumvention clause in the DMCA would go a long way towards actually fixing this mess, rather than relying on bureaucrats whose defacto response is to say “don’t do that.”

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Comments on “How Bad Copyright Law Makes Us Less Safe… And How Regulators Have It All Backwards”

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Anonymous Coward says:

ha ha ha....

and we were shocked to then see the EPA side with GM

Seriously? How is this shocking? All of the 3 Letter agencies fall to Corporate interests. The FDA if effectively a paid prostitute for Food & Drug companies. The EPA will always side with the group or interests that will help justify or give it funding!

Anonymous Coward says:

Re: ha ha ha....

True, and why wouldn’t they side with corporations, it’s not like taxpayers give them nice gifts, cushy jobs and campaign donations.

Besides this is great for corporations. On one hand they cover their asses against PR meltdowns in case of accidents “Not our fault, they made an > modification”.

On the other hand if a researcher does find and report new vulnerabilities anyway, they are now a criminal in the eyes of the law.

Basically the corporation gets free policing of its end user agreements while also being protected from backlash.

Anonymous Coward says:

“So sue them…”

… should be the standard response to anybody saying that people could do bad things if not prevented by copyright.

If a big manufacturer have to abide by some regulations, then individuals should be able to tinker with firmware provided they also follow these regulations, which is encompassed by the mantra “the law and regulations apply to everybody equally”.

Suomynona (user link) says:

Innovation thwarted

(Sigh….yet another heathen.) Let me learn you this:

WE are in the job of protecting you, even from yourself if need be. We regulate things and force manufacturers (and consumers if need be) to do the singular right thing even if it’s only our preference or whim.

We LIMIT. We REGULATE. We CONTROL. It’s our entire reason for being, our purpose for existence. Why, if anyone could do anything, think of the anarchy, the complete chaos. It would be horrible.

There’s a reason boxes have a “no user serviceable parts inside” label, we control exactly how those insides work.

Why, if you could modify and change up things the way you want, tell me: what then would be the reason for our existence?

That Anonymous Coward (profile) says:

Because copyright is magical, and we should never question it.
Who cares about all of the evidence of benefit we currently have, we need to worry about unfounded things and if we tell them no – they will never do it. It stopped the flow of drugs into the US, it makes sure that no one drinks and drives, it makes sure that oaths of office are not violated by those stealing from the public they are charged with protecting, and we told them no so racism is done.

Perhaps they need to start looking at the wider pictures out there, rather than tunnel vision urged on with promises of future work for protecting corporate interests.

Someone is always going to tinker, and creating a legal system designed to crush them will not deter the bad actors who intent malice, but it might stop the hobbyist who finds a huge flaw and helps makes everyone safer.

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