The United States Copyright Office is now accepting comments in support of exemptions to the Digital Millennium Copyright Act's (DMCA) anti-circumvention provisions, and we need your help by December 7th to ensure that every new exemption is granted.
The DMCA has been making headlines recently for all the wrong reasons. The Recording Industry Association of America (RIAA) recently was able to temporarily have youtube-dl removed from GitHub, via a poorly thought out take down notice. GitHub has now restored youtube-dl, but not before forcing some changes to the project. While the safe harbor provisions of the DMCA can have some use, it's clearly an abuse for the RIAA to interfere with such a project -- particularly given that part of their notice was a claim about some sort of violation of YouTube's rights, not the RIAA's, and was related to a different section of the DMCA, the section 1201 anti-circumvention provisions. Those provisions create legal penalties for avoiding Digital Restrictions Management (DRM), and even harsher penalties for sharing the tools to do so.
This last point -- the separate penalties for sharing tools used to remove restrictions -- is especially important. Recently, Google demanded GitHub take down tools used to work around its Widevine DRM. This just underscores that users will be unable to take advantage of even approved exemptions, unless they are able to write their own tools from scratch to get the DRM out of their way. It's like saying everyone is free to cook what they want in their own kitchen, but buying and selling stoves is illegal.
The anti-circumvention provisions are destructive to the rights of users, only marginally mitigated by a 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.
As luck would have it, as the RIAA is abusing the take down system, the next round of this exemptions process is well underway. The Copyright Office announced that they had compiled 17 classes of proposed exemptions, and is now taking comments in support of those exemptions. Each exemption has to narrowly target a particular use, so while each one granted is a victory, it's only incremental progress. While this system is unfair to users and activists, gaining back even some control over our computing is important.
Of particular interest in this round of the exemptions process is proposed Class 16: Copyright License Investigation. This class would enable organizations like the Free Software Foundation to peek inside DRM-encumbered software to find out if free software is locked inside. Without this exemption, violators could hide behind DRM in order to cloak their violations of the GNU General Public License (GPL) or other copyleft licenses. This proposed exemption is not only important for the FSF's work handling GPL compliance for the GNU Project, but it also showcases the absurdity of the whole anti-circumvention provisions regime. How can it be that those who violate copyright can be shielded from discovery by a law ostensibly meant to protect copyright? Why is any user at legal risk for accessing software they are entitled to under the terms of a free software license? Or for sharing tools to control that same software?
The answer, of course, is that DRM has nothing to do with enforcing copyright law, and everything to do with control. It lets companies control their users so they can't repair their own devices. It gives governments extra-judicial control over their citizens. It lets copyright violators control access to the evidence of their violations. It's time we took back control!
We won't stop until the anti-circumvention provisions of the DMCA are repealed, and this mess of an exemptions process is ended. But for now, we don't want to pass up on the opportunity to claw back at least some of our rights. As we have repeatedly done over the decades since the DMCA was enacted, we are once again supporting each and every proposed class of exemptions. From exemptions for librarians wanting to preserve our cultural heritage, to exemptions for activists working to improve accessibility via transcription, to exemptions for users wanting to jailbreak streaming devices, and yes, even exemptions for nonprofits fighting to keep free software free: we want every right that was stolen from us returned to us all.
As we have in years past, we're asking everyone to join in our comments in support of each and every exemption. Every voice makes a difference. Will you aid us in taking back control? Here is how you can help:
Support our comments for new exemptions by emailing us at licensing@fsf.org by December 7th. We just need your name and state (or country, if you are outside the US) to add your voice to the chorus. With the US exporting its software and bad laws around the world, we need all the help we can get.
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Support our work in this area by becoming an associate member. The FSF is in the middle of our annual fundraiser, and associate members offer the continued support the Defective by Design campaign needs to continue the fight to take back control.