WASHINGTON, D.C. – The Re:Create Coalition released the following statement reacting to the Library of Congress’ release of exemptions to the Digital Millennium Copyright Act’s (DMCA) 1201 anti-circumvention rules:
“The new exemptions granted today by the Library of Congress, which include enabling consumers to unlock their tablets and smartphones and allowing researchers to investigate security flaws in vehicles, are absolutely necessary and appropriate. But, they are not nearly sufficient. These exemptions do not solve the real and much bigger problem: that copyright law, and particularly Section 1201 of the DMCA, needs fundamental and comprehensive reform. Lawful users shouldn’t have to shoulder the burden of going through this challenging process every three years (particularly just to renew existing exemptions), and the Librarian of Congress should not have to venture into areas beyond its and the Copyright Office’s expertise like cybersecurity and auto emissions standards in order for efforts in those areas to continue. What is worse, with the proliferation of software-enabled devices, we can expect an ever-increasing need for more exceptions and the DMCA rulemaking proceedings drifting further afield from true copyright law and policy.
“The core issue is that the presumption of infringement in the statute is backwards. Consumers shouldn’t need to seek an exemption for lawful activities just because those activities require circumventing DRM they didn’t ask for and don’t want. This is one area we should all be able to agree on,” said Tina Pelkey, spokeswoman for Re:Create.
— What Re:Create Members Are Saying —
Adam Eisgrau, American Library Association: “The triennial 1201 rulemaking is a statutory ‘Rube Goldberg’ contraption for which there should never have been a need in the first place. Prioritizing ‘technological protection measures’ over the Framers’ goal of promoting ‘progress of science and useful arts’ by maximizing the public’s ability to lawfully use copyrighted material was a major mistake when the DMCA was passed. It’s past time to correct it.”
Erik Stallman, Director of Open Internet Project, Center for Democracy & Technology: “Looking to the proceeding as a whole, the Librarian granted a number of exemptions that respond to consumers’ growing expectations to use, repair, and modify the content, vehicles, and other devices they own in the manner they choose. At the same time, many of the granted exemptions contain complicated qualifications and limitations that could undermine their usefulness. The sheer complexity of some of the granted exemptions — and the need to re-request them every three years — suggests that DMCA rulemaking proceedings are simply not the best vehicle for industrial policymaking where copyright infringement is, at most, a tangential concern. While there is a lot to like in the rule released today, it also points to the need for a broader conversation on the purpose and scope of the DMCA triennial review.”
Corynne McSherry, Legal Director, Electronic Frontier Foundation: “It’s absurd that we have to spend so much time, every three years, filing and defending these petitions to the copyright office. Technologists, artists, and fans should not have to get permission from the government—and rely on the contradictory and often nonsensical rulings—before investigating whether their car is lying to them or using their phone however they want. But despite this ridiculous system, we are glad for our victories here, and that basic rights to modify, research, and tinker have been protected.”
Wayne Brough, FreedomWorks: “While it’s good to see the exemptions that have recently been granted, a much larger concern is the overall exemption process. The DMCA turns the notion of permissionless innovation on its head. As the internet expands and smart technology is embedded in more and more consumer products, the Copyright Office is quickly moving into territory far beyond its original purview and is struggling to address concerns such as unlocking cell phones or tinkering with cars. Broader reforms are required to ensure consumer choice is not unnecessarily restricted.”
Laura Moy, Senior Policy Counsel, Open Technology Institute: “We applaud the Librarian of Congress, with input from the Register of Copyrights and National Telecommunications and Information Administration, for taking steps to clear up some legal murkiness that chills crucial security research. Today’s rules recognize that security research, even when it breaks digital locks, does a valuable service to society. Unfortunately…[the] rules still make it difficult for researchers to determine at the outset of a new project whether their activities are legal…It’s time for Congress, the Copyright Office, rightsholders, and the public to work together to update the DMCA, and we look forward to collaborating with others to do so.”
Sherwin Siy, Vice President for Legal Affairs, Public Knowledge: “Even though the law clearly allows consumers to move their media between their personal devices, the Librarian of Congress and the Register of Copyrights allow the smallest mote of uncertainty to keep a common-sense activity illegal…the fact that the Library and the Copyright Office have to consider things like vehicle repair and research, or cellphone unlocking, or glucose monitors, indicates the breadth of the burden placed upon consumers to ensure they aren’t violating copyright law. The fact that they have made these considerations indicates that we are making slow progress in adjusting to the legal regime created by this law…”