If you’re fairly new to the copyright reform scene and are wondering what the deal is with the Digital Millennium Copyright Act, Wired has a great explainer that discusses both major problem areas of the law in some detail, as well as rounding up a number of the most egregious abuse cases.
The DMCA has two problematic sections: section 1201, which deals with the circumvention of copy-protections, and section 512, which allows a copyright holder to send a so-called takedown notice to web sites and others believed to be infringing a copyright. Both have been abused by companies for purposes unrelated to copyright protection, which has led civil liberties groups and others to call for reform of the law to clarify its scope. For example, companies have used it to thwart competitors and to stifle free speech and security research.
The area we’re most interested in on TeleRead is, of course, section 1201 and its copy-protection anti-circumvention provision. Wired touches on cases where companies such as Lexmark, Apple, Hewlett-Packard, Ticketmaster, and John Deere have used it to protect their business models. It also points out that Volkswagen’s anti-pollution system fraud could have been uncovered far more easily if security researchers hadn’t been too concerned over getting sued if they cracked into Volkswagen cars’ onboard software.
The piece also touches on the problems with prying exemptions out of the Librarian of Congress:
The Librarian of Congress, along with the Copyright Office, is responsible for approving exemptions and over the years have done exactly this for various purposes. But the process of submitting exemptions is long and arduous and requires that those submitting requests provide extensive evidence of a need. And even when exemptions are granted, they are generally very narrow in scope and only last for three years, after which they have to be renewed or they expire. In 2006, for example, the Librarian approved a long-sought exemption to allow smartphone owners to jailbreak their devices in order to switch carriers. That exemption got expanded in 2009 to include jailbreaking for any purpose. But in 2013, the jailbreaking exemption for smartphones expired and wasn’t renewed.
This is an area near and dear to my own heart, given that I submitted a proposal for permitting cracking e-book DRM, which was subsequently rejected. I wasn’t too surprised by the rejection, given that the way the law is set up, the LOC basically has a lot more incentive to reject exemptions than to approve them. Approving an exemption could be seen as nullifying a significant part of the law that Congress passed, and the Librarian isn’t going to take such a major step unilaterally. But that very setup has proven problematic enough that Congress is taking another look at reforming it. Hopefully it meets with more success than prior attempts.
The DMCA notice and takedown process has become problematic, too—even as, ironically, it’s probably largely responsible for the way the Internet has grown and flourished since it was originally passed. The “safe harbor” provision, in which web sites and Internet service providers received immunity from prosecution for users’ copyright violations as long as they acted promptly to remedy them when someone called the violations to their attention, removed the most worrisome risk from hosting creative content, and allowed user-content sites like YouTube to grow and flourish.
But now it’s become a bone of contention as the recording industry complains that it serves as a shield for pirates to upload and reupload tracks to YouTube, while at the same time YouTube content creators complain that it allows rights-holders to quash fair uses of excerpts from (or even mentions of) their content, with no risk of being punished for abusing the process. This provision is also being investigated for reform, though early reports are not optimistic about how effective the reform process will be.
In any event, the Wired article does a good job of summing up the issues at hand, even as it doesn’t directly mention much about e-books along the way. But then, that’s what the links in this article are for!