It's Time To End The Anti-Circumvention Exemption Circus

from the pleading-for-your-rights dept

Copyright as we know it goes back to the Statute of Anne of 1710. A law that old is clearly going to struggle to cope with the enormous changes in technology that have taken place since then – notably the Internet. But even relatively recent copyright laws were framed in ways that have become unworkable for the digital world we live in.

For example, arguably one of the most important pieces of recent legislation in this area is the Digital Millennium Copyright Act (DMCA) in the US, and its sibling, the EU’s Copyright Directive (EUCD). Both are wide-ranging, affecting many aspects of copyright, and a particularly problematic aspect of both concerns anti-circumvention. The DMCA and EUCD prohibit the bypassing of any “technical protection measure” (TPM) used to protect works under copyright. That typically means the much-hated Digital Rights Management (DRM), which aims to control who can do what with copyright material, and thus often gets in the way of people enjoying material that they have paid for.

The DMCA and EUCD introduced severe penalties for circumventing any such TPM, no matter how weak it is, and no matter how reasonable the need to do so may be. As a tiny recognition of this lack of proportion, the DMCA includes Section 1201, which provides a mechanism for giving people permission to circumvent protection:

The Digital Millennium Copyright Act (DMCA), codified in part in Title 17, section 1201, of the United States Code, generally makes it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works, including copyrighted books, movies, videos, video games, and computer software. Section 1201, however, also directs the Librarian of Congress, upon the recommendation of the Register of Copyrights following a rulemaking proceeding, to determine whether the prohibition on circumvention is having, or is likely to have, an adverse effect on users’ ability to make noninfringing uses of particular classes of copyrighted works. Upon such a determination, the Librarian may adopt limited temporary exemptions waiving the general prohibition against circumvention for such users for the ensuing three-year period.

The new temporary exemptions have just been announced. One of them is to allow copy protections on ebooks to be circumvented so that the visually impaired can use technology to help them access the texts. Wired reports:

The victory is tainted somewhat by the struggle it represents. Although the exemption protects people who circumvent digital copyright protections for the sake of accessibility – by using third-party programs to lift text and save it in a different file format, for example – that it’s even necessary strikes many as a fundamental injustice.

Another exemption concerns text and data mining (TDM) – using automated techniques to analyze typically large quantities of text and data in order to find patterns and trends there. This kind of work allows existing facts to generate new ones, but often requires circumventing publishers’ TPMs. The Authors Alliance reported on a new exemption to section 1201 of the DMCA that would permit TDM by researchers affiliated with academic institutions. But even here, there were restrictions that made it less useful than it could have been:

In the recommendation, Register Perlmutter also recommended adding a limitation that “circumvention be permitted only on copies of the copyrighted works that were lawfully acquired and that the institution owns or for which it has a non-time-limited license,” and should not be permitted on works the institution had “rented or borrowed.” This limitation has the potential to complicate the usability of the exemption with regards to TDM research on e-books: because e-books are generally licensed rather than owned, whether the exemption will permit TDM research on a certain e-book will depend on the terms of the license for that e-book.

Finally, there is an example of how outdated copyright laws are seriously hampering what is manifestly a legal activity: repairing digital equipment. Because software is involved, and that code is often protected, it has hitherto been illegal in the US to repair many digital devices. The new exemption will now allow circumvention for the purpose of repair, but with a major restriction, as explained by the iFixit site. The new exemption does not allow you to distribute repair tools that circumvent manufacturers’ TPMs:

Without access to shared tools, the exemptions are largely academic. Right now, if you want to use this new exemption to repair your Xbox, you’re going to have to whittle your own optical drive unlocking app or device from scratch. That just doesn’t scale – most gamers are not security engineers.

It should not be necessary to beg every three years for limited and flawed exemptions, like the ones above, to overly-strong copyright laws; instead, people should have a right to carry out these perfectly reasonable activities. The DMCA and EUCD need to be amended, and their logic inverted, so that circumventing a TPM is always permitted, except when it is for an illegal purpose.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally published to the Walled Culture blog.

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Comments on “It's Time To End The Anti-Circumvention Exemption Circus”

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27 Comments
Trademark Troll says:

Re: Re:

Pay me for claiming to have a copyright on the word bullshit(R). My client has registered it as a trademark in multiple jurisdictions, making your use of it without the ‘R in a circle’ symbol illegal. Also, since bullshit(R) is a single word, it is too short to be copyrighted. This makes your claim fraudulent, and my client now requires a one-off payment of £150,000. If this letter is not responded to within ten working days, my client is prepared to bring a lawsuit against you, as a result of which, millions could be awarded.

Yours faithfully,
IP Trolls’r’us.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"Copyright maximalists themselves do the begging every other decade. Frankly it should be fair game for everyone else…"

It is. However, there is far more profit in keeping everything copyrighted forever than there is in widening the public sector. Hence it’s a game of lobbying which the copyright maximalists always win.

That’s why copyright, once seven years worth of protection, is now lifetime+70 years of protection.

Either copyright is abolished completely or we eventually end up with "forever less a day" becoming reality.

This comment has been deemed insightful by the community.
Ninja says:

I’d go further and add that copyright should be automatically void if there is no available means to buy and/or use the product (ie: games that need specific consoles that aren’t manufactured anymore). Plenty of stuff out there with infinite copyrights, meaning I’ll be dead before copyright expires, and you can’t find for sale anywhere.

This comment has been deemed insightful by the community.
GHB (profile) says:

Re: Agreed.

This lead to games becoming abandonware. Games based on movies, TV shows, comic books, etc. Effectively making them a limited time to obtain these games legally. Blame 1201 and the fact that copyright last extremely long EVEN when they’re not enforced.

I talked to my representive about these “empty enforcement” to make copyrights expire if the holder goes inactive. Something like an inactivity check like the other IP laws have: Trademark requires re-registration every 10 years and have to be used: https://www.uspto.gov/trademarks/maintain/keeping-your-registration-alive, and patents last 20 years, and require perodic fees to keep its enforceability: https://www.stopfakes.gov/article?id=How-Long-Does-Patent-Trademark-or-Copyright-Protection-Last

GHB (profile) says:

It is really dumb that it isn't one with copyright law.

The fact that copyright alone and 1201 are treated separately and that the copyright’s original limitations and exemptions (fair use) is not being applied to 1201 shows that it is really a joke.

Like I mean, to prevent an activity (bypass techinical restrictions) that would lead to an illegal activity (actual copyright infringement) despite the latter activity is already illegal, is absolutely stupid and unecessary. Once cracked and released, this cannot be undone.

nasch (profile) says:

Re: It is really dumb that it isn't one with copyright law.

The fact that copyright alone and 1201 are treated separately and that the copyright’s original limitations and exemptions (fair use) is not being applied to 1201 shows that it is really a joke.

In theory, they are. "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." Whether that actually takes place in enforcement is a different question.

ECA (profile) says:

Allot

Allot of Copyright laws are generally based on SALES of such devices, NOT creating your own personal USE device.

Personal Use, was part of the Laws. If it broke, you could FIX the hardware or software as needed, but Could not SELL those items.

It WAS, in the ability to create copies of Movies and software, so as to have a secure version of said product IF something failed. The idea that you didnt need to buy it more then 1 time.

So, whats happened to OUR system to force us to BUY MORE, and the CD/DVD/BR failures? With these current laws, if you open your BR player, to fix that Fuse or Failed resister, you can be taken to court. WHY?
Then there is the AREA restrictions. That you cant watch a DVD/CD from another country. And the BYPASS codes to read any of those Country software/movies.

ECA (profile) says:

Re: Allot

The most entertaining thing here. is the debate over the laws and constitution. that they are for the Federal, and how the Gov. has to act, not the state and not the corps.
Its like giving the Corps freedom of speech(the right to give money to express their opinion in elections) and NOT the rest of the constitution (fair labor and equality). Whats happened with all these laws not being enforced? And who is responsible for NOT enforcing them.
Are we going back to the era of Corp controlled workers and strikes to get Fair wages? And Cops beating the Spit out of us for wanting enough money to pay rents?

Anonymous Coward says:

Re: Allot

I’d argue the opposite.

Most copyright laws were based pretty much only on copying. It was always perfectly legal and expected to sell your copy of Moby Dick, but rather frowned upon to transcribe it to keep in your library in case you got rained on while reading in the park.

Those laws made a lot of sense at the time they were written, as the process of copying was a major limitation, and there were no mechanisms by which anyone could feasibly control post-sale uses. Making personal use copies was largely infeasible, whereas sales were ubiquitous, and so that’s what the laws were written to allow.

The problem came about later, with both the increasing trivialization of producing copies, and the advent of technology able to control the use of copies post-sale. Much of the current disfunction arises from laws written to support a regime which now no longer really exists. Even "updated" laws like the Digital Millenium Copyright act have generally just given the system enough of a crutch to keep functioning, without addressing the root causes within copyright and consumer law.

GHB (profile) says:

Re: Allot

I really don’t know if this is a 1201 violation, but most CDs using region locks detect by checking the code embedded in the media player (disk player, for example).

I was wondering you can legally bypass this by bringing the media player itself too along with the disk, as they both don’t use internet and just check each other’s code to know if it is in an unauthorized country.

Space5000 (profile) says:

Better I Think, But Why Not Abolish It?

I think that people should be allowed to get around copy protection of lawful works for any lawful purchase as it doesn’t make any sense and breaks the balance between Copyright limitations and consumers. If I for example wanted to bypass Copyright protection of a PS3 game in order to run it on an emulator, I should get that right.

And while I stand with what I said here a lot, why do we even need DMCA after? Copyright piracy is already illegal as Copyright law is still a thing without DMCA, and the same goes for other laws outside of DMCA. So why do we even need DMCA still? Extra punishment is the only thing I can see coming out of it if we still have DMCA after fixing it. I think the purpose of DMCA was to add extra, immoral, restrictions to block a lot of lawful stuff beyond it.

Thad (profile) says:

Re: Better I Think, But Why Not Abolish It?

And while I stand with what I said here a lot, why do we even need DMCA after?

Because there are some good bits in it. Title II isn’t all bad — the takedown system is a mess but the safe harbor idea protecting intermediaries from liability is good — and Title III reversing Mai v Peak was good. Title IV has some good bits in it.

It’s not all giveaways to the copyright industry. Just most of it.

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