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Submitted by Donald Robertson on December 31, 2015 – 7:35am
The Defective by Design campaign has called for the repeal of the Digital Millennium Copyright Act (DMCA)’s anti-circumvention provisions for many years. In April of 2015, we explained the central problem of these provisions, as well as the exemptions process meant to mitigate their damage:
Every three years, supporters of user rights are forced to go through a Kafkaesque process fighting for exemptions from the anti-circumvention provisions of the DMCA… In short, under the DMCA’s rules, everything not permitted is forbidden. Unless we expend time and resources to protect and expand exemptions, users could be threatened with legal consequences for circumventing the digital restrictions management (DRM) on their own devices and software and could face criminal penalties for sharing tools that allow others to do the same. Exemptions don’t fix the harm brought about by the DMCA’s anti-circumvention provisions, but they’re the only crumbs Congress deigned to throw us when they tossed out our rights as users.
In November of 2015, we wrote about the latest round’s failure to protect users, and called once again for an end to the anti-circumvention provisions and the broken exemptions process. While we and other organizations succeeded in gaining some exemptions for users, the dysfunctional system remained in place.
After all this speaking out, it seems that someone has begun to listen. On December 29th, 2015, the United States Copyright Office put out a Notice and Request for Public Comment on the anti-circumvention provisions of the DMCA. Congress asked them to study the effects of the anti-circumvention rules and the process of granting exemptions. From their description of the background, as well as the questions they ask of the public, it is clear that our criticisms are finally being heard.
We called foul on the fact that activists had to work so hard to protect exemptions once they were granted, and now the Copyright Office recommends that the process be amended to create a presumption in favor of renewal of previously granted exemptions. We decried the expansion of the danger of DRM beyond the realm of copyright, and now the Copyright Office is concerned that DRM is being used to lock users in rather than enforce copyright. We urged that exemptions should extend to third parties and to the sharing of tools for fixing software and devices encumbered by DRM, and now the Copyright Office recognizes that exemptions often are of little value if you can’t get help from your friends. We called the whole process broken beyond repair and now the Copyright Office is asking the public how it can be fixed.
And that’s where the problem lies. While our criticism of the DMCA’s anti-circumvention rules and the exemption process seems to be breaking through, the necessary solution has not. No amount of exemptions or an improved process for granting them will correct the fundamental flaw at the heart of these provisions: that users do not have the right to control their own devices. The only way to fix the system is to scrap it and remove the DMCA’s anti-circumvention penalties. While we applaud the Copyright Office for listening to our complaints, we want to make sure that they make the right correction. And we want you to help.
We will be submitting comments to the Copyright Office in response to their request, calling for an end to the madness. But to have the largest impact, we want you to send comments as well, or to cosign our statement when we submit it. We will be providing more details on that process shortly, so be ready. Here’s what you can do today:
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