EFF: New Exemptions to DMCA Section 1201 Are Welcome, But Don’t Go Far Enough

New Exemptions to DMCA Section 1201 Are Welcome, But Don’t Go Far Enough

We’re pleased to announce that the Library of Congress and the Copyright Office have expanded the exemptions to Section 1201 of the DMCA, a dangerous law that inhibits speech, harms competition, and threatens digital security. But the exemptions are still too narrow and too complex for most technology users.

Section 1201 makes it illegal to “circumvent” digital locks that control access to copyrighted works, and to make and sell devices that break digital locks. Every three years, the Copyright Office holds hearings and accepts evidence of how this ban harms lawful activities. This year, EFF proposed expansions of some of the existing exemptions for video creators, repair, and jailbreaking.

With this rulemaking, there will be more circumstances where people can legally break digital access controls to do legal things with their own media and devices:

  • People who repair digital devices, including vehicles and home appliances, will have more protection from legal threats.
  • Filmmakers, students, and ebook creators will be able to use video clips more freely.
  • People can now jailbreak and modify voice assistant devices like the Amazon Echo and Google Home, as they can with smartphones and tablets.
  • Security researchers will have more freedom to investigate and correct flaws on a wider range of devices.

But the Copyright Office rejected proposals from many people to simplify the exceptions so that ordinary people can use them without lawyers. EFF proposed to expand the exemption for vehicle maintenance and repair to cover all devices that contain software, and to cover legal modification and tinkering that goes beyond repair. We cited a broad range of examples where Section 1201 interfered with people’s use of their own digital devices. But the Office expanded the exemption only to “smartphone[s],” “home appliance[s],” and “home system[s], such as a refrigerator, thermostat, HVAC or electrical system.” This list doesn’t come close to capturing all of the personal devices that contain software, including the ever-growing “Internet of Things,” for which people need the ability to repair and maintain without legal threats. And the Office has again refused to expand the exemption to lawful modification and tinkering.

In a similar way, the Copyright Office rejected proposals to stop dividing video creators into narrow categories like “documentary filmmakers” and creators of “noncommercial videos” and “multimedia e-books.” Each group of creators will still have to jump through several varying legal hoops to avoid lawsuits under Section 1201 as they do their work.

The exemptions announced yesterday will help more creators and technology users, but they don’t save the law from being an unconstitutional restraint on freedom of speech. The Constitution doesn’t permit speech licensing regimes like this rulemaking that give government officials the power to deny people permission to express themselves using technology where officials claim total discretion to grant or deny permission without binding legal standards or judicial oversight. EFF represents entrepreneur Andrew “bunnie” Huang and Professor Matthew Green in a lawsuit seeking to overturn Section 1201. Having finished this year’s rulemaking, we look forward to continuing that case.

Related Cases: 
2018 DMCA Rulemaking

Comments

Post a Comment

Popular posts from this blog

EFF: No Digital Surveillance of Iranians at the U.S. Border—or Within the U.S.

No Digital Surveillance of Iranians at the U.S. Border—or Within the U.S. Only days into heightened tensions between the United States and Iran, media outlets have published disturbing reports of increased scrutiny of people of Iranian descent at U.S. borders, including in at least one case involving a traveler’s phone. EFF strongly opposes any targeting of people for digital surveillance based on their race, religion, or nationality, at our border and in our interior. And we remind all members of the public to practice surveillance self-defense. Disturbing Reports from the Border On January 5, media outlets reported that more than 60 people of Iranian descent, including U.S. citizens, were held at the border between Canada and Washington state for many hours and questioned about their perceived connections to Iran. U.S. Customs and Border Protection (CBP) denied that it detained or refused entry to Iranians based on their national origin, a claim contested by accounts f
Read more

EFF: Corporate Speech Police Are Not the Answer to Online Hate

Corporate Speech Police Are Not the Answer to Online Hate A coalition of civil rights and public interest groups issued recommendations today on policies they believe Internet intermediaries should adopt to try to address hate online. While there’s much of value in these recommendations, EFF does not and cannot support the full document. Because we deeply respect these organizations, the work they do, and the work we often do together; and because we think the discussion over how to support online expression—including ensuring that some voices aren’t drowned out by harassment or threats—is an important one, we want to explain our position. We agree that online speech is not always pretty—sometimes it’s extremely ugly and causes real world harm. The effects of this kind of speech are often disproportionately felt by communities for whom the Internet has also provided invaluable tools to organize, educate, and connect. Systemic discrimination does not disappear and can even be ampl
Read more

Living on the (IT) Edge: Schneider Electric at HPE Discover 2018

Image
We’re here at HPE Discover 2018 , proudly sponsoring the event and enjoying a jam-packed few days in Las Vegas. The data center industry has experienced tremendous disruption in the last decade. The fourth Industrial Revolution, with its IT/OT convergence, the proliferation of IoT, and insatiable demand for digital connectivity, is creating the opportunity to push the envelope of performance beyond the obvious and create new business value. And there’s no bigger opportunity right now than at the edge. At the same time, these new paradigms are also driving more complexity: companies today are trying to manage a combination of environments, from large centralized data centers on-premises or in the cloud, regional edge data centers, to local edge data centers. We have more data centers, intertwined across more locations, and with more data, than ever before. All of this adds up to promising opportunities on the horizon for our customers – but an equally daunting number of new challenges
Read more