DMCA exemptions process shows why anti-circumvention rules need to be repealed

Submitted by Donald Robertson on November 6, 2015 - 8:21am

The deck was always stacked against users in the Digital Millennium Copyright Act's (DMCA) anti-circumvention exemptions process. The DMCA creates legal penalties for users who circumvent Digital Restrictions Management (DRM), as well as those who share the tools necessary to do so. Every three years activists have the opportunity to ask for exemptions permitting circumvention for particular uses. In the 2015 round of this process, 27 categories of exemptions were proposed, and the FSF commented in favor of granting all 27. We did this because we believe DRM is unjust, and that the DMCA's anti-circumvention rules compound this injustice and should be repealed. The Library of Congress (LOC) finally published which exemptions we receive in this round, and the outcome for users is another three years of legal penalties hanging over their head should they try to control their own computing.

While there were some notable successes (the Software Freedom Conservancy and Electronic Frontier Foundation each succeeded in gaining some exemptions for users), the LOC failed to grant all of the proposed exemptions, leaving many legitimate and ethical uses trapped in the DMCA's legal cage. While the LOC granted an exemption permitting users to circumvent DRM on their vehicles, they limited this exemption so that circumventing the entertainment or communications software on a car remains subject to penalty. The exemption was further limited based on feedback from the Environmental Protection Agency (EPA) calling for the LOC to keep penalties in place on circumventing vehicle DRM in order to try to digitally enforce emissions standards, an issue wholly unrelated to copyright. This is despite the fact that DRM and the DMCA helped Volkswagen hide emissions testing fraud from the EPA, as we recently highlighted.

The EPA wasn't the only government agency intervening the process trying to co-opt the DMCA to enforce rules unrelated to copyright. The FDA also intervened to restrict user rights when it comes to medical devices. Using DRM to enforce copyright is in no way justified, but that is at least the DMCA's purported reason for existence. These sorts of non-copyright justifications for the DMCA's anti-circumvention rules demonstrates that DRM has nothing to do with rights, and everything to do with restriction.

The FSF made a longer statement on the outcome of the process. In that statement we argue that the process and outcome of the current round of exemptions shows why the system doesn't work. There is no legitimate case for restricting users with DRM. DRM treats everyone as a criminal, and blocks legitimate uses and research that users have every right to enjoy in their devices. The DMCA's exemption process places the burden on activists to propose narrow exemptions, exemptions that even once granted must be defended against in every continuing round until the end of time. It allows companies and government agencies with greater resources than activists to then intervene to block or repeal even those limited exemptions. And even where exemptions are granted, they do not extend to the sharing of tools which are needed to actually break out of the digital jails DRM creates.

That is why we call on Congress to repeal the DMCA's anti-circumvention provisions and end this broken process. Users cannot enjoy freedom in their lives so long as legal penalties hang over their head. Join us in the fight to end the broken exemption process and rid the world of DRM.

Here's what you can do to help:

If you microblog, please share the following message (or your own) with the hashtag #DRMshame. We strongly suggest that if you use Twitter to publicly call the LOC out, you do it in a way that avoids using proprietary software:

  • The DMCA exemption process is broken beyond repair, @librarycongress should have granted all exemptions #DRMshame https://u.fsf.org/1hv

Also, please consider: