The DMCA could use an update, but not the one US Copyright Office recommends

Submitted by Donald Robertson on August 31, 2020 - 12:46pm

The United States Copyright Office has released a report recommending updates to the Digital Millennium Copyright Act (DMCA), while leaving anti-circumvention rules unchanged.

Over twenty years ago, the United States enacted a law known as the DMCA. The law amended the Copyright Act of 1976, implementing a series of rules addressing the changing technology landscape. The most damaging aspect of that law is section 1201, which implements rules preventing the circumvention of Digital Restrictions Management (DRM), and the sharing of tools needed for circumvention. This aspect of the law creates legal penalties for any user trying to control their own computing, or who tries to help their neighbor do likewise. It's pretty strange to refer to this activity as circumvention since really it's just regaining full control of bits present on your own computer, but this is the terminology used in the law. While ostensibly meant to enforce copyright, companies and government agencies over the past two decades have abused this law for whatever purpose they see fit.

The anti-circumvention provisions harm all users, and the only reprieve from its abuse is a comically broken exemptions system. As we wrote previously:

Every three years, supporters of user rights are forced to go through a Kafkaesque process fighting for exemptions from the anti-circumvention provisions of the DMCA... In short, under the DMCA's rules, everything not permitted is forbidden. Unless we expend time and resources to protect and expand exemptions, users could be threatened with legal consequences for circumventing the DRM on their own devices and software and could face criminal penalties for sharing tools that allow others to do the same. Exemptions don't fix the harm wrought by the DMCA's anti-circumvention provisions, but they're the only crumbs Congress deigned to throw us when they tossed out our rights as users.

For years now, we have called on the government to end this madness and repeal the anti-circumvention provisions. So when the Copyright Office released a report on the DMCA earlier this spring, there was some hope that change would come. But our hopes were dashed when the report's main recommendations related to other rules in the DMCA, in particular the safe harbor provisions. The DMCA's safe harbor provisions implement the take-down notice system that many users are likely familiar with via video sharing sites. Users stung by take-downs likely won't enjoy the Copyright Office's recommendations on that aspect of the law, and the failure to meaningfully address or recommend change to the anti-circumvention provisions is shameful.

The recommendations do nothing to protect the rights of users, who have demanded for years that the DMCA's anti-circumvention provisions must be repealed. The report comes at an important time, as the United States Congress is considering amending the decades-old law. But like the Copyright Office, they too seem more interested in twisting up the Internet over the law's safe harbor provisions.

While the buzz of change is in the air, for users, things are feeling all too familiar. We are once again facing down the barrel of the broken anti-circumventions exemptions process. The push for renewals of previously existing exemptions has already begun, and the fight to gain new exemptions will start in short order. Like so many times before, activists will be expected to expend time and resources proving that their rights are infringed by DRM, in order to gain narrow exemptions that can be challenged every three years. Even where we succeed in gaining exemptions, we know that sharing the tools needed to take advantage of them will still be prohibited. If users can't share knowledge and tools about how to remove DRM for one of the exempt purposes, then only users skilled enough to break DRM on their own can benefit from them -- an utterly ridiculous situation. So while we will support specific exemptions in the hopes of winning a little ground for freedom, our main message will continue to be that the entire broken system should be abolished.

And continue we must. Past actions have gained us some success, like simplifying the process for renewing exemptions, but we have to keep building on that success and keep fighting for every inch. The Copyright Office and Congress ignore us at their peril, because users have the right to control their own computing, and people will never give up fighting for their rights. Will you help us in this fight? Here's what you can do to join the cause: