17 USC § 1201, DMCA Exemptions and Software Freedom

by Bradley M. Kuhn on December 16, 2020

We at Conservancy spent much in the last week preparing our Long Comments in our DMCA exemptions requests for this round. When we announced these exemption filings, many of our Supporters asked us to “back up and explain” what this whole process is and why Conservancy participates. These are excellent questions and so we provide below a simple explanation of the DMCA exemption process, why it exists, and why FOSS-friendly organizations like us chose to participate in what is ultimately a flawed process.

The provisions of the DMCA were designed to support DRM with the power of civil (and in some cases, criminal) law. Media companies, seeing that digital distribution of content would likely become the standard, sought an iron grip on their business models and gain absolute control of their copyrighted works — making it effectively impossible for FOSS to exist for reading books, watching movies, or listening to podcasts or music. The law is morally wrong because it it seeks to criminalize publication of some software techniques and knowledge, and, moreover, the law creates “chilling effects” for everyone in the USA who might consider writing FOSS that is on the edges of such the law's technological restrictions. We saw just in the last few months how organizations like the RIAA can use the DMCA to harm FOSS projects. Since the law has been enacted, DRM has become ubiquitous. Those who write FOSS that even comes near the job of circumventing DRM live in fear.

The dangers of such regulation are obvious to most FOSS activists and technologists. However, to people less savvy about technology, the purported “compromise” struck in the DMCA can seem perfectly reasonable. 17 USC § 1201 prohibits “circumvention [of] technological measures” put in place to stop acts that were otherwise illegal. To those not well versed in copyright policy, this would of course seem no different than other updates to laws for the digital area — such as assuring existing crimes in real life were also crimes when committed over the Internet. For those of us who understand technology and software, the compromise is not reasonable; DMCA made a digital action a crime that had never been a crime when done in analog — publishing technological know-how to improve and repair devices that we own. The DMCA ultimately gave carte blanche and the force of law to ubiquitous DRM.

The main part of the statute that accomplishes this is 17 USC § 1201(a)(1)(A). Ostensibly, §1201(a)(1)(B-C) provide limitations that rein (A) back. Take a read of these sections and then follow along here in parallel. (A) uniformly forbids “circumvention of” a DRM measure implemented by a copyright holder. (B) tells us that we, the public, can come forward once every three years to to identify technological measures we should have the right to circumvent. If we can prove (per (C)), that there are legitimate non-infringing activities that we could imagine engaging in by circumventing the technology restrictions and we can convince the Copyright Office that those circumventions would indeed legitimately aid in non-infringing uses of the DRM'd copyrighted works, then — and only then — can we circumvent a technological measure that effectively controls access to a work. That's the basics of the exemption process.

For a more detailed understand of how the process works, there are three videos from the Copyright Office:

While the material unfortunately includes significant pro-DRM propaganda, it does explain 17 USC §1201 quite well. The TL;DR summary is as follows:

Basic Overview of 17 USC §1201

First, §1201 is primarily concerned with so-called “Technological Protection Measures” (generally abbreviated “TPM” in DMCA policy circles). A TPM is defined broadly to include any access control, including scrambling, encryption, password protection and the like.
§1201 prohibits circumvention of a TPM implemented for access controls to a copyrighted work.
§1201 prohibits dissemination of information (both commercially and non-commercially) that explains how to circumvent a TPM put in place for either access controls, or copy prevention of work. (The statute and the Copyright Office use the pro-DRM term, “trafficking”, for such activity. We use the term “dissemination” to avoid supporting that propaganda.) If you've heard us and others talk about how the DMCA squelches Free Speech (or are familiar with the phrase “chilling effects” that we activists have argued are produced by DMCA's mere existence), this is the part of §1201 that relates to those issues.
Exemptions to these rules exist. The law itself has some permanent exemptions, listed in §1201(d-j). These permanent exemptions are useful but certainly don't permit unbridled development of FOSS software that might be considered a circumvention technique.
All other exemptions are temporary. The exemption process happens every three years — hence the term “Triennial Rulemaking”. There is a rulemaking process occurring right now, and here's a summary of how that works:

The Triennial Rulemaking Process

A temporary exemption is only granted for uses of copyrighted works that are otherwise non-infringing (i.e., only §1201 restrictions cause infringement, and there must be no infringement due to any other part of the copyright act).
The Copyright Office Exemptions are never permitted to the “dissemination prohibitions”, only for use and access. (Only Congress can change anything regarding actual dissemination of circumvention techniques. This is particularly troubling for many reasons, including that the WCT, the international treaty that DMCA intended to implement, only mandated the access control issue, and does not speak to dissemination of general circumvention information. Most DMCA-like laws in other countries are not as strict. But in the USA, there is simply no way to get an exemption for dissemination of circumvention techniques — other than lobbying for legislative change.)
Exemption applicants must show that there is current adverse impact due to TPMs for the public regarding the non-infringing uses that the exemption would allow. (Alternatively, the applicant, may show that there will be such adverse impact within three years.)
Hypothetical and theoretical arguments are not accepted. Applicants must show that specific people will (or soon will) suffer adverse effects when unable to engage in real-world non-infringing uses that are directly prevented by a specific TPM and that circumvention would enable those non-infringing uses to resume and/or continue.
The Rulemaking process itself proceeds as follows:
- The Office issues an NPM, which is the standard method by which any Administrative Branch agency announces a process where new rules will be made.
- Round1: Petitioners make an initial filing to indicate that they'll apply for an exemption and its primary impetus. These are short, and were filed on 2020-09-08 for the 2021 Rulemaking.
- Petitioners and others can then make supportive public comments. Those are what were due on Monday (2020-12-14) for the 2021 Rulemaking. (We'll have follow up blog posts about our filings throughout this week and next.)
- Round 2: opponents may file objections and disagreements. We'll of course expect to see lots of software-freedom-unfriendly vendors making arguments against our filings during that period, and we'll point our blog readers to any filed in opposition of our exemption requests.
- Round 3: reply comments from the Petitioners (and neutral comments from others) are allowed.
- Finally, Round 4: public hearings occur, which are optional. Conservancy participated in the public hearings in the 2015 year Rulemaking when we successfully requested the exemption for “smart” TVs.
Note, finally, that there is an expedited process for renewal of temporary exemptions, which Conservancy also participated in for the TV exemption originally granted in 2015 and renewed in 2018.

For many activist organizations, the question often becomes whether to participate in or boycott this process. The process places the burden on underfunded activist organizations to make a case just to permit what are ultimately extremely narrow areas of activity. (Remember that the Copyright Office's position is that exemptions are never granted for circumvention dissemination, only access, so the temporary exemptions are both narrowed in that scope and narrowed to specific types of devices or activities.) Conservancy, like EFF, used to be among those who boycotted this process. Reforms — which were sought by CDT, EFF, Public Knowledge, Public Labs, and other organizations — in recent years have improved the process, but it remains time-consuming and painful. However, given that there is no viable political will or path to seek repeal of the DMCA, we're stuck with this process. Just as copyleft is designed to utilize the general copyright system — which most FOSS activists (at least) find problematic or (in many cases) oppose outright — we must similarly work, with regard to this specific part of the Copyright Act, within the system to find our way through. Conservancy has focused our filings in the process on those areas that most directly impact software freedom, and we look forward to telling you more about them this week.

Meanwhile, the dangers we face from the parts of the DMCA that cannot receive exemptions are real. People have been put in prison for “trafficking” under this statue; a company can, as Adobe did, simply phone the FBI to get someone arrested. Companies like Sony can drag in the Feds into civil cases to apply pressure for demand of unreasonable settlements. As long as we live in a regime willing to tolerate this kind of policy, we have to make use of the process we have to improve the odds that FOSS developers and researchers don't face both civil and criminal penalties.

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