Copyright Regulator Eases Restrictions on Research, Education, and Repair

The Digital Millennium Copyright Act (DMCA) has interfered with a staggering array of speech and innovation, from security research to accessibility for those with disabilities to remix and even repair. By forbidding unauthorized access to a copyrighted work—even for purposes that don’t infringe copyright—the DMCA effectively erased over a century of law that limits copyright to protect free expression. 

Every three years, the DMCA requires the Copyright Office and Librarian of Congress to consider the public’s requests for exemptions to this terrible, restrictive law. Building on our previous successes protecting security research, remix culture, jailbreaking, and more, we again participated this cycle.

The latest exemptions [PDF] are mostly an improvement over previous exemptions and represent a victory for security research, accessibility, education, preservation, and repair. While the exemptions do continue to contain unnecessary and harmful limitations, we’re pleased with the additional freedom to operate that the Librarian granted in this rulemaking, including new exemptions to jailbreak streaming video devices like Apple TV or the Fire Stick; to jailbreak routers; and to circumvent in order to identify violations of free, libre, and open-source licensing terms. The latter two exemptions were championed by our friends at the Software Freedom Conservancy.

On the repair front, we achieved an important victory by expanding the scope of the exemption to cover all consumer electronics (with a couple of small carveouts for certain vehicle systems and parts of video game consoles). This means that manufacturers won’t be able to use the law to prevent independent repair. This was a joint effort between advocacy groups and repair organizations representing independent repair of everything from medical devices to boats.

The largest disappointment, however, is that the agency failed to protect the public’s ability to make non-infringing modifications of device software as we requested. We previously successfully advocated for people to be able to make lawful modifications of the software that controls vehicles like cars and tractors, and this kind of user innovation has been a profoundly important driver of advances in technology. It lets communities who are not served by a technology’s default functions to customize them to their own needs, either adding new features or taking out unwanted spyware. 

EFF submitted multiple examples of noninfringing modification during the rulemaking [link our comments]: improving digital camera software to enable new artistic options for photographers, making your smart litter box accept third-party cleaning cartridges, customizing a drone to operate on a wire instead of flying, improving the interface on a device to make it less distracting or more accessible (e.g. for colorblind users), and more. While the exemption for repair was extended to cover consumer electronics generally as we asked, these kinds of lawful modifications were left out without much discussion. The National Telecommunications and Information Administration (NTIA), which has input on the process, joined us in supporting an exemption for modifying the functionality of devices, but the Copyright Office and Librarian disagreed.

Unfortunately, the rulemaking process is inherently limited: while the Librarian can authorize people to engage in circumvention, they cannot create exemptions to the part of the law that prohibits the dissemination of the technology needed to achieve circumvention. In other words, while you can take advantage of these exemptions, it may still be unlawful to provide you a tool to help you do so. Congress needs to remove that restriction in order to give these legal rights to circumvent their full practical effect. Even better, Congress should do away with this unnecessary and harmful law altogether.