TPP Also Locks In Broken Anti-Circumvention Rules That Destroy Your Freedoms

from the sad-to-see dept

We already wrote about how New Zealand has released some of the details about the finalized TPP agreement before the official text is released. The one we discussed is forcing participants into a "life plus 70 years" copyright term, even as the US had been exploring going back towards a life plus 50 regime like much of the rest of the world. That won't be possible any more.

Another issue revealed in the New Zealand announcement is that the TPP will similarly lock in an anti-circumvention clause. In the US, we have a really problematic anti-circumvention law in Section 1201 of the DMCA, which says it's against the law to circumvent "technological protection measures" even if for reasons that are perfectly legal and non-infringing. This has created a huge mess that threatens innovation in all sorts of problematic ways. It takes away our freedom to tinker with devices that we own. It also makes it illegal to do things that pretty much everyone agrees should be perfectly legal.

Earlier this year, some in Congress introduced a bill to fix Section 1201. However, that may not be possible after the TPP is agreed to. Again, the details matter, but here's what New Zealand has to say about this issue:

New Zealand has, however, agreed to extend its existing laws on technological protection measures (TPMs), which control access to digital content like music, TV programmes, films and software. Circumventing TPMs will be prohibited but exceptions will apply to ensure that people can still circumvent them where there is no copyright issue (for example, playing region-coded DVDs purchased from overseas) or where there is an existing copyright exception (for example, converting a book to braille).

So, yes, it appears there will be certain exceptions allowed, but again that gets the equation entirely backwards. At best, circumvention should be considered legal as the default, and the problem should only come in if the circumvention was done for the purpose of actual infringement. Starting from the position of "no circumvention" and then backdooring in "exceptions" massively hinders innovation by requiring permission before certain innovations are allowed.

Given how important this kind of innovation has been for the tech sector, it's disappointing in the extreme that the USTR has decided to lock this in and block all kinds of important innovations from moving forward. Once again, the USTR seems focused on protecting legacy industries while hamstringing innovative industries.

Filed Under: 1201, anti-circumvention, dmca, dmca 1201, freedom to tinker, new zealand, tpp, ustr

EPA Sides With GM In Telling Copyright Office That Copyright Should Stop You From Modifying Your Car Software

from the wrong-tool,-guys dept

As we noted earlier this year, as the Copyright Office and the Librarian of Congress consider the requested "exemptions" from Section 1201 of the DMCA, General Motors has come out strongly against allowing you to modify the software in the car that you (thought you) bought from the company. If you're new to this fight, Section 1201 of the DMCA is the "anti-circumvention" clause that says that it's copyright infringement if you "circumvent" any "technological protection method" (TPM) -- even if that circumvention has absolutely nothing to do with copyright infringement. Yes, this is insane. It's so insane that Congress even realized it would lead to ridiculous situations. But, rather than fixing the damn law, Congress instead decided to duct tape on an even more ridiculous "solution." That is that every three years (the so-called "triennial review"), people could beg and plead with the Copyright Office and the Librarian of Congress to issue special "exemptions" for classes of work where Section 1201 wouldn't apply. Yes, that's right, you have a law, but Congress knew the law made no sense in some cases, and so it just gave the Librarian of Congress (the guy who currently can't keep his website online) the power to anoint certain classes of technology immune from the law.

Anyway, as mentioned, General Motors and others car makers (and also tractor maker John Deere) have been lobbying against the change, arguing all sorts of damage might occur should people be able to hack their own cars legally. And, to be fair, there is a legitimate point that someone messing with their own car's software could potentially do some damage. But, there are some pretty easy responses to that. First off, that's not copyright's job. If you want to ban tinkering with the software in cars, pass a damn law that is specifically about tinkering with software in cars, so that there can be a real public debate about it. Second, lots of perfectly legal tinkering with the mechanical parts of automobiles can also lead to dangers on the road, but we don't ban it because people are allowed to tinker with things they own.

Either way, the Copyright Office reached out to the EPA about this issue, and in a just published letter (even though it was sent months ago), it's revealed that the EPA is asking for the exemption to be denied because it's "concerned" that these exemptions would "slow or reverse gains made under the Clean Air Act." It also argues that allowing the right to modify your own software would "hinder its ability to enforce... tampering prohibition[s]" that are in existing law already:

EPA is also concerned that the exemptions would hinder its ability to enforce the tampering prohibition. Under section 203(a), the Agency has taken enforcement action against third-party vendors who sell or install equipment that can "bypass, defeat, or render inoperative" software designed to enable vehicles to comply with CFAA regulations. EPA can curb this practice more effectively if circumventing TPMs remains prohibited under the DMCA

First of all, this shows that there's already another law in place for dealing with people who are doing things that will impact the environment. Second, who cares if it makes the EPA's job easier, that's not the role of copyright. That the EPA would so casually argue that it's okay for it to be abusing copyright law, just because it makes the EPA's job easier is patently ridiculous.

Following that, the EPA then mocks the idea that anyone would have a legitimate reason to tinker with the software in their own cars:

The Agency also questions whether there is a real need for the exemptions. Car makers are already required to provide access for lawful diagnosis and repair. In EPA's view, whether or not they are designed for this purpose, the TPMs prevent unlawful tampering of important motor vehicle software.

Again, that's not the job of copyright, and supporting the abuse of copyright for this purpose is ridiculous. Furthermore, now that we're living in an age of connected cars, where we're already discovering that car software is a security nightmare it's actually more important than ever that people be able to tinker with the software in their cars, to probe for security weaknesses and to improve that software where possible. The EPA has every right to go after those who do so in a manner that violates environmental laws, but it shouldn't support abusing copyright law just because it makes the EPA's job easier. And, it shouldn't just assume that there are no legitimate reasons for wanting to modify the software in your car just because EPA staffers are too simple-minded to understand what those reasons might be.

Whatever you might think of the EPA and its mission, the idea that it would advocate abusing copyright laws is a disgrace.

Filed Under: 1201, anti-circumvention, copyright, copyright office, dmca, environment, epa, librarian of congress, triennial review
Companies: gm

Car Hack Demonstrates Why Security Researchers Shouldn't Have To Worry About Copyright In Exposing Weaknesses

from the copyright-where-it-doesn't-belong dept

So, by now you've heard the story of how Wired reporter Andy Greenberg allowed two car hackers to hack into a car that he was driving, remotely, while he was on a highway. The story is getting plenty of well-deserved attention, with some people raising a variety of concerns. The most obvious concern is the "holy hell, that seems scary, we should improve car security." And that's true. A second level of concern is over whether or not that experiment on a real highway was appropriate, given the very real potential of danger (including the truck that almost hit Greenberg). A third concern is over the reality of the threat, given that Greenberg was driving a car owned by the hackers, that they had the ability to touch previously (i.e. the "remote" part of the hack sounds scary, but it's less scary if hackers have to get into your car first).

However, the part that I wanted to focus on is related to a discussion we were just having a few weeks ago, in which General Motors (which was not the target of this particular hack) claimed that any sort of tinkering with their software, such as to discover these kinds of security holes, should be considered copyright infringement, thanks to Section 1201 of the DMCA. Section 1201, also known as the anti-circumvention provision, says circumventing "technological protection measures" (TPMs) -- even for reasons that have nothing to do with copyright -- should be deemed copyright infringement and subject to all the statutory damages (up to $150k per violation!) that copyright allows. Some have been pushing for an exemption for things like security researchers tinkering with new connected car systems to make sure they're safe. And GM and other automakers have said "no way." GM's argument is, more or less, that the company would prefer to put its head in the sand, and not have security researchers help it discover security flaws in its systems -- leaving only malicious attackers to find those.

While proponents such as Electronic Frontier Foundation characterize the exemption as merely allowing the vehicle owners to “tinker” with their vehicles “in a decades-old tradition of mechanical curiosity and self-reliance,” if granted, the proposed exemption could introduce safety and security issues as well as facilitate violation of various laws designed specifically to regulate the modern car, including emissions, fuel economy, and vehicle safety regulations.

Of course, copyright is not the right law to be relying on if you think that tinkering with your software could lead to safety problems. Instead, it seems to be the law that automakers are relying on to try to hide some of the security vulnerabilities in their cars.

The Association of Global Automakers goes even further with its argument, basically saying that since they already let security researchers of their own choosing do research, no one else should be able to do that research also:

Automobile manufacturers are not adverse to external input and have a long and symbiotic history with aftermarket businesses and others, but are justifiably unwilling to risk public safety, security, and environmental wellness by compromising quality controls and oversight. Moreover, the exemption is unnecessary given that automobile manufacturers already provide access to their valuable copyrighted materials for the precise purposes proposed. By allowing every automobile owner to access and copy automotive software in the name of research, the proposed exemption undermines existing research efforts and, ultimately, wrests control of such research from those in the best position to actually improve the security and safety of our automobiles: the automobile manufacturers and their suppliers, who have the utmost responsibility to ensure that vehicles are safe and secure. The very real risk that ostensibly legitimate research unwittingly undermines vehicle security by serving as a guidebook to software vulnerabilities that enables or even accelerates illicit hacking and malicious modifications to automotive software weighs heavily against the proposed exemption. The balance of benefit versus detriment, in view of all factors involved, simply dictates against the proposed exemption.

In short, since security researchers might find a really serious hole in our software that might put lives in danger, we're much better off using copyright law to make sure no one's even looking for such a hole. Are they serious? Wouldn't it be much better to give people incentives to find these kinds of security flaws so the automakers can fix them rather than relying on security-by-head-in-the-sand?

Finally, the Alliance of Automobile Manufacturers also opposed the exemption for some fairly bizarre reasons, claiming that it would magically free up researchers to disclose how a vulnerability works without first informing the manufacturer:

By arguing that the current legal landscape is too treacherous for independent researchers, proponents are in effect seeking to be freed from existing statutory constraints that are biased in favor of prudent and responsible practices – such as managing disclosure of security vulnerabilities to minimize the risk of legal violations and exploitation of those vulnerabilities by bad actors – to protect the safety and security of members of the public. For instance, under the proposed exemption, researchers who publish detailed analyses of vulnerabilities before sharing their findings with manufacturers would nonetheless benefit from a blanket exemption to circumvention liability, even though such premature publication could dramatically increase the risk of such harmful exploitations.

This is bullshit. There is nothing in removing the liability for circumvention that changes industry best practices of first alerting the manufacturer. That would still be standard practice. What it would do, however, is stop those manufacturers from responding by threatening a ridiculous copyright infringement lawsuit instead of realizing they need to fix a real problem in their systems. And if the automakers don't think such threats happen, we've got plenty of examples to send their way.

If the automakers are serious about wanting to make sure their cars on the road are safe, they should be encouraging this kind of research (though perhaps not on actual highways... ). But the fact that copyright law is blocking some of this kind of research is a real travesty.

Filed Under: 1201, anti-circumvention, automotive, car, copyright, dmca, hack, hackers
Companies: chrysler, gm

How Section 1201 Of The Copyright Statute Threatens Innovation

from the breaking-computers dept

It would take many, many blog posts to fully articulate all the ways that modern copyright law threatens innovation. But one notable way is through Section 1201 of the copyright statute.

As discussed previously, Section 1201 is ostensibly supposed to minimize copyright infringement by making it its own offense to bypass the technical protective measures (TPMs) controlling access to a particular copy of a copyrighted work. (Sometimes these sorts of TPMs are referred to as DRM, or Digital Rights Management.) It is a fair question whether forbidding the bypass of TPMs is at all an effective approach to minimizing infringement, but it’s an even more important question to ask whether the portion of the copyright statute that forbids the bypassing of TPMs does so at the expense of other sections of the statute that specifically entitle people to make certain uses of copyrighted works.

The answer to this latter question is clearly no, and in fact Congress anticipated that it would be “no,” when it put into Section 1201 the requirement that the Copyright Office consider afresh, every three years, whether certain types of TPM bypassing should be deemed specifically permissible, notwithstanding Section 1201’s general prohibition against it. Unfortunately these triennial rulemakings are an extremely cumbersome, expensive, and ineffective way of protecting the non-infringing uses of copyrighted works the public is entitled to make. But the even bigger problem, and the one that I will focus on here, is that Section 1201’s prohibition against bypassing TPMs is increasingly standing in the way of not just non-infringing uses of copyrighted works but non-infringing uses of computing devices as a whole.

In the triennial rulemaking underway members of the public petitioned for a number of exemptions to Sections 1201’s prohibition, which the Copyright Office distilled into 27 classes of exemptions. The first 10 classes generally sought to allow people interact with copies of copyrighted works in ways they were entitled to but that the TPMs controlling the interaction prevented. But the latter classes, 11 through 27, were notable in that, rather than involving the sort of consumption of copyrighted media content DRM is designed to control, they all were classes designed to allow people to interact with computing logic itself.

Some of these classes, like 23 (“Abandoned software – video games requiring server communication”) and 24 (“Abandoned software – music recording software”), sought to allow people to bypass TPMs so that they could actually run the copies of software they legitimately had access to. But for many of these classes petitioners found themselves needing to ask not for exemptions to use copyrighted works in ways that they that the legitimate right to but for exemptions allowing them to use computers in ways they had the legitimate right to use them.

Because particularly for the classes seeking exemptions to modify the functionality of, or perform security research on, devices like phones (Classes 11 and 16), tablets (Class 12), TVs (Class 20), vehicles (Classes 21 and 22), and even computer-chipped medical devices (Class 27), that’s what these devices all are: computers. They just happen to be phone, TV, car, and pacemaker-shaped computers. Like a home PC (which Congress had not explicitly sought to regulate access to in 1998 when it codified Section 1201) they are pieces of computing hardware with circuitry that gets controlled by software. And, just like the home PC, people should be able to use the processing power of their computing devices as they would choose to, regardless of the shapes they come in.

Unfortunately, unless they bypass the TPM they can’t, and unless the Copyright Office grants the exemption they can’t bypass the TPM legally. And that’s a problem, because when people’s exploration of the full contours of their computing devices is limited by the threat of legal sanction, all the innovation and discovery that exploration would have yielded is chilled.

But to the extent that it is copyright law that is causing this chilling, it is a particularly bizarre result. Copyright law is inherently about promoting the progress of the arts and sciences, or, in other words, stimulating innovation and knowledge-sharing. It is completely anathema to copyright law’s constitutional mandate for Section 1201 of the copyright statute to explicitly impose barriers to that discovery.

This contradiction was an important point I made in two sets of comments and testimony submitted as part of this rulemaking process. In them I argued that these exemptions, particularly for classes 11-27, should be granted liberally in order that people’s freedom to tinker with the tools they legitimately possessed not be impinged upon just because those tools happened to contain a TPM. If the Copyright Office were to do nothing and simply let these TPMs continue to block this free exploration with the threat of legal sanction it would be particularly unjust because none of those TPMs were implemented to limit the infringement of copyrighted works. While the software running a device may itself be a copyrighted work, the TPM bypass would not be about violating any of the exclusive rights in that work’s copyright. Rather, the TPM bypass would simply be about getting the device itself to work as its user would choose.

Opponents to these classes argued that, even if the TPMs were not guarding against copyright harms, they prevented other sorts of harms that might result if people could use computing technology with unfettered freedom. For instance, they fretted, with regard to vehicles it was argued that if people could study or modify the software on their cars then brakes would fail, pollution would increase, and other terrible consequences would befall the world. But something important to remember is that by limiting this sort of discovery we also limit all of its benefits as well. If people cannot legally do security research on their cars, for instance, it doesn’t make those cars more secure. It just makes it harder to make them more secure.

Also, it is not the role of copyright to regulate technology use and development (except to the extent that it is designed to stimulate innovation). When the Copyright Office suddenly gets to be the gatekeeper on how people can use their computing technology, while it may forestall some potential negative outcomes to that use, it also forestalls any good ones. Furthermore it prevents any other more appropriate authority better equipped to balance the costs and benefits of technology use to craft more nuanced and effective regulation to address any negative ones. As they would — after all, it’s not like we have been living in the Wild West up until the Copyright Office managed to become inserted into the technology regulation space. For instance, even in the analog world if people modified the physical attributes of their cars – something they never needed the Copyright Office’s blessing to do – other regulators could still speak to whether they would be allowed to drive their modified cars on open roads. These other regulators have not become enfeebled just because the modifications people may choose to make to their cars may now be digital, particularly when the consequences to these modifications are not.

But even when the consequences to how people use their machines are digital, regulators can still address those outcomes. The problem has been that regulating computing use is tricky and up to now we haven’t done it very well. Instead we’ve ended up with laws like the Computer Fraud and Abuse Act (CFAA), laws that are very powerful and just as blunt, which punish beneficial computer uses as much as negative ones. But just because we have not perfected laws governing computer use does not mean that the Copyright Office should simply say no to these uses. In fact, it’s actually reason that the Copyright Office should say yes to them.

One of the problems with the CFAA is that it construes the question of wrongfulness of a computer use based on the permissibility of that action. As a result, without the exemptions we are left in a situation where barriers erected under the auspices of copyright could threaten to become the sole basis by which the CFAA gets its teeth to sanction the very sort of inherently non-infringing activity that copyright law was never intended to prevent. And that’s the bitter irony, because while laws like the CFAA sadly lack any adequate mechanism to assess whether a computer use is a beneficial or otherwise fair use, copyright law by design can, and, indeed, pursuant to its Constitutional origins, must.

For these reasons the Copyright Office should grant all the sought after exemptions, particularly for these latter classes. And it’s also for these reasons that it’s time to amend the copyright statute to remove the bottleneck to innovation Section 1201 has become given how it requires the permission of the Copyright Office before any of this computer use can be allowed.

Thanks to Jeffrey Vagle and others for their help preparing these comments and testimony.

Reposted from Digital Age Defense

Filed Under: 1201, anti-circumvention, copyright, freedom to tinker, innovation, ownership

John Deere Clarifies: It's Trying To Abuse Copyright Law To Stop You From Owning Your Own Tractor... Because It Cares About You

from the how-sweet dept

Last month, there was a great Wired article by Kyle Wiens, highlighting how, as part of the DMCA 1201 triennial exemption process, John Deere claimed that you didn't really own your own tractor, because you were just "licensing" the software piece of it. And, more importantly, it didn't want the Librarian of Congress to exempt its software, because that would be messing with John Deere's "property rights." We wrote about this, and it seems like another prime example of a company misusing the idea of intellectual property by pretending it meant ownership of the underlying content, rather than just the copyright itself.

That story got a tremendous amount of attention -- so much that the geniuses in John Deere's PR department decided they needed to do something. And by "do something" I mean "make the situation worse." Because, as first noted by Mike Godwin, John Deere sent out a letter to its dealers "responding" to the Wired article in a way that shows that the company doesn't quite understand what's going on. You can read the entire letter below, but here are some of the highlights:

Similar to a car or computer, ownership of equipment does not include the right to copy, modify or distribute software that is embedded in that equipment. A purchaser may own a book, but he/she does not have a right to copy the book, to modify the book or to distribute unauthorized copies to others.

Except... no. When you own a book, you do have the right to modify it. It's your book. And you can redistribute the modified book as well. Yes, it's true that you can't make infringing copies of the book and then redistribute them, but that's totally unrelated to the issue at hand with DMCA 1201. The issue here is solely about modifying. It's about letting users actually modify the product they bought (which, again, is perfectly legitimate with a book). But, thanks to Section 1201 of the DMCA, it's not legal when it comes to your John Deere tractor. Because under 1201, if you circumvent the "technical protection measures" that John Deere put over its software, you've broken the law -- whether or not you made any infringing copies.

That's the concern that people have here. The right to tinker with the products that they bought. You can do that with a book. But John Deere abuses the law to say you can't do that with a tractor.

Later in the letter, John Deere plays the "safety" card, but again is really, really confused and pedantic:

Embedded software is designed and tested to ensure equipment works in certain, expected ways. Software modifications increase the risk that equipment will not function as designed. As a result, allowing unqualified individuals to hack or modify equipment software can endanger Deere customers, dealers, and others.

Yes, John Deere is right that it's tested the software to work as is, but if people want to tinker with it, that's their right as owners of the damn machines. It's easy enough to note that tinkering with the tractor you bought voids any warranties and takes John Deere out of the liability zone if something goes wrong. But an outright ban on modifying means that no matter what John Deere says, you don't own that tractor. Because ownership means that it's yours and you can absolutely tinker with it however you want -- recognizing that there might be consequences.

And, even more importantly, even if everything that John Deere said here was absolutely true and accurate, none of that is a copyright issue, and it's flat out ridiculous that John Deere believes it's appropriate to abuse copyright law for this purpose. Nothing in the copyright statute is about making sure your tractor functions the way John Deere wants it to. So, no, sorry, John Deere, your response is not particularly convincing.

Filed Under: 1201, copyright, dmca, exemptions, ownership, safety, tinkering, tractors, triennial review
Companies: john deere

3D Printed Copyright Creep

from the copyright-keeps-spreading dept

When your car runs out of gas, you can fill it up at any gas station you like. You never worry if the company that made your car has an exclusivity deal with one gas station or another, or even if that company has a preference for one brand of gas. In fact, you would probably find it some combination of ridiculous, galling, and offensive if the company that made your car threatened you with a copyright infringement lawsuit if you didn't go to their preferred gas station to fill up.

This dynamic is true for all sorts of things. Once you buy it, it is up to you to decide how you maintain it and replace what needs replacing. This is true of gas in a car, water in a bottle, and filters in a vacuum cleaner. But as software gets introduced into more and more everyday objects, some companies are trying to stretch copyright law beyond its limit in order to lock you into buying replacements only from them.

A decade ago, we saw this play out with 2D printers and toner ink. Some companies that made printers decided that they would prefer that consumers buy replacement toner (at a substantial markup) only from them. In order to attempt to lock themselves in as the only place to buy replacement toner, these companies designed their printers to look for a special verification chip on new toner cartridges to prove that the new cartridge came from them. When another company figured out a way around these chips, the printer manufacturers ran to copyright law to try and shut them down.

Fortunately, the courts saw through this ruse and were able to recognize that allowing consumers to choose where they get replacement toner for their printers has nothing to do with copyright law. Unfortunately, today some 3D printer manufacturers are trying this same gambit and hoping for a different outcome.

In a proceeding in front of the Copyright Office, 3D printer manufacturers offer a parade of horribles of what will happen [pdf] if users are free to choose the materials they use in their printers. Notably, none of these have anything to do with copyright. The only connection any of this has with copyright is that the printer manufacturers use a small line of code to verify if they sold the refills.

Just as adding a verification chip to a gas tank shouldn't be used as a pretext to lock a car owner into a single source of gasoline, adding a verification chip shouldn't be used as a pretext to lock a 3D printer user into a single source of 3D printing material.

3D printing is an emerging engine for innovation, and because of that this issue would be important even in isolation. However, the battle being fought over 3D printer material occurs against the backdrop of other attempts to use copyright as a pretext to limit consumer choice in all sorts of contexts. Be it accessing data from medical devices implanted in your body, repairing farm equipment that breaks down in the field, or unlocking your cell phone, the current proceeding before the Copyright Office – known as the "1201 triennial" after the part of the law that created it – is a preview of a future where manufacturers have the power to lock consumers into whatever they please.

That is what makes the Registrar of Copyrights' decisions so important in this proceeding. Not only will the right decision clear the way for consumer choice. Strongly siding with users and against copyright creeping into everything sends a strong message that copyright has its purpose, but that it should not be abused.

Public Knowledge is hosting a 3D printing event at the U.S. Capitol Visitor Center April 29 from 10:30 a.m. to 8 p.m. This free event is an opportunity to engage with 3D printing experts on panels and interact with the latest 3D printing technology. You may register here.

Michael Weinberg is a 3D printing advocate and can be found at michaelweinberg.org. He is a former Vice President of Public Knowledge and currently IP & General Counsel of Shapeways, but writes here in his personal capacity.

Filed Under: 1201, 3d printer materials, 3d printing, anti-circumvention, copyright, dmca, dmca 1201, triennial review

DVD Makers Say That You Don't Really Own The DVDs You Bought... Thanks To Copyright

from the ownership-sure-is-a-funny-thing dept

So, we already wrote about some of the crazy filings from John Deere and GM claiming that when you buy a vehicle from them, you don't really own it, thanks to the software inside, which those companies argue they still really own. This was part of the opposition to requests for exemption from Section 1201 of the DMCA. Once again, Section 1201 is the anti-circumvention clause, that says you can't break DRM even if it's for non-infringing purposes. But... every three years, the Librarian of Congress is allowed to "exempt" certain classes of items from Section 1201. the responses above concerned locking down automotive software, but there are some other crazy ones as well.

For example, the DVD Copy Control Association (DVD CCA) and the Advanced Access Content System Licensing Administrator (AACS LA) are so worried about an exemption for certain kinds of DVDs that it ran to the Copyright Office to claim that you simply don't own the DVDs you buy, and they'd really appreciate it if people stopped thinking they actually bought the DVD that, you know, they bought:

When consumers buy a DVD or Blu-ray disc, they are not purchasing the motion picture itself, rather they are purchasing access to the motion picture which affords only the right to access the work according to the format’s particular specifications (i.e., through the use of a DVD player), or the Blu-ray Disc format specifications (i.e., through the use of a Blu-ray format player). Consumers are able to purchase the copy at its retail price because it is distributed on a specific medium that will play back on only a licensed player.

Notice that even this statement is self-contradictory. The first sentence says they are not purchasing any content, but merely a "right to access." And yet, the very next sentence talks about the "purchase [of] the copy." So which is it? Are people purchasing a copy of the movie? Or are they merely licensing access to the content on the plastic?

This is a problem with Section 1201, showing how its expansive nature is fundamentally changing the concept of ownership in ways many people haven't even begun to understand yet.

Filed Under: 1201, anti-circumvention, dmca 1201, dvds, ownership, triennial review
Companies: aacs la, dvd cca

Bill Introduced To Fix Broken DMCA Anti-Circumvention Rules

from the but-will-it-get-anywhere dept

It's no secret that the DMCA's section 1201 is extremely problematic. It's the "anti-circumvention" part of the law, that makes it illegal to circumvent "technological protection measures" even if it's for non-infringing purposes. This is a mess -- especially in an age of DRM trying to lock up everything. Try to get around it, and it's a violation of the law -- even if you're not trying to infringe on the underlying material. This is why Cory Doctorow is running a new effort to eradicate DRM with a target placed firmly on Section 1201.

So it's great to see Senator Ron Wyden and Rep. Jared Polis team up to introduce a bill to try to reform Section 1201. The full text of the bill (called the "Breaking Down Barriers to Innovation Act of 2015") has a lot of good things in it. It says that circumventing DRM or other technology protection measures for non-infringing reasons should no longer be considered against the law. It also expands other exemptions for things like security research and testing and reverse engineering. It also would automatically renew the exemptions the Librarian of Congress issues every few years so we don't have a repeat of the mess from a few years ago where the Librarian of Congress used the "triennial review" process to first grant an exemption to 1201 for unlocking mobile phones... and then to take that exemption away six years later.

Overall it's a good bill -- and I'm curious to understand how anyone could possibly push back on it, though Hollywood absolutely refuses to consider any changes to Section 1201. Unfortunately, it also seems unlikely that the bill has enough support to actually go anywhere. It seems a bit telling that Wyden released this bill the same day as the fast track bill, suggesting that it's a signal of some sort to people that he's not giving up on fixing copyright law. It's unlikely, however, that this gesture will mollify the folks who are upset that Wyden allowed the fast track bill to move forward in its current form.

Filed Under: 1201, anti-circumvention, copyright, dmca, dmca 1201, exemptions, jared polis, ron wyden, technological protection measures, triennial review

Copyright Law Is Eating Away At Our Cultural History: And It's Time To Fix That

from the archiving-history-is-great dept

If you weren't under a social media-less rock a few weeks ago, you hopefully heard about the Internet Archive releasing over 2,000 MS-DOS video games, playable in the browser. As I noted to someone on Twitter, it was like half of my childhood on the screen. What I found truly amazing was that with every excited Twitter or Facebook comment I saw, it was about a different game. For me, it was things like Oregon Trail, Pole Position, Lode Runner and Championship Baseball (and also some college memories of avoiding studying by playing Scorched Earth -- hey, at least it sorta felt like I was learning physics). But for others it was something entirely different. Each person seemed to latch onto their own moment in history (and a new chance to procrastinate or waste time by reliving that experience).

This, of course, was only the latest in an ongoing effort by the Internet Archive, led by Jason Scott (who has been involved in all sorts of archival efforts of internet content and video games and made a documentary about text adventure games called Get Lamp). Andy Baio has a great post up discussing this work and how important it is that it's being done by the Internet Archive, rather than a giant corporation. As he notes, while Google used to really focus on similar archival projects, in the recent past, it seems to have let that focus fade, which is quite disappointing.

Of course, in discussing the possible reasons why Google's archival efforts have stagnated, Baio tosses out a few suggested reasons, including the lack of profitability, but also, the potential legal liability. After all, Google is still fighting in court about the Google book scanning project, and the focus of that project seems much more about pushing people to buy books, rather than being able to do useful searches through that huge corpus of knowledge.

Baio is (quite reasonably) thrilled that the Internet Archive has been willing and able to step up, and notes that the video game archive shows how Archive.org is a lot more than just saving old websites: it's about preserving our cultural history.

But, other than that one offhand mention of the risk of legal liability to explain Google's dropping the ball on similar stuff, Baio leaves out the related issue of copyright and the DMCA (which he knows about all too well from personal experience). This isn't a fault of Baio's article, he's just focused on something else. But the copyright aspect is really important -- especially right now.

That's because the main reason why the Internet Archive is allowed to do this kind of thing is because it was lucky enough to get one of the semi-arbitrary DMCA triennial review exemptions that lets them break old DRM for the purpose of archiving vintage software. But, even then, it's not entirely clear that what the Internet Archive is doing is fully protected today. Furthermore, as we saw a few years ago with unlocking mobile phones, the Librarian of Congress can simply delete those exemptions on a whim.

And, right now, we're in the middle of the DMCA exemption process yet again, with a bunch of requests on tap -- including an important one from the EFF [pdf] to allow such activities:

Proposed Class: Literary works in the form of computer programs, where circumvention is undertaken for the purpose of restoring access to single-player or multiplayer video gaming on consoles, personal computers or personal handheld gaming devices when the developer and its agents have ceased to support such gaming.

Baio's article talks about how projects like the one at the Internet Archive are magical in preserving history and giving us access to "all of computing history... accessible from a single click." This is incredibly important -- but copyright law is standing in its way. This isn't about "piracy" in any real sense. The games and software being discussed are not being sold anywhere. The hardware that it worked on is long gone. This is about preserving our cultural history -- something that industry appears to have no interest in doing, in part because copyright law itself makes it so risky.

If you think things like this are important too, I also suggest heading over to the Digital Right to Repair site where they've made a really easy form for you to share your thoughts with the Copyright Office as it considers the latest exemption requests. The Copyright Office also has its own form, but it's government-level cumbersome. The Digital Right to Repair site is much easier to use. It has some pre-selected text for the various exemptions being debated, but also (very easily) allows you to write your own thoughts (which you should).

One of the key factors in the decision over what to exempt and what not to exempt is a demonstrated "market need" and you can help make the case by sharing your story with the Copyright Office.

Filed Under: 1201, anti-circumvention, archives, archiving, copyright, copyright office, dmca, dmca 1201, drm, exemptions, jason scott, librarian of congress, libraries, triennial review, video games
Companies: internet archive

Cory Doctorow To Push For Ending DRM

from the good-day-to-announce-this dept

This is Copyright Week, in which various people supporting more reasonable copyright laws highlight some of the problems with existing laws and important concepts that should be in copyright reform efforts. Today's topic is "you bought it, you own it," -- a concept that is often held back due to bad copyright laws. A few months ago, a bill was introduced in Congress called YODA -- the You Own Devices Act -- which would allow the owner of computer hardware to sell the devices with the software on it without creating a copyright mess. It was a small attempt to take back basic property rights from copyright law which often stamps out property rights. Hopefully, a similar bill will show up in the new Congress, and become law. Even better would be for copyright law to actually recognize true property rights, rather than limiting them at nearly every turn.

One of the biggest attacks on property rights and ownership is Section 1201 of the DMCA, better known as the Anti-Circumvention clause, that says it's against the law to circumvent any "technological measures" that were designed to block copying -- even if the underlying use is non-infringing. That is, if you break technological measures to access content that is not covered by copyright at all, you're still violating the law. This is the law that has made DRM so powerful, and which regularly removes your right to own what you bought. It's a blatant attack on basic property rights, and (even worse) has copyright maximalists pretending that their removal of property rights is actually a move in favor of property rights.

Thus, it's great to see the announcement today that Cory Doctorow is returning to EFF to help with its new Apollo 1201 Project, a plan to eradicate DRM in our lifetime.

"Apollo was a decade-long plan to do something widely viewed as impossible: go to the moon. Lots of folks think it's impossible to get rid of DRM. But it needs to be done," said Doctorow. "Unless we can be sure that our computers do what we tell them, and don't have sneaky programs designed to take orders from some distant corporation, we can never trust them. It's the difference between 'Yes, master' and 'I CAN'T LET YOU DO THAT DAVE.'"

Doctorow has been speaking out on this issue for years. If you haven't watched his 2012 talk at the Chaos Communication Congress on the "war on general purpose computing," it's well worth your time. It's a discussion I've gone back to many times in the two and a half years since he first gave that talk. It highlights not only the absurdity of DRM in general, but why this is an issue that goes well beyond just the idea of locking down some content to protect an obsolete business model. As his speech noted, this is a battle over the right to actually own your computer and not to open it up to censorship and surveillance. The fight over DRM on content was just the beginning:

And personally, I can see that there will be programs that run on general purpose computers and peripherals that will even freak me out. So I can believe that people who advocate for limiting general purpose computers will find receptive audience for their positions. But just as we saw with the copyright wars, banning certain instructions, or protocols, or messages, will be wholly ineffective as a means of prevention and remedy; and as we saw in the copyright wars, all attempts at controlling PCs will converge on rootkits; all attempts at controlling the Internet will converge on surveillance and censorship, which is why all this stuff matters. Because we've spent the last 10+ years as a body sending our best players out to fight what we thought was the final boss at the end of the game, but it turns out it's just been the mini-boss at the end of the level, and the stakes are only going to get higher.

Filed Under: 1201, anti-circumvention, apollo 1201, apollo 1201 project, copyright, cory doctorow, dmca, drm, general purpose computing, yoda
Companies: eff