from the clear-bullshit dept
For years we’ve covered the silly triennial review process associated with Section 1201 of the DMCA. If you don’t know, Section 1201 is the part that makes circumvention of any “technological measures” a form of infringement, even if bypassing those technological measures is not for copyright infringing reasons. It’s actually even worse than that, because it’s not just the actual circumvention that could violate the rules, but any attempt to “manufacture, import, offer to the public, provide, or otherwise traffic in…” anything that can be used for circumventing.
It does not take long to realize how this would turn all sorts of perfectly reasonable activities into violations of the law, and rather than admit that this showed how flawed the underlying law was, Congress dealt with it through the “triennial review” process, whereby every three years, anyone could apply to the Librarian of Congress to exempt certain situations from 1201. It’s a convoluted and silly process, but after the first five or six such reviews, it has gotten less ridiculous and less controversial (though still problematic).
One issue that went haywire a decade ago was the decision not to renew an exemption on mobile phone jailbreaking (yes, each exemption has to be reapplied for every three years). These days, it seems that the Librarian of Congress and the Register of Copyright are well aware of that shitfest, and exemption renewals are pretty much a rubber stamp. In the last triennial review, the Copyright Office made it clear that their new “streamlined process” means past exemptions will be renewed unless something has drastically changed.
For as screwed up as the overall process is, this is a good thing. Having people rely on an exemption only to have it go away would be a disaster.
Anyway, the next triennial review is slated for next year, but the process has already begun. In July, we got petitions to renew the existing exemptions, and in August we got petitions for new exemptions.
Again, ever since the jailbreaking fiasco, the renewal petitions have generally been uncontroversial. One exception may be in the medical device arena, where a bunch of medical device makers sued the Library of Congress last year over the expanded exemption on getting data out of your medical devices. Not surprisingly, a bunch of medical device industry folks are opposing that renewal.
There was also the always expected whining from the DVC Copy Control folks who always oppose any attempt to be able to get content off of DVDs.
However, there was one other opposition to a renewal this year, which came out of nowhere. It’s from “Author Services Inc.” which describes itself as “Representing the literary, theatrical and musical works of L. Ron Hubbard.” (Today I learned that L. Ron Hubbard released musical albums, but I digress).
L. Ron Hubbard, of course, is the sci-fi writer who duped thousands of people into believing in a very silly “religion” that he made up to get rich. Part of that “religion” is the “e-meter” that they use for “auditing,” which is a bunch of junk science where they try to get people to tell the organization a bunch of things they can use against you later.
The Hubbard estate (dba “Author Services Inc.”) suddenly seems very concerned about the exception for “computer programs that are contained in and control the function of a lawfully acquired device that is primarily designed for use by consumers, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device….” This is the “right to repair” exemption for 1201, which lets you ignore 1201 for repairing devices (but not much more).
Apparently the Hubbard estate didn’t know or care about this until recently, as I can find no evidence of it weighing in when that exemption was being considered originally.
However, now Hubbard’s estate is worried that people might take apart their e-meters, it seems. Perhaps because the Play with Junk YouTube channel got an old e-meter off of eBay and took it apart. The general conclusion was that the “$5,000” device is what appears to be a hand-built device with approximately $200 worth of components.
So, Hubbard’s estate doesn’t mention the e-meter specifically, but does say it’s concerned about this exemption for a very specific reason:
Other devices, however can only be purchased and used by someone who possess particular qualifications or has been specifically trained in the use of the device. In such cases, the license agreement regarding the use of the software that controls the device is not a unilateral “shrink-wrap” license but rather is negotiated and agreed to in advance of the purchase of the device. Such agreements may impose restrictions on transfer and use of the device itself, as well as restrictions on the use of the controlling software. In many case, such restrictions are essential to ensuring the safe and proper use of the device, which is essential for the device manufacture to maintain its reputation and goodwill.
Basically, because we say the e-meter needs special training, people shouldn’t be able to take it apart.
Remember, the Church of Scientology is somewhat famously litigious and threatening (they recently sent us an angry letter for merely reporting on a John Oliver bit that mentions Scientology in passing). Being able to threaten and/or sue people for taking apart their e-meters is probably something that is appealing to them. Scientology certainly has a history of using copyright law to bully critics.
Hopefully the Copyright Office knows better than to think this is a legitimate concern or a reason to change the right to repair exemption. To their credit, the Hubbard Estate isn’t asking to get rid of the exemption entirely, but just to modify it to make clear it doesn’t apply to devices that “may only be purchased by someone who possess particular qualifications and/or has been specifically trained in the use of the device.”
But, first off, that makes no sense, and creates a massive loophole which device makers will use to block repair of all sorts of devices. And, really, this just seems like “Author Services Inc.” looking for yet another tool to bully people with frivolous, vexatious threats and lawsuits.