Copyright Office Will Renew Previous DMCA Exemptions Without Much Fuss — But Why Is This Even Necessary?

from the about-freaking-time dept

For years we’ve written about the idiocy of the DMCA’s 1201 triennial review. If you don’t recall, Section 1201 of the DMCA is the “anti-circumvention” part of the law, saying that anything that gets around DRM is, itself, copyright infringement. This was so obviously stupid and counterproductive when it passed, and Congress knew it was so obviously stupid and counterproductive, that it included an even stupider “safety valve” to deal with the obviously bad results of the law. That safety valve, known as the “triennial review” is that every three years, people need to beg and plead with the Copyright Office and the Librarian of Congress to make explicit exemptions from the law, where circumventing DRM won’t be considered infringing. Over the years, this lengthy and costly process has at least allowed certain key exemptions for security and academic research. Though, of course, even when exemptions are granted, it’s often a hot mess.

But, astoundingly, the exemptions only last until the following triennial review, meaning that every few years, everyone has to waste their time and go through the whole damn process again. This blew up in everyone’s face in 2012 when the Librarian of Congress rejected an exemption for phone unlocking that had been in place for the previous round. Lots of people got angry, and even the White House weighed in to say it was a mistake that should be fixed. Of course, rather than fixing Section 1201, they just passed a separate law specific to phone unblocking.

However, the whole issue got so much attention and so much interest (both from the public and politicians) that I’d be surprised if the Copyright Office ever decided to drop an exemption after it had been issued. And, indeed in the newly released notice of proposed rulemaking (NPRM) on the latest exemptions, the Copyright Office easily renews all of the old exemptions:

As detailed below, after reviewing the petitions for renewal and comments in response, the Office concludes that it has received a sufficient petition to renew each existing exemption and it does not find any meaningful opposition to renewal. Accordingly, the Register intends to recommend readoption of all existing exemptions in their current form.

That’s great, though it’s crazy that this process even needs to happen each year, wasting everyone’s time, energy and money.

Unfortunately, the Copyright Office had a chance to go further, but declined. In the Notice of Inquiry about this, the Copyright Office asked for input on regulatory language that could ease the situation for renewing existing exemptions, but in a footnote, the Copyright Office declines to make any suggestions:

Although the Office?s Notice of Inquiry stated that this NPRM would set forth proposed regulatory language for any existing exemptions the Office intends to recommend for readoption, because many of the new petitions seek to expand existing exemptions, the Office concludes that proposing regulatory language at this time would be premature; the Register may propose altering current regulatory language to expand the scope of an existing exemption, where the record suggests such a change is appropriate.

Of course, all of this still leaves open the much wider question of why do we need Section 1201 in the first place? If someone infringes on someone’s copyright, go after them for that. The whole focus on circumventing DRM is a distraction that has created numerous problems for lots and lots of people — especially security and academic researchers. 1201 was never useful and it’s time to just do away with it entirely.

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Comments on “Copyright Office Will Renew Previous DMCA Exemptions Without Much Fuss — But Why Is This Even Necessary?”

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Anonymous Anonymous Coward (profile) says:

Re: Why is this bad?

Review, hell, make them re-authorize them, all of them, every seven years. Forever. That it was re-authorized seven years ago is not an excuse to not reconsider a particular law in the current environment.

We could do with some relief from the craziness of them creating ‘new’ law that makes ‘old’ law about something have a little more specific context because they feel a ‘need’ to do ‘something’ about ‘something’ that was in the news recently. Keeping legislators busy re-authorizing existing law will certainly help. In addition, as the laws decrease in numbers, the legislators will become more efficient in that re-authorization process, which leads me to believe that a certain about of debate about each law, be required.

In the mean time, some of those ‘old’ laws will not get re-authorized, a relief to many of us, and over time, laws will become more succinct, and fewer, allowing law enforcement officers to actually know the law, which should be a requirement anyway.

Think about it, technically, us citizens are required to know everything in the Congressional Record, which a couple of decades ago was around 90,000 pages (I don’t know what it is now, I remember this from a JFK story, because he was a speed reader), with lawmakers allowed to ‘revise and extend’ what they say on the floor…for the record (I say let what they say on the floor to stand, no revision allowed, no extension allowed). Typically, us humans might be able to read around 30,000 pages per year, if we read nothing else. Yet we are responsible for everything in that ‘record’ when laws are made from that ‘record’. How many laws are there? How many do you know about? How many are you responsible for? What is the difference between what is, and what you know? How important is that difference? Would one ever know until they wind up in court charged with something they actually didn’t know was illegal, but were supposed to?

OK, so we know that politicians do things that benefit them, and their ability to get re-elected without regard for their actual constituency (which should not include contributors whether they reside in their district or not, but does, which is accomplished by the government paying all the costs of every election, along with other changes) along with many rules in legislative bodies that allow things like not allowing bills to get voted upon by someone in ‘control’ rather than forcing every bill to a true vote, and allowing ridiculous ‘riders’ to be attached to other must pass bills. Don’t get me started on the Senate’s responsibility to advise and consent for judicial and other nominations. There was never any intent for partisan or moral considerations, the purpose was on ability, and has been seriously contravened.

Not only should we be amending how elected officials get to office, we should be looking at the rules that have been invented by prior legislators that are not in the interest of the governed, even if that ‘bridge to nowhere’ brings jobs to someones jurisdiction. Should the ‘Majority Leader’ (a position that just should not exist) be able to ‘quash’ a bill because he feels like it, or for any other reason?

There are many different things that need to be done to make our government work for us, rather than the special interests, and I don’t pretend to know them all. Change in how votes take place, the removal of money from politics, a change in lobbying, elimination of political parties, dealing with the abstractions that will occur while these and other reforms are implemented. This is just a beginning, and those in power won’t like any of them. I don’t pretend to have all the answers, and some of those presented might be better stated, but change is needed, and change will come. How, and how confrontational that change will be remains to be seen.

Why am I posting this seemingly off topic rant on this post? Because along with many other questions that come up with regard to how government, governs, the way they get to govern and how they go about governing is intrinsic to the results that exist, like the way the DMCA and the Copyright Office work. Not for us, but for those who pay. Not how things should be.

Anonymous Coward says:

Re: Re: Why is this bad?

Review, hell, make them re-authorize them, all of them, every seven years. Forever.

Be it enacted, that all existing laws, excepting those specifically amended or annulled since the last seven year review, are hereby continued for another 7 year term.

Done. Think they wouldn’t do that? How often do you read the warranty on your new VCR end-to-end?

> we should be looking at the rules that have been invented by prior legislators that are not in the interest of the governed, …

Look up the parable of Chesterton’s Fence. A great idea, but if you tear down the fence, you may find a velociraptor on the other side waiting for the power to go out.

Bergman (profile) says:

Re: Re: Why is this bad?

“Think about it, technically, us citizens are required to know everything in the Congressional Record”

What’s even crazier about that requirement is that the police who are routinely excused for ignorance of the law by the courts also have exactly the same training in the law that every citizen gets, as a prerequisite for the extra training in the law they get while training to be a police officer!

12-13 years of public school means there is no excuse for not knowing and obeying the law. That same 12-13 years of schooling plus 1-2 years of specialist law enforcement training cannot be expected to know every law. Seriously.

Anonymous Coward says:

Re: Why is this bad?

I’d love to see periodic review built into all our laws.

Laws/rules that restrict people should be reviewed. But these rules don’t restrict anyone, they reduce restrictions given force by the law. So if they don’t get renewed, people lose rights; it’s exactly backwards.

The DMCA does not grant rights to the public–it grants some people the privilege of restricting the public. That should have an expiry date, so that it disappears if not proven necessary every few years.

Thad (user link) says:

Re: Why is this bad?

My personal belief is that times and social memes change. I’d love to see periodic review built into all our laws.

The question is, who does the law favor, and who does the review process favor?

The default position of the DMCA is that it’s illegal to break copy protection measures. Period.

The Copyright Office has allowed some (but not enough) exemptions to the DMCA in order to protect users’ rights.

The problem is that, every three years, we have to argue that the Copyright Office should continue to recognize these rights (and, if we’re lucky, grant us more common-sense rights), not strip them away.

The ideal solution in this instance isn’t periodic review. It’s a legislative solution. Specifically, we should have a law that says "If it’s legal to do x, then it’s legal to circumvent a copy protection mechanism for the purpose of doing x." That should be a permanent exemption from the DMCA, not one that’s subject to review every three years.

Anonymous Coward says:

whine, whine, whine...

Congress never had the authority to create any agencies that can add, remove, or change the law. Congress only has the power to create agencies to enforce the laws Congress created.

Since you don’t care about that, why should they care about you when you whine about it? After all, you are already letting them get away with so many other things… this seems hardly worth the time and effort to bitch about.

Anonymous Coward says:

Re: whine, whine, whine...

“whine, whine, whine…”

And yet here you are!

“Since you don’t care about that, why should they care about you when you whine about it?”

And why should anyone care or listen to you whining on here it isn’t that you have anything compelling in what you say afterall!

“this seems hardly worth the time and effort to bitch about.”

And it is hardly worth your time and effort to bitch about on here when you bring nothing to the table to talk about!

Rabbit80 (profile) says:

How about a law which says that the copyright holder must, within 30 days of receiving a valid request along with proof of purchase, provide a DRM free copy of the electronic file?

This would allow games companies to protect their work during the initial window (assuming the DRM isn’t broken day 1), streaming companies like Netflix to continue to protect the video streams etc, whilst at the same time allowing researchers or consumers to have access to the non-DRM files without breaking the law or requiring exceptions.

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