In 1998, Bill Clinton signed the Digital Millennium Copyright Act into law, including Section 1201, while felonizes the distribution of tools to bypass “access controls” (AKA DRM).
Practically speaking, that means if your printer cartridge has a digital lock that stops you from refilling it, then anyone who makes a tool to unfuck your printer risks a 5-year prison sentence and a $500k fine.
DMCA 1201 is an unmitigated disaster. Companies use this law to force you to sideline your own interests and instead conduct yourself to the sole benefit of their shareholders.
All they need to do is design the product so that using it your way means breaking DRM and your way becomes a literal felony: from repair to security audits, from consumables to parts, from apps to features.
DRM has proliferated as a means of enforcing shareholder preferences in your own home.
When DMCA1201 passed, Congress charged the US Copyright Office with holding hearings every three years to uncover potential problems with this very problematic law.
At these “triennials,” people whose legitimate activities have been undermined by DRM can go before a committee of Copyright Office lawyers and beg for the right to use their stuff their way.
To its credit, the Copyright Office has granted many exemptions over the years despite objections from big entertainment and tech companies. But these exemptions are only for “uses” and not “tools.”
When the Copyright Office grants archivists the rights to bypass DRM to preserve media, it can’t authorize anyone to give those archivists a tool to accomplish this use.
Or an exemption for visually impaired people to bypass DRM on ebooks so they can be used with screenreaders, Braille printers or text-to-speech: this permits each blind person to find and exploit defects in ebook DRM, but not to help one another, or get help from others.
There are instances in which a use exemption does some good: for example, if you want to make interoperable diagnostic tools for cars, a use exemption lets you bypass the engine’s DRM to learn what the error codes mean, and then build a tool that interprets them for others.
And many archivists are comfortable with sourcing underground tools to bypass DRM once they know they can legally use those tools.
But for the most part, the best thing we can say about use exemptions is they force the US government to document the defects in DMCA 1201.
The DMCA has a 22 year track record, and it’s uniformly terrible, and getting worse - DMCA 1201 is how Medtronic is preventing independent hospital technicians from repairing their ventilators, RIGHT NOW, during a once-in-a-century pandemic.
Documenting the law’s defects is more urgent than ever, especially as competition regulators on both sides of the Atlantic are investigating the ways that DRM creates and reinforces monopolies.
And you can help!
In 2021, the Copyright Office will once again consider petitions for exemptions to DMCA 1201, and @EFF is looking for your stories to help us craft our slate of proposed new exemptions.
attempted or planned to repair, modify, or diagnose a product with a software component; and
encountered DRM that prevented completing the modification, repair, or diagnosis
—we want to hear from you!
“Please email us at RightToMod-2021@eff.org with the information listed below, and we’ll curate the stories we receive so we can present the most relevant ones alongside our arguments to the Copyright Office.”
