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 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.
Although it is accurate, there's one aspect of the process that is missing from that description: the length. While the process kicks off every three years, the work that goes into fighting exemptions, whether previously granted or newly requested, has a much shorter interval. As you can see from the timeline of events from the 2018 round of the exemptions process, the process stretches on for months and months. For each exemption we have to prepare research, documents, and our comments through wave after wave of submission periods. For the 2018 exemptions round, the first announcements from the United States Copyright Office were in July of 2017, on a process that concluded in October of 2018. Fifteen months, every three years. If you do the math, that means we're fighting about 40% of the time just to ensure that exemptions we already won continue, and that new exemptions will be granted. If the timeline from the last round holds up, then we're only a few short months away from starting this whole circus back up again.
Describing it as a circus seems an appropriate label for the purpose of this whole process. It's not meant to be an effective mechanism for protecting the rights of users: it's a method for eating up the time and resources of those who are fighting for justice. If we don't step up, users could lose the ability to control their own computing and software. It's like pushing a rock up a mile-long hill only to have it pushed back down again when we've barely had a chance to catch our breath.
In that sense, the exemptions process is much like DRM itself: a method of control that pretends to be about rights. DRM is the use of technological measures to control what users can do with their own devices and digital media. As we've explained previously:
DRM creates a damaged good; it prevents you from doing what would be possible without it. This concentrates control over production and distribution of media, giving DRM peddlers the power to carry out massive digital book burnings and conduct large scale surveillance over people's media viewing habits.
The DMCA's anti-circumvention provisions use legal measures to reinforce this harmful level of control, and the exemptions process uses blind bureaucracy to increase the burden of fighting that control.
We have had some success in diminishing that bureaucracy, even if we haven't been able to kill it outright. In the 2018 round of the exemptions process, the Copyright Office simplified the fight to protect previously granted exemptions, letting them stand unless challenged. That resulted in all previously granted exemptions being granted again in the 2018 round. That is good progress, but it is not enough, because there are companies with billions of dollars who can easily raise challenges to each exemption.
We call once again for the end of the DMCA's anti-circumvention provisions, and the absurd exemptions process that comes with it. Users have the right to control their own computing, and the right to share the tools we create with others. The DMCA violates those rights.
We shouldn't have to fight for what is already morally ours. But fight we will, and we won't stop no matter how many hurdles they throw in front of us. We can't stop until all users have their rights restored. Here's what you can do to help:
If you are in the US, complain to your congressperson about section 1201 of the DMCA, which threatens criminal penalties for removing DRM.
Sign up for our mailing list so you can be ready for the next round in this fight.
This article is a part of Copyright Week.