Ecuador Likely To Legalize DRM Circumvention In The Exercise Of Fair Use Rights -- Something TPP Will Block

from the that's-what-I-call-Good-Living dept

Eighteen months ago, Mike wrote about the DMCA being abused to censor stories in an Ecuadorian newspaper that someone in the government there apparently didn't want out in the open. But Boing Boing points us to a post by Andrés Delgado from a few weeks back which offers hope that some good things could be happening in Ecuador in the field of copyright. It concerns the country's New Intellectual Property Legislative Proposal, which was drawn up using public input on the open WikiCOESC+i:

the virtual tool that's been designed for the collective, transparent and democratic construction of the Organic Code for the Social Knowledge and Innovation Economy -- COESC+i.

The tool has been specifically designed to facilitate popular participation into the workings of the COESC+i, with visitors able to directly contribute their comments, criticism and encouragement regarding the project. The seeks to put into law the established directives in the Constitution of the Republic and the National Plan for Good Living, both of which aim to guide Ecuador's transition away from a productive matrix based on monopolistic exclusion through the extraction of finite resources toward a more social, supportive and democratic economic system based on the intensive use of our collective and infinite resources: knowledge, creativity and innovation.

The "Good Living" project referred to there was discussed by Techdirt back in 2014. In total, there were over 2 million visits to WikiCOESC+i, and over 38,000 edits to the text. As Delgado explains:

The result was a Legislative Proposal that rightfully balanced the rights of the general public with those of the creators and holders. Maximizing the use of limitations and exceptions allowed by International Treaties and recommended by the United Nations Special Rapporteur in the field of cultural rights.

The Law Proposal was submitted to Ecuador's National Assembly in June of this year, and more public consultations were conducted. As the result of those, and taking note of input from Creative Commons:

Article 121 of the Updated Law Proposal now allows the circumvention of DRM-protected works to exercise any fair use legally defined.

Delgado explains why that's such a big deal:

in countries like USA and Canada  -- and now in all those enforcing the mandates of TPP  -- the software used to protect works in the digital realm creates a paralegal system that gives firms the power to control access to digital content even when that goes against the uses permitted by law. Sometimes this can be really serious, 40% of the source code of insulin pumps has never been inspected by independent security researchers and nearly 1.4 million cars were recalled by Chrysler due to the discovery of a vulnerability that allowed to access remotely the steering and brakes.

These are issues that Techdirt has discussed before, and it's really extraordinary that the copyright industry managed to convince so many countries to bring in laws actively preventing this kind of scrutiny that could well save lives at some point. It remains to be seen whether Ecuador's reasonable approach is challenged during its passage through the legislative system, or whether the country's commitment to "Good Living" is strong enough to allow the circumvention of DRM in the exercise of fair use rights.

Even if it does, what's particularly frustrating here is that no country that ratifies TPP can ever follow suit, as Delgado mentions. That's just one aspect of TPP's ratchet effect, which is likely to ensure that copyright can never be changed to benefit the public if it also adversely affects publishers in any way. In such cases, TPP's corporate sovereignty provisions would allow a foreign publisher to sue the government involved for what would be claimed was an "indirect expropriation" of the investor's future profits. Combined with the usual unthinking resistance from copyright maximalists, that additional risk would make such action politically infeasible.

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Filed Under: anti-circumvention, circumvention, copyright, drm, ecuador, fair use, tpp, trade

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

from the because-of-course dept

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.

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

How Bad Copyright Law Makes Us Less Safe... And How Regulators Have It All Backwards

from the fix-1201-now dept

For quite some time we've pointed out how problematic Section 1201 of the DMCA is. That's the part of the law that says it's copyright infringement to simply circumvent any kind of "technological protection measure" even if the reasons for doing so are perfectly legal and have nothing to do with infringement at all. And, of course, we now have the big "1201 Triennial Review" results that are about to come out. That's the system that was put in place because even Congress realized just how stupid Section 1201 was and how much innovation and research it would limit -- so it created a weird sort of safety valve. Every three years, the Copyright Office and the Librarian of Congress would work together to come up with classes of technology that are magically "exempted" from the law. Now, normally, you'd think that if you have to come up with exemptions, there's probably something wrong with the law that needs to be fixed, but that's not the way this worked.

The latest triennial review results are about to come out, and a lot of people are focused on it -- in part because of current events. As you may recall, earlier this year, we wrote about one of the exemption requests in particular: over whether or not you can tinker with the software in your car. GM was fighting against this, and we were shocked to then see the EPA side with GM (!?!?) on this issue, claiming that it's a perfectly reasonable use of copyright law to stop tinkering with cars on the off chance that some of that tinkering might lead to changing emissions to illegal levels.

Of course, just a few weeks later, we discovered that VW had been playing games with its software to avoid emissions tests and pollute the world at a much greater rate than is legal (or healthy). Many people have pointed out that, if the software wasn't all locked up, it seems likely that people would have discovered this problem much earlier. The latest to weigh in on this is Senator Ron Wyden, in a WSJ op-ed, where he explains how the EPA has this whole thing completely backwards:

This year the Environmental Protection Agency submitted comments to the Copyright Office requesting that no exemptions should be granted for car owners or researchers to access and modify the software in their vehicles. The EPA says you shouldn’t be allowed to tinker with your car because it might increase emissions from your tailpipe.

This would block any researcher who would study software in automobiles to make them safer or more environmentally friendly. This summer, security researchers demonstrated that a hacker could take over a Jeep’s systems—GPS, transmission and brakes, among others—over the Internet. This could lead to crashes and even sabotage. In this case at least, Chrysler recalled 1.4 million vehicles to patch that vulnerability, which otherwise could have gone unnoticed.

The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future. Volkswagen’s falsified emissions reports were discovered by independent testing—yet the source of the problem was in the automobile’s software. Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.

In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.

And it's not just the EPA. As Wyden notes, the FDA is doing something similar, which may be even more dangerous:

The Food and Drug Administration also is getting in on the copyright game. It is telling the Copyright Office that modifying software in medical devices, and then providing them to patients without FDA approval, could put people in danger. But the distribution of untested devices is already illegal. Copyright law should not prevent researchers from taking a look at the software and thinking about how to make devices more effective and safer.

Wyden (along with Rep. Jared Polis) introduced a bill earlier this year to try to deal with this on a permanent basis, rather than through this ridiculous triennial review process. Of course, if the TPP is approved, it may be more difficult to actually make such a change.

But, really, the fact that the FDA and the EPA are making these arguments is a real sign of just how broken our copyright law is and how little many regulators understand innovation, technology and intellectual property. The EPA and the FDA come from a world of "permission-only innovation." They are both focused solely on setting up laws that "prevent bad stuff" usually through setting up testing regimes. But those regimes can be gamed -- and they don't seem to recognize that by allowing permissionless innovation to happen, it also opens up worlds of useful research and beneficial innovations, both of which could do a lot more to prevent the kinds of harm that the EPA and the FDA think they're preventing by opposing these exemptions.

There's a fundamental misunderstanding of the nature of innovation in this setup -- where regulators think that the unknown must be "dangerous" and should be prevented until proven okay. But, as history has shown, such a setup only opens up all sorts of games that the big knowledgeable players can use to dance around those regulations, and no real way for outsiders to call them on it (or to create better alternatives). Permissionless innovation is not just a slogan, it's incredibly effective -- and misusing copyright law to prevent it, out of the fear that something bad might possibly happen, without recognizing all the good that is much more likely to come from it, is really dangerous. We're only just learning that now because of what's finally come out in the news about VW, but getting rid of the stupid anti-circumvention clause in the DMCA would go a long way towards actually fixing this mess, rather than relying on bureaucrats whose defacto response is to say "don't do that."

Filed Under: 1201, anti-circumvention, copyright, copyright office, dmca, dmca 1201, emissions, epa, fda, innovation, library of congress, permissionless innovation, research, ron wyden, security

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

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