In DMCA anti-circumvention fight, we don't want exemptions, we want justice

The Digital Millennium Copyright Act (DMCA) has one particularly draconian measure criminalizing the circumvention of digital restrictions management (DRM). This section, which appears in law as 17 U.S.C §1201 states that "[n]o person shall circumvent a technological measure that effectively controls access to a work". This facet of the law completely violates users' rights to their own devices, and their legitimate use rights to copyrighted works. The law further criminalizes the sharing of tools and information needed to circumvent these restrictions. As paltry compensation, Congress did carve out a narrow window of opportunity to exempt certain uses via the DMCA exemption process. Congress claims that this exemption process is sufficient to protect our rights, but it tragically isn't. Even worse, international treaties like the Trans-Pacific Partnership (TPP) seek to export this terrible law (along with many others) to the whole rest of the world.

Every three years, the Library of Congress (LOC) takes proposals for uses that should be exempt from the DMCA's anti-circumvention provisions. Activists, companies, and trade organizations have to not only propose new exemptions, they must also plead with the LOC to continue exemptions that were previously granted. The LOC then takes these proposals, along with the comments for and against them, and does whatever the heck it wants. They often get things comically wrong, and the last round of exemptions failed to leave the right to unlock your own cell phone alone. The LOC was so far off-base that Congress actually intervened and reinstated the right to unlock cellphones. Congress unfortunately dropped the ball here as well, only asking the LOC to consider whether unlocking should be permitted on other mobile devices like tablets, instead of simply reinstating the right. But with the reinstatement of the cellphone unlocking exemption less than a year in the rear-view mirror, we're already back fighting again to protect users from this wrong-headed law.

And the process isn't simple. Exemptions need to be narrowly tailored, sometimes being directed at a single application or device. People fighting for the rights of users have to spend countless hours drafting formal documents. The instructions for filing a comment explicitly state that the process is not a vote; that more involved comments will have a greater effect. This unfairly gives an advantage to organizations with greater resources, and takes away power from individuals who care about controlling their own computing.

Every three years we are forced to come back to this burdensome process to fight to keep and expand our right to use our software, devices, and media with free software. Every three years we have to propose to keep our current exemptions, and to push for new ones as new technology and software comes about. Because the exemptions are so narrow, we're forced to draft dozens of exemptions and hope that a few get through.

While in the past we prioritized our limited resources on the exemptions that would have the greatest effect on computer user freedom, this round, we supported every proposed exemption. Every. Single. One. There is no moral justification for DRM, let alone for a law that places criminal penalties on those who are forced to circumvent such restrictions in order to use their own software and devices. From video game consoles to cars, from cellphones to implanted medical devices, we support the right of users to unlock, jailbreak, modify, and study the tools and software they own. We even supported an exemption for a single music recording device that two people have been pleading with the Library of Congress for years to have freed. Every digital restriction is an affront to freedom, even if it only affects one user. In all 27 comments that we filed, we push for the Library of Congress to simply end this madness and create an exemption for all uses. We further demanded that this exemption should extend to sharing of tools, software and instructions intended to circumvent DRM. And as for Congress, when they inevitably have to come in and correct the mistakes of the LOC, we demand that they simply repeal all restrictions on circumvention.

In the mean time, the fight continues. The next round of comments, from those who oppose even these limited exemptions, will be arriving. We'll be keeping track of who these offenders are and pushing users to fight back against those who want to profit from criminalizing user freedom. The TPP negotiations are threatening the rest of the world with these same terrible provisions and must be stopped. But we're not alone in this fight. Along with our fellow freedom fighters at organizations like the Electronic Frontier Foundation, Public Knowledge, the Software Freedom Conservancy and the Berkman Center for Internet & Society, we know we can rely on individuals like you to aid in the battle against DRM. Here's what you can do to help:

  • Share our story with your friends, family and coworkers on social media.
  • Join our Defective by Design mailing list to keep up to date on the DMCA anti-circumvention battle.
  • If you are in the U.S.A., write to your legislators and demand that they repeal the DMCA's anti-circumvention provisions.
  • If you are anywhere in the world, fight back against TPP and other agreements like it.
  • Donate to help support our work in this fight.