The U.S. Copyright Office should end the broken DMCA anti-circumvention exemptions process

Submitted by Donald Robertson on January 17, 2017 - 12:30pm

We are participating in Copyright Week, a series of articles and actions guiding copyright policy. Various organizations have come together this week to push for a better future in which copyright law works for everyone and respects the rights of users everywhere.

The Free Software Foundation (FSF) submitted a comment to the U.S. Copyright Office calling for the end of the broken Digital Millennium Copyright Act's (DMCA) anti-circumvention exemptions process.

The DMCA has some particularly nasty provisions, creating legal penalties for avoiding Digital Restrictions Management (DRM) or for sharing the tools to do the same. The law is a damaging blight on users' rights. It comes, however, with a process for exempting limited uses from its harm. But as we explained long ago, the process is completely broken:

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.

The system is currently even worse. Submitting comments to the U.S. Copyright Office via a web interface requires the use of proprietary JavaScript, making it impossible for free software users to even have their voice heard. The FSF previously had its comments rejected on this basis. In the latest round of this saga, the U.S. Copyright Office asked for feedback on the system itself, and fortunately had a change of heart, accepting comments in person. The FSF was thus able to submit a comment on October 27th, 2016.

In this comment (PDF), we call once again for an end to the whole fiasco of granting exemptions. We want the DMCA's anti-circumvention provisions to be repealed completely. The U.S. Copyright Office should make this recommendation to the U.S. Congress in its report, and finally end this madness. At the very least, the U.S. Copyright Office should extend a permanent exemption for all uses, likewise ending the Byzantine process of routinely applying for exemptions. Further, in order for users to make practical use of these permanent exemptions, the right to share tools for freeing devices and software must likewise be protected from the overreach of the DMCA's provisions.

While the U.S. Copyright Office has accepted the comment, what they will do next remains to be seen. The DMCA's anti-circumvention provisions multiply the harm caused by DRM, and so we must not stop until these provisions are repealed or nullified. Here's what you can do to help: