Well, the Library of Congress has now released its official exemptions
to the DMCA's 1201 anti-circumvention rules, the ridiculous process known as the triennial review
, and as was pretty much expected, it's a total mess. We'll have a more thorough look at it later, but after an initial read through of the document, it appears that the Library of Congress tried to please everyone and will likely end up pleasing no one. If you're unfamiliar with the process, under the DMCA, there's a part of the law, section 1201
, which says that it's copyright infringement to bypass any kind of "technological protection method" (TPM) to access something, even if the reason you're circumventing the TPM is totally non-infringing. Basically, this says that if you put a digital lock on something, even if the lock is weak or stupid or for something totally unrelated to copyright law (such as blocking competition), you can use copyright law to stop anyone from getting around it. The concept is so stupid and so broad that even Congress realized it would be abused. But rather than fix it, it gave the Library of Congress this weird authorization to declare "exemptions" once every three years. So, basically, every three years people ask for exemptions (and each exemption granted in the past needs to be re-requested, and re-supported every three years). Then the Library of Congress climbs a mountain, thinks on it for a bit, and comes down the mountain declaring what is legal and what is not. It's an insane process.
Three years ago, things went really haywire when the Library of Congress took away
the exemption it had previously granted for cell phone unlocking
. This resulted in widespread protests, and eventually Congress stepping in with a bill that didn't actually fix the underlying problem, but just reinstated the previous exemption and told the Library of Congress to be more careful next time.
You can see in the latest exemptions that the Library of Congress has taken Congress's mocking a bit to heart -- as it seems totally gun shy on just about everything. It refers repeatedly to Congress's decision to bring back the unlocking exemption and reads more into it than is necessary. But, because of this, it seems to want to tiptoe down the line, allowing exemptions, but putting all sorts of weird restrictions on them. For example, one of the most talked about requests was the one for accessing vehicle diagnostics. You may recall that GM
, John Deere
and even the EPA
said the Library should reject these requests, because people might get access to diagnostic info... and then break emissions controls and pollute the environment or something. Apparently, only the automakers should be allowed to do that by themselves
Here, the Library of Congress sort of
grants that exemption, but with all sorts of caveats:
Computer programs that are contained in and control the functioning
of a motorized land vehicle such as a personal automobile,
commercial motor vehicle or mechanized agricultural vehicle, except
for computer programs primarily designed for the control of
telematics or entertainment systems for such vehicle, when
circumvention is a necessary step undertaken by the authorized
owner of the vehicle to allow the diagnosis, repair or lawful
modification of a vehicle function; and where such circumvention
does not constitute a violation of applicable law, including without
limitation regulations promulgated by the Department of
Transportation or the Environmental Protection Agency; and
provided, however, that such circumvention is initiated no earlier
than 12 months after the effective date of this regulation.
Even more bizarre, in the description about this exemption, it appears to say that this exemption can only be used if you are doing the circumvention yourself -- and not for hiring someone to do it for you. Absolutely ridiculously, it points to the language of the bill Congress passed to smack the Library around last time on the phone unlocking exemption:
Moreover, by passing the
Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other
devices to be carried out by third parties “at the direction of” device owners—Congress
indicated its view that extending the reach of an exemption to cover third-party actors
requires a legislative amendment.
Wha....? In the fight over the Unlocking Act, there was serious concern that early drafts of the bill would cut out companies that help individuals unlock their phones. And thus to make sure that such things weren't excluded, Congress made it explicit that it covered third parties unlocking phones "at the direction of" device owners. And yet... now the Library of Congress is ridiculously interpreting this to mean that it cannot
grant such an exemption without Congress stepping in.
That's... wrong. And ridiculous.
And that's not the only problem with this. The one year delay in implementation is ridiculous as well. The Library of Congress notes that this is to allow other agencies to weigh in, but we just had a whole year
for agencies to weigh in and many of them did. Yet, now, they want to delay the implementation of a three year exemption by one whole year in case more of them want to weigh in after the fact? Clearly this is because the Library of Congress is gunshy about what happened with unlocking last year, but to totally upend the process and delay a necessary exemption is no way to do that.
Similarly bizarre: the Library of Congress seemed to think it's perfectly fine to weigh outside factors in determining this issue, even though it's supposed to be judging things entirely based on the copyright issues. So, for example, with this same exemption on car repair and diagnostics, it allows the Copyright Office to review copyright-related factors, but then seemed to indicate that it was just fine for it to also review things that have nothing to do with copyright
. It notes that "serious safety and environmental issues... weigh against an exemption." But that's not a copyright issue
. We should not be using copyright law to regulate other things. We already have safety and environmental laws, and the Copyright Office explicitly endorsing the use of copyright laws to add some sort of additional environmental law (especially one that gets it so backwards) is patently ridiculous.
There are other problems in the rules as well. Michael Weinberg takes a look at the similarly problematic rules on 3D printing
, where the same basic thing happened. The overall rule seems like it's going in the right direction, but is so full of weird and unnecessary and troubling caveats that it mostly erases the good parts of the rule.
There are similar issues in other parts as well. For example, an exemption is added for MOOCs (Massive Open Online Courses) that want to use small snippets of locked up content (usually movies or news clips) as part of their classes: classic fair use. And the Library of Congress says that's okay... kind of. It only applies to "accredited nonprofit educational institutions." That sounds reasonable at first, until you realize that many MOOCs are actually run through for-profit entities. For example, Coursera is one of the most popular MOOC platforms out there, but is a for-profit venture.
So, the exemption here wouldn't be usable by National Geographic, who runs its MOOC via Coursera. And there are lots of others who would be similarly blocked, even if the use is clearly fair use.
: Actually, it appears this would be allowed).
It really seems like the Library of Congress has made things increasingly more complex for the sake of trying to "split the baby" on things, and in part because it got slapped down so hard three years ago. But the end result is that you get a split baby that seems to go way beyond what the law was intended to allow and pisses off everyone (especially the baby). Laura Quilter, the Copyright and Information Policy Librarian at UMass Amherst summarized the mess of these rules
The prolixity of this rulemaking puts it into its own special hell of inaccessible, unintelligible, crazy-making meshugaas.
This isn't how law should be made, and it's unclear why this is still allowed.