[Stockholmspirater] Nyhetstips: Copyright Office anti-circumvention study failed, fight back by July 30th

PP Gagarin Miljkovich gagarin.miljkovich at piratpartiet.se
Sat Jul 29 06:07:48 CEST 2017

Inressant läsning.

"Copyright Office anti-circumvention study failed, fight back by July 30th"

Read online: https://www.defectivebydesign.org/blog/copyright_office_


The U.S. Copyright Office finally published its study on the DMCA's
anti-circumvention provisions, and is launching into the next round of the
exemptions process.

*We need your help by July 30th to support our comment to the Copyright
Office calling for renewal of all previously granted exemptions.*

We wrote previously
about the U.S. Copyright Office undertaking a study of the Digital
Millenium Copyright Act's (DMCA) anti-circumvention provisions and the
exemptions process. These provisions present legal penalties for anyone
looking to take back their rights to works encumbered by Digital
Restrictions Management (DRM). As we explained
several years back, the current system is completely broken:

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 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.

With your help, we were able to make a push for ending this intrinsically
flawed system. But the Copyright Office recently published its study
<https://www.copyright.gov/policy/1201/section-1201-full-report.pdf> (PDF),
and the results are downright sad. Instead of using this study as an
opportunity to make things right, the Copyright Office chose instead to try
and polish up the status quo. And with the study out of the way, they are
diving right back into another round of exemptions with few substantive

We want to explain the results of that study, and then ask once again for
your help in this seemingly unending fight. Most of the recommendations in
the study are aimed at the U.S. Congress. The anti-circumvention rules and
exemptions process is mandated by law, so many of the problems it creates
will require a legislative repeal. There are some bits, however, that the
Copyright Office believes are within its discretion. Keep that in mind as
we discuss the good and (mostly) bad contained within.
Permanent exemptions

The study suggests creating additional categories of permanent exemptions.
One of the most frustrating aspects of the exemptions process is the need
to re-litigate previously won exemptions every three years. If an exemption
isn't submitted and supported again during each triennial rulemaking
period, it will lapse, and users who previously relied upon that exemption
will be left out in the cold. The Free Software Foundation advocated for
granting permanent exemptions for all uses, but the Copyright Office is
more interested in half measures. These are the additional categories they


   *Assistive technologies for literary works*. While allowing users to
   avoid DRM in order to be able to actually read the works they buy or
   receive is certainly a step in the right direction, why stop there? Users
   don't just need assistive technology when it comes to books; they need it
   for films, video games, and other types of works.

   *Unlocking cell phones and tablets*. We wrote about the disaster
   <https://defectivebydesign.org/2014-cellphone-unlocking-bill> that
   previously occurred when the Copyright Office failed to renew the exemption
   for carrier unlocking cell phones. Congress had to step in to recover the
   right, and clearly the Copyright Office doesn't want to repeat that
   particular mistake again. At the time of the bill, even in restoring
   unlocking for cell phones, tablets were left out in the dark. The FSF
   called for allowing unlocking of all devices, including tablets. So it is
   good to see that some progress has been made on this front.

   *Repair and maintenance, but not modification*. One of the nastiest
   battles from the last round of exemptions focused on the right to repair.
   Automotive and tractor companies lined up to restrict the ability of their
   customers to access the code lying beneath their engines. The DRM on
   vehicles could hide all sorts of nasty things, such as software used to
   defeat emissions tests. Here, the Copyright Office recommended a permanent
   exemption for repair and maintenance, which goes beyond just vehicles, but
   stops short of permitting modifications. Being able to modify the code you
   run on your own devices is a key component of software freedom, and
   modification of vehicles also has a long history. Failing to extend the
   permanent exemption for the right to modify is a major failure.

Sharing tools and helping your friends, family, and colleagues

One area we pushed particularly hard on was the right to share tools with
your community. Most people can't fix their devices and software on their
own, so they need tools or even help from their friends. Even when an
exemption is granted, it may be of no practical value to the average user,
as they do not have the time or expertise to perform repairs on their own.


   The Copyright Office starts off by commenting that *creating
   circumvention tools for your own use may not be prohibited, so no change is
   in needed in that regard*. Of course, that fixes nothing for most users.
   The complaint is that they cannot take advantage of an exemption without
   proper tools, but that issue obviously doesn't apply to those who can make
   their own.

   *The Copyright Office then argues that sharing tools should remain
   illegal*. This is the biggest single betrayal in the whole report. It's
   like saying it's legal to modify your kitchen table, but it's illegal to
   buy, sell, or borrow hammers or nails. Without being able to share or
   receive tools that enable you to avoid DRM, you most likely won't be able
   to control your own computing in any real sense.

   Finally, they turned to third-party assistance. They think that they've
   found a solution, but it's the same broken system we have been fighting
   against. *The study suggests allowing third parties to help remove DRM
   via granting particular exemptions*. For many users, it's often easier
   to have a friend or service avoid the DRM on works rather than trying to do
   so on your own. The Copyright Office sees the value in users being able to
   turn to a third-party for assistance in unlocking DRM-shackled works, but
   wants to control who can do the unlocking and when they can do it. What
   they suggest is that Congress should allow them to grant exemptions for
   third-party assistance, expanding their mess of a system to a new domain.
   Doubling the process for adding exemptions for assistance fixes nothing.

The broken process itself

As part of their study, the Copyright Office took a look at the process
itself, but only decided to try to plug a few holes in the sinking ship,
rather than looking for a lifeboat.


   *Presumption of renewal*. Rather than just making all exemptions
   permanent, the Copyright Office wants to shift the burden of proof when it
   comes to renewal. That would be a minor improvement, if it weren't for the
   massive imbalance of power between those who are pushing for freedom and
   the mega corporations and associations who want to extend their domination.
   Shifting the presumption here is like putting your pinky on a balance that
   has an elephant sitting on the other side.

   *Nonfree software still required to submit comments*. The Copyright
   Office previously refused to accept our comments
   at all unless they were submitted via the regulations.gov interface,
   which requires nonfree Javascript
   <https://www.gnu.org/philosophy/javascript-trap.en.html>. Given that
   they quoted us in the study, it looks like we got through this time. But
   the Copyright Office still lists regulations.gov as the only way to
   submit comments without having to ask for special permission.

   Finally, we come to a change that the Copyright Office believes it can
   implement without congressional involvement: *simplifying the paperwork*.
   Towards that end, the Copyright Office announced the next round of the
   triennial exemptions process, this time kicking off with a separate phase
   looking solely at renewals. This is where our work begins anew.

What we do next

We're very much in a similar place as we were before the study was
launched. If Congress follows through on implementing the recommended
changes, we will still have anti-circumvention rules threatening users with
legal penalties. We will still have a broken exemptions process that wastes
our time and resources should we choose to participate, and further
diminishes our rights if we don't participate. When Congress asked the
Copyright Office to conduct this study, they were providing a great
opportunity to make real positive change. But the Copyright Office chose
not to take advantage, offering milquetoast recommendations and spit-shine
fixes. So the fight will continue.

This is where you come in. That accelerated process for renewal? It's
already begun. We have until July 31st to renew all the exemptions we won
in the last round. And we're going to fight for each and every one of them.
Will you lend your voice in support of our comment to renew all exemptions?

Here's what you can do to help:

   - Support our renewal submission by *July 30th* by emailing us at
   licensing at fsf.org. We just need your name and state (or country if you
   are outside the U.S.) to add your voice to the chorus.
   - Support our work in this area by chipping in $5, or more, if you can

Donald Robertson III
Licensing and Compliance Manager

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Defective by Design is a campaign of the Free Software Foundation:
51 Franklin St, Fifth Floor
Boston, Massachusetts 02110-1335
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