Senate Rejects All CISA Amendments Designed To Protect Privacy, Reiterating That It's A Surveillance Bill

Library Of Congress Releases DMCA Anti-Circumvention Exemptions... And It's A Hot Mess

from the because-of-course dept

Tue, Oct 27th 2015 10:38am — Mike Masnick

Well, the Library of Congress has now released its official exemptions to the DMCA's 1201 anti-circumvention rules, the ridiculous process known as the triennial review, and as was pretty much expected, it's a total mess. We'll have a more thorough look at it later, but after an initial read through of the document, it appears that the Library of Congress tried to please everyone and will likely end up pleasing no one. If you're unfamiliar with the process, under the DMCA, there's a part of the law, section 1201, which says that it's copyright infringement to bypass any kind of "technological protection method" (TPM) to access something, even if the reason you're circumventing the TPM is totally non-infringing. Basically, this says that if you put a digital lock on something, even if the lock is weak or stupid or for something totally unrelated to copyright law (such as blocking competition), you can use copyright law to stop anyone from getting around it. The concept is so stupid and so broad that even Congress realized it would be abused. But rather than fix it, it gave the Library of Congress this weird authorization to declare "exemptions" once every three years. So, basically, every three years people ask for exemptions (and each exemption granted in the past needs to be re-requested, and re-supported every three years). Then the Library of Congress climbs a mountain, thinks on it for a bit, and comes down the mountain declaring what is legal and what is not. It's an insane process.

Three years ago, things went really haywire when the Library of Congress took away the exemption it had previously granted for cell phone unlocking. This resulted in widespread protests, and eventually Congress stepping in with a bill that didn't actually fix the underlying problem, but just reinstated the previous exemption and told the Library of Congress to be more careful next time.

You can see in the latest exemptions that the Library of Congress has taken Congress's mocking a bit to heart -- as it seems totally gun shy on just about everything. It refers repeatedly to Congress's decision to bring back the unlocking exemption and reads more into it than is necessary. But, because of this, it seems to want to tiptoe down the line, allowing exemptions, but putting all sorts of weird restrictions on them. For example, one of the most talked about requests was the one for accessing vehicle diagnostics. You may recall that GM, John Deere and even the EPA said the Library should reject these requests, because people might get access to diagnostic info... and then break emissions controls and pollute the environment or something. Apparently, only the automakers should be allowed to do that by themselves.

Here, the Library of Congress sort of grants that exemption, but with all sorts of caveats:

Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.

Even more bizarre, in the description about this exemption, it appears to say that this exemption can only be used if you are doing the circumvention yourself -- and not for hiring someone to do it for you. Absolutely ridiculously, it points to the language of the bill Congress passed to smack the Library around last time on the phone unlocking exemption:

Moreover, by passing the Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other devices to be carried out by third parties “at the direction of” device owners—Congress indicated its view that extending the reach of an exemption to cover third-party actors requires a legislative amendment.

Wha....? In the fight over the Unlocking Act, there was serious concern that early drafts of the bill would cut out companies that help individuals unlock their phones. And thus to make sure that such things weren't excluded, Congress made it explicit that it covered third parties unlocking phones "at the direction of" device owners. And yet... now the Library of Congress is ridiculously interpreting this to mean that it cannot grant such an exemption without Congress stepping in.

That's... wrong. And ridiculous.

And that's not the only problem with this. The one year delay in implementation is ridiculous as well. The Library of Congress notes that this is to allow other agencies to weigh in, but we just had a whole year for agencies to weigh in and many of them did. Yet, now, they want to delay the implementation of a three year exemption by one whole year in case more of them want to weigh in after the fact? Clearly this is because the Library of Congress is gunshy about what happened with unlocking last year, but to totally upend the process and delay a necessary exemption is no way to do that.

Similarly bizarre: the Library of Congress seemed to think it's perfectly fine to weigh outside factors in determining this issue, even though it's supposed to be judging things entirely based on the copyright issues. So, for example, with this same exemption on car repair and diagnostics, it allows the Copyright Office to review copyright-related factors, but then seemed to indicate that it was just fine for it to also review things that have nothing to do with copyright. It notes that "serious safety and environmental issues... weigh against an exemption." But that's not a copyright issue. We should not be using copyright law to regulate other things. We already have safety and environmental laws, and the Copyright Office explicitly endorsing the use of copyright laws to add some sort of additional environmental law (especially one that gets it so backwards) is patently ridiculous.

There are other problems in the rules as well. Michael Weinberg takes a look at the similarly problematic rules on 3D printing, where the same basic thing happened. The overall rule seems like it's going in the right direction, but is so full of weird and unnecessary and troubling caveats that it mostly erases the good parts of the rule.

There are similar issues in other parts as well. For example, an exemption is added for MOOCs (Massive Open Online Courses) that want to use small snippets of locked up content (usually movies or news clips) as part of their classes: classic fair use. And the Library of Congress says that's okay... kind of. It only applies to "accredited nonprofit educational institutions." That sounds reasonable at first, until you realize that many MOOCs are actually run through for-profit entities. For example, Coursera is one of the most popular MOOC platforms out there, but is a for-profit venture. ~~So, the exemption here wouldn't be usable by National Geographic, who runs its MOOC via Coursera. And there are lots of others who would be similarly blocked, even if the use is clearly fair use.~~ (Update: Actually, it appears this would be allowed).

It really seems like the Library of Congress has made things increasingly more complex for the sake of trying to "split the baby" on things, and in part because it got slapped down so hard three years ago. But the end result is that you get a split baby that seems to go way beyond what the law was intended to allow and pisses off everyone (especially the baby). Laura Quilter, the Copyright and Information Policy Librarian at UMass Amherst summarized the mess of these rules this way:

The prolixity of this rulemaking puts it into its own special hell of inaccessible, unintelligible, crazy-making meshugaas.

This isn't how law should be made, and it's unclear why this is still allowed.

2015 27212 (PDF)2015 27212 (Text)

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Filed Under: 1201, 3d printing, anti-circumvention, cars, copyright office, diagnostics, dmca 1201, dmca triennial review, epa, fair use, library of congress, repair, software, triennial review

28 Comments

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JoeCool (profile), 27 Oct 2015 @ 10:51am

Obvious
This isn't how law should be made, and it's unclear why this is still allowed.

It's still allowed because the politicians are bought by Big Content. As long as companies are allowed to make "contributions" to campaigns, this won't change.
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Anonymous Coward, 27 Oct 2015 @ 11:03am

That reads like they want to appear to be granting exemptions, while not actually doing so in any practical way.
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Anonymous Coward, 27 Oct 2015 @ 11:15am

Glad I live in Canada so I don't have to deal with this madness!
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Anonymous Coward, 27 Oct 2015 @ 11:22am

Re:
Until the TPP is ratified, then we bend over and take it from the USG
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Geno0wl (profile), 27 Oct 2015 @ 11:24am

Old game cracking
Looks like no-CD and activation cracks for abandoned games are now legal as well!
hurrah
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Mason Wheeler (profile), 27 Oct 2015 @ 11:30am

section 1201

Well there's your problem right there. Any law with at least 1201 sections is too big and complex to be any good.

I've always been a fan of the Brobdingnagian code in Gulliver's Travels:

No law in that country [may] exceed in words the number of letters in their alphabet... They are expressed in the most plain and simple terms, wherein those people are not mercurial enough to discover above one interpretation: and to write a comment upon any law, is a capital crime.
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John Fenderson (profile), 27 Oct 2015 @ 12:15pm

It's a shame
I used to hold the Library of Congress in very high regard. By putting them in this role, however, Congress has guaranteed that they will look like shit no matter what your stance on anti-circumvention issues is.

It's such a shame to see the institution abused like this.
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Anonymous Coward, 27 Oct 2015 @ 12:24pm

You buy it, you own it
Software, hardware, and firmware should all be subject to the first-sale doctrine: you bought it, you own it, lock, stock, and barrel.

You should be able to reverse engineer it, bypass it, or do anything you want with it. If you do something like getting paid apps for free from the AppStore, that should be punishable as theft, but not the firmware modification to get to that point.

If you sell a competitive product after reverse engineering someone else's product, if it is demonstrated that you used copyrighted code, that should be an offense. Hard to prove, though, if you don't see the source code.
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Anonymous Coward, 27 Oct 2015 @ 12:34pm

Re: Old game cracking
Neat, do we have a definition of abandoned games? I imagine it's limited to games owned by defunct companies and such.
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Anonymous Coward, 27 Oct 2015 @ 12:46pm

"totally gun shy"
'Exemptions' are the way that governments like to work: make everything illegal -- unless special permission is granted. In the case of guns, for instance, many people might be surprised to learn that all 12-gauge shotguns (tens of millions of them) are technically illegal in the US -- unless the particular model is granted a "sporting purposes" exemption (which about 99% are) . Which in reality "suitable for "sporting purposes" can be anything the government declares it to be. These kind of laws also serve to give job security to bureaucrats, for deciding whether something is completely legal or constitutes a crime worthy of a lengthy prison sentence. Often with little to no consistency or even common sense.
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Anonymous Coward, 27 Oct 2015 @ 1:54pm

We should not be using copyright law to regulate other things.
Abolish copyright. Problem solved.
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lars626 (profile), 27 Oct 2015 @ 2:12pm

Flinchy
I can't blame them for being flinchy about the whole mess. I suspect some of this had to be due to the retiring Librarian of Congress being technologically clueless in the first degree. Hopefully the new one will understand something more advanced than a dial telephone.

I don't know if they are allowed to 'clarify' these rules after they are issued, or if we will have to wait three years.
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Anonymous Coward, 27 Oct 2015 @ 2:20pm

Re: You buy it, you own it
Software, hardware, and firmware should all be subject to the first-sale doctrine: you bought it, you own it, lock, stock, and barrel.
A good start would be to stop giving money to companies that oppose this view, where possible. Proprietary hardware/firmware are hard to avoid but software/music/movies are easy.
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Drawoc Suomynona (profile), 27 Oct 2015 @ 7:38pm

Re: It's a shame
It's a damn shame. Congress is avoiding difficult decisions and forcing the LoC to do it for them, putting the LoC into a decision making role that is subject to political pressure and the requisite criticism.
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Anonymous Coward, 27 Oct 2015 @ 8:19pm

Can we lock the surveillance apparatus from our data and communications .
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Anonymous Coward, 27 Oct 2015 @ 10:44pm

Re: We should not be using copyright law to regulate other things.
Agreed. IP defenders are very inconsistent anyways.

IP laws should only be about the public.

IP defenders proclaim that IP laws should be about the artists because it should allow artists the 'right to be forgotten' and the 'right to control' their works for their entire lifetime.

Their claim that IP should exist for the interests of artists is one reason to abolish it.

On top of that those same IP extremists that claim to believe that artists should be able to control their works for their entire life time and have the 'right to be forgotten' for a mistake they made a long time ago would be in favor of allowing artists to transfer their works over to someone else. How inconsistent. What if an artist created a work, transferred it, and later decided they made a mistake by creating that work? Then that's perfectly OK right?

The only consistency here? These IP extremists favor the interests of distributors every single time. They do not care for the artists at all. That's another reason to abolish IP laws.
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Anonymous Coward, 27 Oct 2015 @ 10:57pm

Re: Re: We should not be using copyright law to regulate other things.
To the shills here that claimed that IP laws should be about the authors, that authors should control their works for their entire lives, and that IP laws should be about allowing authors the ability to remove their works from circulation because they made a past mistake and don't want to get overwhelmed from the public attention, prove to me that you want these laws to be about the authors and not the distributors. For once, just once, take a position that's in favor of the artists that's not in favor of the distributors. Take the position that artists should not be able to transfer their works. Because I claim that you don't care at all about the artists. I claim that you only care about the distributors. My claim naturally predicts that you would be in favor of allowing artists to transfer their works because this is in the best interests of the distributors. Therefore I predict that you would be in favor of artists being able to transfer their works. However if you want IP to be about defending the author from future harassment from a work they regret making in the past it would naturally follow that you would be against artists being able to transfer their works. I claim this is not the case. Prove my claim wrong. Prove my claim wrong. Take the position that artists should not be able to transfer their works.
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Anonymous Coward, 27 Oct 2015 @ 11:28pm

Re: We should not be using copyright law to regulate other things.
Actually I take that back. I would be in favor of copy protection laws under the conditions that

All protected works must be registered before being distributed. The copy protection office must hold a copy of the works to be released once they enter the public domain.

Copy protection length lasts no longer than five years after the initial release date for works that have been transferred. No extensions.

Copy protections can be extended by authors for up to ten years max but extended works can't be transferred.
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Anonymous Coward, 28 Oct 2015 @ 3:01am

Mike Masnick just can't stand it when copyright law is enforced. You fucking chicken, Masnick. Bawk! :)
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Anonymous Coward, 28 Oct 2015 @ 4:15am

Re:
Oh look chicken boy is back. That didn't take long. Yawn.....
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Anonymous Coward, 28 Oct 2015 @ 4:38am

Re:
average_joe just hates it when due process is enforced.
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Anonymous Coward, 28 Oct 2015 @ 6:31am

Re: Re: We should not be using copyright law to regulate other things.
And what about that poor poor regretful artist that mistakenly signed over their works to a record label a decade ago back when they were young and naive. A ten times more likely scenario than the artist that released their works and now regrets being berated over it. Do the same shills who have so much sympathy for the latter have sympathy for the former? Should artists be able to reclaim their works a decade later? Or is this another inconsistency of the artist caring shill that can best be reconciled if one assumes the shills really only care for the distributors.
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R.H. (profile), 28 Oct 2015 @ 7:40am

Re: Re:
Didn't your newly elected government say that they weren't going to ratify TPP? I thought that was one of the platforms they ran on although, I must admit, I'm not well-versed in Canadian politics.
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crade (profile), 28 Oct 2015 @ 8:36am

Re: Re: Re:
We didn't elect the one that said that.. The new government looks like they *might* not ratify the agreement, at least they are less likely to do so than the last govt.. but they haven't taken a stand on the issue yet.
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tqk (profile), 28 Oct 2015 @ 4:39pm

Absolutely ridiculously, it points to the language of the bill Congress passed to smack the Library around last time on the phone unlocking exemption:

Moreover, by passing the Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other devices to be carried out by third parties “at the direction of” device owners—Congress indicated its view that extending the reach of an exemption to cover third-party actors requires a legislative amendment.

Anyone who's done anything with computer programming should recognize this as a loop, which is ordinarily considered a bad thing if an out of control process; needs to be killed. USA! SOP.

Wow, the USA is fscked up.
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thejynxed (profile), 28 Oct 2015 @ 6:40pm

Re: Re: Old game cracking
That is the gist of it, and I believe they specifically mention games such as old MMOs & games with a multiplayer component, etc that require online authentication (such as a credential login). This is kind of good news, as it means customers who own those titles are free to modify their game software so it is in at least some working order, but since in the case of MMOs, etc, no specific mention or exemption was made for the server-side software, it remains a total no-no or gray area at best.
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thejynxed (profile), 28 Oct 2015 @ 6:43pm

Re: Re: It's a shame
Putting a bunch of professional archivists into this situation is absolutely ridiculous and a total abdication of responsibility by Congress itself (who frankly, is trying to pass the buck onto these guys only so Hollyweird can't shit a brick in their direction).
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Anonymous Coward, 28 Oct 2015 @ 11:02pm

Permission to be unbounded
If the idea of copyright were at all visible, we'd all be amazed and horrified at the site of a single concept binding us with innumerable chains.
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