DMCA exemption commenting process broken beyond repair

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 Digital Millennium Copyright Act (DMCA). We explain this process more fully in our announcement of the comments we filed this year. 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 digital restrictions management (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 brought about 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. So, every three years we are forced to claw and fight for these minimal protections. But while we work to protect and expand user rights, other groups are fighting just as hard to dilute what little safety the exemptions process is meant to provide -- by opposing proposed exemptions.

While organizations and individuals who supported exemptions had to submit their comments by February 6th, those working to stop exemptions had until March 27th to file their comments. The companies and trade groups that oppose DMCA exemptions generally have greater resources for navigating this broken system, and they choose to use those resources to reinforce the DMCA's draconian anti-circumvention provisions. As we wait for the Copyright Office to finish publishing those comments so that we can name and shame those who support the DMCA's worst provisions, we would like to discuss our experience working with this broken process. Astute observers may have noticed that when comments in support of DMCA exemptions were published, there were no comments from the Free Software Foundation. This was perplexing, because we had actually commented in support of every single proposed exemption. After some back and forth with the Copyright Office, our comments have now been published. So what happened?

As it turns out, the Federal Register had a mechanism for submitting comments on their Web page announcing the commenting period. Phone calls to the Copyright Office revealed that the office had no idea that the Federal Register was taking comments. This is despite the fact that we had received confirmation emails from the Federal Register that our comments had been submitted and that they would be posted by the Copyright Office. Over the phone, we were assured that this was a mistake and that the Federal Register should not have been accepting comments at that time. While we are glad that the issue is now resolved and that our comments are now published, this is more evidence that the exemption creation process is truly broken. If the departments handling the acceptance and publication of comments don't even know the origin or destination of the comments, how can we be sure they are up to the task of ensuring users get the little protection the exemption process provides? How can the voices of people who oppose DRM and the DMCA's anti-circumvention provisions be heard if their comments get lost in a bureaucratic maze, where one hand of the government doesn't know what the other is doing?

DRM is morally wrong, and criminalizing the tools of its circumvention, doubly so. The exemptions process is theoretically meant to lessen this wrong. But with the process so completely broken, there is no real way to protect users under the current system. That is why we call on Congress to end the madness and remove the DMCA's anti-circumvention provisions entirely. The exemption process is fundamentally broken and cannot possibly protect the rights of users. We need a full reset. Here's what you can do to help:

  • If you live in the U.S., contact your Congressperson and tell them you oppose DRM and the DMCA's anti-circumvention provisions.

  • If you live outside the U.S., fight back against TPP, which would extend the worst provisions of the DMCA globally.

  • Join our Defective by Design mailing list to keep up to date on the latest in the fight against DRM.

  • Donate to help support our work in this fight.